Supreme Court decision on illegal possession on overseas property .
فیصلے میں کئی منفرد نکات کا فیصلہ کیا گیا:
2. **ٹرائل کورٹ کے فیصلے کی بحالی**: سپریم کورٹ نے ہائی کورٹ کے فیصلے کو پلٹ دیا، جس نے غیر قانونی ڈسپوزیشن ایکٹ 2005 کے تحت ایک شکایت کو خارج کر دیا تھا۔
3. **اوورسیز پاکستانیوں کے لیے معاونت**: عدالت نے سمندر پار پاکستانیوں کو انصاف تک رسائی میں درپیش نظامی چیلنجوں پر روشنی ڈالی اور ان کی مدد کے لیے خصوصی اقدامات کی ضرورت پر زور دیا۔ اس نے لاہور ہائی کورٹ اور پنجاب لیجسلیچر کی طرف سے پہلے سے کی گئی انتظامی کوششوں کو تسلیم کیا اور دوسرے صوبوں اور وفاقی حکام سے بھی اسی طرح کے اقدامات کا مطالبہ کیا۔
4. **عدالتی رابطہ**: سپریم کورٹ نے حکم دیا کہ اس کا فیصلہ تمام ہائی کورٹس کے رجسٹراروں اور متعلقہ قانونی محکموں کو پہنچایا جائے تاکہ اس بات کو یقینی بنایا جا سکے کہ سفارشات اور ہدایات کو پورے ملک میں نافذ کیا جائے۔
یہ نکات عدالت کی طرف سے طریقہ کار کی انصاف پسندی، بیرون ملک مقیم شہریوں کو درپیش نظامی چیلنجوں سے نمٹنے کی اہمیت، اور مسلسل عدالتی طرز عمل کی ضرورت پر زور دیتے ہیں۔
 |
| Supreme Court decision on illegal possession on overseas property . |
SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Qazi Faez Isa
Mr. Justice Yahya Afridi
Civil Appeals No. 152 and 153 of 2019
(Against the consolidated judgment dated 26.11.2018 passed by
the Peshawar High Court, Abbottabad Bench, in Civil Revisions
No. 182-A/2018 and 145-A of 2018)
AND
Civil Petition No. 472 of 2019
(Against the judgment dated 26.11.2018 passed by the Peshawar
High Court, Abbottabad Bench, in Writ Petition No. 521-A/2018)
Haji Muhammad Yunis (deceased) through legal heirs and another.
(in all cases)
… Appellants
Versus
Mst. Farukh Sultan and others.
(in CA. 152/2019)
Syed Faisal Shah and others.
(in CA.1523/19 &
CP.472/19)
… Respondents
For the appellants:
Mr. Munawar Iqbal Duggal, ASC.
(In all cases)
Syed Rifaqat Hussain Shah, AOR.
For private respondents:
Agha Muhammad Ali, ASC.
(In all cases)
Ch. Akhtar Ali, AOR.
For official respondents:
Nemo.
Date of Hearing:
26.04.2022.
JUDGMENT
Yahya Afridi, J. What we have before us is a classic case
depicting the mental anguish and prolonged ordeal faced by
oversees Pakistanis in securing their real estate investments
through the courts in Pakistan.
Parties and Subject Matter
2.
The saga of the ordeal faced by Haji Muhammad Yunis1 and
his wife, Mst. Mumtaz Akhtar (appellants/defendants No. 1 and 2), who
were first living in South Africa and then settled in the United
1Haji Muhammad Yunis has died during pendency of these appeals and petition, and is
Civil Appeal No. 152 of 2019 etc.
2
Kingdom, commenced when they purchased a house on a 4-kanal
and 7-marla land, bearing khata No. 2433/3409, khasra No. 1366,
situated in Mouza Mir Pur, Tehsil and District Abbottabad (suit
property) from Mst. Suriyya Ashraf vide sale mutation No. 3477 (sale
mutation) sanctioned on 15 October 1989 for a sale consideration of
one million rupees. Mst. Surriya Ashraf lived for about 19 years
after the sale mutation and died in October 2008. On her death,
Mst. Surriya Ashraf left behind three legal heirs, two daughters,
namely, Mst. Farukh Sultan (respondent No.1/plaintiff) and Mst.
