PLJ 2022 Quetta 7
Present: ABDULLAH BALOCH , J.
ABDUL GHAFFAR and others --Petitioners
versus
SHINKO and others --Respondents
C.R. No. 46 of 2012, decided on 23.10.2020.
Specific Relief Act, 1877 (I of 1877) --
----Ss. 39, 42 & 54--Exchange of Property --Dismissal of suit for declaration cancellation of mutation entries and
permanent injunction- Acceptance of appeal --Non -production of oral or documentary evidence regarding
fraudulently mutation entries --Silence of agreement regarding description of property and mutation numbers --No
cause of action --Challenge to --Nothing specifically was brought on record through any oral or documentary
evidence to suggest that mutation entries in question have fraudulently been carried out by petitioners in their
favour --Witnesses have not mentioned a single word with regard to fraudulent transfer of disputed property--
Agreement is silent with regard to description of property, its mutation numbers etc, thus does not disclose any
cause of action in favour of plainti ffs--Defendants produced as many as ten (10) witnesses and also recorded
statement of their attorney and all of them deposed possession of cultivation of defendants --Defendant Nos. 3 to
6 remained alive for more than twenty (20) years after transfer of pro perty in question in revenue record, but
they kept silent, even plaintiffs and Defendant Nos. 3 to 6 also kept mum since long
time--Respondent have Failed to prove their case through confidence inspiring evidence, main issue No. 3 has
been resolved against plaintiffs they have failed to prove issue --It is now well settled principle of law that
lacunas of defendants cannot be extended in favour of plaintiffs --Revision petition allowed.
[Pp. 10, 12 & 15] A, B, C, D, E & F
2013 SCMR 299 ref.
Mr. Shams -ud-Din Achakzai , Advocate for Petitioners.
Mr. Masoom Khan Kakar , Advocate for Respondents.
Mr. Saifullah Sanjarani , Assistant A.G. for State.
Date of hearing: 6.10.2020.
JUDGMENT
This petition is directed aga inst the judgment & decree dated 18th February 2012 (hereinafter referred
as “the impugned judgment & decree” ) passed by learned District Judge, Zhob (hereinafter referred as “the
appellate Court” ) whereby the appeal filed by the respondents was allowed and the suit of plaintiffs was decreed
against the petitioners and the judgment & decree dated 25th November 2011 passed by the learned Civil Judge,
Zhob (hereinafter referred as “the trial Court” ) was set aside.
2. Brief facts of the case are that the respo ndents/plaintiffs filed a suit Declaration, Cancellation of
Mutation Entries and Permanent injunction against the petitioners/defendants in the trial Court with the averments that they were owner of land bearing Khata No. 172, Kathooni No. 192/193, Khasra No. 41- 42 total 83 rod and 20
pole at Meena Bazar was exchanged with the father of defendant” Nos. 3 to 6 and possession was given to them. In
exchange of that they got possession of a piece of land bearing Khata No. 165, Kathooni No. 185 Khasra No. 4 rod
428 and 18 pole from the father of Defendant Nos. 3 to 6 and the said piece of land was registered in the name of
father of Defendant Nos. 3 to 6, but defendant/Petitioner Nos. 1 & 2 with collaboration of revenue staff fraudulently
transferred the land in question in their name through fake sale deed and documents.
3. The suit was contested by the petitioners/defendants by means of filing written statements. After framing
issues and recording evidence pro & contra, the learned trial Court dismissed the suit filed by the
respondents/plaintiffs vide judgment & decree dated 25th November 2011.
4. Being aggrieved, the respondents/appellants assailed the judgment & decree of the learned trial Court
before the learned appellate Court and the appeal of the respondents/appellants was accepted and the suit was
decreed in their favour, vide impugned ju dgment & decree as mentioned hereinabove in Para No. 1. Whereafter the
instant Civil Revision Petition has been filed.
