2004 C L C 378

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Shahzad Akbar Khan, J

SAEEDUR REHMAN and others---Appellants

versus

ASSISTANT COMMISSIONER/COLLECTOR ACQUISITION,

SWABI--- Respondent

Regular First Appeal No.32 of 1997, decided on 25th June, 2003.

(a) Land Acquisition Act (I of 1894)---

----Ss. '4, 6, 23 & 54---Acquisition of land---Determination of compensation---Reference

to Civil Court---Owners of acquired land being dissatisfied with compensation amount as
determined by the Land Acquisition Collector, filed reference before Referee Court---
Reference having been dismissed, owners filed appeal alleging that both Land
Acquisition Collector and Referee Court had not taken into consideration all the relevant
facts for the purpose of determining correct price of land---Claim of owners was that
acquired land was situated near the village `Abadi' and on the road side which could be.
used for the purpose of construction and that those were adding factors to the potentiality
of the land---Evidence on record had established that land in question was not located on
or alongwith the road side as claimed by the owners of land and witness in their cross-
examination had also admitted that distance between village and land in question was two
kilometres--Landowners had also failed to bring on record anything to prove that any
other land in the same locality was sold for a higher price ---Effect--Mere bald statements
of witnesses produced by landowners would not be sufficient to accept their claim for a
higher price of acquired land---Land in question was proved to be of `Maira kind' which
was not cultivable and no element of its potential value was emerging from the record--
Determination of price of land for purpose of compensation through one yearly average,
being one of the modes recognized by law, having correctly been employed by Land
Acquisition Collector, was rightly upheld by Referee Court.

(b) Civil Procedure Code (V of 1908)---

----O. VI, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Art.117--Pleadings---Proof of facts

alleged in pleadings---Pleadings of the parties were not evidence and facts alleged in the
pleadings must be proved through evidence of party which had claimed existence of such
facts.

Ghulam Ali for Appellant.

Malik Ahmad Jan, D.A. -G. for Respondent No: 1.

M. Alam Khan for Respondent No.2.

Date of hearing: 21st May, 2003.

JUDGMENT

SHAHZAD AKBAR KHAN, J:--- Saeed-ur-Rehman and 4 others residents of village

Shah Mansoor Tehsil and District Swabi have filed this appeal questioning the
correctness of the judgment, dated 10-12-1996 passed by the learned Senior Civil
Judge/Land Acquisition Judge, Swabi, whereby the reference filed by the appellant under
sections 18/30 of the Land Acquisition Act was dismissed.
2. The short facts of the case are that land measuring 2123 Kanals, 13 Marlas was
acquired for the purpose of construction of Shah Mansoor Township. Notification under
section 4 of the Land Acquisition Act, 1894 was issued by the then Deputy
Commissioner, Swabi vide his office Endst. No.358-62/DK/KVC, dated 10-6-1989.
Declaration under section 6 of the said Act was issued by the then Commissioner, Mardan
Division, Mardan vide his office Endst. No.5161-63/HVC, dated 7-10-1990. The relevant
award has been assigned its number as 728/31/ACS dated 16-3-1991. The area acquired
by the Land Acquisition Collector, Swabi was of two kinds i.e. Chahi and Maira land.
The price of Chahi land was determined by the Collector as Rs.37,352 per Kanal while
that of Maira land was determined as Rs.13,553 per Kanal based on one yearly average.

3. 15 % compulsory acquisition charges were also given to the landowners. The land
measuring 90 Kanals, 3 Marlas belonging to the appellants was included in the acquired
land.

4. Dissatisfied with the compensation amount, the appellants filed reference before the
Senior Civil Judge/Land Acquisition Judge, Swabi. The reference was resisted by the
respondents by filing reply thereto and the rival pleadings generated the following
issues:--

(1) Whether the plaintiffs/petitioners have got a cause of action?

(2)Whether the reference petition is within time?

(3) Whether the petitioners/plaintiffs are estopped by their own conduct to file the present
reference?

(4) Whether the petitioners /plaintiffs have received the compensation without objection?
(5) Whether the compensation of the suit-land is wrongly assessed, if so, what is the
correct and accurate compensation?

(6) Whether the petitioners/plaintiffs are entitled to the enhancement of compensation as

prayed?

(7) Relief.

5. Both the parties adduced their respective evidence. However, the trial of the matter
ended into dismissal of the reference petition.

6. The learned counsel for the appellants has argued that the Land Acquisition Collector
as well as the learned Land Acquisition Judge. Swabi have erred in law by not taking into
consideration all the relevant factors for the purpose of determining the correct price of
the acquired land and as such the price determined by the Land Acquisition Collector and
upheld by the Land Acquisition Judge, is much less and unfair. He contended that the
suit-land is situated near the Village Abadi and on the road side which can be used for the
purpose of construction and these are the adding factors to the potentiality of the suit-
land. He also argued that the mutations mentioned in para.3 of the reference application
were not taken into consideration for the purpose of determining the correct price. He
also, stated that though attorney of the appellants i.e. P. W.2 namely Saeed-ur-Rehman
has not deposed about the installation of the tube-well in the acquired land nevertheless it
has been mentioned in the reference application that a tube-well on the expenses of
Rs.82,500 has been installed in the land by the appellants which too has not been taken
into consideration by the learned lower Court.

7. On the other hand the learned counsel appearing for the respondents has submitted that
the land of the appellants is admittedly not situated on the road side. It is located far-off
the Village Abadi of Shah Mansoor. He further urged that the land is provenly a Maira
kind and that it has got no potential value. He contended that out of the seventeen
applicants all except appellants Nos.1 and 2 had received the compensation without
recording any protest. Appellants Nos. l and 2 had not received the compensation. He
also stated that out of the seventeen persons only five have filed the instant appeal. He
also argued that in the circumstances the best mode of determining the value of the suit-
land was to employ the method of ode yearly average on the basis of the Revenue Record
which has been accordingly done.
8. We have heard and considered the rival arguments of the learned counsel for the parties
in the light of the' record. Patwari Halqa Umar Dad was examined as P. W.1 who
produced the one yearly average from 30-4-1991 to 30-4-1992 and five yearly average
from 30-4-1987 to 30-4-1992 Exh. P. W 1 / 1 and Exh. P. W.1 /2. This witness has clearly
stated that the acquired land is of Maira kind. On re-examination P. W.1 produced only
the photostat copies of Mutation No.13061, dated 25-2-1986, 13875 and 13876 attested
on 29-8-1989. Appellant No. 1 Saeed-ur-Rehman was examined as P. W.2. He assailed
the price of the acquired land on the ground that the suit-land was situated on Swabi
Jehangira Road and there is Abadi near it. A Technical College is situated near the land
acquired for the Shah Mansoor Township and the land of Muhammad Amin (P. W 3) was
sold to the Education Department for a play ground at the rate of Rs.1,00,000 per Kanal.
Moreover, the Education Department' also acquired land for a sum of Rs.40,000 per
Kanal. In the cross-examination this witness has admitted that his land is not alongwith
the road side. He also admitted that the distance between Village Shah Mansoor and the
Township is two kilometers. He also admitted that he has not brought the mutations on
which the land in the said locality was sold for Rs.1,00,000 per Kanal. Similarly P.W."
although stated that he sold a portion of his property for Rs.1,00,000 pert Kanal in favour
of one Gul Rehman but no mutation or other document was produced in this regard. Even
Gul Rehman to whom the property was statedly sold by P. W.3 was not examined. P. W. 3
admitted that the distance between his house and the acquired land is four kilometers. I
Thus, it is an admitted position that the land of the appellants is not located on the road
side and no documentary roof was produced by P.Ws.2 and 3 to establish the fact that any
other land in the same locality was sold for a higher price. The mere bald statement of
P.Ws.2 and 3 would not be sufficient to accept their claim for a higher price. On re-
examination the Patwari Halqa produced only photostat copies of the three mutations
referred above but the same cannot be taken into consideration in view of section 76 of
Qanun-e-Shahadat Order (No.10 of 1984) as no attested copy thereof could be brought on
the record. On evaluating the evidence it follows that the land of the appellants is of
Maira kind. It is not culturable. It is not situated on the road side and is located at a
sufficient distance admittedly of two K.Ms. from Shah Mansoor Village, therefore, no
element of the potential value is emerging from the record. In the application filed before
the Land Acquisition Judge though a tube-well has been mentioned but none of the P.Ws.
has deposed about the existence of any tube-well. The pleadings of the parties is not
evidence and the fact alleged in the pleadings must be proved through the evidence of the
party which claims the existence of certain facts (Article 117 of Qanun-e-Shahadat Order
(No. 10 of 1984) the determination of the price of the acquired land for the purpose of
compensation through one yearly average is one of the modes recognized by law which
has been employed by the Land Acquisition Collector very correctly. Resultantly we find
no force in the arguments of the learned counsel for the appellants and thus, the appeal
being devoid of merits is dismissed, with no order as to costs.
H.B.T./994/P Appeal dismissed.
P L D 2003 Supreme Court 594

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

FAQIR MUHAMMAD and 8 others---Appellants

Versus

ABDUL MOMIN and 2 others---Respondents

Civil Appeal No. 1440 of 1995, decided on 26th March, 2003.

(On appeal from the judgment. of Lahore High Court, Multan Bench, dated 21-3-1995
passed in R. F. A. No. II of 1987).

(a) Qanun-e-Shahadat (10 of 1984)----

----Arts. 102 & 119---Civil Procedure Code (V of 1908), O. VI, R. I--Agreement---Proof

of existence---Controversial questions of facts cannot be proved merely on the basis of
pleadings---Particular fact pleaded by a party must be proved by the said party and thus
the existence of a written agreement and its contents without producing the same in
Court, could not be presumed to have been proved through oral assertions or on the basis
of partial admission of the agreement in the written statement.

(b) Qanun-e-Shahadat (10 of 1984)-----

----Arts. 102 & 119---Civil Procedure Code (V of 1908), O. VI, R.1--Pleadings of parties
are not a substitute of evidence and same being not a substantive evidence, the averments
made in the pleadings would carry no weight unless proved through the evidence in Court
or admitted by the other party---Written statement of a defendant who was not examined
in the case, cannot be utilized and the admission made therein cannot be taken into
consideration unless proved through the evidence and in any case the statement of facts
and admission in the written statement must be taken as a whole and cannot be dissected
to use only a certain portion of such statement.

(c) Specific Relief Act (I of 1877)-----

----S. 23---Suit for specific performance of agreement to sell land---Such suit was
decreed on the basis of the pleadings of the parties without attending to specific questions
and important aspects of the case and without going into the controversial questions of
facts required to be proved and decided on the basis of evidence--Neither the specific
issues were framed on important mixed questions of law and fact nor the parties produced
the evidence essential for decision of such questions without proper decision of which,
there could be no effective adjudication of the dispute between the parties--Supreme
Court, while pointing out the important issues and aspects of the case to be noticed,
remanded the case to the Trial Court to enable the parties to produce further evidence on
all issues including the additional issues to be framed by the Trial Court on the questions
raised by the Supreme Court.

Ch. Mushtaq Ahmed Khan, Advocate Supreme Court and M. S. Khattak, Advocate-on-
Record for Appellants.

Gul Zarin Kiayani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for
Respondents.

Date of hearing: 6th January, 2003.

JUDGMENT
MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been
directed against the judgment dated 21-3-1995 passed by a Division Bench of Lahore
High Court, Multan Bench, in a Regular First Appeal arising out of a suit for specific
performance of the contract.

2. Leave was granted in this appeal vide order dated 18-12-1995 as under:--

"This was a suit for the specific performance of an agreement of sale dated 10-6-1980; it
was brought on 24-4-1988 by the plaintiffs, Abdul Momin, Sardar Ali and Hushiar Ali,
respondents herein, against Begum Qamar Isfahani and eight others, petitioners herein.
Begum Qamar Isfahani wits sued as the owner of the land in question; the remaining
petitioners claimed to be the bone fide purchasers for value from Begum Qamar Isfahani.
Unfortunately the agreement of sale dated 10-6-1980 was not brought on record and its
exact terms and conditions are not known. According to the plaint the sale consideration
was Rs.2,35,000, out of which Rs.50,000 was paid in advance and it was agreed that
Begum Qamar Isfahani (the promisor) would have the deed of sale executed when the
entire sale consideration was paid. Later another sum of Rs.30,000 was paid on different
dates. In her written statement, the promisor alleged that the remaining sale price was to
be paid by the month of August (which year it is not stated) at Karachi; she admitted the
receipt of Rs.30,000 in addition to Rs.50,000 which she had received at the time of the
agreement but alleged that in August, 1981, the plaintiffs had refused to pay the
remaining sale price with the result that the sale agreement was put to an end. Later she
sold the land on 17-11-1981 to the remaining petitioners.

2. The suit was decreed by .the trial Court and the petitioners' appeal was dismissed by
the High Court's judgment dated 21-3-1995. The learned Judges in the High Court
observed that "in contracts relating to sale of immovable property, generally the time
fixed for completion of the agreement is not of its essence and failure to adhere to it does
not render the contract unenforceable". The learned Judges held that no evidence to show
that time was of the essence was filed and the presumption remained unrebutted. In this
view of the matter, learned Judges in the High Court held, otherwise too, the parties
conduct showed that time was not of the essence. As regards the claim of petitioners
Nos.2 to 9 that they were bona fide purchasers for value, it was held that the sale in their
favour had taken place during the pendency of this suit.

3. Learned counsel for the petitioners referred us to the testimony of Abdul Momin
plaintiff as P.W.2 to point out that he did not even know with whom Mr.M.A. Isfahani or
Begum Qamar Isfahani, the plaintiff, had entered into the agreement of sale. He did not
know the date when the payment of the remaining sale price was to be made; nor was he
able to tell the date on which different sums of money, the total being Rs.30,000 were
paid by them to the promisor's attorney. It is argued that the agreement of sale dated 10-6-
1980 was the best evidence of the terms and conditions of the sale and of the parties'
mutual obligations. The evidence given by Abdul Momin plaintiff, it is pointed out,
highlights the, importance of that document. It is contended further that the presumption
that in cases of sale of immovable property, time is of the esence of contract has been
imported, from England and it needs reexamination in the changed circumstances. It is
pointed out that prices of land had registered a phenomenal increase in the days when this
transaction was entered into and the Court must take judicial notice of this fact and apply
the doctrine accordingly. As regards the claim of petitioner No.2 they were bona fide.
purchasers for value, it was contended that the sale in their favour had in fact taken place
on 17-11-1981, that is before the institution of this suit and in any case the circumstance
that the plaintiffs had failed to perform their part of the contract within the stipulated
period had a material bearing on the question of bona fides.

4. Leave to appeal is granted to consider these contentions."

3. The suit for specific performance of contract filed by the respondents in the present
appeal was contested by the appellants and learned Senior Civil Judge, Layyah, in the
light of pleadings of the parties, framed the following three issues.---

(1) Whether the plaintiffs have no cause of action to file this suit? OPD

(2) Whether the defendants failed to fulfil the terms of the contract? If so, with what
effect? OPD

(3) Whether the plaintiffs are entitled to specific performance of the contract dated 10-6-
1980? If so, on what terms and conditions? OPD

The burden of proof of. the first two issues was on appellants whereas the onus of
proving the third issue was on respondents. The plaintiffs/respondents pleaded in the suit
that they entered into an agreement dated 10-6-1980 with Mst.Qamar Isfahani, the owner
of suit land for its purchase for a consideration of Rs.2,35,000 out of which an amount of
Rs.80,000 was paid in instalments and that Mst.Qamar Isfahani due to the illness of her
husband, Mirza Abul Hassan Isfahani, could not finalize the transaction of sale by
executing the sale deed and subsequently on death of Mirza Abdul Hassan Isfahani, she
repudiated the agreement. Muhammad Zamin Rizvi, the attorney of Mst. Qamar Isfahani,
filed written statement on her behalf wherein the execution of sale agreement and receipt
of Rs.70,000 as part payment of sale consideration was admitted. The payment of another
amount 'of Rs.10,000 made by the plaintiffs/respondents to Mst. Qamar Isfahani was
described as compensation of the trees cut by them from land. It was specifically pleaded
in the written statement that the plaintiffs/respondents instead of making payment of the
balance price within the stipulated period in terms of the agreement sent message to Mst.
Qamar Isfahani that the outstanding amount would be paid after sale of the standing crops
but she being in urgent need of money for treatment of her ailing husband, declined
further extension of time for payment of balance sale price and having cancelled the
agreement, entered into a transaction of sale of land with Faqir Muhammad, appellant
No. 1, for a consideration of Rs.3,00,000 and executed general power of attorney in his
favour. Subsequently, said Faqir Muhammad sold the land to the appellants Nos.2 to 8 in
the present appeal. As per averments of the plaint and statement of Abdul Marian (P.W.2),
one of the plaintiff/respondent, an amount of Rs.80,000 was paid to Mst.Qamar Isfahani
as part payment of sale price of the land. However, he did not contradict the plea taken in
the written statement that at the time of last payment of Rs.10,000 on 14-6-1981 it was
made clear to the respondents that in case of their failure to make payment of balance
price on 14-8-1981 the agreement would be deemed to be cancelled. The witness has
stated that payment of balance sale price was offered to the vendor at Karachi ht March,
1982 through a bank draft drawn at Muslim Commercial Bank Limited, Sadiqabad and
claimed that plaintiffs were in possession of the land under the sale agreement but were
wrongly shown as tenant of the land in the Revenue Record. The witness however, has
admitted that Mst. Qamar Isfahani became owner of the land, much after the execution of
sale agreement on death of her husband. Muhammad Zamin Rizvi, the attorney of Mst.
Qamar Isfahani after filing the written statement did not further participate in the
proceedings and neither he nor Mst. Qamar Isfahani appeared in the witness-box to make
a statement on oath in confirmation of the admission made and plea taken in the written
statement. Faqir Muhammad (D.W.2) appellant in the present appeal, deposed that he
entered into the transaction of sale of land without the knowledge of the sale agreement
of the plaintiffs-respondents with Mst. Qamar Isfahani. The Court of first instance and
Appellate Court have given their verdict on the following question:--

(a) That the mutation in the name of Mst. Qamar Isfahani was sanctioned subsequent
to the execution of sale agreement and she was not in a position to transfer the property
prior to the sanction of mutation therefore, the sale in favour of the appellants would be
without title;
(b) that the subsequent sale having been taken place during pendency of the suit for
specific performance, would be hit by the doctrine of lis pendens; .