Fozia Naian (respondent No.6) and one son, namely, Syed Faisal
Shah (respondent No.2). Other parties are Tehsildar, Abbottabod
(respondent No.3), Sub-Registrar Abbottabad (respondent No.4) and
Patwari Halqa Revenue Estate Mirpur, Abbottabad (respondent
No.5).
Civil Appeals No. 152 and 153 of 2019
3.
Mst. Farukh Sultan (respondent No.1) instituted a suit,2 on 22
June 2009, seeking declaration that she and her siblings, being
the legal heirs of Mst. Surriya Ashraf, were the co-owners of the
suit property, and that the sale mutation, being the result of fraud
and forgery, was void and ineffective against their rights. Her
siblings did not join her cause as co-plaintiffs in the suit; she,
therefore, impleaded them as proforma defendants. Her sister, Mst.
Fozia Naian (respondent No.6), did not appear in the suit, while her
brother, Syed Faisal Shah (respondent No.2), appeared and
contested her claim by filing his written statement, claiming
therein that the suit property had fallen to his share in the family
settlement, and he was the exclusive owner thereof. He, however,
2 The present appeals have arisen from this suit
Civil Appeal No. 152 of 2019 etc.
3
also disputed the validation of the sale mutation. On his stance of
exclusive ownership of the suit property in the written statement,
respondent No.1 got him transposed as a proper defendant in the
suit. He also instituted a separate suit on 26 June 2009, claiming
his ownership of the suit property, and disputing the sale
mutation, but later withdrew the same on 16 June 2011.
4.
The trial court dismissed the suit of Mst. Farukh Sultan
(respondent No.1) on 7 January 2015. She and her brother, Syed
Faisal Shah (respondent No.2) filed two separate appeals, and the
appellate court dismissed both the appeals by a common judgment
dated 20 February 2018. Thereafter, both of them filed two
separate civil revision petitions, which were allowed by a common
judgment by the High Court dated 26 November 2018 (impugned
judgment), and the concurrent judgments of the trial and appellate
courts were thereby reversed and the suit of respondent No.1
decreed. Hence, Civil Appeals No. 152 and 153 of 2019 have been
filed as of right by the appellants.
Civil Petition No. 472 of 2019
5.
The background of this petition for leave to appeal is this:
Muhammad Yunis and Mst. Mumtaz Akhtar (appellants) filed a
complaint on 24 September 2012, against Syed Faisal Shah
(respondent No.2) under sections 3 and 8 of the Illegal Dispossession
Act 2005, for his trial of the offence of illegally occupying the suit
property and for recovery of the possession of the suit property.
The trial court, on an application of Syed Faisal Shah (respondent
No.2) stopped the proceedings of this complaint on 1st April 2013
till decision of the civil suit of Mst. Farukh Sultan (respondent No.1).
Civil Appeal No. 152 of 2019 etc.
4
After decision of the civil suit as well as decision of the appeal, the
trial court restored the proceedings of the complaint on 7 March
2018 on application of Muhammad Yunis and Mst. Mumtaz Akhtar
(appellants), and framed the formal charge against Syed Faisal Shah
(respondent No.2) on 23 April 2018. Syed Faisal Shah (respondent
No.2) filed an application challenging the maintainability of the
complaint on 8 May 2018, on the ground of pendency of his civil
revision petition against the judgments of the trial and appellate
courts passed in the civil suit. The trial court dismissed this
application by its order of the same date, that is, 8 May 2018 while
placing reliance upon the judgment of this Court rendered in
Muhammad Naseem v. Farida Gul3. Syed Faisal Shah (respondent No.2)
challenged the said order by filing a writ petition in the High Court.
The High Court allowed his writ petition, accepted the said
application of respondent No.2 and dismissed the complaint of the
appellants by its order dated 26.11.2018 (impugned order), relying
upon its judgment passed in the connected civil revision petitions,
which is impugned in Civil Appeals No. 152 and 153 of 2019.
Hence, the present petition for leave to appeal has been filed by the
appellants.
6.
The valuable submissions of the learned counsel for the
parties have been heard and with their able assistance, the record
of the cases perused.
Unbecoming Conduct and Wavering Stance of Respondent No.2
7.
At the outset, before we discuss the merits of the contested
claims of the parties and the findings recorded by the three courts
3
2016 SCMR 1931.
Civil Appeal No. 152 of 2019 etc.