5. Heard the learned counsel for the parties and perused the record, which reveals that the plaintiffs
elucidated that they have exchange d a piece of land having Khata No. 172, Kathooni No. 192/193, Khasra No. 41 -42
total 83 rod and 20 pole at Meena Bazar with the father of Defendant Nos. 3 to 6 and given possession of the same
to them. In exchange of that they got the possession of a piece of land bearing Khata No. 165, Kathooni No. 185
Khasra No. 4 rod 428 and 18 pole from the father of Defendant Nos. 3 to 6, but the by petitioners/Defendant Nos. I
& 2 with collaboration of revenue staff fraudulently transferred the land in question in the ir name through fake sale
deed and documents.
6. On the other hand, the petitioners/Defendant Nos. 1 & 2 vehemently denied the claim of the
plaintiffs/respondents, while Defendant Nos. 3 to 6 conceded the claim of the plaintiffs. Out of the pleadings, the
learned trial Court framed the following issues:
“1. Whether no cause of action accrued to plaintiffs’ side to file’ instant suit against the defendants?
2. Whether the suit is not maintainable by virtue of less Court fee, jurisdiction and time limitations, as
mentioned in legal Objections 1, 2, 3 of written statement of the Defendant's No. 1 to 2?
3. Whether Defendants’ No. 1 to 2 illegally and fraudulently through misrepresentation mutated
property in dispute?
4. Whether the plainti ffs are entitled for relief claimed?
5. Relief?”
7. The entire case of the parties revolved around the Issue No. 3 that “Whether Defendants No. 1 to 2
illegally and fraudulently through misrepresentation mutated property in dispute?” in support of their claim the
plaintiffs/Respondent Nos. 1 to 4 produced as many eleven (11) PWs and also the attorney of the plaintiffs recorded
his statement. The reprisal of entire evidence reflects that nothing specifically was brought on record through any oral or documentary evidence to suggest that the mutation entries in question have fraudulently been carried out by
the defendants/petitioners in their favour in this regard PW -1 Musa Kalim, PW -2 Mulla Iran, PW -Shakar Din who
have brought on record an unregistered s tamp paper as Ex.P/3 -A, which suggests that their parents 35 years ago sell
and exchanged the property in question, but however, it is pertinent to mention here that this agreement was carried out on 25th August 2006 by the plaintiffs and Defendant Nos. 3 to 6, even these witnesses have not mentioned a
