Stereo.

HCJDA 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Civil Revision No.2584 of 2014

Roshan Iqbal Versus Nazar Muhammad and others

JUDGMENT

Date of hearing: 19.10.2023

Petitioner(s): Mr. Abdul Qadus Rawal, Advocate

Respondent(s): M/s Sh. Usman Karim Ud Din, Rana

Toqeer, Ghulam Abbas Haral and Barrister
Faridoon Kamran, Advocates for
respondents No.1 to 4

M/s Ch. Abdul Salam, Taqi Hassan and

Nusrat Ali Joiya Advocates for respondent
No.5

SHAHID BILAL HASSAN-J: Succinctly, the respondents

No.1 to 4 instituted a suit under sections 39 & 42 of the

Specific Relief Act, 1877 alongwith consequential relief,

contending therein that they purchased land measuring 117-

Kanals 17-Marlas from one Mehboob Elahi son of Mian

Muhammad Akram vide sale deed No.449 registered on

19.10.1988 for a consideration of Rs.2,400,000/-; that after

purchase, the possession of the land was delivered to them at

the site; that a mutation for sale on the strength of the said sale

deed at Sr.No.1057 of the register of mutations pertaining to

village Ghazipur, Tehsil Ferozwala District Sheikhpura and the

same was sanctioned in favour of the respondents on

C.R.No.2584 of 2014 2

27.12.1988. However, the said sale was pre-empted by Iftikhar

Ahmad, respondent No.5. Simultaneously, Sheikh Faqir Ullah

son of Mian Muhammad Aslam of Sharaqpur Sharif also

instituted a suit for possession through pre-emption against the

respondents No.1 to 4. During pendency of both the suits, both

the pre-emptors opted for the suit land against the payment of

Rs.2,400,000/- and persuaded the respondents No.1 to 4 that the

suit for pre-emption be decreed for a consideration of

Rs.2,400,000/-. Later on, due to the change of law of pre-

emption, both the pre-emption suits were likely to fail. Iftikhar

Ahmad, respondent No.5 alongwith other, therefore,

approached the respondents No.1 to 4 and offered to purchase

the disputed land for a consideration of Rs.2,400,000/- outside

the Court and the bargain was struck, a token money of

Rs.160,000/- was received by the respondents No.1 to 4 and

respondent No.5 persuaded the respondents No.1 to 4 to put

their respective signatures on blank papers as well as certain

other papers with the assurance that the sale shall be reduced

into an agreement. Allegedly, Iftikhar Ahmad, respondent No.5,

being sitting Member of Punjab Assembly, belonging to ruling

party was a resourceful and influential person at that time. He

after procuring the signatures of respondent No.1 to 4 over

number of blank papers and certain printed proformas and

stamp papers withdrew his suit for possession through pre-

emption regarding the disputed land. Respondents No.1 to 4

C.R.No.2584 of 2014 3

requested him repeatedly to pay the remaining sale amount and

get the sale deed executed and registered in his favour but the

respondent No.5 postponed the matter. Meanwhile, respondent

No.5 and his accomplice Muhammad Anwar son of Fazal Din

and Khairat son of Abdullah took forcible, illegal an

unauthorized possession of the disputed property with ulterior

motive and nefarious designs during month of November 1989.

Respondents No.1 to 4 called upon Iftikhar Ahmad to restrain

alongwith his accomplice from the above act but they were

made to wait. Respondents No.1 to 4 instituted suit for redressal

of their grievance and restoration of possession of the suit land

which was decreed in their favour and against respondent No.5

etc. on 13.03.1991 by the learned trial Court. Respondents No.1

to 4 filed execution petition on 27.07.1991 and the learned

executing Court called upon respondent No.5 and others to

submit their reply. At that stage, Iftikhar Ahmad respondent

No.5 broke the news that he suit land had been transferred to

his brother Roshan Iqbal, the present petitioner but did not

disclose the nature of transaction. Iftikhar Ahmad, respondent

No.5, later on filed application under Order IX, Rule 13, Code

of Civil Procedure, 1908 on behalf of Khairat son of Abdullah

and also got filed application under section 47, Code of Civil

Procedure, 1908 on behalf of the present petitioner, challenging

the jurisdiction and authority of the executing Court.