5
thereon, we find it appropriate to first address the three-pronged
challenge made by the appellants to the conduct of Syed Faisal
Shah (respondent No.2) during the proceedings of the suit: firstly,
that he introduced a fictitious attorney of Mst. Mumtaz Akhtar
(appellant No.2) and her purported son, Imran Yunis, namely, Syed
Walayat Shah, and showed Haji Muhammad Yunis (appellant No.1)
to have died; secondly, that he got filed the written statement on
behalf of the appellants through the said fictitious attorney
favouring his stance in the suit; and finally, that he got half of the
suit property alienated through the said fictitious attorney to him
vide sale mutation No. 378 sanctioned on 26 December 2012.
8.
The fallacy of the foundation of the entire stance taken by
Syed Faisal Shah (respondent No.2) was exposed, when Haji
Muhammad Yunis and Mst. Mumtaz Akhtar (appellants) appeared
in person before the trial court on 24 October 2012, and apprised
the trial court of the fraud committed in producing a fictitious
attorney and misrepresenting the death of Haji Muhammad Yunis.
These crucial facts were recorded by the trial court in its order,
and that too, in the presence of Syed Faisal Shah (respondent No.2).
The court proceedings recorded by the trial court in its orders No.
63 and 67 passed on 24 October and 10 December 2012, have
resonance of the fraud and misrepresentation contended by the
appellants. The same are reproduced hereunder for ease of
reference:
O-63
24.10.12
Pltt through Asst present, defdt No # 3 present, submitted W/N.
Defdt No. # 1, 2 in person present a/w counsel, submitted W/N
and requests for personally pursuing case, as he and his wife are
alive & settled in Africa, and Imran Younus is a fictitious person
who stated himself as son of the defdt No. # 1 & 2, fraudulently
obtained their CNIC from NADRA, and showed them as dead just
to grab their property, made fictitious inheritance mutation, in
their absence. As soon as he came to know, he appeared
Civil Appeal No. 152 of 2019 etc.
6
personally, to pursue the case. His alleged son Imran Younus &
Attorney Wilayat Shah be summoned/noticed in person, to
answer these complicated questions.
File to come up for personal attendance of Imran Younus &
Wilayat Shah on 5/11/12.
O-67
10/12/12
Parties through counsels present, arguments on application of
defdt No. # 1 & 2 heard, file perused.
Briefly stated facts are that defdt No # 1 & 2 are residing abroad
having UK/British nationality. That defdt No. 1 & 2 had
purchased the suit house in the year 1989/90 from the parents of
pltff & defdt No # 3. That, one Imran Younus through attorney
namely Vilayat Shah appeared in behalf of defdt No. 1 & 2. As
Imran Younus alleged himself as son of defdt No 1 & 2, and they
have been shown as dead. As defdt No. 1 & 2 came to know they
personally appeared, and stated that Imran Younus is not the son
since then Imran Younus & his special attorney have
disappeared. Counsel for defdt No. 1 & 2 submitted application to
cancel proceedings initiated by Imran Younus in behalf of defdt
No. 1 & 2. Defdt No. 1 & 2 initiated criminal proceedings against
said persons.
The plea of defdt No 1 & 2 seems reasonable. Proceedings
initiated by the said Imran Younus in behalf of defdt No 1 & 2 are
revoked in this case. Defdt No. 1 & 2 are directed to contest the
case. The petition is disposed of accordingly.
File to come up for w/s in behalf of Defdt No. 1 & 2 on 13/12/12.’
Perusal of the above orders of the trial court clearly confirms the
presence of Syed Faisal Shah (respondent No.2), who was defendant
No.3 in the suit, when the appellants appeared in person before
the trial court on 24 October 2012, and informed the trial court
about the fraud of the fictitious attorney, Syed Wilayat Shah. Thus,
despite having knowledge of the fraud of the said fictitious
attorney, the silent and unprotested presence of Syed Faisal Shah
(respondent No.2) at the time of sanction of the sale mutation No.
378 on 26 December 2012 in his favour regarding half of the suit
property through the said fictitious attorney, speaks otherwise
than his bona fide.
9.
Furthermore, the stance of Syed Faisal Shah (respondent No.2)
before the trial court, during the proceedings of the suit, also kept
Civil Appeal No. 152 of 2019 etc.