single word with regard to fraudulent transfer of the disputed property, while PW -4 Ayaz Khan is also one of the
signatory of Ex.P/3 -A and he has also did not depose a single word with regard to fraudulent tr ansfer and mutation.
Likewise, PW -5 Saeedullah, PW -6 Haji Sharaf Khan, PW -7 Juma Khan, PW -8 Abdullah Shah, PW -9 Muhammad
Ismail and PW -11 Dost Muhammad, Record Keeper, Tehsil office Zhob he has produced Fard- e-Haqqiyat as Ex.
P/11-A, which was correct acco rding to their record during cross examination in reply of Question No. 2 he stated
that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ EXP/11-A ﭘﺮ ظﺎﮨﺮ ﺷﺎه ﮐﮯ ﻧﺎم ﭘﺮ ﮐﭧ ﮐﮯ ﻧﺸﺎن ﮨﮯ ﻣﻼﺣﻀہ ﮐﯿﺎ ﮔﯿﺎ ظﺎﮨﺮ
ﺷﺎه ﮐﮯ ﻧﺎم ﭘﺮ ﺑﺎل ﭘﻦ ﺳﮯ ﮐﭧ ﮐﮯ ﻧﺸﺎن ﭘﺎﯾﺎ ﮔﯿﺎ۔"
In reply of Question No. 3 he deposed that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ EXP/11 -D ﮐﮭﺎﺗہ ﮐﮭﺘﻮﻧﯽ ﻧﻤﺒﺮ اور ﺗﺎرﯾﺦ درج ﻧہ ﮨﮯ۔
And specifically In reply of Question No. 4 he replied that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ درﺧﻮاﺳﺖ EXP/11- D ﻣﯿﮟ ﺧﺮﯾﺪ و ﻓﺮوﺧﺖ ﮐﺎ ذﮐﺮ ﺑﮭﯽ ﻧہ ﮨﮯ۔
In reply of Question No. 5 he answered that:
رﺳﺖ ﮨﮯ ﮐہ ﺟﺲ اراﺿﯽ ﮐﻮ ﮨﻢ ﮐﺴﯽ دوﺳﺮے ﺷﺨﺺ ﮐﮯ ﻧﺎم اﻧﺘﻘﺎل ﮐﺮاﻧﺎ ﻣﻘﺼﻮد ﮨﻮ ﺗﻮ اﺳﮑﮯ "ﯾہ د
ﻟﺌﮯ ﺗﺼﺪﯾﻖ و ﺷﻨﺎﺧﺖ ﮐﻨﻨﺪه ﮐﺎ ﮨﻮﻧﺎ ﯾﻌﻨﯽ اﺳﮑﺎ دﺳﺘﺨﻂ ﺿﺮوری ﮨﮯ۔
In reply of Question No. 6 he stated that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ EXP/11 -A ﻣﯿﮟ ﺗﺼﺪﯾﻖ ﮐﻨﻨﺪه ﻣﯿﮟ ﻣﻠﮏ ﻓﺘﺢ ﻣﺤﻤﺪ وﻟﺪ ﺑﻠﻮ ﮐﮯ دﺳﺘﺨﻂ ﮨﮯ۔
In reply of Question No. 7 he replied that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ EXP/11 -A ﮐﮯ ﻣﻄﺎﺑﻖ اﻧﺘﻘﺎل 1990 ﻣﯿﮟ ﮨﻮ ﭼﮑﺎ ﮨﮯ۔
In reply of Question No. 10 he deposed that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ EXP/11 -A ﮐﮯ ﻣﻄﺎﺑﻖ ﭼﮭ ﺣﺼہ داران ﻣﯿﮟ ﺳﮯ ﮨﺮ ﺣﺼہ دار ﮐﮯ ﺣﺼہ ﻣﯿﮟ ﺗﻘﺮﯾﺒﺎً
آﺗﯽ ﮨﮯ۔ ﺳﺎڑھﮯ ﺑﯿﺲ اﯾﮑﮍ زﻣﯿﻦ
In reply of Question No. 11 he stated:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﭘﯿﺶ ﮐﺮده دﺳﺘﺎوﯾﺰات ﺑﺎﻟﮑﻞ اﺻﻞ ﮨﮯ۔
In reply of Question No. 12 he answered that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﮐﻮﺋﯽ ﺟﻌﻠﯽ ﮐﺎرواﺋﯽ دﺳﺘﺎوﯾﺰات ﻣﯿﮟ ﻧہ ﮨﻮﺋﯽ ﮨﮯ۔
On 10th September 2011 once again the PW -11 was called for cross examination of respondents/Defendant
Nos. 3 to 6, wherein in reply of Question No. 1 he stated that:
"ﯾہ درﺳﺖ ﮨﮯ ﮐہ EXP/11-A اﻧﺘﻘﺎل ﭘﺮ ظﺎﮨﺮ ﺷﺎه ﮐﺎ دﺳﺘﺨﻂ ﮨﮯ ﻟﯿﮑﻦ وه ﻗﻠﻢ ﺳﮯ ﮐﺎﮢﺎ ﮔﯿﺎ ﮨﮯ۔ اور
ﺳﺎﺗﮭ ﮨﯽ اﮐﺒﺮ ﻋﻠﯽ ﮐﺎدﺳﺘﺨﻂ ﮨﮯ۔
In reply of Question N o. 2 he replied that:
"ﻣﺠﮭﮯ ﻋﻠﻢ ﻧہ ﮨﮯ ﮐہ اﮐﺒﺮ ﻋﻠﯽ ﭘﮍھﺎ ﻟﮑﮭﺎ ﻧہ ﺗﮭﺎ اور دﺳﺘﺨﻂ ﻧہ ﮐﺮ ﺳﮑﺘﺎ ﺗﮭﺎ اور اﻧﮕﮭﻮﮢﺎ ﻟﮕﺎﺗﺎﺗﮭﺎ۔