Application under section 12(2), Code of Civil Procedure, 1908

C.R.No.2584 of 2014 4

was also got filed by respondent No.5 against the respondents

No.1 to 4 wherein it was disclosed for the first time that the suit

land had been transferred in favour of Roshan Iqbal, the present

petitioner, vide mutation No.1173 dated 11.07.1990 in

exchange of land measuring 147-Kanals 12-Marlas owned by

the present petitioner, situated at Khewat No.63 of village

Rorha, Tehsil Ferozewala and mutation No.168 dated

17.07.1990 was attested in this regard. Entry of this mutation of

land of village Rorha in favour of respondents No.1 to 4 and of

course entry of mutation No.1173 dated 11.07.1990 of the

disputed land had been result of fraud, forgery,

misrepresentation, undue influence, without appearance of the

respondents No.1 to 4 and without any consideration. These

mutations of exchange had been attested without any authority

and the same were result of misrepresentation, undue influence,

want of consideration and were illegal, unlawful and void ab

initio. Respondents No.1 to 4 asked the present petitioner and

respondent No.5 not to claim anything in respect of land of

respondents No.1 to 4 and not to pose themselves to be owners

of the land in disputed but they did not submit to their rights.

Possession of the suit land was not transferred under mutation

of exchange No.1173 dated 11.07.1990. Respondents No.1 to 4

did not take possession of the alleged exchanged land as the

same was lying with the present petitioner. Respondents No.1

to 4 came to know after inquiry that respondent No.5 as MPA

C.R.No.2584 of 2014 5

of ruling party prevailed upon the revenue field staff as well as

the office of ADBP Sharaqpur Branch to enter mutation

No.1172 dated 11.07.1990 about redemption of suit land which

had been mortgaged with the ADBP and the consequent

mutation of exchange. The respondents No.1 to 4 contended

that they were being harassed and threatened and the present

petitioner and respondent No.5 refused to admit their rights;

hence, the suit.

2. The present petitioner and respondent No.5

contested the suit by submitting separate written statements and

while controverting the averments of the plaint prayed for

dismissal of the suit. The divergence in pleadings of the parties

was summed up into issues and evidence of the parties in pro

and contra was recorded.

3. On conclusion of trial, the learned trial Court vide

impugned judgment and decree dated 08.12.2006 decreed the

suit in favour of the respondents No.1 to 4 and against the

present petitioner and respondent No.5. Appeal was preferred

by the petitioner which was accepted on 22.12.2010 and suit of

respondents No.1 to 4 was dismissed. The respondents No.1 to

4 preferred R.S.A. No.46 of 2011, which was accepted with the

consent of the learned counsel for the parties on 20.05.2014 and

while setting aside the judgment and decree dated 22.10.2010

passed by the learned appellate Court, remanded the case to the

learned appellate Court for decision of appeal afresh. After

C.R.No.2584 of 2014 6

remand, the learned appellate Court heard the parties’ counsel

and vide impugned judgment and decree dated 02.07.2014

dismissed the appeal preferred by the present petitioner; hence,

the instant revision petition.