7
wavering. At the initial stage of the proceedings of the suit, he took
the plea in his written statement filed on 18 February 2010 that
the suit property has fallen to his share in the family settlement
and he is the exclusive owner thereof. Later, he is shown to have
purchased half of the suit property vide sale mutation No. 378
sanctioned on 26 December 2012. And finally, he abandons all his
earlier claims after registration of a criminal case against the said
fictitious attorney, in his statement made as DW-5 on 28 February
2014 and joins hands with his sister, Mst. Farukh Sultan
(respondent No.1/plaintiff), supporting her claim that the suit
property has devolved on all children4 of Mst. Suriya Ashraf and
they all are entitled to their respective share therein as per the
Islamic law.
10.
To sum up the discussion on the conduct and stance of Syed
Faisal Shah (respondent No.2) during proceedings of the suit, we can
safely conclude that the same were beyond being civil and honest.
In the background of such conduct of Syed Faisal Shah (respondent
No.2), we may now proceed to consider the merits of Civil Appeals
No. 152 and 153 of 2019.
Merits of Civil Appeals No. 152 and 153 of 2019
11.
The contested pleadings of the parties led the trial court to
frame ten issues for trial. Issues No.4, 5 and 8 comprised the main
controversy between the parties, which are reproduced hereunder
for ready reference:
Issue No.4:
Whether suit of plaintiff is time barred? OPD
4 One daughter, namely, Mst. Fozia Naian did not come forward to support the plaintiff before the
trial court, appellate court or revisional court nor did she appear in the witness box to testify about
the disputed facts. However, the learned counsel, Agha Muhammad Ali, has submitted that she
has now submitted her power of attorney (wakalat nama) in this Court in support of her siblings
Civil Appeal No. 152 of 2019 etc.
8
Issue No.5:
Whether defendants No. 1 and 2 purchased
property from parent of plaintiff and defendant
No.3? OPD
Issue No.8:
Whether mutation No. 3477 dated 15/10/1989 is
fake, forged and fictitious? OPP
Bar of Limitation
12.
On Issue No.4, the trial court concluded that although the
suit was instituted after 19/20 years of the sanction of the sale
mutation and the predecessor of the Mst. Farukh Sultan
(respondent No.1/plaintiff) had not challenged the sale mutation
during her lifetime, yet a new Jamabandi is prepared after every
four years, which creates a fresh cause of action; therefore, the
suit of the plaintiff was within time. The appellate court did not
give any finding on this issue, while the High Court endorsed the
findings of the trial court with the observation that repetition of
every wrong entry in the subsequent Jamabandi gives a fresh
cause of action, therefore, the suit was filed within the period of
limitation.
13.
We find that both the trial court and the High Court have not
correctly decided the issue of limitation. This Court has recently
clarified, in Rabia Gula v. Muhammad Janan,5 the application of Article
120 of the First Schedule to the Limitation Act, 1908 (“Limitation
Act”) to a suit for declaration filed under section 42 of the Specific
Relief Act, 1877 (“Specific Relief Act”). The Court has opined:
8.12
A suit for declaration of any right, as to any property is
filed under section 42 of the Specific Relief Act, which reads:
42. Discretion of Court as to declaration of status
or right-- Any person entitled to any legal
character, or to any right as to any property, may
institute a suit against any person denying, or
interested to deny, his title to such character or
5 C.A. No.139-P/2013 decided on 25 February 2022, available on the official website of this Court
at: https://www.supremecourt.gov.pk/downloads_judgements/c.a._139_p_2013.pdf
Civil Appeal No. 152 of 2019 etc.
9
right, and the Court may in its discretion make
therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further
relief: Provided that no Court shall make any such
declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits
to do so. (Emphasis added)
It becomes evident by reading the above provisions that the right
to sue accrues to a person against the other for declaration of his
right, as to any property, when the latter denies or is interested to
deny his such right. It thus postulates two actions that cause the
accrual of right to sue, to an aggrieved person: (i) actual denial of
his right or (ii) apprehended or threatened denial of his right.