8. The attorney of plaintiffs Shinko son of Majeed, while recording his statement, stated that their elders
have exchanged the land bearing Khasra Nos. 41 -42 30 -35 years ago with one Akbar Ali the predecessor of
Defendant Nos. 3 to 6, while he asked the sons of Akbar Ali in the year 2006 to get effect proper transfer of land in
question, however, in the year 2007 they came to know that land in q uestion had fraudulently been transferred in the
name of Defendant No. 1 in the year 1990, he also deposed that with regard to exchange of land in question, the
plaintiffs along with Defendant Nos. 3 to 6 carried out an agreement in the year 2006 and both the parties admitted
the fact that their elders have exchanged the land 30 to 35 years before. In reply of questions he stated that:
ﮨﻤﺎرے وه زﻣﯿﻦ اﻧﺘﻘﺎل واﻟﯽ ﮨﮯ اور اُس وﻗﺖ ﺑﮭﯽ ﻣﯿﺮے واﻟﺪ ﮐﮯ ﻧﺎم ﭘﺮ ﮨﮯ۔
ﻣﯿﺮا واﻟﺪ ﺗﻘﺮﯾﺒﺎً 13 ،14 ﺳﺎل ﭘﮩﻠﮯ ﻓﻮت ﮨﻮﺋﮯ ﮨﮯ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﻓﺘﺢ ﻣﺤﻤﺪ وﻟﺪ ﺑﻠﻮ ﮨﻤﺎرے ﮐﻠﯽ ﮐﺎ ﻣﻠﮏ ﮨﮯ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﻣﻠﮏ ﮐﻮ ﮔﺎوں ﻣﯿﮟ ﻓﻮﺗﮕﯽ وﻏﯿﺮه ﯾﺎ دﯾﮕﺮ ﮐﯽ واﻗﻊ ﮐﺎ ﻋﻠﻢ ﮨﻮﺗﺎ ﮨﮯ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﮨﻤﺎرے ﻋﻼﻗﮯ ﻣﯿﮟ ﺗﻘﺮﯾﺒﺎً 50 ﺳﺎل ﭘﮩﻠﮯ ﺑﻨﺪوﺑﺴﺖ ﮨﻮ ﭼﮑﺎ ﮨﮯ۔
ﮨﻢ ﻧﮯ آﭘﻨﯽ زﻣﯿﻦ اﺑﮭﯽ ﺗﮏ اﮐﺒﺮ ﻋﻠﯽ واﻟﻮں ﮐﮯ ﻧﺎم ﭘﺮ ﻣﻨﺘﻘﻞ ﻧہ ﮐﺮاﺋﯽ ﮨﮯ۔ از ﺧﻮد ﮐﮩﺎ ﮐہ زﻣﯿﻦ دی ﮨﮯ
ﻟﯿﮑﻦ رواج اور اﻋﺘﺒﺎر اﯾﮏ دوﺳﺮے ﭘﺮ ﮨﯿﮟ اس وﺟہ ﺳﮯ ﻣﻨﺘﻘﻞ ﻧہ ﮐﯿﺎ ﮔﯿﺎ۔
اﮐﺒﺮ ﻋﻠﯽ اور ﻣﯿﺮا واﻟﺪ زﻣﯿﻦ ﮐﮯ ﺗﺒﺎدﻟہ ﮐﮯ ﺑﻌﺪ اﻧﺪزاً 20 ﺳﺎل ﺗﮏ زﻧﺪه رﮨﯿﮟ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ان 20 ﺳﺎﻟﻮں ﮐﮯ دوران ﻣﯿﺮے اور اﮐﺒﺮ ﻋﻠﯽ ﮐﮯ واﻟﺪ ﮐﮯ درﻣﯿﺎن ﮐﻮﺋﯽ ﺗﺤﺮﯾﺮ ﻧہ ﮨﻮا
از ﺧﻮد ﮐﮩﺎ ﮐہ ﮨﻤﺎرے رواج اﻋﺘﻤﺎد ﮐﮯ وﺟہ ﺳﮯ ﻧہ ﮐﯿﺎ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ اﮐﺒﺮ ﻋﻠﯽ ﮐﮯ ﭼﺎر ﺑﯿﮣﻮں ﮐﻮ ﻣﯿﮟ ﻧﮯ ﺑﻄﻮر ﮔﻮاه ﭘﯿﺶ ﻧہ ﮐﯿﺎ ﮨﮯ از ﺧﻮد ﮐﮩﺎ ﮐہ ظﺎﮨﺮ ﺷﺎه
ﺑﻄﻮر ﻣﺪﻋﺎ ﻋﻠﯿﮩﻢ ﺷﺎﻣﻞ ﮨﮯ۔ ﯾہ ﻏﻠﻂ ﮨﮯﮐہ ظﺎﮨﺮ ﺷﺎه اور ﻣﯿﮟ ﻧﮯ ﻣﻞ ﮐﺮ ﺟﮭﻮﮢﺎ دﻋﻮیٰ ﺗﯿﺎر ﮐﯿﺎ ﮨﮯ۔
9. The perusal of entire oral and documentary evidence including the agreement dated 25th August 2006
Ex. P/3 -A does not disclose any fraudulent transfer of the property in question by the defendants/petitioners, even if
all the agreement dated 25th August 2006 Ex. P/3- A taken into consideration that the elders of the respondents have
exchanged the property in question, the agreement is silent with regard to description of the property, its mutation
numbers etc, thus does not disclose any cause of action in favour of plainti ffs.