4. Learned counsel for the petitioner has argued that

the impugned judgments and decrees are against law and facts

of the case; that the learned courts below have failed to discuss

evidence on record especially when the respondents No.1 to 4

have failed to discharge the onus placed on their shoulders; that

the learned Courts below have appreciated evidence in a

slipshod manner and overlooked the admissions made by the

respondents No.1 to 4 in the course of evidence regarding the

exchange deed; that the impugned judgments and decrees suffer

from misreading and non-reading of evidence; that it is a settled

law that evidence beyond pleadings cannot be considered being

inadmissible and when allegation of undue influence, fraud and

forgery was not attributed to the present petitioner in pleadings

rather to the brother of the petitioner i.e. respondent No.5, who

has nothing to do with the matter in hand, the evidence in

respect of fraud and undue influence against the present

petitioner cannot be considered; that the evidence of D.W.6 has

been misread by the learned appellate Court; that there are

material contradictions in evidence of the respondents No.1 to 4

but the same have been overlooked; that the suit was also bad

because no possession was sought for because the possession of

C.R.No.2584 of 2014 7

the suit land was with the petitioner and not with the respondent

No.5 from the date of attestation of the exchange mutation as is

evident from Khasra Girdawri Ex.D/34 and the respondents

No.1 to 4 are in possession of the exchanged property,

photocopy of Khasra Girdawri was produced on record in this

regard but the same was overlooked; that revenue officer and

officials appearing as D.Ws. have supported the stance of the

petitioner and no ill-will or enmity was attributed to them

therefore, there evidence was an independent piece of evidence

but the same was discarded for no reason by the learned Courts

below while passing the impugned judgments and decrees; that

material illegalities and irregularities have been committed by

the learned Courts below while have resulted in miscarriage of

justice; therefore, the impugned judgments and decrees are not

sustainable in the eye of law. The same may be set aside by

allowing the revision petition in hand and suit of the

respondents No.1 to 4 may be dismissed with costs throughout.

5. Naysaying the above said submissions, the learned

counsel, representing the respondents No.1 to 4, has, by

supporting the impugned judgments and decrees, concurrent in

nature, prayed for dismissal of the revision petition in hand.

6. Heard.

7. Article 117 of Qanun-e-Shahadat Order, 1984

provides that whoever desires any Court to give judgment as to

any legal right or liability dependent on existence of facts which

C.R.No.2584 of 2014 8

he asserts, must prove that those facts exist. Moreover, Order

VI, Rule 4 of the Code of Civil Procedure, 1908 enunciates

that, ‘in all cases in which the party pleading relies on any

misrepresentation, fraud, breach of trust, default, or undue

influence, and in all other cases in which particulars may be

necessary beyond such as are exemplified in the forms

aforesaid, particulars (with dates and items necessary) shall be

stated in the pleadings.’ However, in the case in hand, the

respondents No.1 to 4 could not substantiate the stance taken up

in the plaint and could not chain the links of alleged fraud and

misrepresentation because the same was pleaded against the

respondent No.5 and not against the present petitioner, who is

beneficiary of the exchange mutation; therefore, any evidence

led by the respondents No.1 to 4 pertaining to fraud,

purportedly committed by the present petitioner, cannot be

considered being inadmissible as the same was not pleaded in

their plaint because a party cannot go beyond its pleadings as

has been held in judgments reported as Sh. Fateh Muhammad v.

Muhammad Adil and others (PLD 2008 SC 82), Hyder Ali

Bhimji v. Additional District Judge Karachi South and another

(PLD 2012 SC 279) and Muhammad Aslam and others v.

Muhammad Anwar (2023 SCMR 1371). Furthermore, the

respondents namely Nazar Muhammad and Muhammad

Ahmad, while appearing in the witness box as P.W.3 and P.W.4

have categorically admitted, during cross examination, that the

C.R.No.2584 of 2014 9

disputed exchange mutation No.1173 bear their signatures and

thumb impressions of their brothers and they did not agitate or

protest at the time of attestation of the disputed mutation and

even they did not move any application before the competent

authority for initiation of proceedings against the present

petitioner and respondent No.5 for purported fraud, forgery and

misrepresentation, which shows that they were satisfied with

the transaction at the relevant time. P.W.3, during cross

examination, deposed that after taking of possession by the

petitioner and respondent No.5, the respondents No.1 to 4 did

not pay Abiyana. This witness further deposed that they did not

institute suit for recovery of mesne profit and share of produce

and also did not interfere in possession of the petitioner. Had

the possession over the disputed property been made by the

petitioner otherwise that in pursuance of exchange mutation, the

respondents No.1 to 4 would have agitated the matter before

any forum but no such exertion was ever made by them and

even at the time of attestation of exchange mutation they did

not protest. Even P.W.4 during cross examination admitted that

they (three brothers) and 3/4 other persons went for the purpose

of mutation No.1173, which speaks volume and proves the

stance of the petitioner that the exchange mutation No.1173

was validly entered and executed and the respondents No.1 to 4

voluntarily exchanged their land with the land of petitioner. In

C.R.No.2584 of 2014 10

judgment reported as Abdul Ghafoor and others v. Muhammad

Murad and others (2022 CLC 1713), it has been held that:-

‘8. Admittedly the suit land was mutated in the

record of rights in the names of respondents/
defendants at the time of final attestation. The
petitioners/plaintiffs had raised no objection.
There is no evidence on record that the petitioners/
plaintiffs were not present at the time of final
attestation. Under section 52 of the West Pakistan
Land Revenue Act, 1967 (Act 1967) the mutation
carries presumption of truth.’