8.13
Now, what “actions” can be termed as an “actual denial of
right”, and what a mere “apprehended or threatened denial of
right”, in the context of adverse entries recorded in the revenue
record. It is important to note that a person may ignore an
“apprehended or threatened denial” of his right taking it not too
serious to dispel that by seeking a declaration of his right through
instituting a suit, and may exercise his option to institute the
suit, when he feels it necessary to do so, to protect his right. For
this reason, every “apprehended or threatened denial” of right
gives a fresh cause of action and right to sue to the person
aggrieved of such apprehension or threat. However, this option to
delay the filing of the suit is not available to him in case of “actual
denial” of his right; where if he does not challenge the action of
actual denial of his right, despite having knowledge thereof, by
seeking declaration of his right within the limitation period
provided in the Limitation Act, then his right to do so becomes
barred by law of limitation.
8.14
Admittedly, entries in the revenue record do not create or
extinguish proprietary rights. Such an entry may at most be
termed as a mere “apprehended or threatened denial” of right,
and not an “actual denial” of right. Accordingly, every new
adverse entry in the revenue record relating to proprietary rights
of a person in possession (actual or constructive) of the land
regarding which the wrong entry is made, gives to such person, a
fresh cause of action to institute the suit for declaration.
8.15
The situation is, however, different in a case where the
beneficiary of an entry in the revenue record also takes over the
possession of the land on the basis of sale or gift transaction, as
the case may be, recorded in that entry. His action of taking over
possession of the land in pursuance of the purported sale or gift
is certainly an “actual denial” of the proprietary rights of the
purported seller or donor. Therefore, in such a case, if the
purported seller or donor does not challenge that action of “actual
denial” of his right, within the prescribed limitation period,
despite having knowledge thereof, then his right to do so becomes
barred by law of limitation.
(Emphasis
added)
On careful reading of the above, it is evident that this Court has
explained the distinction between an “actual denial of right” and an
Civil Appeal No. 152 of 2019 etc.
10
“apprehended or threatened denial of right” in relation to
applicability of the law of limitation in cases seeking declaration of
proprietary rights in immovable property. It has held that every
new adverse entry in the revenue record, being a mere
“apprehended or threaten denial” relating to proprietary rights of a
person in possession (actual or constructive) of the land regarding
which the wrong entry is made, gives to such person a fresh cause
of action to institute the suit for declaration. It has, however,
further clarified that the situation is different in a case, where the
beneficiary of an entry in the revenue record actually takes over
physical possession of the land on the basis of sale or gift
mutation. In such a case, the alleged wrong entry in the revenue
record coupled with the very act of taking over possession of the
land by the alleged buyer or donee, in pursuance of the purported
sale or gift, is an “actual denial of the proprietary rights” of the
alleged seller or donor and thus, the time period to challenge the
said disputed transaction of sale or gift by the aggrieved seller or
donor would commence from the date of such actual denial.
Therefore, in such a case, if the purported seller or donor does not
challenge that action of “actual denial of his right” within the
prescribed limitation period, despite having knowledge thereof, his
right to do so becomes barred by the law of limitation, and the
repetition of the alleged wrong entry in the subsequent revenue
record (Jamabandi) does not give rise to a fresh cause of action.
14.
In the present case, Haji Muhammad Yunis and Mst.
Mumtaz Akhtar (appellants) claim that the possession of the suit
property was handed over to them under the sale mutation in
1989, and it was subsequently taken over by Syed Faisal Shah
Civil Appeal No. 152 of 2019 etc.
11
(respondent No.2), when they were abroad. We find that this
assertion of the appellants is supported by the documentary
evidence produced by the respondent No.2 himself, that is, copy of
Khasra Girdawri (Exh-DW5/6). As per the said document, Syed
Faisal Shah (respondent No.2) took over possession of the suit
property in 2009, and prior to that period Haji Muhammad Yunis
and Mst. Mumtaz Akhtar (appellants) were recorded to be in
possession of the suit property. Similarly, this fact is further
fortified by the copies of Utility Bills (Exh-DW5/1) tendered by Syed
Faisal Shah (respondent No.2) in his evidence; almost all these Bills
relate to the period after the year 2009.
15.
Possession follows the title. This is a well settled principle.