10. It is pertinent to mention here that the burden of proof of Issue No. 3 was on the shoulders of
plaintiffs, which they failed to discharge, however, in rebuttal the defendants also produced as many as ten (10) witnesses and also recorded the statement of their attorney and all of them deposed the possession of cultivation of
defendants and mainly one official witness i.e. DW -9 Dost Muhammad, Record Keeper Tehsil Zhob, who produced
Intheqal No. 235, Khata Kathooni No. 45/48 and 161/180 as Ex. D/9- A in reply of Question No. 1 he stated that:
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﭘﯿﺶ ﮐﺮده اﻧﺘﻘﺎل 05/01/2005 ﮐﻮ درج ﮨﻮا ﮨﮯ۔
In reply of Question No. 2 he deposed that:
ﯾہ درﺳﺖ ﮨﮯ رﯾﮑﺎرڈ ﮐﮯ ﻣﻄﺎﺑﻖ اﮐﺒﺮ ﻋﻠﯽ وﻟﺪ ﻋﻄﺎ ﻣﺤﻤﺪ ﮐﺎ ﺟﺎﺋﯿﺪاد ظﺎﮨﺮ ﺷﺎه، ﻋﺒﺪ ﷲ ﺷﺎه، ﻣﺘﯿﻦ ﺷﺎه،
ﻣﻨﺘﻘﻞ ﮨﻮا ﮨﮯ ﺟﻮ ﮐہ ﭘﺴﺮان اﮐﺒﺮ ﻋﻠﯽ ﮨﮯ۔ﻓﻮاد ﺷﺎه ﮐﮯ ﻧﺎم
In reply of Question No. 3 he replied that:
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﮐﮭﺎﺗہ ﮐﮭﺘﻮﻧﯽ ﻧﻤﺒﺮ 165/185 اﮐﺒﺮ ﻋﻠﯽ ﻣﺬﮐﻮره ﺳﮯ ظﺎﮨﺮ ﺷﺎه ﮐﮯ ﻧﺎم ﭘﺮ ﺗﺤﺮﯾﺮ ﮨﻮ ﭼﮑﺎ
ﮨﮯ ﻟﯿﮑﻦ ﺑﻌﺪ ﻣﯿﮟ ﻗﻠﻢ ﺳﮯ ﮐﺎﮢﺎ ﮔﯿﺎ ﮨﮯ۔
11. It is worthwhile to mention here that no question was put to the DWs with regard to fraudulent transfer
of the property in question. On the other hand, the respondents/Defendant Nos. 3 to 6 did not produce any witness
except the statement of respondent/ Defendant No. 3 Zahir Shah, who deposed that his father has exchanged the
property in question bearing Khasra No. 41 -42 with the father of Shinko 30 -35 years ago and given the possession
of exchanged properties to each other, while property in question was fraudulently transferred in the name of plaintiffs in the year 1990. In reply of questions he stated that:
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﻧﺼﺮ ﷲ ﻧﮯ ﻣﯿﺮے اور ﻣﯿﺮے ﺑﮭﺎﺋﯽ ﮐﮯ ﺧﻼف ﻗﺎﺿﯽ ﮐﮯ ﻋﺪاﻟﺖ ﻣﯿﮟ اﯾﮏ دﻋﻮیٰ داﺋﺮ