(c) that the time was not treated as essence of the contract as the parties with mutual
understanding extended the period for completion of the agreement from time to time and
on the expiry of the extended period, no notice was given by the vendor to the vendees
-performance of their obligation.

4. This is an admitted fact that Mst. Qamar Isfahani was not owner of the land either at
the time of execution of agreement to sell dated 10-6-1980 or at the time of execution of
general power of attorney in favour of Faqir Muhammad on 16-11-1981 and therefore,
could not pass on the valid title in the land before 12-7-1983 when she became owner of
the land. The general power of attorney given by Mst. Qamar Isfahani to Faqir
Muhammad was made part of the record but no such power of attorney, general or
special, given by her to Muhammad Zamin Rizvi was brought on record to establish that
he being a recognized agent of Mst. Qamar Isfahani filed written statement on her behalf.
The suit was decreed by the trial Court and the decree was maintained by the High Court
in appeal mainly on the grounds that the time was not essence of the contract and the
subsequent sale during the pendency of the suit being hit by the principle of lis pendens
would be ineffective to the rights of the plaintiffs-respondents. The case of the appellants
was that upon failure of the respondents to make payment of balance sale price within the
stipulated period, their agreement stood repudiated and Mst.Qamar Isfahani entered into a
sale transaction with Faqir Muhammad appointed him her general attorney who further
sold the land to appellants Nos.2 to 8 and that neither Faqir Muhammad nor the
remaining appellants had notice of the sale agreement of the respondents with Mst.Qamar
Isfahani, therefore, they would be entitled to the protection of section 41 of the Transfer
of Property Act 1882. The respondents, on the other hand, pleaded that the execution of
sale agreement was admitted in the written statement which could not be enforced for
want of clear title of Mst.Qamar Isfahani on the date mentioned in the agreement for the
final payment, therefore, the time would not be considered as essence of the contract. It
was next asserted that subsequent sale made during the pendency of the suit would be hit
by the principle of lis pendens and consequently, the appellants would not be treated as
bona fide purchasers to claim the protection of law. Learned counsel for the appellants
has contended that except the sole statement of Abdul Momin, no other evidence was
brought on record to prove the execution of sale agreement by Mst.Qamar Isfahani and
the alleged admission in the written statement without proper proof would not ipso facto
be an evidence of the part payment of the sale price and the existence of a valid
agreement between the parties. The learned counsel submitted that the respondents being
in possession of land as tenant even if entered into at agreement of sale and made part
payment of the sale price as pleaded, they upon failure to make -payment of the balance
price by the target date fixed in the agreement, could not claim enforcement of the
agreement already repudiated and the subsequent sale of land by Mst. Qamar Isfahani
would not hit by the principle of lis pendens. Learned counsel added that neither proper
issues Were framed on the above controversial question nor the parties produced evidence
in support of their respective stand; still the trial Court and also the Appellate Court by
raising presumption on the question of facts regarding the existence of agreement and
that the time for the performance of agreement was not essence of contract, decreed the
suit.

5. Learned counsel for the respondents, on the other hand, has contended that the material
facts relating to the existence of sale agreement and making of part payment of sale price
by the respondents were admitted in the written statement filed on behalf of Mst. Qamar
Isfahani which was not contradicted and rebutted by the appellants by bringing any
evidence oral or documentary, on the record. The learned counsel, however, conceded
that at the time of execution of agreement to sell, Mst. Qamar Isfahani was not owner of
land and the same would not take effect before she could acquire title in the land and
consequently, it being not enforceable by the specified date, the time would not be the
essence for performance of the contract. In reply to the contention of appellants that they
had no notice of the sale agreement, learned counsel submitted that it was .the duty of
appellant to ascertain the correct factual position and make necessary inquiry about the
nature of possession of the respondents-before entering Into the transaction of sale and
without proof of taking such precaution, the appellants would not be deemed to be the
bona fide purchasers to seek the protection of law.

6. Learned counsel for the parties cited a number of judgments in support of their
respective contentions but the same without proof of essential facts, would be of no help
to them therefore, we need not dilate upon the propositions discussed therein.

7. Mirza Abdul Hassan Isfahani, the original owner of the property died in November,
1981 and mutation of inheritance in respect of the land in dispute was sanctioned in the
name of Mst. Qamar Isfahani his widow, Mirza Muhammad and Mirza Zia, his sons and
Mst. Amir-un-Nisa his daughter, on 10-12-1982. Mst. Qamar Isfahani during the lifetime
of her husband filed a suit against him seeking a declaration that she was the exclusive
owner of the suit land and this suit was decreed in her favour on 17-7-1983 after death of
Mirza Abdul Hassan with the consent of his legal heirs. The perusal of the agreement
dated 3-7-1980 between the respondents and Mirza Abdul Hassan Isfahani would show
that the possession of the land was given to the respondents as lessee for a period of one
year and no other document in proof of the claim of the respondents that they were
holding possession ct land under sale agreement was brought on record. Prior to the filing
of the present suit Abdul Momin, respondent herein, filed a suit for permanent injunction
against the appellants wherein he did not plead that respondent were in possession of land
under the sale agreement. The transaction of sale in favour of appellants Nos.2 to 8 was
finalized through the arbitration ant. the award given by the arbitrator was made rule of
the Court by Senior Civil Judge Layyah vide judgment dated 21-6-1982 in an application
moved by them under section 20 of the Arbitration Act, 1940 when Mst.Qamar Isfahani
vendor, was not exclusive owner of the entire suit land. There nothing on record to show
that Faqir Muhammad was holding general power of attorney on behalf of all legal heirs
of Mirza Abdul Hassan and that Muhammad Zamin Rizvi was an authorized agent of
Mst.Qamar Isfahani and was competent to represent her and file written statement on her
behalf Faqir Muhammad while holding power of attorney only on behalf Mst.Qamar
Isfahani and acting as her agent, could not make sale of the land in exercise of the share
of Mst.Qamar Isfahani before 17-7-1983 on whit date she became owner of entire land.
This is settled law that the controversial questions of facts cannot be proved merely on
the basis of pleadings and a particular fact pleaded by a party must be proved by the said
party and thus the existence of a written, agreement and its contents in full without
producing the same in Court, could not be presumed to have been proved through oral.
assertion or on the basis of partial admission of agreement in the written statement.

8. The general rule is that the pleadings of parties are not Substitute of evidence and it
being not a substantive evidence, the averments made in the pleadings would carry no
weight unless proved through the evidence in Court or admitted by the other party. The
written statement of a defendant who was not examined in the case, cannot be utilized
and the admission made therein cannot be taken into consideration unless proved through
the evidence and in any case the statement of facts and the admission in the written
statement must be taken as a whole and cannot be dissected to use only a certain portion
of such statement. There is nothing on record to show that Mst.Qamar Isfahani was
properly served directly or through her agent and it was also not proved on record that
Muhammad Zamin Rizvi was authorized to act as general or special attorney of
Mst.Qamar Isfahani and represent her in Court. The respondents except the oral assertion,
have not brought any other evidence in support of their claim and the suit' was decreed
mainly on the basis of admission in 'the written statement which was filed by Muhammad
Zamin Rizvi as attorney of Mst. Qamar Isfahani, therefore, the concurrent findings of the
two Courts on the question of facts, would be without evidence. We also find that the sale
of suit land in favour of appellants through Faqir Muhammad the general attorney of
Mst.Qamar Isfahani in respect of which a decree was passed on 21-6-1982, would be
invalid in excess of the share of Mst.Qamar Isfahani as she acquired title in the remaining
land on the basis of consent decree passed on 17-7-1983. The essential questions
regarding the authority of Muhammad Zamin Rizvi to act as general or special attorney
of Mst.Qamar Isfahani and the validity of sale of land by Faqir Muhammad, her attorney,
in excess of her share Were not attended by the trial Court and also the Appellate Court.
Instead the dispute was decided on the assumption that Mst. Qamar Isfahani was the sole
owner of the land on the date of institution of suit and subsequent transaction of sale. We
therefore, conclude that:--
(a) Without bringing on record general power of attorney allegedly executed by
Mst.Qamar Isfahani in favour of Muhammad Zamin Rizvi, the written statement filed by
him on her behalf and the admission contained therein, would be of no consequence and
there would be no proof of existence of a valid and legal agreement between the parties.

(b) The sale agreement in question if at all was in existence and Muhammad Zamim
Rizvi was an authorised agent of Mst.Qamar Isfahani and was competent to file written
statement on her behalf still before 17-'7-1983 when Mst. Qamar Isfahani became
exclusive owner of land, the agreement would be enforceable only to the extent of her
share and the land falling in the share of the remaining legal heirs of Mirza Abul Hussain
could be sold during the pendency of suit which was filed in April 1982.

(c) The claim of ownership of land of the appellants Nos.2 to 8 is based on a decree
passed by the Civil Court on 21-6-1982 whereas Mst.Qamar Isfahani acquired ownership
in the suit land on the basis of a consent decree passed on 17-7-1983, therefore, the sale
of land by her in excess of her share before the said date, would be invalid.

9. The suit was decreed on the basis of pleadings of the parties without attending the
above important aspects of the case and going into the controversial questions of facts
required to be proved and decided on the basis of evidence. We have noticed that neither
the specific issues were framed on these important mixed questions of law and facts nor
the parties produced the evidence essential for decision of these questions and without
proper decision of the same, there could be no effective adjudication of the dispute
between the parties. We, therefore, deem it proper to send ,the case back to trial Court to
enable the parties to produce further evidence on all issues including the additional issues
to be framed by the trial Court on the above questions. Consequently, we set aside the
impugned judgment and remand the case to the trial Court for decision afresh in the light
of the observations made in the preceding paragraphs. Since this is an old case, therefore,
the trial Court should make efforts to dispose it of within six months. The appeal stands
allowed in the above terms. The parties shall bear their own costs:

M.B.A./F-105/S Appeal allowed.

P L D 2003 Supreme Court 594

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

FAQIR MUHAMMAD and 8 others---Appellants

Versus

ABDUL MOMIN and 2 others---Respondents

Civil Appeal No. 1440 of 1995, decided on 26th March, 2003.

(On appeal from the judgment. of Lahore High Court, Multan Bench, dated 21-3-1995
passed in R. F. A. No. II of 1987).

(a) Qanun-e-Shahadat (10 of 1984)----

----Arts. 102 & 119---Civil Procedure Code (V of 1908), O. VI, R. I--Agreement---Proof

of existence---Controversial questions of facts cannot be proved merely on the basis of
pleadings---Particular fact pleaded by a party must be proved by the said party and thus
the existence of a written agreement and its contents without producing the same in
Court, could not be presumed to have been proved through oral assertions or on the basis
of partial admission of the agreement in the written statement.

(b) Qanun-e-Shahadat (10 of 1984)-----

----Arts. 102 & 119---Civil Procedure Code (V of 1908), O. VI, R.1--Pleadings of parties
are not a substitute of evidence and same being not a substantive evidence, the averments
made in the pleadings would carry no weight unless proved through the evidence in Court
or admitted by the other party---Written statement of a defendant who was not examined
in the case, cannot be utilized and the admission made therein cannot be taken into
consideration unless proved through the evidence and in any case the statement of facts
and admission in the written statement must be taken as a whole and cannot be dissected
to use only a certain portion of such statement.

(c) Specific Relief Act (I of 1877)-----

----S. 23---Suit for specific performance of agreement to sell land---Such suit was
decreed on the basis of the pleadings of the parties without attending to specific questions
and important aspects of the case and without going into the controversial questions of
facts required to be proved and decided on the basis of evidence--Neither the specific
issues were framed on important mixed questions of law and fact nor the parties produced
the evidence essential for decision of such questions without proper decision of which,
there could be no effective adjudication of the dispute between the parties--Supreme
Court, while pointing out the important issues and aspects of the case to be noticed,
remanded the case to the Trial Court to enable the parties to produce further evidence on
all issues including the additional issues to be framed by the Trial Court on the questions
raised by the Supreme Court.

Ch. Mushtaq Ahmed Khan, Advocate Supreme Court and M. S. Khattak, Advocate-on-
Record for Appellants.

Gul Zarin Kiayani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for
Respondents.

Date of hearing: 6th January, 2003.

JUDGMENT
MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been
directed against the judgment dated 21-3-1995 passed by a Division Bench of Lahore
High Court, Multan Bench, in a Regular First Appeal arising out of a suit for specific
performance of the contract.

2. Leave was granted in this appeal vide order dated 18-12-1995 as under:--

"This was a suit for the specific performance of an agreement of sale dated 10-6-1980; it
was brought on 24-4-1988 by the plaintiffs, Abdul Momin, Sardar Ali and Hushiar Ali,
respondents herein, against Begum Qamar Isfahani and eight others, petitioners herein.
Begum Qamar Isfahani wits sued as the owner of the land in question; the remaining
petitioners claimed to be the bone fide purchasers for value from Begum Qamar Isfahani.
Unfortunately the agreement of sale dated 10-6-1980 was not brought on record and its
exact terms and conditions are not known. According to the plaint the sale consideration
was Rs.2,35,000, out of which Rs.50,000 was paid in advance and it was agreed that
Begum Qamar Isfahani (the promisor) would have the deed of sale executed when the
entire sale consideration was paid. Later another sum of Rs.30,000 was paid on different
dates. In her written statement, the promisor alleged that the remaining sale price was to
be paid by the month of August (which year it is not stated) at Karachi; she admitted the
receipt of Rs.30,000 in addition to Rs.50,000 which she had received at the time of the
agreement but alleged that in August, 1981, the plaintiffs had refused to pay the
remaining sale price with the result that the sale agreement was put to an end. Later she
sold the land on 17-11-1981 to the remaining petitioners.

2. The suit was decreed by .the trial Court and the petitioners' appeal was dismissed by
the High Court's judgment dated 21-3-1995. The learned Judges in the High Court
observed that "in contracts relating to sale of immovable property, generally the time
fixed for completion of the agreement is not of its essence and failure to adhere to it does
not render the contract unenforceable". The learned Judges held that no evidence to show
that time was of the essence was filed and the presumption remained unrebutted. In this
view of the matter, learned Judges in the High Court held, otherwise too, the parties
conduct showed that time was not of the essence. As regards the claim of petitioners
Nos.2 to 9 that they were bona fide purchasers for value, it was held that the sale in their
favour had taken place during the pendency of this suit.

3. Learned counsel for the petitioners referred us to the testimony of Abdul Momin
plaintiff as P.W.2 to point out that he did not even know with whom Mr.M.A. Isfahani or
Begum Qamar Isfahani, the plaintiff, had entered into the agreement of sale. He did not
know the date when the payment of the remaining sale price was to be made; nor was he
able to tell the date on which different sums of money, the total being Rs.30,000 were
paid by them to the promisor's attorney. It is argued that the agreement of sale dated 10-6-
1980 was the best evidence of the terms and conditions of the sale and of the parties'
mutual obligations. The evidence given by Abdul Momin plaintiff, it is pointed out,
highlights the, importance of that document. It is contended further that the presumption
that in cases of sale of immovable property, time is of the esence of contract has been
imported, from England and it needs reexamination in the changed circumstances. It is
pointed out that prices of land had registered a phenomenal increase in the days when this
transaction was entered into and the Court must take judicial notice of this fact and apply
the doctrine accordingly. As regards the claim of petitioner No.2 they were bona fide.
purchasers for value, it was contended that the sale in their favour had in fact taken place
on 17-11-1981, that is before the institution of this suit and in any case the circumstance
that the plaintiffs had failed to perform their part of the contract within the stipulated
period had a material bearing on the question of bona fides.