Therefore, unless contrary is proved by cogent evidence, an owner
is presumed to be in possession of his property. Haji Muhammad
Yunis and Mst. Mumtaz Akhtar (appellants), who are owners of the
suit property, as per the revenue record, are thus presumed to be
in possession of the suit property, since the sanction of the sale
mutation in the year 1989. If Mst. Farukh Sultan (respondent No.1)
and Syed Faisal Shah (respondent No.2) or their parents remained in
possession of the suit property throughout, as asserted by them,
then they were to produce cogent evidence in that regard, which is
lacking in the present case. Even the copies of the Utility Bills
produced by the respondents were for the period after 2009. The
failure on their part to produce copies of the Utility Bills for the
period from 1989 to 2009, negates their assertion of possessing the
disputed property throughout, and strengthens the stance of the
appellants.
Civil Appeal No. 152 of 2019 etc.
12
16.
Needless to reiterate, that disputed facts in civil cases are
ordinarily decided on the evidential standard of preponderance of
probability. In view of the evidence available on record of the case,
all probabilities tilt in favour of the assertion of fact made by Haji
Muhammad Yunis and Mst. Mumtaz Akhtar (appellants). We,
therefore, find that the possession of the suit property was taken
over by the appellants in the year 1989 under the sale mutation as
claimed by them. Therefore, the cause of action arose, and the
right to sue for declaration of her right and challenge the sale
mutation accrued to Mst. Surriya Ashraf, the purported seller, in
1989 as per section 42 of the Specific Relief Act and Article 120 of
the first Schedule to the Limitation Act 1908. She lived for about
two decades after sanction of the suit mutation but did not
exercise such right within the limitation period of six years
prescribed in Article 120 of the first Schedule to the Limitation Act.
Her right, therefore, became time barred even in her lifetime, and if
she were alive in 2009 and had herself instituted the suit to
challenge the sale mutation, her suit would have been time barred.
When the right to sue of a person from or through whom the
plaintiff derives his right to sue has become time barred, no fresh
period of limitation can start for such plaintiff.6 Neither in the
plaint nor in her evidence did Mst. Farukh Sultan (respondent
No.1/plaintiff) assert that her mother, the purported seller, who
remained alive for about 19 years after sanction of the sale
mutation, was not aware of the sale mutation and thus could not
challenge the same during her lifetime. She has not even stated in
the plaint or in her statement (PW-2) how and when she came to
know of the sale mutation. These omissions on her part defeats the
6
See Rabia Gula case.
Civil Appeal No. 152 of 2019 etc.
13
very legal basis upon which she could have saved her suit from the
bar of limitation under section 18 of the Limitation Act.7
17.
In view of the above discussion, it is apparent that the suit of
Mst. Farukh Sultan (respondent No.1/plaintiff) was clearly barred by
the law of limitation, as it was filed beyond the six-year period
prescribed under Article 120 of the first Schedule to the Limitation
Act. Thus, the suit was liable to be dismissed on this ground alone,
as per section 3 of the Limitation Act. The High Court has therefore
legally erred in deciding the issue of limitation in the impugned
judgment, which warrants interference by this Court in its
appellate jurisdiction.
Validity of the sale mutation and presumption of truth
18.
As for the legal validity of the sale mutation, which was in
fact the core matter for determination under Issues No.5 and 8, it
need not be looked into, as the very suit has been found to be
barred by the law of limitation.8 However, for completeness of the
discussion and furtherance of fairness, we have examined the
evidence of the parties on these issues also. In this regard, we may
observe, when a sale transaction of an immovable property is
challenged, the ultimate onus to prove the same is on the
“beneficiary” thereof. However, this onus is shifted on the
“beneficiary”, only when the challenger puts forth some evidence to
discharge the initial burden to rebut the legal presumption of truth
in favour of the disputed long-standing revenue entries or
registered sale deed, as the case may be. In the present case, we
note, Mst. Farukh Sultan (respondent No.1/plaintiff) had not
7
Ibid.
8
Section 3 of the Limitation Act, 1908
Civil Appeal No. 152 of 2019 etc.
14
discharged the initial onus; firstly, to rebut the presumption of
regularity attached to the official act of sanctioning the sale
mutation by the Revenue Officer, under Article 129(e) of the
Qanun-e-Shahadat 1984, and secondly, the presumption of truth
attached to the entries in the revenue record, under section 52 of
the Land Revenue Act 1967.9 Thus, the burden to prove the sale
transaction and the sale mutation did not shift upon Haji
Muhammad Yunis and Mst. Mumtaz Akhtar (“appellants/defendnats
No.1 and 2”).
19.
