PLJ 2025 Quetta 167
Present: G UL HASSAN TAREEN , J.
ABDUL RAZZAQ-- Petitioner
versus
MUHAMMAD SHAFIQ and others --Respondents
C.R.P. No. 91 of 2024, decided on 21.3.2025.
Specific Relief Act, 1877 (I of 1877) --
----Ss. 12, 18, 42 & 54-- Suit for declaration and perpetual injunction--Decreed --Appeal --
Allowed --Respondent No. 2 was recorded owner of suit land--Sale transaction was not
established by petitioner --Imperfect title --No obligation of respondent --Challenge to--
Respondent 2 was recorded owner of suit land whereas, petitioner’s pleaded vendor, Rozi Khan
was not owner of suit land as such, any sale transaction between petitioner and said Rozi Khan
without concurrence of Respondent 2 had not obligated Respondent 2 for transfer of title of suit
land to name of petitioner --Petitioner failed to prove that Respondent 2 had either sold out suit
land to said Rozi Khan or had undertaken for transfer of ownership of suit land to said Rozi Khan or to petitioner or he had received Rs. 100,000/ - through his father or otherwise for transfer
of mutation -- Petitioner should have impleaded his vendor in his suit to compel him to make
good his title in respect of suit land--Respondent 2 was not bound to transfer mutation of suit
land either on name of Rozi Khan or to name of petitioner --Thus, findings of learned Trial Judge
on issues 1 and 2 suffered from error of law of Section 12 r/w 18, Act, 1877 and misreading and
non reading of evidence -- Appellate Judge vide impugned judgment has scanned entire record of
case and by doing so, has reached at right conclusion--Civil revision dismissed. [Pp. 171, 172
& 173] A, B, C, D & E
Mr. Manzoor Ahmed Shah, Advocate for Petitioner.
Mr. Noor Jan Buledi , Advocate for Respondent 1.
Mr. Changaiz Dashti , Asst. AG for Respondents 3 and 4.
Date of hearing: 19.3.2025.
J
UDGMENT
This civil revision petition is directed from the judgment and decree dated 27 February 2024
passed by the learned Additional District Judge -X, Quetta (‘Appellate Court’) in Civil Appeal
72/2023, whereby appeal preferred by the Respondent 1 was allowed and, after setting aside judgment and decree dated 21 October 2023 passed by the learned Civil Judge -VI, Quetta, Civil
Suit 17/2019 instituted by the petitioner was dismissed.
2. Brief, however, relevant facts of the case are that petitioner had instituted civil suit
against the respondents 2 to 4. Later, on an application made by the Respondent 1, he was
impleaded as defendant 4 in the suit by filing amended title. Petitioner had pleaded that he is
lawful owner and in possession of two adjacent units of immovable properties admeasuring
about 80747 sq.ft. In August 1995, he had purchased 25000 sq.ft. @ 27 per sq.ft. through a
written contract from a vendor, Rozi Khan and paid the entire sale consideration who had placed
him in possession of this piece of land (‘suit land’) . The suit land belonged to the family of
Respondent 2 who had sold it out to the said Rozi Khan as such, the father and uncle of
Respondent 1 had undertaken for transfer of mutation of the suit land on petitioner’s name
subject to payment of Rs. 128,000/ - . Petitioner had paid Rs. 100,000/ - to the Respondent 2’s
father and Rs. 28,000/ - to his uncle, Abdul Hakeem Lehri against valid receipts executed by the
said recipients. Since 1995, petitioner is in physical possession of the suit land. Apart from the
suit land, petitioner had purchased a portion of remaining land admeasuring 32,397 sq.ft. from
Taj Muhammad and Muhammad Hayat vide contract dated 20 January 2003 and mutation 11033.