4. Leave to appeal is granted to consider these contentions."

3. The suit for specific performance of contract filed by the respondents in the present
appeal was contested by the appellants and learned Senior Civil Judge, Layyah, in the
light of pleadings of the parties, framed the following three issues.---

(1) Whether the plaintiffs have no cause of action to file this suit? OPD

(2) Whether the defendants failed to fulfil the terms of the contract? If so, with what
effect? OPD

(3) Whether the plaintiffs are entitled to specific performance of the contract dated 10-6-
1980? If so, on what terms and conditions? OPD

The burden of proof of. the first two issues was on appellants whereas the onus of
proving the third issue was on respondents. The plaintiffs/respondents pleaded in the suit
that they entered into an agreement dated 10-6-1980 with Mst.Qamar Isfahani, the owner
of suit land for its purchase for a consideration of Rs.2,35,000 out of which an amount of
Rs.80,000 was paid in instalments and that Mst.Qamar Isfahani due to the illness of her
husband, Mirza Abul Hassan Isfahani, could not finalize the transaction of sale by
executing the sale deed and subsequently on death of Mirza Abdul Hassan Isfahani, she
repudiated the agreement. Muhammad Zamin Rizvi, the attorney of Mst. Qamar Isfahani,
filed written statement on her behalf wherein the execution of sale agreement and receipt
of Rs.70,000 as part payment of sale consideration was admitted. The payment of another
amount 'of Rs.10,000 made by the plaintiffs/respondents to Mst. Qamar Isfahani was
described as compensation of the trees cut by them from land. It was specifically pleaded
in the written statement that the plaintiffs/respondents instead of making payment of the
balance price within the stipulated period in terms of the agreement sent message to Mst.
Qamar Isfahani that the outstanding amount would be paid after sale of the standing crops
but she being in urgent need of money for treatment of her ailing husband, declined
further extension of time for payment of balance sale price and having cancelled the
agreement, entered into a transaction of sale of land with Faqir Muhammad, appellant
No. 1, for a consideration of Rs.3,00,000 and executed general power of attorney in his
favour. Subsequently, said Faqir Muhammad sold the land to the appellants Nos.2 to 8 in
the present appeal. As per averments of the plaint and statement of Abdul Marian (P.W.2),
one of the plaintiff/respondent, an amount of Rs.80,000 was paid to Mst.Qamar Isfahani
as part payment of sale price of the land. However, he did not contradict the plea taken in
the written statement that at the time of last payment of Rs.10,000 on 14-6-1981 it was
made clear to the respondents that in case of their failure to make payment of balance
price on 14-8-1981 the agreement would be deemed to be cancelled. The witness has
stated that payment of balance sale price was offered to the vendor at Karachi ht March,
1982 through a bank draft drawn at Muslim Commercial Bank Limited, Sadiqabad and
claimed that plaintiffs were in possession of the land under the sale agreement but were
wrongly shown as tenant of the land in the Revenue Record. The witness however, has
admitted that Mst. Qamar Isfahani became owner of the land, much after the execution of
sale agreement on death of her husband. Muhammad Zamin Rizvi, the attorney of Mst.
Qamar Isfahani after filing the written statement did not further participate in the
proceedings and neither he nor Mst. Qamar Isfahani appeared in the witness-box to make
a statement on oath in confirmation of the admission made and plea taken in the written
statement. Faqir Muhammad (D.W.2) appellant in the present appeal, deposed that he
entered into the transaction of sale of land without the knowledge of the sale agreement
of the plaintiffs-respondents with Mst. Qamar Isfahani. The Court of first instance and
Appellate Court have given their verdict on the following question:--

(a) That the mutation in the name of Mst. Qamar Isfahani was sanctioned subsequent
to the execution of sale agreement and she was not in a position to transfer the property
prior to the sanction of mutation therefore, the sale in favour of the appellants would be
without title;
(b) that the subsequent sale having been taken place during pendency of the suit for
specific performance, would be hit by the doctrine of lis pendens; .

(c) that the time was not treated as essence of the contract as the parties with mutual
understanding extended the period for completion of the agreement from time to time and
on the expiry of the extended period, no notice was given by the vendor to the vendees
-performance of their obligation.

4. This is an admitted fact that Mst. Qamar Isfahani was not owner of the land either at
the time of execution of agreement to sell dated 10-6-1980 or at the time of execution of
general power of attorney in favour of Faqir Muhammad on 16-11-1981 and therefore,
could not pass on the valid title in the land before 12-7-1983 when she became owner of
the land. The general power of attorney given by Mst. Qamar Isfahani to Faqir
Muhammad was made part of the record but no such power of attorney, general or
special, given by her to Muhammad Zamin Rizvi was brought on record to establish that
he being a recognized agent of Mst. Qamar Isfahani filed written statement on her behalf.
The suit was decreed by the trial Court and the decree was maintained by the High Court
in appeal mainly on the grounds that the time was not essence of the contract and the
subsequent sale during the pendency of the suit being hit by the principle of lis pendens
would be ineffective to the rights of the plaintiffs-respondents. The case of the appellants
was that upon failure of the respondents to make payment of balance sale price within the
stipulated period, their agreement stood repudiated and Mst.Qamar Isfahani entered into a
sale transaction with Faqir Muhammad appointed him her general attorney who further
sold the land to appellants Nos.2 to 8 and that neither Faqir Muhammad nor the
remaining appellants had notice of the sale agreement of the respondents with Mst.Qamar
Isfahani, therefore, they would be entitled to the protection of section 41 of the Transfer
of Property Act 1882. The respondents, on the other hand, pleaded that the execution of
sale agreement was admitted in the written statement which could not be enforced for
want of clear title of Mst.Qamar Isfahani on the date mentioned in the agreement for the
final payment, therefore, the time would not be considered as essence of the contract. It
was next asserted that subsequent sale made during the pendency of the suit would be hit
by the principle of lis pendens and consequently, the appellants would not be treated as
bona fide purchasers to claim the protection of law. Learned counsel for the appellants
has contended that except the sole statement of Abdul Momin, no other evidence was
brought on record to prove the execution of sale agreement by Mst.Qamar Isfahani and
the alleged admission in the written statement without proper proof would not ipso facto
be an evidence of the part payment of the sale price and the existence of a valid
agreement between the parties. The learned counsel submitted that the respondents being
in possession of land as tenant even if entered into at agreement of sale and made part
payment of the sale price as pleaded, they upon failure to make -payment of the balance
price by the target date fixed in the agreement, could not claim enforcement of the
agreement already repudiated and the subsequent sale of land by Mst. Qamar Isfahani
would not hit by the principle of lis pendens. Learned counsel added that neither proper
issues Were framed on the above controversial question nor the parties produced evidence
in support of their respective stand; still the trial Court and also the Appellate Court by
raising presumption on the question of facts regarding the existence of agreement and
that the time for the performance of agreement was not essence of contract, decreed the
suit.

5. Learned counsel for the respondents, on the other hand, has contended that the material
facts relating to the existence of sale agreement and making of part payment of sale price
by the respondents were admitted in the written statement filed on behalf of Mst. Qamar
Isfahani which was not contradicted and rebutted by the appellants by bringing any
evidence oral or documentary, on the record. The learned counsel, however, conceded
that at the time of execution of agreement to sell, Mst. Qamar Isfahani was not owner of
land and the same would not take effect before she could acquire title in the land and
consequently, it being not enforceable by the specified date, the time would not be the
essence for performance of the contract. In reply to the contention of appellants that they
had no notice of the sale agreement, learned counsel submitted that it was .the duty of
appellant to ascertain the correct factual position and make necessary inquiry about the
nature of possession of the respondents-before entering Into the transaction of sale and
without proof of taking such precaution, the appellants would not be deemed to be the
bona fide purchasers to seek the protection of law.

6. Learned counsel for the parties cited a number of judgments in support of their
respective contentions but the same without proof of essential facts, would be of no help
to them therefore, we need not dilate upon the propositions discussed therein.

7. Mirza Abdul Hassan Isfahani, the original owner of the property died in November,
1981 and mutation of inheritance in respect of the land in dispute was sanctioned in the
name of Mst. Qamar Isfahani his widow, Mirza Muhammad and Mirza Zia, his sons and
Mst. Amir-un-Nisa his daughter, on 10-12-1982. Mst. Qamar Isfahani during the lifetime
of her husband filed a suit against him seeking a declaration that she was the exclusive
owner of the suit land and this suit was decreed in her favour on 17-7-1983 after death of
Mirza Abdul Hassan with the consent of his legal heirs. The perusal of the agreement
dated 3-7-1980 between the respondents and Mirza Abdul Hassan Isfahani would show
that the possession of the land was given to the respondents as lessee for a period of one
year and no other document in proof of the claim of the respondents that they were
holding possession ct land under sale agreement was brought on record. Prior to the filing
of the present suit Abdul Momin, respondent herein, filed a suit for permanent injunction
against the appellants wherein he did not plead that respondent were in possession of land
under the sale agreement. The transaction of sale in favour of appellants Nos.2 to 8 was
finalized through the arbitration ant. the award given by the arbitrator was made rule of
the Court by Senior Civil Judge Layyah vide judgment dated 21-6-1982 in an application
moved by them under section 20 of the Arbitration Act, 1940 when Mst.Qamar Isfahani
vendor, was not exclusive owner of the entire suit land. There nothing on record to show
that Faqir Muhammad was holding general power of attorney on behalf of all legal heirs
of Mirza Abdul Hassan and that Muhammad Zamin Rizvi was an authorized agent of
Mst.Qamar Isfahani and was competent to represent her and file written statement on her
behalf Faqir Muhammad while holding power of attorney only on behalf Mst.Qamar
Isfahani and acting as her agent, could not make sale of the land in exercise of the share
of Mst.Qamar Isfahani before 17-7-1983 on whit date she became owner of entire land.
This is settled law that the controversial questions of facts cannot be proved merely on
the basis of pleadings and a particular fact pleaded by a party must be proved by the said
party and thus the existence of a written, agreement and its contents in full without
producing the same in Court, could not be presumed to have been proved through oral.
assertion or on the basis of partial admission of agreement in the written statement.

8. The general rule is that the pleadings of parties are not Substitute of evidence and it
being not a substantive evidence, the averments made in the pleadings would carry no
weight unless proved through the evidence in Court or admitted by the other party. The
written statement of a defendant who was not examined in the case, cannot be utilized
and the admission made therein cannot be taken into consideration unless proved through
the evidence and in any case the statement of facts and the admission in the written
statement must be taken as a whole and cannot be dissected to use only a certain portion
of such statement. There is nothing on record to show that Mst.Qamar Isfahani was
properly served directly or through her agent and it was also not proved on record that
Muhammad Zamin Rizvi was authorized to act as general or special attorney of
Mst.Qamar Isfahani and represent her in Court. The respondents except the oral assertion,
have not brought any other evidence in support of their claim and the suit' was decreed
mainly on the basis of admission in 'the written statement which was filed by Muhammad
Zamin Rizvi as attorney of Mst. Qamar Isfahani, therefore, the concurrent findings of the
two Courts on the question of facts, would be without evidence. We also find that the sale
of suit land in favour of appellants through Faqir Muhammad the general attorney of
Mst.Qamar Isfahani in respect of which a decree was passed on 21-6-1982, would be
invalid in excess of the share of Mst.Qamar Isfahani as she acquired title in the remaining
land on the basis of consent decree passed on 17-7-1983. The essential questions
regarding the authority of Muhammad Zamin Rizvi to act as general or special attorney
of Mst.Qamar Isfahani and the validity of sale of land by Faqir Muhammad, her attorney,
in excess of her share Were not attended by the trial Court and also the Appellate Court.
Instead the dispute was decided on the assumption that Mst. Qamar Isfahani was the sole
owner of the land on the date of institution of suit and subsequent transaction of sale. We
therefore, conclude that:--
(a) Without bringing on record general power of attorney allegedly executed by
Mst.Qamar Isfahani in favour of Muhammad Zamin Rizvi, the written statement filed by
him on her behalf and the admission contained therein, would be of no consequence and
there would be no proof of existence of a valid and legal agreement between the parties.

(b) The sale agreement in question if at all was in existence and Muhammad Zamim
Rizvi was an authorised agent of Mst.Qamar Isfahani and was competent to file written
statement on her behalf still before 17-'7-1983 when Mst. Qamar Isfahani became
exclusive owner of land, the agreement would be enforceable only to the extent of her
share and the land falling in the share of the remaining legal heirs of Mirza Abul Hussain
could be sold during the pendency of suit which was filed in April 1982.

(c) The claim of ownership of land of the appellants Nos.2 to 8 is based on a decree
passed by the Civil Court on 21-6-1982 whereas Mst.Qamar Isfahani acquired ownership
in the suit land on the basis of a consent decree passed on 17-7-1983, therefore, the sale
of land by her in excess of her share before the said date, would be invalid.

9. The suit was decreed on the basis of pleadings of the parties without attending the
above important aspects of the case and going into the controversial questions of facts
required to be proved and decided on the basis of evidence. We have noticed that neither
the specific issues were framed on these important mixed questions of law and facts nor
the parties produced the evidence essential for decision of these questions and without
proper decision of the same, there could be no effective adjudication of the dispute
between the parties. We, therefore, deem it proper to send ,the case back to trial Court to
enable the parties to produce further evidence on all issues including the additional issues
to be framed by the trial Court on the above questions. Consequently, we set aside the
impugned judgment and remand the case to the trial Court for decision afresh in the light
of the observations made in the preceding paragraphs. Since this is an old case, therefore,
the trial Court should make efforts to dispose it of within six months. The appeal stands
allowed in the above terms. The parties shall bear their own costs:

M.B.A./F-105/S Appeal allowed.

2000 M L D 2007

[Quetta]

Before Aman Ullah Khan Yasinzai, J

ABDUL AZIZULLAH and others---Appellants

versus

ANJUMAN ASNA ASHRIA AND HELIYAN-E-NAH DAGH (REGD.) and

others---Respondents

First Appeal from Orders Nos. 15 to 25 of 2000 and 132 of 1999, decided on 7th July,
2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

----S. 13---Societies Registration Act (XXI of 1860), S.6---Ejectment

proceedings---Maintainability---Premises was under the control of a registered
society---No resolution was passed by the society authorizing the President of the
Society to file the eviction application---Contention by the tenants was that the
ejectment application was not filed by competent person---Validity---Where the society
was a registered body and filing of the ejectment application, and authority letter for
filing the proceedings had not been challenged, application would be considered as filed
by the person duly authorized by the society ---Ejectment application was maintainable
in circumstances.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

----S. 13---Civil Procedure Code (V of 1908), Preamble ---Ejectment

proceedings---Provisions of C.P.C.---Applicability---Though the provisions of C.P.C.
are not applicable strictly but the principles are very much applicable to proceedings
under West Pakistan Urban Rent Restriction Ordinance, 1959.

(c) Pleadings-

---- Purpose of---Purpose of pleadings is to let the opposite-party know, what it has to
meet---Plaintiff on the basis of facts averred in the plaint has to establish the cause of
action, or the defendant has to prove his defence--Pleadings are neither the evidence nor
deemed to be evidence, but facts alleged in the pleadings have to be proved by producing
evidence--Where a party omits to mention material facts in the plaint constituting cause
of action, such party is not permitted to lead evidence regarding such facts unless
amendment is allowed---Party is neither allowed to lead evidence which is at variance
with the pleadings, nor can be permitted to depart from the pleadings and prove a case
not set up in the plaint---Judgment cannot be based upon the pleas not raised in the
pleadings nor can be based upon pleas raised but not proved.

Atlantic Steamer's Supply Company v. m.v. Titisee and others PLD 1993 SC 88 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)----

----S. 13---Civil Procedure Code (V of 1908), O.VI, R.7 --- Ejectment

proceedings---Principle of pleadings as stated in O.VI, R.7,
C.P.C.--Applicability---Case set up in pleadings---Onus to prove---Landlord
producing evidence contrary to the ground mentioned in his ejectment
application---Reasons for eviction was requirement of the tenement for personal need
but evidence was led about requirement of the tenement for demolition and
reconstruction---Rent Controller allowed the application and directed the tenants to
vacate the premises---Validity---Principle of pleadings as stated in O.VI, R.7, C.P.C.
were applicable to the proceedings, though the same were quasi judicial in
nature---Tenant could only be evicted from tenement under the provisions of -S.13 of
West Pakistan Urban Rent Restriction Ordinance, 1959, and any ground agitated beyond
such provisions could not be considered---Onus was always upon the landlord to prove
that the tenant was liable to be evicted on the grounds as enumerated in the plaint within
the scope of the provisions of S.13 of West Pakistan Urban Rent Restriction Ordinance,
1959---Initial burden was always on the landlord to prove that the tenement was
required by him for a particular purpose as set up in the plaint---Where landlord had
filed eviction application solely on the ground of personal requirement, he could not be
permitted to prove/lead evidence, that he required the premises for demolishing and
reconstruction---Such departure of landlord would change the cause of action and the
same would amount to proving a case not set up in the pleadings and such chance would
militate against the bona fides of landlord---Landlord by setting up a new plea in the
application had failed to prove his personal bona fide requirement---Rent Controller had
misread the evidence produced by the landlord and erred in holding that the tenement was
required for demolishing---Judgment and decree of the Rent Controller was set aside in
circumstances.

(e) Civil Procedure Code (V of 1908)----

----O. VI, R.7---Pleadings---Establishing a case other than one set up in the

pleadings---Effect---Party could never be allowed to prove a case different than the one
pleaded by him in his plaint as the same would prejudice the opposite side as the
opponent was not required to produce evidence to rebut the plea not contained in the
pleadings.

Aslam Chishti for Appellants (in F.A.O. Nos. 16 to 25 of 2000).

Tahir Hussain for Appellant (in F.A.0. No. 15 of 2000).

Altaf Hussain for Appellants (in F.A.O. No. 132 of 1999)

Mumtaz Hussain Baqri for Respondents (in all Appeals).

Dates of hearing: 13th and 21st June, 2000.

JUDGMENT

By this common judgment, I intend to dispose of F.A.0. Nos. 15 -to 25 of 2000 and 132
of 1999, as in all these Appeals, identical question of facts and law is involved, besides
the respondents-landlords are also the same.

Briefly the facts are: that respondents-Anjuman Asana Ashria, Baltastani and
Heliyan-e-Naha Dagh, a Corporate Body duly registered with the Registrar, Joint Stock
Companies, Balochistan, having its own Memorandum of Association (hereinafter
referred to as "Anjuman") are running Imam Bargah, situated at Almadar Road, Quetta
and on the front side of same, there are 12 shops which are also owned by the Imam
Bargah. These shops have been rented out to appellants. The Anjuman filed 12 separate
eviction applications on 2-9-1998, against the appellants, inter alia on the ground of
demolition of the shops and thereafter inclusion of same in Imam Bargah, as the Imam
Bargah does not have sufficient place to meet its requirement. The said eviction
application came up for disposal on the file of learned Senior Civil Judge-I, Quetta.
Besides the above ground, in few of the eviction applications, the ground of subletting
and default in payment of rent were also alleged. After service of notice, the appellants
filed their Rejoinder to the eviction applications, contesting the same on legal and factual
grounds.