Mst. Farukh Sultan (respondent No.1/plaintiff) deposed in her
statement (PW-2) that she had not preferred any claim against Haji
Muhammad Yunis and Mst. Mumtaz Akhtar (appellants/ defendants
No.1 and 2) that she had made her claim only against her brother
Syed Faisal Shah (respondent No.2) and that she did not know Haji
Muhammad Younis and Mumtaz Akhtar (appellants/defendants No.1
and 2) and had no concern with them. This portion of her statement
has specifically been cited by the appellate court in its judgment.
Such a statement of Mst. Farukh Sultan (respondent No.1/plaintiff)
could not be treated to have discharged the initial onus of
rebutting the legal presumptions of regularity and truth attached
to the long-standing revenue entries in favour the appellants. This
statement of respondent No.1 had rather strengthened the said
presumptions of regularity and truth.
20.
As for the denial of Syed Faisal Shah (respondent No.2) of the
validity of the sale mutation in his statement (DW-5), it was of no
value and could be of no use to Mst. Farukh Sultan (respondent
9 Wajdad v. Provincial Government 2020 SCMR 2046; Mazloom Hussain v. Abid Hussain PLD
2008 SC 571.
Civil Appeal No. 152 of 2019 etc.
15
No.1) or to him, as he had withdrawn his suit challenging the sale
mutation and had, thus, lost his cause of action to re-agitate the
same matter in the suit filed by another,10 either as a co-plaintiff or
a proforma defendant supporting the plaintiff on the same matter.
For what cannot be done directly, cannot be allowed to be done
indirectly. Syed Faisal Shah (respondent No.2) was legally barred
under the provisions of Rule 1(3) of Order XXIII of the Code of Civil
Procedure 1908 to re-agitate his claim as to the validity of the suit
mutation, after withdrawing his suit; his appeal before the District
Court and his revision petition before the High Court were,
therefore, not maintainable and wrongly entertained. Further, he
having got sanctioned the sale mutation No. 378 on 26 December
2012 regarding half of the suit property through a fictitious
attorney of Haji Muhammad Yunis and Mst. Mumtaz Akhtar
(appellants) had admitted their ownership under the sale mutation.
Similarly, the initial non-challenge11 of the sale mutation by Mst.
Fozia Naian (respondent No.6), the third legal heir of Mst. Surriya
Ashraf, the seller, also strengthens the legal presumptions of
regularity and truth of the revenue entries in favour of the
appellants.
21.
Accordingly, it is but apparent that the decision of the High
Court reversing the concurrent findings of fact of the courts below
on Issues No. 5 and 8 by holding that Haji Muhammad Yunis and
Mst. Mumtaz Akhtar (appellants) being beneficiaries of the sale
10 Muhammad Saleem v. Abdul Hakeem 2000 YLR 2888. He can however defend his stance on
such matter as a defendant; see Ghulam Haider v. Ahmed Ali 2002 MLD 632.
11 She did not come forward to support the plaintiff before the trial court, appellate court or
revisional court nor did she appear in the witness box to testify about the disputed facts. However,
the learned counsel, Agha Muhammad Ali, has submitted that she has now submitted her power of
attorney (Wakalat nama) in this Court in support of her siblin
Civil Appeal No. 152 of 2019 etc.
16
mutation failed to prove the sale transaction is also legally flawed,
as the burden to prove the same had not shifted upon them
because of the failure of Mst. Farukh Sultan (respondent
No.1/plaintiff) in discharging the initial burden of rebutting the legal
presumptions of regularity and truth attached to the sale mutation
and the subsequent entries in the revenue record.
Scope of Revisional Jurisdiction
22.
The High Court is found to have erred in reversing the
concurrent findings of facts of the trial and appellate courts on
Issues No. 5 and 8, by simply reappraising the evidence and
without pointing out what substantial evidence was either nonread or misread by the courts below or how their appraisement of
the evidence was perverse or absurd, justifying interference in the
limited scope of revisional jurisdiction.
23.
The trial court had answered both these issues in favour of
Haji Muhammad Yunis and Mst. Mumtaz Akhtar (appellants), by
holding that the sale mutation was sanctioned by the Revenue
Officer in presence and on the identification of the seller’s
husband, who was a retired army officer; therefore, the plea of Mst.