ﮐﯿﺎ ﺗﮭﺎ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ وه دﻋﻮیٰ ﺧﺴﺮه ﻧﻤﺒﺮ 41-42 ﮐﮯ اراﺿﯿﺎت ﻣﯿﮟ ﺳﮯ ﺗﮭﺎ از ﺧﻮد ﮐﮩﺎ ﮐہ ان ﺧﺴﺮه ﺟﺎت
ہ دار ﮨﯿﮟ۔ ﻣﯿﮟ ﮐﺌﯽ ﺣﺼ
ﯾہ درﺳﺖ ﮨﮯ ﮐہ وه دﻋﻮیٰ 09/03/2009 ﻣﯿﮟ ڈﮔﺮی ﮨﻮا ﺗﮭﺎ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﻣﯿﮟ ﻧﮯ اُس ڈﮔﺮی ﮐﮯ ﺧﻼف ﻣﺠﻠﺲ ﺷﻮریٰ ﻣﯿﮟ اﭘﯿﻞ ﮐﯽ ﺗﮭﯽ ﺟﻮ ﺧﺎرج ﮨﻮﺋﯽ اور اب
ﻣﯿﺮے اﭘﯿﻞ ﮨﺎﺋﯿﮑﻮرٹ ﻣﯿﮟ ﭘﯿﻨﮉﻧﮓ ﮨﮯ۔
ﻣﯿﮟ ﭘﯿﺶ ﻧہ ﮐﯿﺎ ﮨﮯ۔ ﻣﯿﮟ ﻧﮯ داد ﮔﻞ ﮐﮯ ﮐﻮﺋﮣہ ﻣﯿﮟ ﻓﻮت ﮨﻮﻧﮯ ﮐﯽ ﺑﺎﺑﺖ ﮐﻮﺋﯽ ﻓﻮﺗﮕﯽ ﺳﺮﮢﯿﻔﮑﯿﭧ ﻋﺪاﻟﺖ
ﻣﯿﺮے ﻧﺎم ﭘﺮ ﮐﻮﺋﯽ ﺑﻨﺪوﺑﺴﺖ ﺷﺪه اراﺿﯽ ﻧہ ﮨﮯ۔ اﻟﺒﺘہ ﻣﯿﺮے واﻟﺪ ﮐﮯ ﻧﺎم ﭘﺮ ﺑﻨﺪوﺑﺴﺘﯽ اراﺿﯽ ﮨﮯ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﺑﻨﺪوﺑﺴﺖ 1968-69 ﻣﯿﮟ ﮨﻮا ﺗﮭﺎ۔
ﺟﺐ ﮨﻤﺎرے واﻟﺪﯾﻦ ﻧﮯ اراﺿﯽ ﮐﺎ ﺗﺒﺎدﻟہ ﮐﯿﺎ ﺗﮭﺎ ﺗﻮ اُﺳﻮﻗﺖ ﺑﻨﺪوﺑﺴﺖ ﮨﻮ ﭼﮑﺎ ﺗﮭﺎ۔
ﺗﺒﺎدﻟہ ﮐﮯ ﺣﻮاﻟﮯ ﺳﮯ زﻣﯿﻦ ﻧﺎﻣﻮں ﭘﺮ ﮢﺮاﻧﺴﻔﺮ ﮐﺮﻧﮯ ﮐﮯ ﺑﺎﺑﺖ ﻣﯿﺮے واﻟﺪﯾﻦ ﻧﮯ ﺗﺤﺼﻠﯿﺪار ﮐﻮ
ﺗﺤﺼﻠﯿﺪار ﮐﻮ درﺧﻮاﺳﺖ ﻧہ دﯾﺎ ﺗﮭﺎ۔
ﻣﯿﺮے واﻟﺪ 1997 ﻣﯿﮟ ﻓﻮت ﮨﻮا۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ 1990، 1997 ﺗﮏ ﻣﯿﺮے واﻟﺪ ﻧﮯ اراﺿﯽ ﮐﮯ ﮢﺮاﻧﺴﻔﺮ ﮨﻮﻧﮯ ﮐﮯ ﺣﻮاﻟﮯ ﺳﮯ ﮐﻮﺋﯽ
ﯽ ﻧﮩﯿﮟ ﺗﮭﺎ۔ اﻟﺒﺘہ ﺷﻨﮑﻮ اس وﻗﺖ ﺷﮑﺎﯾﺘﯽ درﺧﻮاﺳﺖ ﺗﺤﺼﯿﻞ وﻏﯿﺮه ﻣﯿﮟ ﻧہ دﯾﺎ ﺗﮭﺎ۔ از ﺧﻮد ﮐﮩﺎ ﮐہ ﻋﻠﻢ ﮨ
ﺑﮭﯽ زﻣﯿﻦ ﮐﺎﺷﺖ ﮐﺮ رﮨﺎ ﺗﮭﺎ۔
ﯾہ ﻏﻠﻂ ﮨﮯ ﮐہ ﻓﺘﺢ ﻣﺤﻤﺪ وﻟﺪ ﺑﻠﻮ ﮨﻤﺎرے ﻋﻼﻗﮯ ﮐﺎ ﻣﻠﮏ ﺗﮭﺎ۔ از ﺧﻮد ﮐﮩﺎ ﮐہ ﮨﻢ ﮐﻠﯽ اﺑﺮاﮨﯿﻢ زﺋﯽ واﻟﻮں ﮐﺎ
ﻣﻠﮏ ﮨﺎﺷﻢ ﮨﮯ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﻣﻠﮏ ﻓﺘﺢ ﻧﮯ اس اراﺿﯽ ﮐﮯ اﻧﺘﻘﺎل ﮐﮯ ﺗﺼﺪﯾﻖ ﺗﺤﺼﯿﻞ ﻣﯿﮟ ﮐﯽ ﺗﮭﯽ از ﺧﻮد ﮐﮩﺎ ﮐہ
ﻏﻠﻂ طﻮر ﭘﺮ ﮐﯽ ﺗﮭﯽ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﻣﯿﮟ ﻧﮯ ﮐﻮﺋﯽ ﮔﻮاه ﭘﯿﺶ ﻧہ ﮐﯿﺎ ﮨﮯ ﮐہ ﻣﺘﺪﻋﻮﯾہ اراﺿﯽ ﻣﯿﺮا واﻟﺪ ﮐﺎﺷﺖ ﮐﺮﺗﺎ ﺗﮭﺎ از ﺧﻮد
ﮐﮩﺎ ﮐہ ﻣﯿﮟ ﺧﻮد ﮔﻮاه ﮨﻮں ﮐہ ﮨﻢ اﭘﻨﮯ واﻟﺪ ﮐﮯ ﺳﺎﺗﮭ ﺑﭽﭙﻦ ﻣﯿﮟ ﮐﺎﺷﺖ ﻣﯿﮟ ﻣﺪد ﮐﺮﺗﮯ ﺗﮭﮯ۔
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﻣﯿﮟ ﻧﮯ اﭘﻨﮯ واﻟﺪ ﮐﺎ ﻓﻮﺗﮕﯽ ﺳﺮﮢﯿﻔﮑﯿﭧ ﻋﺪاﻟﺖ ﭘﯿﺶ ﻧہ ﮐﯽ ﮨﮯ۔
ﮟ ﻧﮯ ﺗﺤﺼﯿﻞ ﻣﯿﮟ واﻟﺪ ﮐﮯ ﻓﻮﺗﮕﯽ ﮐﮯ ﺑﻌﺪ ﺟﺎﺋﯿﺪاد اﭘﻨﮯ ﻧﺎم ﮢﺮاﻧﺴﻔﺮ ﮐﺮﻧﮯ ﮐﮯ ﺑﺎﺑﺖ ﮐﻮﺋﯽ درﺧﻮاﺳﺖ ﻣﯿ
ﻧہ دﯾﺎ ﺗﮭﺎ۔
12. It is important to mention here that the said witness in cross examination in reply of a question stated