It may be mentioned here that the learned Senior Civil Judge, vide impugned order dated
29-11-1999, ordered eviction of appellants only on the ground of demolition. Thus, the
appellants have separately assailed the eviction order, through instant Appeal. It may be
noted here, that as far as the ground of subletting and default was concerned, that was
decided against the respondents-landlords, however, no counter-appeal has been filed in
this behalf. As such in all the appeals, the pivotal question for determination is: whether
eviction of the appellants has been rightly ordered on the sole ground for demolition of
shops in dispute and inclusion of open land in the Imam Bargah?

Mr. Aslam Chishti learned counsel appeared for the appellants in F.A.O. Nos.16 to 25 of
2000. Mr. Tahir Hussain, Advocate, represented appellant in F.A.O. No.15 of 2000 and
Mr. Altaf Hussain, Advocate, appeared in FAO No. 132/1999. Whereas Mr. Mumtaz
Hanfi Baqri, Advocate, pleaded the case of respondents in all the appeals.
Mr. Aslam Chishti, learned counsel, raised following contentions:--

A That the eviction applications were not filed properly, as admitted the Anjuman is
a Corporate Body and the eviction applications were filed through Muhammad Ibrahim,
President of the Anjuman and no Resolution, authorizing the President to file eviction
applications was placed on record.

B The respondents have set up a case, contrary to their pleadings.

C. The plea of personal bona fide requirement was not proved.

Messrs Tahir Hussain and AItaf Hussain, Advocates, adopted the arguments of Mr. Aslam
Chishti, learned counsel.

Mr. Mumtaz Hanfi Baqri, learned counsel for respondents; argued as under:--

A. As far as filing of eviction application is concerned, the same was filed through
President of the Anjuman, who was duly authorized to sign and verify the eviction
applications by a formal resolution duly passed by the governing body of the Anjuman.

B, Since the proceedings before the trial Court are of quasi judicial nature, therefore,
law of pleadings does not strictly apply to such proceedings.

C. Through evidence the respondents have proved their personal bona fide
requirements.

Coming to the first objection of learned counsel Mr. Aslam Chishti, that Anjuman is a
Corporate Body, duly registered under the Societies Registration Act (XXI of 1860), and
under section 6 of the Act, every Society registered under .the Act may sue or be sued in
the name of the President, Chairman, or Principal Secretary, or Trustees, as shall be
determined by the rules and regulations of the society, and, in default of such
determination, in the name of such person, as shall be pointed by the governing body of
the Society. In this behalf, learned counsel, contended, A that since no Resolution was
passed by the Anjuman, authorizing the President for filing an eviction application, thus,
the same were filed by an incompetent person, as such, were not maintainable.

Mr. Mumtaz Hanfi Baqri, learned counsel, controverting the contention of appellants'
counsel, argued that on record,. copy of the Resolution duly passed by the Anjuman,
authorizing the President to file eviction applications has been placed and in this regard
an Authority Letter was also issued in favour of the President, duly signed by the
Members of the Anjuman dated 2-11-1997. Learned counsel further contended, that
since this objection was taken for the first time in appeal, therefore, the Resolution passed
by the Members of the Anjuman was not placed before the' trial Court.

In this behalf, it may be observed that the eviction applications were filed on behalf of the
Anjuman by its President and no such objection was taken before the Rent Controller.
However, before this Court, when such objection was taken, the respondents have placed
on record a copy of the Resolution and Authority Letter, duly authorizing the President to
file eviction application. Validity of the Resolution and Authority Letter has not 8 even
been challenged before this Court. Thus, I am inclined to hold that the eviction
applications were filed by the person, duly authorized by the Anjuman. Accordingly the
objection being misconceived is repelled.

Adverting to the next objection of the learned counsel Mr. Muhammad Aslam Chishti,
that the respondents have set up a case, contrary to their pleadings. In this behalf, learned
counsel contended that in the eviction application, the ground of demolition of shops and
including the same in Imam Bargah has been taken, but the evidence led by the
respondents is with regard to demolition and reconstruction of the shops in dispute. It
may be noted that in para.4 of all the eviction applications, the ground taken is for
demolition of the shops and including the same in Imam Bargah. Para. wherein personal
requirement has been urged by the respondents is reproduced herinbelow:--

(4) That the applicants reasonably and in good faith require shop in occupation of
respondent No.2 alongwith 12 other adjacent shops for including the same in the area of
Baltastani Imam Bargah by demolishing the same. The existing space of Imam Bargah is
not sufficient and by including the shops in the area of Imam Bargah and Imam Bargah
will expand. The applicants have got approved map and permit from Quetta Municipal
Corporation.

The witnesses of the respondents have also in unequivocal terms deposed that the
respondents want to demolish the shops and include the same in the area of Imam
Bargah, which is small in size and triangular shaped. But the Secretary appearing on
behalf of the Anjuman, has stated that the space of Imam. Bargah is very congested and
to broaden and have more space, the respondents intend to demolish and reconstruct the
shops in dispute and in this regard Building Permit and site plan has been duly got
approved from the-Municipal Corporation, which were produced as Exhs.A/1 and A/2
respectively. A perusal of the Building Permit reveals that the respondents want to
demolish and reconstruct the shops. . .

Mr. Muhammad Aslam Chishti, learned counsel argued that the eviction applications
were filed only on the ground of demolition, and thereafter, including of same in Imam
Bargah to have more space, for which, no permission from the Municipal Corporation
was required, but the respondents have made out a case contrary to their pleadings, as all
the witnesses produced by the respondents have stated that the shops are required for
demolition and inclusion in the Imam Bargah to have more space, whereas the
Representative of the Anjuman has given a different statement, deposing therein, that the
shops are required for demolition and reconstruction, which was never the case of
respondents.

Mr. Mumtaz Ali Baqri, learned counsel, contended that since proceedings before the Rent
Controller are of quasi nature, therefore, the principles of pleadings are not strictly
applicable, as in civil suits.

I am not persuaded to agree with the contention of Mr. Mumtaz Hussain Baqri learned
counsel for respondents, that the principles of pleadings is not applicable to rent
proceedings. It tray be noted here that the provisions of the Code of Civil Procedure,
though not applicable strictly but the principles are very much applicable to rent
proceedings. In the case in hand, principles of Order, Order VI, Rule 7, C.P.C. are
applicable, which reads as under:
"7. Departure.--No pleading shall, except by way of amendment, raise any new ground
of claim or contain any allegation of fact inconsistent with the previous pleadings of the
party pleading the same."

It may be observed, that the purpose of pleading is to let the opposite-party to know, as to
what it has to meet. On the basis of facts averred in the plaint, the plaintiff has to
establish the cause of action, or the defendant to rove his defence. It is well-settled, that
neither the pleadings are evidence nor deemed to be evidence, but facts alleged in the
pleadings have to be proved by producing evidence.

If a party omits to mention material facts in the plaint, constituting cause of action, such
party will not be permitted to lead evidence, regarding such facts, unless amendment is
allowed. In this behalf, reliance can be placed on Atlantic Steamer's Supply Company v.
m.v. Titisee and others (PLD 1993 SC 88). Relevant portion therefrom reads as under:--

"It may be pertinent at this juncture to refer to Rule 2 of Order VI and clause (e) of Rule 1
of Order VII of C.P.C. the former inter alia provides that every pleadings shall only
contain statement in a concise form of the material facts on which the patty pleading
relies for his claim or defence, as the case may be, whereas the latter provision of the
C.P.C. lays down that the plaint shall contain the facts constituting the cause of action and
when it arose.

10. Since the question, whether a particular foreign law in a particular foreign country is
a question of fact, in our view, it is to be pleaded expressly as a material question of fact
and as the fact constituting cause of action in terms of the above provisions of the C.P.C.
In the absence of any such pleading, it will be open to the Court not to allow a party to
lead evidence on the above question and if the evidence on such question is produced, the
Court may decline to look into the same as held in the case of Messrs Choudhry Brothers
Ltd., Sialkot v. The Jaranawala Central Cooperative Bank Ltd., Jaranwala and others
1968 SCMR 804. "

It is pertinent to point out, that neither a party can be allowed to lead evidence, which is
at variance with the pleadings, nor can be permitted to depart from the pleadings, and
prove a case, not set up in the plaint. Admittedly a judgment cannot be based upon the
pleas, not raised in the pleadings nor can it be based upon pleas raised, but not proved.
In my considered opinion, the aforementioned principle of pleadings is very much
applicable to rent proceedings, though the same are quasi-judicial in nature. A tenant can
only be evicted from a tenement under the provisions of section 13 of the Ordinance and
any ground agitated beyond the provisions of section 13 of the Ordinance cannot be
considered. Similarly, the onus always lies upon the landlord to prove, that the tenant is
liable to be evicted on the grounds as numerated in the plaint, permissible under section
13 of the Ordinance. The initial burden always lies on the landlord to prove that the
tenement is required by him for a particular purpose, as set up in the plaint, but a landlord
who has filed an eviction application solely on the ground of personal requirement,
cannot be permitted to prove/lead evidence that he requires the premises for demolition
and reconstruction, as such departure would admittedly change the cause of. action and it
would amount to proving a case, not set up in the pleadings, as. it would militate against
the bona fides of landlord.

Now adverting to the facts of the case in hand, admittedly in the instant eviction
applications, the case of respondents/landlord was that the shops in dispute are required
for demolition and including the same in Imam Bargah, to have more space. Inasmuch as
all the witnesses produced by the respondents have categorically deposed, that the shops
in dispute are required for demolition and including the same in the Imam Bargah. But
surprisingly, the Attorney of respondents has taken a departure, from the pleadings, by
stating that the shops in dispute are required for demolition and re-construction and
further that for such purpose, Site plan and Building Permit have also been got approved
from the Municipal Corporation, as admittedly plea of demolition and reconstruction has
not been taken in the application, when confronted with the above contradiction Mr.
Mumtaz Hussain Baqri, learned counsel for respondents attempted to argue that since the
respondent had got approved a map for demolition and reconstruction of. the shops and
the statement of Secretary of Anjuman is also in consonance with such fact, that the map
for demolition and reconstruction has been got approved and it would hardly matter, that
the ground of re-construction was not mentioned in the eviction application, due to
inadvertence.

I am not persuaded to agree with the learned counsel. It may be pointed out that for
demolition, there is no requirement of getting an approved map from the Municipal
Corporation. The case of respondent in the pleadings was that of demolition and inclusion
of the shops in Imam Bargah, by making .the Imam Bargah spacious. But before the Rent
Controller, altogether a separate case was set up by taking the plea of ' demolition and
reconstruction. As observed hereinabove, a party can never be allowed to prove a case
different than the one pleaded by him in his plaint, as it would prejudice the opposite
side, because opponent was not required to produce evidence to rebut the plea not
contained in the pleadings. In the instant cases, appellants have certainly been prejudiced
by the attitude of the respondents, as a different case was set up and no chance was given
to them, to lead evidence to rebut the contention so raised. No details of the newly
building to be constructed, were given to enable the appellants to apply for the newly
constructed building, after completion, as provided under section 13(5) of the Ordinance
VI of 1959. Thus, the contention of Mr. Aslam Chisthi, Advocate, has substance, that the
respondent by setting up a new plea in the application has failed to prove its personal
bona fide requirement. The learned Controller has also erred in holding that the shops in
dispute are required for demolition and including the same in Imam Bargah. It may be
noted that the learned Controller, has overlooked the statement of Representative of
landlord, as well as the site plan and Building Permit, approved by the Municipal
Corporation. Thus, the eviction application must fail on this ground.

As far as the last contention of learned counsel regarding inclusion of shops in Imam
Bargah is concerned, it may be pointed out that Anjumane-Asna Ashria Baltastani is a
small Sect with a limited number of people. It has come on record, that the members of
the Anjuman are not more than 300 whereas appellants through evidence have proved
that Imam Bargah in the existing position, can accommodate about 2000 people. Thus,
the ground, that the courtyard of the Imam Bargah is congegted, and does not cater the
requirement of its members, has also not been proved.

For the foregoing reasons the appeals are accepted, impugned judgment and decree, dated
29-11-1999, passed by learned Senior Civil Judge-I, Quetta, is set aside and the eviction
applications filed by respondents are dismissed with no order as to costs.

Q.M.H./M.A.K./38/Q

Appeals allowed
2000 C L C 327

[Peshawar]

Before Talat Qayum Qureshi, J,

Haji MUHAMMAD DAOOD---Petitioner

versus

MUHAMMAD DAUD---Respondent

Civil Revision No.20 of 1995, decided on 22nd October, 1999.

(a) Civil Procedure Code (V of 1908)---

----0. VT. Rr. 2 & 3---Contents of pleadings--Essentials---Plaintiff should state such

facts in the pleadings which may put the defendant on his guard and tell him what he will
have to meet when the case comes on trial---Every pleading should contain only a
statement in a concise form of the material facts on which the party relies for his claim or
defence as the case may be--Pleadings should not contain the evidence by which such
material facts are to be proved.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

-S 13---Pre-emption suit---Non-mentioning of names of witnesses in plaint, in whose

presence "Talab-i-Muwathibat" was made---Effect---Such mention was not sine qua
non for pre-emptor to specify in the plaint the names of the witnesses in whose presence
the pre-emptor had made "Talb-iMuwathibat" and also specify the time and the place to
make such Talb under S.13, North-West Frontier Province Pre-emption Act, 1987.
Sar-Injam v. Abdur Razaq 1999 SCMR 2167 ref.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Making of "Talbs"---Notice in terms of S.13(3),

North-West Frontier Province Pre-emption Act, 1987 was served upon vendor within
time and the same was received and duly replied---Such action of the pre-emptor was
sufficient compliance as regards making of "Talb-i-Ishhad"---Both the Courts below
found that the "Talbs" were made in accordance with law---Such concurrent findings of
the two Courts below being based on evidence and the same being neither illegal nor
irregular nor without jurisdiction, could not be interfered with by High Court.

Kala Khan v. Ayub Khan 1992 MLD 2536; Muhammad Gul v. Muhammad Afzal

1999 SCMR 724 and Muhammad Yousaf v. Sikandar PLD 1970 Pesh. 160 ref.

Sar Injam v. Abdur Razaq 1999 SCMR 2167 fol.

(d) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Entitlement of vendee to receive registration fee,

stamp duty and District Council fee ---Validity---Pre-emptor wanted to step into the
shoes of vendee, therefore, the pre-emptor was liable to pay all the charges whatever the
vendee had spent ---Vendee was entitled to recover such charges accordingly.

Muhammad Sadiq v. Mst. Shakeela Jameel 1983 CLC 1705 rel.

Syed Abdus Salam Sarwar for Petitioner.

Saleh Mehmood Awan for Respondent.

Date of hearing: 4th October, 1999.

JUDGMENT

Muhammad Daud, respondent/plaintiff filed a suit (No.268/1 of 1990) for possession

through pre-emption of land fully described in the heading of plaint situated at Mauza
Teer District Haripur on the grounds of superior rights of pre-emption such as contiguity
and easement. The land in dispute was sold vide sale-deed No.1779, dated 11-11-1989.
Mutation No.7432 was attested on the basis of said sale-deed on 14-2-1990 by the
Revenue Officer. Respondent/plaintiff question the sale consideration mentioned in the
sale-deed to be fictitious and having entered in order to ward off his pre-emption rights.
He alleged that the suit land was in fact purchased for Rs.20,000 but inflated amount was
entered in the sale-deed. The suit of the respondent/plaintiff was contested by the
petitioner/defendant by filing his written statement. The divergent pleadings of the parties
gave rise to the following issues:--

(1) Whether the plaintiff has got a cause of action?

(2) Whether the plaintiff is estopped to sue?

(3) Whether the plaintiff has fulfilled the requirements of section 13 of N.-W. F. P.
Pre-emption Act, 1987?

(4) Whether the plaintiff has waived off his right of pre-emption by permitting the
defendant to purchase the suit land?

(5) Whether the plaintiff has got a right of pre-emption?

(6) Whether a sum of Rs.4,51,125 has been fixed in good faith and actually paid as
the sale consideration of suit land?
(7) What is the market value of the suit land?

(8) Whether the plaintiff is entitled to decree as prayed for?

(9) Relief.

2. The learned Senior Civil Judge after recording the evidence of the parties and hearing
the arguments of the learned counsel for the parties, decreed the suit on 17-1-1994 in
favour of pre-emptor/respondent/plaintiff. Being aggrieved by the judgment/decree
passed by the learned Senior Civil Judge, Haripur the petitioner/defendant filed Appeal
No. 12/13 of 1994 in the Court of learned District Judge, Haripur. The appeal was also
dismissed by the learned District Judge, Haripur vide his order dated 13-12-1994. The
petitioner has impugned the judgments and decrees passed by Courts below through
Revisions Petition (No.20/95) in hand.

3. Syed Abdul Salam Sarwar, Advocate, the learned counsel representing the petitioner
argued that formalities of ' Talabs' have not been fulfilled by the respondent/plaintiff.
Neither the names of the persons before whom ' talb-i-Ishhad' was made mentioned in
the plaint nor the date, time and place was given. The witnesses of ' Talb-i-Ishhad' have
also not been produced by the respondent/plaintiff but both the Courts below by
misreading the evidence produced by the respondent/plaintiff held that the formalities of '
Talabs' were fulfilled by the respondent.