Farukh Sultan (respondent No.1/plaintiff) as to ignorance of or fraud
with her mother, Mst. Suriyya Ashraf, the alleged seller, was
immaterial. The trial court had also underlined that the alleged
seller died after about 19/20 years of the sanction of the sale
mutation but she did not challenge it during her lifetime, and Mst.
Farukh Sultan (respondent No.1/plaintiff) had no right to challenge it
independent of her predecessor.
Civil Appeal No. 152 of 2019 etc.
17
24.
The appellate court further confirmed the findings of the trial
court, after making its own independent appraisal of the whole
evidence available on record, and also addressing the contentions
of Mst. Farukh Sultan (respondent No.1/plaintiff) regarding nonproduction of cogent evidence by Haji Muhammad Yunis and Mst.
Mumtaz Akhtar (appellants/defendants No.1 and 2), to prove the sale
transaction and the sale mutation. The appellate court rejected the
said contention with the observation that the appellants could not
have produced the evidence demanded of them to prove the sale
transaction and the sale mutation after 30 years, when not only
the seller, but the identifier, the witness and the Revenue Officer
who sanctioned the sale mutation had died. The appellate court
also cited that part of the statement (DW-5) of Syed Faisal Shah
(respondent No.2) in its judgment, wherein he had admitted that the
signature of his father on the disputed sale mutation (Mark-A), as
identifier of the seller, his mother, matched with his signature on
his CNIC (Exh-DW5/D1-2) and that his mother used to make her
signature in English, as it was on the disputed sale mutation (MarkA). The High Court did not have, in its revisional jurisdiction, the
legal mandate to reverse the concurrent findings of the trial and
appellate courts, without first addressing the said reasoning of the
trial and appellate courts. Accordingly, the judgment of the high
Court warrants correction.
25.
For the forgoing reasons, we allow both the appeals, Civil
Appeals No.152 and 153 of 2019, set aside the impugned judgment
of the High Court and restore the concurrent judgments of the trial
Civil Appeal No. 152 of 2019 etc.
18
court and appellate court, while reversing the finding of the trial
court on Issue No. 4.
Merits of Civil Petition No. 472 of 2019
26.
The High Court had allowed the writ petition of Syed Faisal
Shah (respondent No.2) and accepted his application regarding nonmaintainability of the complaint filed by Haji Muhammad Yunis
and Mst. Mumtaz Akhtar (appellants), under sections 3 and 8 of the
Illegal Dispossession Act, 2005, relying upon its judgment passed
in the connected civil revision petitions. As we have set aside the
judgment dated 26.11.2018 passed in the connected civil revision
petitions by allowing Civil Appeals No. 152 and 153 of 2019, the
present petition is converted into appeal and allowed. The
impugned order of the High Court is set aside and that of the trial
court is restored. The trial court shall proceed with the complaint
expeditiously and conclude the trial as early as possible, in
accordance with law.
Affirmative actions for redressal of the grievances of the
overseas Pakistanis
27.
Before parting with the judgment, we consider it appropriate
to highlight the plight of the overseas Pakistanis in perusing their
legal rights in courts in Pakistan. Their disadvantageous position
requires urgent positive attention of all organs of the State.
Overseas Pakistanis being not present in Pakistan, cannot pursue
their cases as efficiently as can be done by the local residents, and
are thus in a disadvantaged position in comparison to the latter.
They as such form a class distinct from the local residents, based
on an intelligible differentia. The public institutions can, therefore,
Civil Appeal No. 152 of 2019 etc.
19
take affirmative actions and make certain special provisions for the
protection of their lawful rights and for the redressal of their
genuine grievances. We are informed that the Lahore High Court
has taken certain administrate measures for early decision of the
cases of Overseas Pakistanis and to address their complaints
regarding undue delay in decision of their cases, and the
Legislature of the Province of Punjab has also enacted a law to
redress the grievances of Overseas Pakistanis relating to
Government Agencies. These actions are appreciable, and we
expect that other Provinces and the Islamabad Capital Territory
would follow suit.
28.
Office shall send a copy of this judgment to the Registrars of
all the High Courts in the country and the Secretaries of all the
Provincial Law Departments and the Federal Law Ministry, for their
information and appropriate action.
Judge
Judge
Announced in open Court on___17th ___ May, 2022
at Islamabad
Judge
Approved for reporting
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