The said portion was on the name of previous owner Mehmood Khan Lehri, therefore, he had
conveyed it on the petitioner’s name. Another portion of remaining land adjourned 24354 sq.ft.
was purchased by the petitioner from Shaista admeas uring and Sultan Jan vide mutations 7356,
3517 and 5046. With passage of time, petitioner intended to construct the remaining two portions
of property. When he started construction, the Respondent 2 through Hameedullah and others
stopped petitioner’s construction on the site and claimed ownership of the entire property. Both
parties indulged into litigation before the Court of learned Civil Judge -VI, Quetta. Respondent 2
had also filed complaint against the petitioner under Sections 3, 4, 5 of the Illegal Dispossession Act, 2005 before the Court of learned Additional Sessions Judge -V, Quetta. Since entire sale
consideration of the suit land was received to the Respondent 2 and his elders as such, petitioner is entitled to get mutate the suit land to his name in the revenue record, however, despite
countless approaches to the Respondent 2, he avoided to do the needful rather started illegal interference in his property.
In prayer clause, petitioner sought declaration of ownership with regard to the suit land,
entitlement to get mutate the suit land in his name; declaration that petitioner is recorded owner
of the other portions of the suit land; declaration that act of interference of Respondent 2 is
illegal; to direct respondents 2 and 3 to mutate the suit land in his name in the revenue record and perpetual injunction.
3. Respondent 2 and petitioner presented contesting written statements. On such pleadings,
learned Trial Judge had framed following issues:
‘i. Whether plaintiff is lawful owner -in-possession of property measuring 25,000/ - sq.ft.
situated in Mahal Karkhassa, Mauza Kirani, Tappa Shadenzai -I, Tehsil City, District Quetta?
ii. Whether mutation fee of suit property is received by defendant No. 1 and his elders and
plaintiff is entitled for the mutation?
iii. Whether plaintiff is recorded owner -in-possession of property by virtue of Mutation
Nos.7356, 3517, bearing Khasra No. 10086/54 -55 measuring 32464 sq.ft situated in Mahal
Karkhassa, Mauza Kirani, Tappa Shadenzai -I, Tehsil City, District Quetta?
iv. Whether suit of plaintiff is hit by Limitation Act?
v. Whether plaintiff has locus standi against the defendants?
vi. Whether suit of plaintiff is hit by misjoinder or non- joinder of parties?
vii. Whether intervener namely Muhammad Shafiq is entitled for the suit property?
viii. Whether plaintiff is entitled for the relief, he claimed for?
ix. Relief, if any?’
4. Petitioner produced nine PWs and also appeared as his own witness. Respondent 2
produced three DWs and also appeared as his own witness through attorney. Vide judgment and
decree dated 21 October 2023, the learned Trial Judge had decreed the suit which was set -aside
by the Appellate Court vide impugned judgment and decree dated 27 February 2024.
5. Mr. Manzoor Ahmed Shah, learned counsel for the petitioner states that the Appellate
Court has incorrectly decided issue of limitation against the petitioner because petitioner’s
contract was partly performed in the form of handing over possession of the suit land, thus limitation would not arise against him. On question of limitation, learned counsel further states
that when Respondent 2 had initiated proceedings under the Act of 2005 in 2018, at then, cause
of action was accrued to the petitioner and on this ground too, suit was not barred by limitation. Next states that Respondent 2 had not assailed the judgment of the Trial Court, therefore, to his extent, the same had attained finality. Thus, the Appellate Court couldn’t have reversed the decree of the Trial Court on an appeal preferred by the Respondent 1. Learned counsel refers to Section 53- A, the Transfer of Property Act, 1882 and placed reliance on the following case
laws: -
Akhtar Sultana v. Muzafar Khan Malik (PLD 2021 Supreme Court 715)
Hakeem Shah v. Muhammad Idrees (2017 SCMR 316) and
Javaid Iqbal v. Abdul Aziz (PLD 2006 Supreme Court 66).