that they have carried out an agreement with the plaintiffs in the year 2006, but he has failed to mention a single
word in his examination in chief with regard to carrying out any agreement pertaining to the disputed land. He also
deposed incorrect that no property of his father has been transferred in his name, while DW -9 Dost Muhammad,
Record Keeper of Tehsil Zhob produced Intheqal No. 235 of Khasra No. 41- 42 in reply of Question No. 1 stated
that:
ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﭘﯿﺶ ﮐﺮده اﻧﺘﻘﺎل 05/01/2005 ﮐﻮ درج ﮨﻮا ﮨﮯ۔
In reply of Question No. 2 he deposed that:
درﺳﺖ ﮨﮯ رﯾﮑﺎرڈ ﮐﮯ ﻣﻄﺎﺑﻖ اﮐﺒﺮ ﻋﻠﯽ وﻟﺪ ﻋﻄﺎ ﻣﺤﻤﺪ ﮐﺎ ﺟﺎﺋﯿﺪاد ظﺎﮨﺮ ﺷﺎه، ﻋﺒﺪﷲ ﺷﺎه، ﻣﺘﯿﻦ ﺷﺎه، ﯾہ
ﻓﻮاد ﺷﺎه ﮐﮯ ﻧﺎم ﻣﻨﺘﻘﻞ ﮨﻮا ﮨﮯ ﺟﻮ ﮐہ ﭘﺴﺮان اﮐﺒﺮ ﻋﻠﯽ ﮨﮯ۔
13. From the entire reappraisal of evidence produced by the parties, it appears that an attempt made by the
plaintiffs and Defendant Nos. 3 to 6 by garb of simple agreement dated 25th August 2006 to usurp the property in
dispute, which was not claimed by their elders in their life time as both the predecessors of the plaintiffs and
Defendant Nos. 3 to 6 remained ali ve for more than twenty (20) years after the transfer of property in question in
revenue record, but they kept silent, even the plaintiffs and Defendant Nos. 3 to 6 also kept mum since long time. Reliance in this regard is placed in the case of “Muhammad R ustam and others vs. Mst. Makhan Jan and others”
2013 SCMR 299, wherein it was held by the Hon’ble apex Court that:
“3. Having heard petitioners’ learned counsel at some length, we find that admittedly the impugned
mutation of inheritance bearing No. 571 dated 9- 7-1927 was never challenged by Mst. Karam Jan; that she
remained alive till 1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to
indicate as to why she did not challenge the said mutation. It has never been the case of the petitioners that