4. He further argued that Khasra No.366 is not contiguous with the suit property. Only
Khasra Nos. 365 and 367 are contiguous with Khasra No.365 owned by plaintiff but both
the Courts below misread the record of the case regarding this fact. The
respondent/plaintiff was not entitled for decree on the basis of contiguity.

5. He also argued that specific sale amount alongwith registration charges against which
the petitioner purchased the property in dispute has been brought on record but the
learned District Judge did not appreciate the record of the case properly and erroneously
held that the petitioner was not entitled for the registration charges and District Council
Fee.

6. While repelling the arguments of the learned counsel for the petitioner, Mr. Saleh-
Mehmood Awan, Advocate, the learned counsel representing the respondent argued that it
was not necessary to give names of the witnesses, place and time where '
Tabl-i-Muwathibat' was made, therefore, the respondent/plaintiff cannot be non-suited
on the said ground. The respondent/plaintiff has fully proved before the trial Court that
formalities, of 'Talabs' were fulfilled and judicial conscious of the trial Court was fully
satisfied that ' Talabs' were in accordance with law by the respondent/plaintiff. The
concurrent findings of fact regarding ' Talabs' based on evidence which were neither
illegal nor irregular nor without jurisdiction could not be interfered with in revision.
Reliance was placed on Kala Khan v. Ayub Khan 1992 MLD 2536.

7. Regarding contiguity, the learned counsel argued that Khasra Nos.365 and 367 are
contiguous with Khasra No.364 which is owned by respondent/plaintiff. The property in
dispute is situated in a compact block. Khasra No.366 is adjacent to Khasra Nos.365 and
367 as is clear from AksShajra-Kishtwar Exh.P.W.2/3. The respondent/plaintiff has
successfully proved the contiguity. The learned trial Court rightly appreciated the
evidence on record and granted decree which was concurred by the learned District
Judge, Haripur.

8. Repelling the arguments of the learned counsel for the petitioner that the petitioner was
entitled to charges of registration of District Council Fee and non-framing of issue
regarding the payment of said charges by the trial Court has prejudiced the case of the
petitioner, the learned counsel for the respondent argued that the learned District Judge
has properly discussed in his judgment as to whether the plaintiff/respondent. was entitled
to receive the amount of registration charges and District Council Fee, therefore, the
petitioner has not been prejudiced at all. He further stated that the petitioner failed to
prove on record as to what amount was paid by him towards registration charges and
District Council Fee. The petitioner, therefore, could not claim expenses incurred by him
on registration, stamp duty and District Council Fee.

9. I have heard the learned counsel for the parties and perused the record of the case
carefully.
10. So far as the first argument of the learned counsel for the petitioner that time, place
and date for ' Talb-i-Muwathibat' and the names of the witnesses before whom the said '
Talab' was made were not mentioned in the plaint, therefore, the suit of the plaintiff was
liable for dismissal. This argument has no force. As per Order 6, Rules 2 and 3, C.P.C.
every pleadings should contain and contain only a statement in a concise form of the
material facts on which the party pleading relies for his claim or defence as the case may
be but not the evidence by which they are to be proved. It is essential that in the pleadings
the plaintiff should state those facts which will put the defendants on his guard and tell
him what he will have to meet when the case comes on trial. The question as to whether it
was sine qua non for pre-emptor to specify in the plaint the names of the witnesses in
whose presence he made ' Talb-i-Muwathibat' and also specify the time and place to
make ' Talabs' under section 13 of the Act, came under consideration before August
Supreme Court of Pakistan in Sar Injam v. Abdur Razaq 1999 SCMR 2167, Shakirullah v
Minullah Appeal No.573 of 1997 and Muhammad Ishaq v. Aniir Nawaz Khan Appeal
No.574 of 1997. It was held in paragraph No. 12 of the judgment.

"We have, therefore, no hesitation to hold that it is not a sine qua non for a pre-emptor to
specify in the plaint the names of the witnesses in whose presence he had made '
Talb-i-Muwathibat' and also specify the time and the place to make the '
Talb-i-Muwathibat under section 13 of the Act."

It was further held by the August Court,

"No doubt Order VI, Rule 2, C.P.C. provides that material facts are to be stated in the
pleadings but it does not mean that evidence through which such material fact is to be
proved shall also be stated in the pleadings. In our view it would be sufficient
requirement of law if it is alleged in the pleadings that after having come to know of the
sale pre-emptor declared his intention to pre-empt the sale, this material fact has to be
proved at the trial through evidence on the issue framed in this regard. The evidence to be
led need not be alleged in the plaint. However, if the plaintiff fails to mention the material
fact that he has made Talb-i-Muwathibat' on his having gained knowledge of the sale
would be debarred from leading evidence on the material fact of Talb-i-Muwathibat. "

It is on record that plaintiff/respondent served notice of ' Talb-i-Ishhad' on 1-10-1990 on

petitioner/defendant which was received by him on 4-10-1990. The said notice was duly
replied by the petitioner which establishes the fact that ' Talb-i-Ishhad's requirements
were duly fulfilled. The respondent in the said notice has clearly stated that he came to
know about the sale transaction on 30-9-1990 and on the same date he made '
Talb-i-Muwthibat'. The statement of respondent/ plaintiff was recorded as P.W.4. In his
statement also he has stated that he has fulfilled the requirements of ' Talb-iMuwathibat'
and ' Talb-i-Ishhad' properly. He was cross-examined at length but nothing could be
brought on record to show that ' Talb-i-Muwathibat was not made by him.
Talb-i-Muwathibat' or major demand to be made immediately upon receipt of
information. It is not necessary, however, that it should be in presence of witnesses. The
August Supreme Court of Pakistan in a case titled Zarghan Shah and others v.
Muhammad Yaqoob Civil Appeal No.560 of 1995 has held,

"It is pertinent to note that ' Talb-i-Muwathibat' need not be made in presence of
witnesses."

Likewise in C.P.As. Nos.44, 573 and 574 of 1997, decided on 30-4-1998, the August
Supreme Court of Pakistan had held,

"We have followed the principle annunciated by a learned Division Bench in the case of
Ameer Jan on the non-desirability of stating in the plaint the time and place of making
Talb-i-Muwathibat and the name of the witnesses before whom it was made. We are also
inclined to hold that assertion in para 3 of the plaint coupled with the indication in the
notice of Talb-i-Ishhad havinp, made ' Talb-iMuwathibat' is sufficient compliance of
requirement of section 13 ibid)."

In a case Muhammad Gul v. Muhammad Afzal 1999 SCMR 724 it was held,

"Section 13(3)---Notice expressing Talb-i-Ishhad' was sent by preemptor after 10 days

of making ' Talb-i-Muwathibat.’ Statement of pre-emptor on oath coupled with notice
sent to vendees within 10 days of ' Talb-i-Muwathibat' held was substantial compliance
of legal requirements of section 13(3), Punjab Pre-emption Act, 1991."

11. It is proved on record that notice in terms of section 13(3) of the N.W.F.P.
Pre-emption Act, 1987 was served upon the petitioner within time which was received by
him and was duly replied. This action is sufficient complainance as regards making of '
Talb-i-Ishhad'. ---. Moreover, both the Courts below have held that the ' Talabs' were
made in accordance with law. Their findings are based on evidence which are neither
illegal nor irregular nor without jurisdictin, as such the same cannot be interfered with.

12. The next argument of the learned counsel for the petitioner was that Khasra No.366 is
not contiguous with the suit property. Only Khasras Nos.365 and 367 are contiguous with
Khasra No.364 owned by plaintiff. This argument equally has no force. Perusal of
Akes-Shajra-Kishtwar Exh.P.W. 2/3 shows that property in dispute is situated in compact
block. Khasra No.366 is adjacent to Khasras Nos.365 and 367. This document was placed
on record without any objection and respondent/plaintiff has successfully proved that suit
property comprising Khasra Nos.365, 366 and 367 are contiguous with Khasra No.364
owned by the plaintiff. In a case "Muhammad Yousalf v.Sikandar" PLD 1970 Peshawar
160 it was held,

"Holding or parcel of a land comprising- in a number of fields bearing different Khasra

numbers---Remains, one property---Person pre-empting sale of such parcel of land
need not own property contiguous to all Khasra numbers thereof---Person owning
property contiguous to any part of such land---Held would have right to preempt entire
land comprised in Khasra numbers."

13. The 3rd argument of the learned counsel for the petitioner that the petitioner was
entitled to charges of registration and District Council fee has a force in it So far as the
fixation of sale price of the property in dispute is concerned, the same was-- fixed on the
basis of statement of the parties recorded in Court where the pre-emptor agreed to pay
the price of land as entered in the registered sale-deed. Although in the statement of the
petitioner price of the suit land was stated to be Rs.3,71,125 whereas in the statement of
the respondent it was mentioned as Rs.3,51,125. The difference of Rs-20,000 was very
properly resolved by the learned District Judge by calling upon the learned counsel for
the petitioner to explain the true position who frankly conceded that the excess amount
was mentioned due to clerical mistake. Therefore, the learned District Judge fixed
Rs-3.51,125 the price mentioned in the sale-deed as price of land for the purpsoe of
pre-emption. The petitioner was not held entitled to the amount of registration fee
including stamp duty and District Council fee which was not granted.

The petitioner was entitled to registration fee, stamps duty and district coucil fee because
the vendee/pre-enmptor wanted to step into the shoes of vendee, therefore, he was liable
to pay all the charges whatever the vendee had spent.
In a case Muhammad Sadiq v. Mst. Shakeela Jameel 1983 CLC 1705 it was held,

"As regards the last contention that the expenses in the form of registration fee, counsel
fee and stamps etc. could not have been added to the sale price. It has obviously no force
for the reasons that all these amounts were paid by the vendee and if the pre-emptor
vendee wanted to get into the shoes of the vendee he had to pay what the vendee has
done. Therefore, there is no force in this contention either. "

14. Even otherwise during the arguments the learned counsel for the respondent stated at
bar that the respondent was still ready to pay the registration charges, stamp duty and
District Council Fee if this Court orders him to do so. I, therefore, hold that the petitioner
is entitled to receive the amount of registration charges, stamp duty and district council
fee in addition to the sale price fixed by the learned District Judge.

15. The nutshull of the above discussion is that revision petition (Civil Revision No.20 of
1995) is partially accepted. The impugned judgment and decrees passed by the Courts
below are only modified to the extent that the petitioner is held entitled to get/receive the
registration fee, stamp duty and District Council Fee in addition to the sale price
mentioned in the sale-deed.

Q.M.H./M.A.K./467/P Order accordingly.

2000 Y L R 2557

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

FAZAL HUSSAIN ---Appellant

versus

MUHAMMAD MUNIR---Respondent

Civil Appeal No. 3 of 2000, decided on 27th April, 2000.

(On appeal from the judgment of the High Court, dated 20-9-1999 in Civil Revision No.
49 of 1999).

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Amendment in plaint--Scope---Question as to whether amendment

sought, if allowed, would change the cause of action or complexion of a suit, depended
upon the circumstances of each case---Where the contents of the plaint originally
framed and the amendment application showed that the facts which the plaintiff sought to
introduce by way of amendment, would tantamount to introduce altogether a different
case from the one which he had initially set up in his plaint, amendment sought would be
refused.
Chaudhry Nazir Ahmed v. Mrs. Mariam Salauddin Khawaja PLD 1994 Lah. 252;
Muhammad Akram and 2 others v. Muhammad Ashraf and 5 others 1998 CLC 555;
Semco Salvage (Pvt.) Limited v. m.v. Kaptain Yusuf Kalavan and another 1993 SCMR
593; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Raja
Feroz Khan v. Asghar Khan and others 1992 SCR 363 ref.

Muhammad Riaz Inqalabi, Advocate for Appellant.

Muhammad Yunus Tahir, Advocate for Respondent.

Date of hearing: 26th April, 2000

JUDGMENT

SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal, with leave of the Court,
has been directed against the order of the High Court, dated 20-9-1999, whereby the
revision petition filed by the appellant, herein, was dismissed and order of the Trial Court
whereby amendment was refused was maintained.

2. The brief facts of the case are that the appellant filed a declaratory suit with the
consequential relief of possession alleging that a gift deed of land measuring 1 Kanal, 5
Marlas, was got executed by the defendant respondent fraudulently; in fact he had
purchased the land for the consideration of rupees one lac but instead of getting a
saledeed registered, he got executed a gift deed in his favour which was illegal and, he
also refused to pay the consideration amount as he had promised. Subsequently, he filed
an amendment application on 1-3-1999 seeking the cancellation of the sale-deed
affidavit on the ground that .the respondent had got executed the aforesaid document for
consideration of rupees one lac; he paid only Rs.60,000 and Rs.40,000 were still had to
be paid; thereafter, instead of sale-deed, he got a gift deed executed in his favour. It is
further alleged by the plaintiff-appellant that afterwards the defendant-respondents
started claiming that he had purchased 2 Kanals 10 Marlas of land on the basis of the.
aforesaid two documents i.e., gift deed and affidavit/sale-deed. The Trial Court dismissed
the amendment application holding that the same would change the nature of the suit. The
revision petition filed by the appellant to the High Court was also dismissed observing
that amendment would not only change the complexion of the suit but would also change
its cause of action.

3. Mr. Muhammad Riaz Inqilabi, the learned counsel for the appellant, has submitted that
the amendments which the plaintiff-appellant seeks to make is only an elucidation of the
facts already alleged in the plaint i.e., that in. fact the respondent purchased the land
measuring 1 Kanal 5 Marlas, but subsequent he fraudulently got executed a gift deed in
his favour. The learned counsel has argued that the aforesaid amendment does not change
the complexion of the suit because the relief sought by the plaintiff-appellant is for the
cancellation of the gift deed which remains the same. He has argued that at the most an
additional ground is sought to be introduced by way of amendment, which does not
change the complexion of the suit. The learned counsel for the appellant has further
argued that the facts which the plaintiff wants to introduce by way of the amendment
were not incorporated in the plaint despite the fact that the counsel for the plaintiff was
instructed to do so at the relevant. time. He has submitted that plaintiff/appellant should
not suffer for the indifference of his counsel. He has cited the following authorities in
support of his contentions:---

In a case reported as Chaudhry Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja (PLD
1994 Lah.252), the amendment in the application for ejectment in a dispute under the
Cantonment Rent Restriction Act, 1963 was allowed on the ground of faulty drafting by
the counsel for the applicant.

In a case reported as Muhammad Akram and 2 others v. Muhammad Ashraf and 5 others
(1998 CLC 555), it has been observed that mere seeking different relief on the basis of
same facts would not change the cause of action or the character of the suit. It was held
that as cause of action of the suit remains unchanged it could not be said that complexion
of the suit would become different.

In a case reported as Semco Salvage (Pvt.) Limited v. m.v. Kaptain Ynsuf Kalavan and
another (1993 SCMR 593), it has been held that amendment can be allowed at any stage.
It was further observed that as the amendment sought did not change the nature of the suit
and was directly connected with the cause of action, the same was rightly allowed.

In a case reported as Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985
SC 345, it-has been observed that mere delay is no ground for refusing an amendment. It
has been held that' while considering the question of amendment technicalities should be
avoided as far as possible and that an amendment can be allowed even after the expiry of
period of limitation prescribed, if it is necessary for resolving real controversy between
the parties. The question as to what would constitute a different cause of action was also
discussed in light of relevant provisions of C. P. C.

4. In reply Mr. Muhammad Yunus Tahir, the learned counsel for the respondent, has
argued that the plaintiff-appellant seeks to introduce the facts for assailing the affidavit
which, according to him, was a sale-deed. He has argued that according to the
amendment application the plaintiff seeks to challenge the affidavit/sale-deed in the
present suit which was not the subject-matter of the suit already instituted. He has further
submitted that according to the case of the appellant he had only gifted or sold property to
the tune of 1 Kanal, 5 Marlas, and not to the tune of 2 Kanals and 5 Marlas, as was now
contended by the defendant-respondent. The learned counsel for the respondent has
further argued that if at all the counsel for the plaintiff/appellant did not incorporate the
said facts in the plaint despite instructions, the remedy must be sought against the counsel
but amendment cannot be allowed on that ground. He has cited a case reported as Raja
Feroz Khan v. Asghar Khan and others 1992 SCR 363, in support of his contention that
negligence of counsel was no ground to allow amendment.