In addition to the above, it is not the case of the respondents

No.1 to 4 that they are illiterate persons and do not know the

pros and cons of the transaction rather it is admitted on record

that P.W.4 was serving as Hawaldar at that time and his brother

namely Ishaque, who executed general power of attorney in

favour of P.W.4, was serving in rangers. When the position is

as such that the respondents No.1 to 4 have failed to discharge

the initial burden of proving alleged fraud, forgery and

misrepresentation, the burden of proving the valid execution of

exchange mutation was not shifted upon the petitioner.

8. However, the petitioner produced D.W.1-Abdul

Ghaffar, Bill Clerk, D.W.2 Naseer Ahmad Malik, Manager

ADBP, D.W.3 Shakil Tariq, Registry Moharrir, D.W.4

Mubarak office Qanoongo, Tehsil Ferozwala, who produced

Part Sarkar of mutation No.1173, D.W.5 Safdar Ali Patwari,

who produced Part Patwar of mutation No.1173, D.W.6 Nazeer

C.R.No.2584 of 2014 11

Ahmad, who is Pattidar in Ghazipur who supported the stance

of the petitioner that the respondents namely Nazar

Muhammad, Muhammad Ahmad and Liaqat Ali came for

exchange mutation [(No. 1173 (Ex.D1)] in the office of Patwari

in his presence and he also deposed that on 11.07.1990 Naib

Tehsildar Bashir Ahmad Bhatti came in the village in his

presence, where 40/50 other persons were also present and

Nazar Muhammad, Muhammad Ahmad, etc. on query made by

Naib Tehsildar admitted the exchange mutation and change of

possession of the exchanged land. This witness negated the

suggestions that Nazar, Liaqat and Muhammad Ahmad, did not

appear either before Bashir Bhatti or any other revenue officer

and also negated the suggestion that the said person did not

appear before Ishaque Patwari for incorporating the mutation

rather under influence of Iftikhar Bhango affixed their thumb

impressions. D.W.7 Muhammad Nawaz also supported the

stance of the petitioner as well as deposition of D.W.6. Ishfaq

Ahmad, son of Muhammad Ishaque (Patwari) appeared as

D.W.8, who deposed that Muhammad Ishaque Patwari was his

father, who died on 1st July, 1997 and he was posted as Patwari

in the year 1990 at Ghazi Pur. D.W.9 Jamal Din, Naib Tehsildar

produced original Part Sarkar of mutation No.168, which was

incorporated in the Register Haqdaran Zameen for the year

1990-91. D.W.10-Muhammad Aslam Patwari, who was posted

as Patwari Halqa Rohra in July 1990 and this witness deposed

C.R.No.2584 of 2014 12

that mutation No.168 was entered by him, which was got

entered by Roshan Iqbal, Nazar Muhammad, Muhammad

Ahmad and Liaqat Ali. Naib Tehsildar called him with record

and he produced the same at Ghazi Pur where Muhammad

Ishaque Patwari, Naib Tehsildar Bashir Ahmad Bhatti and

Muhammad Idrees Qanoongo were present. The contents of

mutations were read over to Roshan Iqbal, Nazar Muhammad,

Liaqat Ali and Muhammad Ahmad and after inquiry the

revenue officer sanctioned the mutations. D.W.11-Iftikhar

Ahmad is landlord of the area, who deposed that Roshan Iqbal

purchased plants of guava for plantation on his land measuring

13-Killas. D.W.12 Bashir Ahmad Bhatti, who was Naib

Tehsildar at the relevant time of Sharaq Pur Sharif and he

deposed that he validly sanctioned Ex.D1 and Ex.D2 after

thorough inquiry from the parties and during cross examination

he remained unscathed and affirmed his deposition on oath.