either they or their predecessor -in-interest were unaware of the said mutation. In the afore -referred
circumstances, the judgment of the learned High Court is unexceptionable. So far as the precedent case -
law to which referenc e has been made by petitioners’ learned counsel is concerned, the same is
distinguishable as in none of the judgments the question of locus standi was a moot point. In Abdul Haq
v.
Mst. Surraya Begum (2002 SCMR 1330), this Court inter alia was seized of a similar issue and while
dismissing the petition, it observed as follows:
“11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in
dispute but he did not challenge the same during his life time. The petit ioners claimed the property
through Atta Muhammad as his heirs who fried the suit as late in 1979 about nine years after the
sanction of mutation which had already been given effect to in the record of rights. The petitioners,
therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through
whom they claimed inheritance himself had not challenged the same during his lifetime.”
14. Thus, plaintiffs/respondent have failed to prove their case through confidence inspiring evidence,
however, main Issue No. 3 has been resolved against the plaintiffs they have failed to prove the issue. It is now well settled principle of law that the lacunas of defendants cannot be extended in favour of plaintiffs.
For the reasons discussed hereinabove, the petition is accepted the impugned judgment and decree passed
by the learned appellate Court dated 18th February 2012 is hereby set aside and the judgment & decree dated 25 November 2011 passed by the learned trial Court i s hereby maintained.
Parties are directed to bear their own cost.
(Y.A.) Petition acceptedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.