5. We have given due consideration toy the arguments raised at the Bar. It may be pointed
out that the question as to whether amendment sought, if allowed, would change the
cause of action or complexion of a suit depends upon the circumstances of each case. In
the instant case, it cannot be said that as the plaintiff-appellant seeks to annul the gift
deed, the facts which he intends to introduce by way of an amendment would not change
the complexion of the suit because the same are merely for elucidating the case originally
set fit in the plaint. The perusal of the contents of the plaint originally framed and the
amendment application clearly shows that the facts which the plaintiff-appellant seeks to
introduce by way of an amendment are tantamount to introduce altogether a different case
from one which he had initially set up in his plaint. It may be stated that the comparison
of the contents of the plaint filed by the plaintiff-appellant and the application of
amendment would reveal that the plaintiff-appellant seeks to introduce facts by way of
amendment which are in fact inconsistant with the facts mentioned in the original plaint.
In the plaint he has averred that he sold 1 Kanal, 5 Marlas of land for a consideration of
rupees one lac and he was made to believe by the defendant that he would pay the said
amount of Rs.one lac after the registration of the gift deed. But nothing was paid to him
as was promised. However, in the amendment application he has averred that in fact
sale-deed/affidavit was executed regarding land measuring 2 Kanals, 10 Marlas for a
consideration of rupees one lac out of which Rs.60,000 were paid to him through some
one and an amount op Rs.40,000 was still outstanding against the respondent. According
to the amendment application, the plaintiff not only seeks the declaration regarding the
gift deed in question but also in respect of affidavit/sale-deed that the same were null and
void against his interests. The case of the respondent-donee is that no sale-deed/affidavit
was executed in his favour and only land measuring 1 Kanal, 5 Marlas was transferred by
him by way of gift; in other words defendant-respondent does not claim any interest on
the basis of any affidavit/sale-deed which was allegedly executed in his favour. Thus, ,
the present amendment application is a device to support the plea of the plaintiff that a
fraud was committed on him while getting the execution of gift-deed. It may be pointed
out here that the so-called sale-deed/affidavit does not find any mention in the plaint as
originally framed. It is well-settled principle of law that any documentary evidence is to
be produced before first hearing of the suit or the same must be included in the list of the
documents which a party intends to produce in evidence to support his plea. In the instant
case, the plaintiff not only wants to introduce altogether a -different case but. he seeks to
bring on record the sale-deed/affidavit which is of doubtful authenticity. Thus, we are of
the view that the order passed by the Trial Court and confirmed by the High Court
refusing amendment to the plaintiff appellant does not suffer from any legal infirmity.

Hence, the appeal hereby dismissed with costs.

M.B.A./43/SC(AJ&K)

Appeal dismissed.
1999 M L D 2670

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

Haji ABDULLAH through Legal Heirs---Appellant

versus

Haji ABDUL MAJEED---Respondent

Civil Revision No.70 of 1997, decided on 25th November, 1998

(a) Civil Procedure Code (V of 1908)---

----O.VI, R. 2---Contents of pleadings---Material facts and material particulars---

Distinction---Pleadings are in two modes: one affirmative which must contain only
material facts on which reliance is placed and the others are negative pleadings which
have not to state evidence through which material facts are to be proved---Where material
facts are omitted, a party cannot be permitted to raise contention on that point even if
there is material in shape of evidence before the Court---Position in case of material
particulars is different and in case of allegation of fraud, misrepresentation, breach of
trust, wilful default or undue influence, necessary particulars are to be mentioned.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13(3)---Civil Procedure Code (V of 1908), O. VI, Rr. 2 & 11---Preemption suit---
Necessary contents of a plaint---Details of notice of Talab-iIshhad not mentioned in the
plaint---Validity---Plaintiff had to mention in the plaint that such notice was given and the
details of the notice need not be described.

Ameer Jan and 3 others v.Haji Ghulam Muhammad PLD 1997 SC 883 rel.

(c) North-West Frontier Province Pre emption Act (X of 1987)---

----S. 13(3)---Civil Procedure Code (V of 1908), O. VI, Rr. 2 & 11---Preemption suit---
Non-mentioning of details of Talb in the plaints---Rejection of plaint by Trial Court as
well as lower Appellate Court---Validity---Not necessary for plaintiff in a pre-emption
suit to mention in the plaint, the details of "Talabi-Muwathibat" with regard to time, date,
place and person in whose presence declaration of his intention to pre-empt the sale was
made---Sufficient to allege in the plaint that after having come to know of sale, the pre-
emptor declared his intention to pre-empt the sale and sent notice of Talb-i-Ishhad
through registered post acknowledgment due---Judgments and decrees of lower Courts
were set aside in circumstances.

1995 CLC 729 ref.

Ameer Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883 and Zarghun
Shah v. Muhammad Yaqoob Khan C.A. No.560 of 1995 rel.

1996 SCMR 346 and PLD 1998 SC 121 distinguished.

Malik Muhammad Bashir for Appellant.

Muhammad Ayaz Khan Qasuria for Respondent.

Date of hearing: 25th November, 1998

JUDGMENT

Revision petitions No.70, 89 and 90 or 1997 are proposed to be disposed of by one

judgment, as question of law and facts involved therein are identical.

II. Petitioner Haji Abdulllah (in C.R. No.70/97) filed suit No.8/1 in the Court of Civil
Judge, D.I.Khan, to enforce his right oaf pre-emption in respect of sale of certain land
purchased by Haji Abdul Majeed Khan, vide mutation No.8285, dated 11-8-1990.
Similarly, petitioner Khan Bahadar (in C.R. Nos.89 '90 of 1997) filed two suits bearing
Nos/25/1 and 203/1, both on 10-4-1995, in the Court of Civil Judge-II, D.I. Khan, for
possession through pre-emption of land purchased through registered deeds Nos. 19 and
20, each dated 16-1-1995, against Abdul Ghaffar.

III. The suits were rested on various pleas, both legal and factual. The vendees filed
application for dismissal of suits on the ground that the plaint was deficient with regard to
details of 'Talab' in that time, date, place and source of information and name of person in
whose presence 'Talab' was made, were not mentioned as held in 1995 CLC 729. The
applications were vehemently opposed and, after hearing the counsel for the parties, the
learned trial Judge, agreeing with the contention of the vendees, rejected the plaint,
holding that the omission to mention particulars of 'Talab' regarding date, time and place
etc. was fatal to the progress of suits and on acceptance of the applications, suits were
dismissed. The plaintiffs, approached the learned District Judge D.I. Khan to vacate the
orders of the Civil Judge, but with no success as the appeals were dismissed. Hence the
present revisions.

IV. The sole point for determination is whether it is necessary for a plaintiff in pre-
emption suit to specify in the plaint the date, time and place as well as source of
information regarding the sale. Order-VI Rule 2, C.P.C. states that every pleading shall
contain, and contain only, the statement in concise form or the material facts on which the
party relies for his claim, or defence, as the case may be, but not the evidence by which
they are to be proved and shall, when necessary, be divided into paragraphs. The object of
pleadings is to make the parties aware of each others stand. The material facts on which a
party relies should be stated in concise form without mentioning the law. The provisions
of Order VI Rule 2, C.P.C. lays down fundamental principles of pleadings in two modes;
one affirmative that the pleadings must contain only material facts on which reliance is
placed and the negative that pleadings shall not state evidence through which material
facts are to be proved. Indeed, there is difference between the "material facts" and
"material particulars". In case material facts are omitted, a party cannot be permitted to
raise contention on that point even if there is material in shape of evidence before the
Court. The position in case of material particulars is different and in case of allegation of
fraud, misrepresentation, breach of trust, wilful default, or undue influence, necessary I
particulars are to be mentioned. V. As regards notice of Talb-i-Ishhad under section 13(3)
of the I N.-W.F.P. Pre-emption Act, 1987, the requirement of Order-VI, Rule-2 read with
Rule-11 C.P.C. is to simply mention it is the plaint that such notice has been given and
the details of the notice need not be described. About construction of pleadings, needless
to state that the Courts should avoid to scrutinize with such meticulous care as to genuine
claim being defeated, keeping in view the low legal literacy rate, more particularly, in this
part of the country.

VI. Similar question, the one involved herein, came up for consideration before the
Supreme Court in case of Ameer Jan and 3 others v. Haji Ghulam Muhammad PLD 1997
SC 883 wherein on consideration of the provisions of Order VI Rule 2, C.P.C., observed
that only material facts are to be averred in the plaint and not any evidence through which
such facts are to be proved. While repelling the contention of the vendee that omission to
state details of Talab, regarding time, date, place and person in whose presence the Talab
was made, in the plaint, is fatal, it was held as under:-

No doubt Order VI Rule 2 C.P.C. provides that material facts are to 66e stated m the
pleadings but it does not mean that evidence through which such material fact is to be
proved shall also be stated in the pleadings. In our view it would be sufficient
requirement of law if it is alleged in the pleading that after having come to know of the
sale the pre-emptor declared his intention to pre-empt the sale. This material fact has to
be proved at the trial through evidence on the issue framed in this regard. The evidence to
be led need not be alleged in the plaint."

VII. Again in C.P.As Nos.44, 573 and 574 of 1997, decided on 30-4-1998. the Supreme
Court reiterated the view expressed earlier in the case of Amir Jan V. Haji Ghulam
Muhammad and held as follows:-" -
"We have followed the principle enunciated by a learned Division Bench in the case of
Amir Jan (Supra) on the non-desirability of stating in the plaint the time and place of
making "Talb-i-Muwathibat' and the names of the witnesses before whom it was made.
We are also inclined to hold that assertion in Para.3 of the plaint coupled with the
indication in the notice of "Talb-i-Ishhad' having made "Talb-i-Muwathibat" is sufficient
compliance of requirement of Section 13 ibid. "

Also in CA No.560 of 1995 titled "Zarghun Shah v. Muhammad Yaqoob Khan" decided
on 25-6-1998, the Supreme Court held that the contradiction in the evidence of plaintiff
regarding date, time, place of Talb-e-Muwathibat, as pointed by the High Court, were
immaterial for the reason that right of pre-emption cannot be allowed to be defeated by
technicalities and in this context once again the case of Amir Jan was quote=a with
approval.

VIII. Learned counsel for the respondent placed reliance on cases reported in " 1996
SCMR 346 and PLD 1998 SC 121. In the former case there was no specific para
regarding "Talab" and para.5 of the plaint was to the effect that the defendant was asked
to transfer the suit land in favour of the plaintiff but he refused and hence the suit, while
in the latter case there were more than one transactions of sale of different dates and
months sought to be pre-empted and the plaint was silent about the 'Talb-i-Muwathibat in
respect of each transaction. It will, therefore, be seen that both the cases cited by the
learned counsel for the respondents proceed on distinguishable facts.

IX. In the three cases before me, each plaint contains a separate para about "Talab". Para.
3 of the plaints in Suits No.25/1& 203/1, it is clearly alleged by the petitioner that he
came to know of sale of 20-3-1995 and the moment he came to know of the sale, he made
jumping demand by saying that he would pre-empt and thereafter sent Registered A.D.
notice under seciotn 13(3) of the N.-W.F.P Pre-emption Act, witnessed by Shah Behram
and Muhammad Farooq. Whereas petitioner in Para.3 of the plaint in suit No.87/1
asserted that the defendant /vendee and vendor did not give any notice, they secretly
struck the deal and when he came to know of the sale of land on 25-4-1991, he
immediately made 'Talb-i-Muwathibat' and thereafter in presence of witnesses sent the
notice through registered A.D. In point of fact photo copies notices alongwith registered
receipt/A.D. were attached with the plaint.

X. In view of what has been stated above, it is not necessary for a plaintiff in a pre-
emption suit to mention in the plaint the details of 'Talab-i-Muwathibat' with regard to
time, date, place and person in whose presence declaration of his intention to pre-empt
the sale. It is sufficient to allege in the plaint that after having come to know of sale, he
(pre-emptor) declared his intention to pre-empt the sale and sent notice of Talb-e-Ishhad
through registered post Acknowledgment Due.

XI. Accordingly, all the three revisions succeed, with the result that the
judgments/decrees of the lower Courts are set aside and the case are remanded back to
the trial Court for disposal in accordance with law, leaving the parties to bear their own
costs.

Q.M.H./M.A.K./261/P Revisions allowed

1992 S C M R 417

Present: Shafiur Rahman and Rustam S. Sidhwa, JJ

ABDUL SATTAR---Appellant

versus

Mst. SARDAR BEGUM and 12 others--Respondents

Civil Appeal No.487 of 1990, decided on 21st December, 1991.

(On appeal from the order of Lahore High Court, Lahore, dated 21-12-1986 passed in
Regular Second Appeal No.196 of 1986).

(a) Constitution of Pakistan (1973)---

----Art.185(3)---Transfer of Property Act (IV of 1882), Ss.53-A & 58---Leave to appeal

was granted to examine whether agreement in question was agreement to sell or a
mortgage by way of conditional sale.

(b) Transfer of Property Act (IV of 1882)---

----Ss.53-A & 58---Agreement to sell---Mortgage by way of conditional sale--

Respondent's property being already mortgaged with appellant, he entered into another
agreement with appellant purporting to be an agreement to sell--Terms of agreement m
question showed that same was in fact a clog on the equity of redemption and could not
be specifically enforced as an agreement to sell---Such agreement was thus, a mortgage
by way of conditional sale.

Sh. Shaukat Mahmood on Transfer of Property Act., S, 58; Pomal Kanji Govindji and
others v. Vrajlal Karsandas Purohit and others 1990 PSCC 852; Muhammad Kazam
through Legal Heirs v. Mst. Janat Bibi PLD 1985 Lah. 637 and Mathura Kurmi v. Jagdeo
Singh and others AIR 1927 All. 321 rel.

(c) Transfer of Property Act (IV of 1882)--

----Ss.53-A & 54---Agreement to sell---Agreement to- sell not maturing into sale---
Effect---Where agreement to sell itself was made revocable on payment of the amount
advanced within the stipulated time and such a condition fell within the category
enumerated in law, the agreement would get assimilated to sale though legally short of it.

(d) Transfer of property Act (IV of 1882)---

----S. 54---Agreement to sell in the absence of sale---Effect---Where agreement to sell

itself was made revocable on payment of amount advanced within stipulated time, and
such a condition fell within the category enumerated in law, such agreement would get
assimilated to sale though legally short of it.

(e) Transfer of Property Act (IV of 1882)---

----S.54---Sale---Word `sale' used in generic sense would include all steps, including
agreement to sell, necessary for completing a sale.

(f) Words and phrases--

----`Sale'---Meaning---Word `sale' used in generic sense would include all steps,
including an agreement to sell, necessary for completing a sale.

(g) Civil Procedure Code (V of 1908)---

----O.VI, R.1---Pleadings of parties would not control or govern the application of correct
law to established or proved facts.

Ch. Khalil-ur-Rehman, Senior Advocate instructed by Sh. Salahuddin, Advocate-.on-

Record for Appellant. .

Syed Munir Hussain, Advocate instructed by Ch. Muhammad Aslam, Advocate-on-

Record for Respondents Nos. 1 to 5.

Dates of hearing: 1st and 2nd December, 1991.

JUDGMENT

SHAFIUR RAHMAN, J.---Leave to appeal was granted to the appellant to examine

whether the agreement dated 16-5-1974 was an agreement to sell or as held by the first
and the second appellate Courts a mortgage by way of conditional sale.

2. Muhammad Siddique, the predecessor-in-interest of the respondents was transferred

the house in dispute in Nankana Sahib, District Sheikhupura, vide P.T.D. dated 21-12-
1973. Prior to it, on 20-12-1972, Muhammad Siddique had mortgaged this house for
Rs.17,000 and handed over its possession to the appellant. On 16-5-1974 he entered into
another agreement in respect of this very property. It was an agreement to sell. The
important and operative part of this agreement to sell was as hereunder:---
3. In this background, on 26-5-1975, the appellant instituted a civil suit seeking specific
performance of the agreement to sell. His defence was inter alia that he had after the
mortgage taken further loan, without any undertaking to sell. Further, that the house in
dispute was worth one and a half lac of rupees and could not be sold at such a low price.
The following issues were framed:---

"(1) Whether this Court lacks jurisdiction to try this suit? OPD.

(2) Whether suit property has been transferred to the defendants and whether its P.T.D,
has been issued in his name? If not, its effect? OPP.

(3) Whether the defendant had agreed to sell the suit property to the plaintiff, and whether
he had executed agreement decd dated 16-5-1974, in his favour, after receiving Rs.3,000
as earnest money? OPP.

(4) Whether the defendant had returned Rs.3,000 to the plaintiff within the stipulated
period and whether the plaintiff had executed receipt dated 12-3-1975, in this respect?
OPD.

(5) Whether the plaintiff is entitled to the specific performance of contract of sale dated
16-5-1974. If so on what terms and conditions? OPP.

(6) Relief."

4. The trial Court decided all the issues in favour of the appellant and decreed the suit.
5. The District Judge, on first appeal, reversed the findings holding that unless settlement
fee (Rs.59) and public dues (Rs.667) were paid, the transferee could not enter into any
agreement to sell. These dues were paid on 19-9-1975. For this reason, agreement to sell
executed on 16-5-1974 was void and unexecutable. The District Judge further held as
hereunder:---

"The above-quoted lines of the agreement establish that in fact the said sum of Rs.3,000
was paid as a loan and the agreement was executed only for the purposes of security of
refund of loan. Instead of making the agreement a simple conditional sale the mortgagee
preferred to pay further loan and to secure it through the said agreement. Definition of
mortgage given under section 58 of the Transfer of Property Act shows that any such
secured loan against an interest in an immovable property constitutes mortgage. Clause
(c) of section 58 of the said Act further makes the position clear that where a mortgagor
ostensibly sells immovable property on the condition that on payment of such sum the
sale shall become void, the transaction will be called a `mortgage by conditional sale'.
Clause 1(g) of the said section also includes such like transactions within the purview of
an `anomalous mortgage'. There was no occasion for such condition and concession if it
was a simple agreement to sell. I am, therefore, convinced that the said stipulation
mentioned in agreement Exh.P2, constitutes a mortgage by conditional sale and that the
said sym of Rs.3,000 was in fact a secured loan and thus mortgage money. This mortgage
was in continuation of previous mortgage amounting to Rs.17,000. It is well settled that
`once a mortgage always a mortgage' and that no restriction or clog could be placed-
upon equity of redemption. I, therefore, reverse the findings on issue No.3 and hold that
Exh.P.2, was though executed by the mortgagor yet it did not constitute an agreement to
sell and that the payment of Rs.3,000, was only a continuation of previous mortgage and
it was not a part of earnest money. I further hold that agreement to sell Exh.P.2 is
unexecutable for purposes of sale, being a clog on equity of redemption."