D.W.13-Noor Ahmad is contractor, who constructed Dairy

Farm on the exchanged property on the asking of Roshan Iqbal,

the present petitioner. D.W.14-Muhammad Zubair deposed

about visit of Naib Tehsildar on 11th July, 1990. This witness is

son of Ch. Karamat and grandson of Jalal Din. His father has

died, who was attesting witness of the disputed mutation and on

the asking of this P.W. his father told him about the exchange

transaction. D.W.15-Mansha son of Muhammad alias Malla,

who deposed that he is cultivating 2 ½ acre land at Mauza

C.R.No.2584 of 2014 13

Rohra, which has been received by him from Nazar and Ahmad

on the share of produce basis. He deposed that Nazar, etc. have

18 ½ acres of land and remaining half land is being cultivated

by Nazar, etc. Through this witness, it has been established by

the petitioner that respondents No.1 to 4 are in cultivating

possession of the exchanged land. D.W.16-Faqir Muhammad

deposed that he has land in Ghazi Pur and his father was

ancestral owner in the area. His father died in the year 1988 and

he became owner in 1989. This witness deposed that he has

seen the disputed property which is in possession of Roshan

Iqbal since 1990, which was exchanged by him with Nazar,

Ahmad, Liaqat and Ishaque. D.W.17-Sakhawat Ali, who is

witness of visit of Naib Tehsildar and he deposed that he was

present there when exchange mutations were sanctioned.

Muhammad Afzal Manager NBP has been produced as D.W.18

who deposed about the statement of accounts of Liaqat Ali son

of Haji Barkat Ali by producing the same as Ex.DW18/2. He

deposed that on 23.06.1990 Rs.550,000/- were deposited in

PLS Acctt.N.1425-8. D.W.19-Haji Iftikhar Ahmad (respondent

No.5) who deposed that he has nothing to do with the disputed

land and also negated the allegations of undue influence and

pressure upon the respondents No.1 to 4/plaintiffs for obtaining

their signatures on blank papers. Roshan Iqbal, the present

petitioner appeared as D.W.20 and deposed in line with his

written statement and during cross examination upon D.W.19

C.R.No.2584 of 2014 14

and D.W.20, the learned counsel for the respondents No.1 to 4

could not shatter their standing rather they both affirmed their

depositions and remained unscathed despite cringe-making

questions put to them during cross examination. Even if it is

admitted that certain shortcomings and contradictions took

place in the depositions of the D.Ws. the same are natural and

are not too fatal to disbelieve the same. Even otherwise, the

party (in the present case, the respondents No.1 to 4) has to

stand on its own legs and any shortcoming or discrepancy in the

evidence of the rival party cannot extend benefit to the other

party. In the present case, as discussed above, the respondents

No.1 to 4 have failed to discharge the initial burden and they

have also failed to show any ill-will and mala fide on the part of

the revenue officer and officials, who are independent witnesses

and have supported the stance of the petitioner, which prompted

them to depose against the respondents No.1 to 4/plaintiffs.

9. Pursuant to the above, it is observed that the

learned Courts below have failed to adjudicate upon the matter

in hand by appreciating law on the subject; therefore, the Courts

below have misread evidence of the parties and when the

position is as such, this Court is vested with authority and

ample power to undo the concurrent findings while exercising

revisional jurisdiction under section 115, Code of Civil

Procedure, 1908, as has been held in Nazim-Ud-Din and others

v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24), Sultan

 C.R.No.2584 of 2014 15

Muhammad and another v. Muhammad Qasim and others

(2010 SCMR 1630), Ghulam Muhammad and 3 others v.

Ghulam Ali (2004 SCMR 1001) and Habib Khan and others v.

Mst. Bakhtmina and others (2004 SCMR 1668).

10. The crux of the discussion above is that the

revision petition in hand succeeds and the same is allowed,

impugned judgments and decrees are set aside, consequent

whereof the suit instituted by the respondents No.1 to 4 stands

dismissed. No order as to the costs.

(Shahid Bilal Hassan)

Judge

Approved for Reporting.

Judge
M.A.Hassan