6. Mr. Noor Jan Buledi, learned counsel for the Respondent 1 supported the impugned
judgment by stating that petitioner himself had pleaded that he purchased the suit land in 1995, therefore, suit instituted in 2019 was hopelessly barred by limitation under Article 113, the
Limitation Act, 1908 (‘Act, 1908’). He next states that suit was ambiguous and petitioner’s
evidence was departure. In conclusion, states that petitioner failed to establish what he had pleaded in his plaint, therefore, no exception could be taken to the impugned judgment.
7. Mr. Changaiz Dashti, learned AAG supported the impugned judgment.
8. Heard. Record gone through.
9. Petitioner had instituted the suit that vide contract dated 21 August 1995 (Ex.P/1- A), he
purchased the suit land from a vendor namely Rozi Khan who had placed him in possession
thereof and later, he had constructed his dwelling house and quarter thereon. Petitioner further pleaded that the said Rozi Khan had purchased the suit land from the Respondent 2 and,
therefore, the said Respondent 2 was under obligation to mutate the suit land on his name.
However, perusal of petitioner’s evidence reveals that petitioner failed to substantiate that his vendor, Rozi Khan had in fact purchased the suit land from the Respondent 2 and, the Respondent 2 had undertaken for conveyance of the suit land either on the name of Rozi Khan or to his name. Petitioner couldn’t establish the pleaded sale transaction between his vendor, Rozi Khan and the Respondent 2. Petitioner couldn’t bring on record any contract of sale, sale deed,
mutation or any power of attorney executed by the Respondent 2 in favour of said Rozi Khan.
Petitioner couldn’t establish that Respondent 2 had placed the said Rozi Khan in possession of the suit land. Though, the petitioner had pleaded that Respondent 2’s father, Abdul Samad Lehri had received Rs. 100,000/ - for transfer of the mutation of the suit land to his name, however, he
couldn’t establish such fact. The son of said Rozi Khan appeared on oath as PW -2. He produced
petitioner’s pleaded contract as Ex.P/1- A. He deposed that Respondent 2 had promised that he
would mutate the suit land against payment of
Rs. 1.50/ - per sq.ft. but he couldn’t honour his promise. The PW -1 did not state a single word
that his father, Rozi Khan had in fact purchased the suit land from the Respondent 2 and the Respondent 2 had undertaken for transfer of mutation of the suit land to the name of his father or
to someone else on his father’s direction. Respondent 2 was not party to the Ex.P/1- A nor put his
signature on such exhibit as attesting witness. Thus, petitioner failed to establish what he had
pleaded. Respondent 2 was the recorded owner of the suit land whereas, petitioner’s pleaded
vendor, Rozi Khan was not owner of the suit land as such, any sale transaction between the petitioner and said Rozi Khan without the concurrence of Respondent 2 had not obligated the Respondent 2 for transfer of title of the suit land to the name of petitioner. Petitioner had pleaded that Respondent 2 father had received Rs. 100,000/ - for transfer of mutation of suit land to his
name and tendered in evidence the receipt of such payment as Ex.P/10- B. however, Ex.P/10- B
doesn’t state the description of the suit land. Respondent 2 was admittedly the owner of the suit land, therefore, receipt of payment by his father has no legal value because the said recipient had no written power of attorney of Respondent 2 to receive such amount on his behalf and to make an undertaking for transfer of mutation of the suit land on his behalf. Even otherwise, petitioner failed to prove execution of Ex.P/10- B by the Respondent 2 father. Respondent 2 appeared on
oath through attorney. The said attorney denied receipt of Rs. 100,000/ - to the Respondent 2
father. Petitioner’s learned counsel had not confronted the said attorney with alleged signature of Respondent 2 father on Ex.P/10- B, thus petitioner failed to prove that Respondent 2 had either
sold out the suit land to the said Rozi Khan or had undertaken for transfer of the ownership of the suit land to the said Rozi Khan or to the petitioner or he had received
Rs. 100,000/ - through his father or otherwise for transfer of mutation.