On these findings, the appeal was accepted and the specific performance of the agreement
refused.

6. In second appeal, the High Court, by the impugned judgment, upheld the finding of the
District Judge that the agreement to sell was in fact a clog on equity of redemption and
could not be specifically enforced as an agreement to sell.

7. Ch. Khalilur Rahman, Senior Advocate, the learned counsel for the appellant has
contended that the finding of the two appellate Courts is against the pleading of the
respondents, is not borne out from the evidence on record and is not legally sound or
tenable. By reference to Note 28 in the Commentary of Sh. Shaukat Mahmood on section
58 of the Transfer of Property Act, the learned counsel has contended that an outright sale
and for that matter an agreement to sell is permissible in law and the agreement to sell
was fully protected on the basis of precedent law. The consideration for sale was the fair
market value of the property.

8. Syed Munir Hussain, Advocate, the learned counsel for the respondents has relied
mainly on the language of clause (c) of section 58 of the Transfer of Property Act and a
decision from Indian jurisdiction Pomal Kanji Govindji and others v. Vrajlal Karsandas
Purohit and others 1990 Pakistan Supreme Court Cases 852--Supreme Court of India and
a decision of the Lahore High Court Muhammad Kazam through Legal Heirs v. Mst.
Janat Bibi PLD 1985 Lah. 637 for establishing that the condition contained in the
agreement to sell gave it the character of a mortagage.

9. The relevant portion of section 58 of the Transfer of Property Act is reproduced

hereunder:---

"58. "Mortgage". "mortgagor", "mortgagee". "mortgage-money" and "mortgage-deed"

defined. (a)-----------------Simple mortgage. (b)-------------------Mortgage by conditional
sale. (c) Where the mortgagor ostensibly sells the mortgaged property--

on condition that on default of payment, of the mortgage-money on a certain, date the

sale shall become absolute, or

on condition that on. such payment being made the sale shall become void, or'

on condition that on such payment being made the buyer shall transfer the property to the
seller,

the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by
conditional sale:
Provided that no such transaction shall be deemed to be a mortgage, unless the condition
is embodied in the document which effects or purports to effect the sale;

(d)……………

(e) .................

(f) ..................

(g) ………………………………”

10. Sulaiman, J. has in Mathura Kurmi v. Jagdeo Singh and others AIR 1927 Allahabad
321 enunciated the principle governing the interpretation and application of this provision
as hereunder:---

"The Transfer of Property Act of 1882 has, however, codified the law and defined what a
mortgage by conditional sale is. That definition is both exhaustive and conclusive. A
transaction cannot amount to a mortgage by conditional sale unless it fulfils the
conditions of section 58(c). Nor can a transaction be not a mortgage by conditional sale if
it comes within that section. The ascertainment of the true intention used to be a matter of
considerable difficulty. The legislature has come to the rescue of the Courts and laid
down certain conditions. which, if fulfilled, would make the sale a mortgage. If the
mortgagor ostensibly sells the mortgaged property on condition (a) that on default of
payment of the mortgage money on certain date the sale shall become absolute, or (b) that
on such payment being made the sale shall become void, or (c) that on such payment
being made the buyer shall transfer the property to the seller, the transaction, though in
the garb of a sale, is, in the eye of the law, a mortgage by conditional sale. Sales with an
independent covenant for repurchase have a resemblance to the third class of ostensible
sales mentioned above. The section provides that where a mortgagor has ostensibly sold
his property on condition that on payment of the mortgage money the buyer shall transfer
the property to the seller, the transaction is a mortgage by conditional sale. I take it that
this would be so even though the language of the document itself does not use the words
`mortgagor,' `mortgaged property' or `mortgage money.' The conveyance may ostensibly
be a deed of sale, that is to say, with all the phraseology employed in drafting sale-deeds,
but if that sale is in reality subject to a condition of a retransfer on payment of the amount
the law regards it as a mortgage by conditional sale. If it were necessary that the
document itself should contain the words that it was a mortgage, in many cases the
transaction would not look an ostensible sale. In my opinion the presence in the deed of
such words as literally imply a mortgage is not absolutely necessary. The cardinal point is
whether the sale is subject to a condition of re-purchase on payment,"

It holds good and is a sound view of the law. On that view, the agreement to sell will
acquire the character of a mortgage rather than a sale.

11. The only other question that requires consideration in this case before us is whether
the agreement to sell in the absence of sale as such makes any difference to the
transaction or to the application of the law. Where the agreement to sell itself is made
revocable on payment of the amount advanced within the stipulated time, and such a
condition falls within the category enumerated in law the agreement gets assimilated to
sale though legally short of it. The word "sale" has been used here in the generic sense to
include all steps, including an agreement to sell, necessary for completing a sale. On that
view of the matter, the view taken by the two appellate Courts is correct. The pleadings of
the parties do not control or govern the application of correct law to established or proved
facts. The appeal is, therefore, without merit and dismissed with costs.

AA./A-906/S Appeal dismissed.

1992 C L C 235

[Lahore]

Before Mian Allah Nawaz

Mst. MANZOOR MAI----Appellant

versus

ABDULAZIZ----Respondent

Regular Second Appeal No. 799 of 1967, decided on 29th May, 1991.

(a) Muhammadan Law-

----Gift---Essentials of a valid gift-.-Mode and manner of delivery of

possession--.Essential elements of a valid gift under Muhammadan Law are: Declaration
of gift by the donor; express or implied acceptance of gift by donee; and seism/delivery
of possession of donated property by donor to the donee ---Possession is thus, a
condition precedent to the validity of gift--Possession, however, should be given to the
doree as nature of property permitted---Mode and manner of delivery of possession is
dependent upon the nature and character of the property and question of delivery of
possession is required to be considered by taking into consideration all the facts and
circumstances of each case---Where a gift was made and direction was given to the
donees to take possession of the subject-matter of gift and partition it among themselves
such gift was deemed to be valid.

Sahibzada Muzaffar Ali v. Mst. Agha Begum and others PLD 1968 Lah. 372; Farid v.
Mst. Nur Bibi PLD 1970 Lah. 502; Mushtaq Ahmad and 4 others v. Said Muhammad and
another PLD 1987 AJ&K 57; Khurshid-ul Islam v. M/s. Qamar Jahan 1989 CLC 1467;
Hidaya XXX at page 482; B.E. Baillie in his Digest of Mahomedan Law pages 520-521;
Sharifa Bibi v. Golam Muhammad Dastagir Khan ILR 16 Mad. 43; Sheikh Ibrahim v.
Suleman and others ILR 9 Bom. 149; Muhammad Mumtaz Ahmad and others v. Zubaida
Jan ILR 111 All. 460 (PC); Hassanalli Dagumiya v. Ruhullah Hamad AIR 1925 Bom.
305; Abdul Haque and others v. Mst. Tamizan and others AIR 1927 Pat, 20; Bibi Khewer
Sultan v. Bibi Rukhia Sultan ILR 29 Bom. 408; K.S. Agha Mir Ahmad Shah and others v.
KS, Agha Mir Yaqoob Shah and others PLD 1957 Kar. 258; Anjuman Islamia,
Muzaffargarh v. Ashiq Hussain and another PLD 1967 Lah. 336; Ashiq Hussain another
v. Ashiq Ali 1972 SCMR 50 and `Mahomedan Law, `by Syed Ameer Ali pages 110-114
rel.

(b) Muhammadan Law---

----Gift---Validity---Donor's statement before Patwari which' was recorded in

"Roznamcha Waqiate" on basis of which mutation was entered and his statement before
Revenue Officer making declaration of gift and acknowledging delivery of possession of
donated property to donee along with donee's acceptance of gift would constitute valid
gift---Circumstance of delivery of possession contained in donor's statement before
Revenue Officer corroborated by entries in Khasra Girdawari clearly indicated that donee
was given possession of property under gift---Statement of tenant that he was asked by
donor to give rent to donee by way of attornment was not impeached by donor in
cross-examination---Such statement having not been rebutted would be deemed to have
been admitted.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 30---Civil Procedure Code (V of 1908), S. 100---Second appeal--Evidentiary

value of admission---Concurrent findings of Courts below wherein they had found
impugned gift as invalid were in contravention of law and in disregard of well-settled
principles relating to evidential value of admission contained in duly sanctioned
mutations---Such findings were thus, liable to interference in second appeal.

Malik Din and others v. Muhammad Aslam PLD 1969 SC 136; Muhammad Afsar and 7
others v. Allah Ditta and 13 others 1970 SCMR 118; Ali Muhammad v. Ali Muhammad
and 5 others 1974 SCMR 22; Nazar Muhammad and another v. Mst. Shahzada Begum
and another PLD 1974 SC 22; Mst. Bibi Jan v. Habib Khan and another PLD 1975 SC
295; Malik Muhammad Bashir v. Ghulam Rasul and another 1978 SCMR 358; Begum
Bibi and 9 others v. Abdul Ghani and 4 others 1980 SCMR 675 and Ghazan and others v.
Hayat Ali and another 1981 SCMR 492 rel.

(d) Qanun-e-Shahadat (10 of 1984)----

----Arts. 30 & 132---Fact asserted in examination-in-chief when not subjected to

cross-examination, would be deemed to have been admitted.--[Cross examination]

(e) Qanun-e-Shahadat (10 of 1984)---

----Art. 49---Entries in duly sanctioned mutations were relevant under Art. 49,
Qanun-e-Shahadat, 1984---Such entries though were not evidence of title, yet they
were strong pieces of evidence in respect of which they were made.

Mohammad and others v. Sardul PLD 1965 Lah 572; Anjuman Islamia, Muzaffargarh v.
Ashiq Hussain and another PLD 1967 Lah 336; Haji Ghulam Rasool and others v. The
Chief Administrator of Auquaf, West Pakistan PLD 1971 SC 376; Bhondu v. Sami Khan
1982 CLC 316 and Sikandar Shah and others v. Sher Zaman and others 1987 SCMR
1125 rel,

(f) Civil Procedure Code (V of 1908)---

----O.VI, R.1 & O.VII, R.1---Pleadings---Plaint---Facts which were not alleged in
plaint could not be permitted to be proved by means of evidence. [Practice and
Procedure].

(g) Maxim---

---Secundum allegata et probata---Meaning and scope---Party fern only succeed

according to what was alleged and proved.

(h) Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1808), S. 100---Declaratory relief,

discretionary in nature---Court could refuse such relief where a party had come to Court
with unclean hands and unjust claim---Donor having come to Court with ulterior
motive, discretionary relief could be denied to him---Judgments and decrees of Courts
below granting relief to donor were set aside and his suit was dismissed.

Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan PLD 1966 SC 612 rel.

Ch. Safdar Yasin for Appellant.

M.M. Jamal for Respondent.

Dates of hearing: 21st, 27th and 28th May, 1991.

JUDGMENT
The dispute in this regular second appeal by defendant relates to the validity of the gift of
agricultural land measuring 100 kanals 13 marlas situate in Revenue Estate Jalla Jeem
Tehsil Mailsi, District Multan, having been made by one Abdul Aziz, respondent-plaintiff
in favour of his real sister Mat Manzoor Mai appellant-defendant. Abdul Aziz
donee/plaintiff'/respondent and Mst. Manzoor Mai appellant/defendant, shall be
hereinafter referred to a "Donor" and "Donee", respectively, while the gifted property
shall be described as property' or property in dispute.

2. At the outset, the material facts leading to this litigation may be noted. On 20-7-1962,
the donor made a statement to Patwari (Consolidation) Revenue-estate Mouza Jalla,
stating therein that he had alienated the property by way of gift in favour of donee, who
accepted the same and he had delivered the possession of `Property' to her. On his
statement Rappat No. 347 was recorded by the Patwari in his Daily Diary. On the basis of
this entry, a note was recorded by the Patwari (Consolidation) in the register of mutations.
On 26-7-1962, the donor appeared before the Revenue Officer and reiterated the factum
of declaration of gift, acceptance of the same and delivery of possession of property by
him in favour of the donee in an open assembly and in the presence of the donee. On the
statement of the donor and the donee the Revenue Officer attested the impugned mutation
bearing No.768 on the same date.

3. It was on 23-5-1963 when the donor respondent brought a suit for declaration to the
effect that the aforenoted gift embodied in Mutation No.76$ was in fact nominal and
fictitious. It was alleged that neither he had made the declaration of gift nor the donee had
accepted the same, nor any possession of the property was given to her. It was further
averred that this fictitious mutation was got incorporated with the concurrence of the
donee who had executed an agreement dated 19-7-1962 acknowledging therein that no
gift was made in her faovur.

4. The donee contested the suit by taking up the plea that the gift was complete in all
respects; that the donor had donated the property to her; that she had accepted the gift and
obtained the possession of the property, that she was in full control of the property and so
had become the full! owner of it.

5. Upon the divergent pleadings of the parties the learned trial Court framed the following
issues:
(i) Is the plaintiff in possession of the suit land and the suit is competent in its present
form? OPP

(ii) Whether the gift is invalid for the reasons stated in para. No.2 of the plaint? OPP.

(iii) Relief.

Upon the consideration of oral as well as documentary evidence so adduced by the

parties, the learned first Court by judgment dated 26-5-1966, decreed the suit by coming
to the conclusion that neither the donor had intended to make gift in favour of the donee
nor he had delivered the possession of the property to her. Feeling aggrieved with this,
the appellant-donee filed appeal which was dismissed by the learned Addl. District Judge
by decision of affirmance, dated 5-5-1967. Hence this second appeal by the
appellant-defendant donee.

6. In disputing the correctness/validity of the decisions of the two Courts below, the
learned counsel appearing on behalf of the appellant advanced the following arguments.

Firstly, that the two Courts below have neither examined nor have taken into
consideration the evidential value of admission contained in statement of the respondent
before Patwari (Consolidation) as well as before the Revenue Officer. It was stated that
on both the occasions, the respondent acknowledged that he had donated the property to
the donee; that the donee had accepted the gift and that he had delivered the possession of
the property to her. According to the learned counsel, these admissions were binding on
the respondent and he had no right to resile from these admissions in view of the doctrine
of estoppel embodied under section 115 of the Evidence Act/Article 114 of the
Qanun-e-Shahadat Order, 1984.

Secondly; that the relief under Section 42 of the Specific Relief Act is discretionary in
nature and cannot be granted to a person who comes to Court with unclean hands. The
learned counsel strenuously asserted that this principle was totally overlooked by the two
Courts below. From the case of the respondent, it was obvious that the respondent had
come to Court with a plea that the proceedings from Patwari (Consolidation) to the
Revenue Officer, were in fact a scheme to hoodwink the Consolidation Authorities. As
such the respondent could not be granted a decree in discretionary and equitable
jurisdiction under section 42 ibid.

Thirdly; that the findings of the two Courts below are the result of misconstruing the
terms of deed of attorney executed by the appellant in favour of the respondent and so the
Courts below have erred in law by coming to the conclusion that the gift was not
complete.

Fourthly-, that the learned first appellate Court had erred in law by recording a finding on
the question of gift on the basis of conjectures and surmises and without applying his
mind and without scrutinizing the soundness/propriety of the finding of the first Court.

Reliance was placed on Sahibzada Muzaffar Ali v. Mst. Agha Begum and others (PLD
1968 Lah. 372), Farid v. Mst. Nur Bibi (PLD 1970 Lah. 502) Mushtaq Ahmad and 4
others v. Said Muhammad and another (PLD 1987 AJ&K 57) and Khurshid-ul-Islam v.
M/s Qamar Jahan (1989 CLC 1467).

7. The learned counsel appearing on behalf of the respondent supported the impugned
decisions. He felt contented by raising a preliminary objection to the maintainability of
the second appeal. It was urged that the findings of the two Courts below on the question
of declaration and on the question of delivery of possession were findings of fact, as such
these findings were not open to interference under section 100 of the Code of Civil
Procedure. It was further contended that if the gift is at all found to have been made it
was with strings and conditions which rendered it void.

8. I have heard the learned counsel for the parties at a considerable length and gone
through the evidence with their able assistance. The sole question falling for
determination in this appeal is whether the impugned gift was perfected by delivery of
possession of property to the donee as required by the Muslim Law. Admittedly the three
essentials of a valid gift under the Muslim Law, are (i) declaration of gift by the donor,
(ii) an express or implied acceptance of gift by donee; and (iii) seisin/delivery of
possession of donated property by the donor to the donee. These elements are necessary
for a gift. The possession is a condition precedent to the validity of gift. The Holy
Prohpet (peace be upon him) said "A gift is not valid unless possessed" (Ref: Inayah,
VOl.IV, page 24). The law, however, requires that the possession is to be given to the
donee as nature of the property permits. The mode and manner of delivery of possession
is dependent upon the nature and character of a property and the question has to be
considered by taking into consideration all the facts and circumstances of each case. The
only thing to be considered is that delivery of possession by donor in favour of donee,
must be conscious, unequivocal and distinct. Hidya XXX at page 482 says:

"Gifts are rendered valid by tender, acceptance and seisin-tender and acceptance are
necessary, because a gift is a contract, and tender and acceptance are requisite in the
formation of all contracts; and seisin is necessary in order to establish a right of property
in the gift, because a right of property according to our doctors, is not established in the
thing given merely by means of the contract, without seisin."

Again in another place it is stated:-

"A gift may be taken possession of on the spot where it is tendered without the express
order of the donor; but not afterwards:--If the donee takes possession of the gift, ,in the
meeting of the deed of gift without the order of the giver, it is lawful upon a favourable
construction. If, on the contrary, he should take possession of the gift after the breaking
up of the meeting, it is not lawful, unless he have had the consent of the giver so to do."