10. The vendor of petitioner, Rozi Khan at the time of Ex.P/1- A had imperfect title to the suit
land. The said Rozi Khan subsequently to the sale had not acquired any interest in the property nor the concurrence of Respondent 2 was necessary to validate his title, therefore, petitioner
couldn’t compel his vendor or the Respondent 2 for completion of his title in view of Sections 12
and 18 (a and b), the Specific Relief Act, 1877 (‘Act, 1877’). Petitioner should have impleaded his vendor in his suit to compel him to make good his title in respect of the suit land. Petitioner
appeared as his own witness and during his cross -examination, admitted the following facts:
“it is correct that Rozi Khan had not exhibited any document to me with regard to the Maqbool Lehri’s ownership or sale and purchase prior to 1995 (Q.9).
It is correct that I did not collect information in respect of the ownership of land of Rozi
Khan prior to 1995 that on whose name the land is and on whose name it has been
entered in the revenue record. (Q.10).
It is correct that the stamp doesn’t bear signature of Maqbool Lehri; voluntarily stated
that Maqbool had promised. (Q.13).
It is correct that Maqbool Lehri had neither made a contract of sale and purchase with me
nor made any transaction in respect of the suit land. Voluntarily stated his father did and received money from me. (Q.26).
All afore discussed facts and admissions of petitioner show that Respondent 2 was not bound to
transfer mutation of the suit land either on the name of Rozi Khan or to the name of petitioner. Thus, the findings of the learned Trial Judge on issues 1 and 2 suffered from error of law of
Section 12 r/w 18, the Act, 1877 and misreading and non reading of evidence. The Appellate
Court vide impugned judgment has rightly reversed findings of learned Trial Judge on both
issues and, therefore, do not suffer from any error of law.
11. As far as issue of limitation is concerned, the learned Appellate Judge vide impugned
judgment has rightly reversed findings of the learned Trial Judge on this issue. Petitioner
tendered in evidence receipt of payment of Rs. 100,000/ - as Ex.P/10- B. Ex.P/10- B, purportedly
executed by Respondent 2’s father is dated 23 August 1995. According to petitioner’s own pleading, Respondent 2’s father had received the said amount for transfer of mutation of the suit land to his name. In substance, petitioner had instituted suit for specific performance of contract which was governed by Article 113, Schedule -I, the Limitation Act, 1908 (‘Act, 1908’).
Petitioner did not mention any date of refusal of contract on the part of Respondent 2 with regard to his denial in respect of completion of the pleaded undertaking. The Ex.P/10- B was dated 23
August 1995. Hence, suit instituted in May 2019 was barred by time under Article 113, the Act, 1908. In his examination in chief, petitioner did not describe any date on which cause of action accrued to him. In respect of limitation, petitioner’s learned counsel placed reliance on Hakeem Shah’s case, however, facts of the case law are distinguishable, for in the instant case, petitioner
failed to prove that Respondent 2 had either sold out the suit land to his vendor, Rozi Khan or
had undertaken for perfection of the imperfect title of Rozi Khan or his own. Hence, reliance on Hakeem Shah’s case is not relevant.
12. Petitioner learned counsel placed reliance on Akhtar Sultana’s case . In such case, the
Apex Court has held that Court is empowered to grant such relief as the justice of the case may demand. Petitioner failed to prove what he had pleaded, therefore, the case law is
distinguishable.
13. Though, Respondent 2 had not assailed findings of the learned Trial Judge on material
issues, however, on appeal preferred by the Respondent 1, Appellate Court could have looked
into the illegality or material irregularity committed by the learned Trial Judge. (Order XLI rule 33, the Code of Civil Procedure, 1908). The Appellate Judge vide impugned judgment has
scanned the entire record of the case and by doing so, has reached at the right conclusion.
14. For what has been discussed above, I am in agreement with the reasonings extended by
the learned Appellate Judge for setting aside the decretal judgment of the Trial Court. The same
doesn’t warrant any interference by this Court in its revisional jurisdiction; thus, I dismiss the instant civil revision petition, however, with no order as to costs.
(Y.A.) Civil revision dismissedThis 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.