Similarly B.E. Baillie in his Digest of Mahomedan Law (Pages 520-521) has observed:

"Legal effect of a gift is not complete and possession is taken of the thing given;

The possession on which the completion of the gift and the establishment of its legal
effect are dependent, is possession taken with the permission of owner-a permission
which is sometimes express, but, at others, has to be established by
evidence………………When the donee is neither expressly permitted nor forbidden to
take possession, and does so at the meeting, the possession is valid on a favourable
construction of law, though not so by analogy. But, if possession is not taken till after
separation from the meeting, the possession is not valid, either by analogy or on a
favourable construction.".
9. In Sharifa Bibi v. Golam Muhammad Dastagir Khan (ILR 16 Mad. 431 it was held that
when the gifted land is occupied by the tenants or raiyats as in a zamindari or mitta, a
request to them to attorn to the donee is a sufficient delivery to complete the gift and
formal entry on the land is not indispensable, the principle being that the intention to
transfer possession and to divest himself of all control over the subject of the gift must be
unequivocally manifested by some overt act done towards the execution of such
intention. This principle of law is well-established. Sheikh Ibrahim v. Suleman and others
(ILR 9 Bom. 149), Muhammad Mumtaz Ahmad and others v. Zubaida Jan (ILR 11 All.
460 (PC), Hassanalli Degumiya v. Ruhullah Hamad (AIR 1925 Bom. 305), Abdul Haque
and others v. Mst. Tamizan and others (AIR 1927 Pat. 20), Bibi Khewer Sultan v. Bibi
Rukhia Sultan (ILR 29 Bom. 408), KS. Agha Mir Ahmad Shah and others v. K.S. Agha
Mir Yaqoob Shah and others (PLD 1957 Kar. 258), Anjuman Islamia, Muzaffargarh v.
Ashiq Husain and another (PLD 1967 Lah. 336), Ashiq Hussain another v. Ashiq Ali
(1972 SCMR 50) and Khurshid-ul-Islam v. M/s. Qanar Jahan (1989 CLC 1467), are
some of the cases in which it has been held that in case the land is occupied by tenants, a
request to them by the donor to attorn to the donee is the only possession that the donor
can give of the land in order to complete a proposed gift and such possession would be
sufficient.

10. According to Kazi Khan, a book of high authority, the ability of donee, if adult, or of
his guardian, if a minor, to take possession of the gift--in other words, to exercise the
right of property over it, is sufficient to validate the acts of donation. Accordingly, where
a gift is made, and direction is given to the donees to take possession of the subject of the
gift and partition it among themselves, such a gift is held to be valid, meaning thereby the
power to take possession is equivalent in certain instances to actual delivery of
possession (See `Mahomedan Law by Syed Ameer Ali' Pages 110-114).

11. Before I proceed to determine the contentions of the parties, in the light of aforesaid
principles it will be advantageous to again note the case of the respondent set up during
trial and in the plaint. In para. 2 of the plaint it was pleaded that the impugned mutation
of gift was devoid of legal efficacy on the premises that donor had not given possession
of the property to the donee; that the donee had not accepted the gift; that the donee did
execute agreement Ex.P/1 dated 19-7-1952, wherein she categorically admitted that the
mutation of gift was nominal, while respondent appeared before the Court, he stated that
he was the owner of two tracts of land; one at Chah Sukhanwala and the other at Chah
Baitwala; that the land at Chah Sukhanwala was more precious as compared to land at
Chah Baitwala; and when the consolidation proceedings commenced, he hatched a novel
plan in collusion with donee to get a fictitious mutation of gift incorporated in the
Revenue-record and get Vanda Ishtimal prepared relating to land at Chah Sukhanwala in
the name of donee in order to retain this land in consolidation operation. This case was
accepted by the two Courts below by coming to conclusion that Ex.P/1 was duly proved
document and as a matter of fact no gift was made.
12. Having set down the case of two parties, their arguments I feel necessary to tabulate
the evidence of both the sides.

13. The evidence of donor comprises of following evidence:-

Evidence of respondent-donor.

14. P.W.1 Ata Muhammad, PW.2 Muhammad Bakhsh, PW.3 Allah Bakhsh. These
witnesses stated that they were tenants at the crucial time; that they have never given rent
to the donee. P.W.4 Sher Mohammad, P.W.5 Shah Mohammad, P.W.6 Illahi Bakhsh and
P.W.7 Mohammad Ramzan, proved the execution of Ex.P/1. They stated that on
19-7-1962 Mst. Manzoor Mai executed agreement wherein she acknowledged that no
gift was made in her favour in reality and she further undertook to return the property to
donor.

15. The documentary evidence of donor comprises of following documents:-

Documentary evidence of respondent-donor comprises of .following:-

Ex.P/3 is a certified copy of Khasra Girdawri relating to kabi-1962, which does not bear
any entry pertaining to donor or donee. Ex.P/4 is certified copy of Khasra Girdawari
relating to Kharif,1963. These documents show that the possession of property was with
donee under the gift and the property was in cultivating possession of tenants namely,
Abdul Aziz, Allah Bakhsh son of Khamisa, Ahmad Bakhsh son of Ilahi Bakhsh,
Mohammad Bakhsh son of Wali Mohammad, and Mohammad Bakhsh son of Pir Bakhsh
as tenants. Ex.P/5 is copy of Register Scheme relating to Vanda bearing No.173 and
183/1. It demonstrates that Vanda Ishtimal was made in the name of donee. Ex.P/6 is the
copy of register scheme relating to Vanda Ishtimal bearing No.66/59 in favour of Abdul
Aziz donor. Exh.P/7, P%8 and Ex.P/9 are copies of Khasra Girdawari containing entries
regarding Kharif, 1961, Rabi, 1962 and Kharif, 1962. Ex.P/10 is copy of Jamabandi of
year 1957-58. In column No.12 thereof the entry regarding impugned mutation has been
incorporated. EXS.P/11, 12 and 13 are copies of Khatooni Pamaish. These exhibits
demonstrate that the donee was in possession of the property. Ex.P/5 is the copy of
impugned mutation.

Evidence of donee-appellant.

17. In addition to herself she produced DW.1 Muhammad Isa, D.W2 Haji Mohammad
Ramzan and D.W.3 Gul Muhammad, these witnesses stated that they were tenants at the
crucial time of making the gift; that the donor had asked them to give rent to donee as he
had gifted the property to her. Thereafter they have paid the rent relating to harvest of
cotton and sugarcane to the husband of donee; that after the consolidation operations, the
donee was in possession of the land in dispute.

18. The documentary evidence is Ex.D/1, copy of Roznamcha Waqiati, of Patwari

(Consolidation) dated 20-7-1962, Ex.D-2 is, the copy of impugned mutation, Ex. D/3 is
the copy of Khasra Gridawari pertaining to years 1958-59, and 1960-61.

19. I have carefully taken into consideration the evidence of both parties noted above and
have come to considered opinion that the concurrent findings of the two Courts below are
in contravention of provision of law and in disregard of the well-settled principles
relating to evidential value of the admission contained in duly sanctioned mutation. For
this purpose I have tabulated the evidence of both parties in paragraphs Nos.16 and 17
and now proceed to take objective appraisal of aforenoted evidence in the fight of
principles of Mohammadan Law relating to gift highlighted in paragraphs Nos.8 and 9.

20. I will now first take up the documentary evidence of the donor. It was on 20-6-1962
when the donor made a report regarding the tender, acceptance of gift and delivery of
possession of property to Patwari (Consolidation). He prayed therein that entry be
recorded in Roznamcha Waqiati (Daily Diary). It is to be noticed that the diary of Patwari
contains the entries regarding the change of possession. It has no concern whatsoever
with attestation of mutation. This entry is incorporated in order to bring a corresponding
change in Khasra Girdawri as well as jamabandi relating to change, of possession. To me,
this tantamounted to a conscious and distinct act of putting the donee in possession of
donated property. Had it been otherwise the donor would have contended himself with
making statements before Patwari in ordinary course of proceedings and would have got
himself satisfied with the nominal act of attestation of mutation. There was no
compulsion on his part to make report to Patwari for the purpose of getting entries in
Khasra Girdawri changed. I am, therefore, of the opinion that this act of the donor
alongwith the statements made before Revenue Officer was sufficient to prove the
transmutation of donated property in favour of donee. Furthermore the donee reiterated
the circumstance of declaration, acceptance and delivery of possession before the
Revenue Officer in open assembly and mutation was attested. The circumstance of
delivery of possession contained in aforenoted admission is corroborated by the entries of
Khasra Girdawri Ex.P.3, Ex.P-4, and Ex.P-7 wherein it had been clearly shown that
donee was given possession of property under the gift. It is sufficient to note that these
entries were entered in Jamabandi also. The admission in the aforenoted documents
further seeks confirmation from the oral evidence. The donor admitted in his
crossexamination that Gul Mohammad DW-3 was tenant over the land in dispute at the
time of making gift; that no other person was cultivating the property as a tenant at that
time. Gul Mohammad appeared as DW-3 and stated to the effect that he was in
cultivating possession of land in dispute and the donor asked him to give rent to donee by
way of attornment. This part of his statement was not impeached by the donor by way of
cross-examination. It is well-settled principle of law that a fact asserted in
examination-in-chief which is not subjected to cross-examination is deemed to have
been admitted.

21. Now the stage is set to examine the legal effects of these admissions. It is established
principle of law that entries in duly sanctioned mutation are relevant under section 35 of
Evidence Act. Although they are not evidence of title yet they are strong pieces of
evidence in respect of which they are made. If these entries contain undisputed
admission, the onus of proving that these admissions are false lies on the party who says
so and are binding on the maker of them unless and until they are proved false. Reference
may be made to Mohammad and others v. Sardul (PLD 1965 Lah. 572,) Anjuman
Islamia, Muzaffargarh v. Ashiq Hussain and another (PLD 1967 Lah. 336), Haji Ghulam
Rasool and others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC
376), Bhondu v. Sami Khan (1982 CLC 316 and Sikandar Shah and others v. Sher Zaman
and others (1987 SCMR 1125). When judged from this angle I have no hesitation in
coming to conclusion that the two Courts below have erred in law by overlooking the
evidential value of the admission of respondent before Patwari Ishtimal and before the
Revenue Officer. These admissions were corroborated by the bulk of evidence and led to
conclusion that donor did make a gift of property in dispute in favour of donee and she
had received the possession of the property.

22. The oral evidence of the donor is untrustworthy, partisan in nature and cannot be
believed. The donor himself stated that P.W.1, P.W.2, and P.W3 were not in cultivating
possession of land in dispute as a tenant in his crossexamination. On account of this
admission no reliance can be placed upon the testimony of P.W.1, P.W.2 and P.W3.
23. I now take the evidence of P.W.4, P.W.5, P.W.6 and P.W.7. These witnesses proved the
execution of agreement Ex.P/1 and deposed that the donor was the owner of two tracts of
land one at Chah Sukhanwala and other at Chah Baitwala. That land at Chah Sukhanwala
was more valuable than the land at Chah Baitwala; that he had hatched a plan in
consultation with donee to hoodwink the consolidation authorities; that the donee
executed Ex.P-1 where she admitted that no gift was made in her favour. This document
was denied by Mst. Manzoor Mai. The document appears to be of spurious nature. The
thumb-impression of Mst. Mansoor Mai on this document is not
discipherable. Furthermore, this case was not embodied in plaint, where
it was stated that no gift was made in favour of donee. It is settled
principle of pleading that the facts which are not alleged in the plaint
cannot be permitted to be proved at trial by means of evidence. This
basic rule is that of secundum allegata et probata i.e.; a party can
only succeed according to what was alleged and proved. I am, therefore,
clear in my mind that both the Courts below fell into error of law by
permitting the donor to prove these facts and by placing reliance upon
them for the purpose to coming to conclusion that no gift was made.

24. The upshot of aforesaid discussion is that the donee by means of

oral, documentary evidence and by means of admissions contained in duly
sanctioned mutation proved all the necessary elements of gift as
required by Muslim Law of gift. The learned two Courts below had fallen
into error of law by ignoring the evidential value of these admissions
and, principles of Muslim Law relating to gift. The contention of the
respondent' that the concurrent conclusion of facts on the question of
possession recorded by two Courts below cannot be interfered with is
devoid of legal support. If the perusal of the impugned judgment shows
that the findings of the two Courts below on the question of fact were
contrary to circumstances apparent on the record and were in violation
of the provisions of law, such findings are liable to interference under
section 100 of the C.P.C. Reference be made to. Malik Din and others v.
Muhammad Aslam PLD 1969 SC 136, Muhammad Afsar and 7 others v. Allah
Ditta and 13 others (1970 SCMR 118), Ali Muhammad v. Ali Muhammad and
others (1974 SCMR 22), Nazar Muhammad and another v. Mst. Shahzada Begum
and another (PLD 1974 SC 22), Mst. Bibi Jan v. Habib Khan and another
(PLD 1975 SC 295), Malik Muhammad Bashir v. Ghulam Rasul and another
(1978 SCMR 358), Begum Bibi and 9 others v. Abdul Ghani and 4 others
(1980 SCMR 675) .and Ghazan and others v. Hayat Ali and another (1981
SCMR 492).

25. There is yet another aspect of the case that the declaratory relief
under section 42 of the Specific Relief Act is discretionary in nature.
The Court may refuse such relief where one of the parties comes to Court
with unclean hands and unjust claim. Reference be made to Malik Muhammad
Hayat Khan v. Subedar Yar Muhammad Khan (PLD 1966 SC 612). Applying
these principles to the facts of the case it is clear that according to
the case of plaintiff he hatched out a plan to deceive the consolidation
authorities who were functioning under the provisions of Consolidation
of Holdings Ordinance. Plaintiff, was thus not entitled to relief under
section 42 of the Specific Relief Act .

26. The result of whatever has been stated above is that I accept this
appeal, set aside the judgments and decrees of two Courts below and
dismiss the suit filed by the donor. The respondent shall bear the costs
of the proceedings throughout.

AA./M-131/L Appeal accepted.

P L D 1963 Supreme Court 553

Present : A. R. Cornelius, C. J., S. A. Rahman, Fazle-Akbar, B. Z. Kaikaus and

Hamoodur Rahman, JJ

BUDHO AND OTHERS-Appellants

Versus

GHULAM SHAH-Respondent

Civil Appeal No. K-20 of 1962, decided on 28th June 1963.

(On appeal from the judgment and decree of the High Court of West Pakistan, Karachi
Bench, Karachi, dated the Ist February 1962, in Second Appeal No. 76 of 1959).

(a) Special Leave to Appeal to Supreme Court---Granted, where suit was dismissed
contrary to findings arrived at in judgment Constitution of Pakistan (1962), Art. 58.

Leave to appeal was granted where it appeared that a person (defendant), who had
according to the findings of the Courts below no right to the property, in dispute, had
been left in possession of it in the face of the fact that the deceased who was admittedly
the owner of the property had made some Wills, genuineness of which was accepted, and
which contained a recital as to the relationship of the deceased with three of the plaintiffs.
(b) Civil Procedure Code (V of 1908), O. VI, r. 2-PkadingsStatements of fact-Whether
plaintiff must stale on which specific fact, of the facts pleaded, he relies-Plaintiff may be
deemed to rely on all facts set forth in pleadings-Inconsistent pleadings-Test for
determining-Alternative pleadings are not necessarily inconsistent-Variations of
case-Question to be decided on ground of notice and prejudice-Maxim- (Principle)-
Secondum allegata probata ("a fact has to be alleged in pleadings before it is allowed to
be proved)."

The main question for decision in this appeal was whether the refusal of the District
Judge as well as the High Court to decree the suit on the basis of the Wills in spite of a
finding as to the genuineness of Wills was justified on account of the fact that the
plaintiffs bad failed to base their claim on the Wills

Held, that when. a person makes a statement of a fact in the plaint he is entitled to rely
upon that fact in support of the relief which he claims and it is not necessary for him to
say in the plaint in so many words that he relies upon it.

According to rule 2, Order VI, Civil Procedure Code, 1908, it is not necessary for a
plaintiff to state in the pleadings the legal effects which flow from the facts that he
alleges. He is bound to state the facts and is confined to a statement of facts. He is
presumed to rely upon all the facts which he states in the plaint, because according to the
rule quoted above he is to state the material facts on which he relies.

The plaintiffs in this case had stated in the plaint that the deceased had made three Wills.
In three separate paragraphs each relating to one Will they had given particulars of the
Wills all of which had been registered. They had then stated the dispute which arose
between the plaintiffs some of whom claimed as relatives of the deceased and some on
the basis of Wills. They had then referred to the family settlement. In the end they had
stated that they were "as a matter of law and fact the owners of property in dispute and
were legally entitled to its possession". An issue had been framed with respect to the
genuineness of the Wills and evidence had been led on the issue:
Held, that on these facts prima facie there did not appear any good reason for precluding
the plaintiffs from claiming the property of the deceased on the basis of Wills as against
the trespasser (defendant).

There is no bar to a person relying upon more than one alternative source of title. An
alternative case should be distinguished from an inconsistent case. No two facts can be
said to be inconsistent with each other if both could have happened. The test of
inconsistency between two facts would be that a plaint which contains both the facts
could not be verified as true by a plaintiff. If, for instance, the plaintiff alleges a
document to be a forgery and at the same time states that the execution by him of the
document is the result of undue influence, the pleas are inconsistent with each other and a
plaintiff cannot verify both the statements of facts as true. In this case the two alleged
inconsistent facts are only the Will and the relationship. There is obviously no
inconsistency between the facts themselves. When a party puts forward more than one
source of his title he is not taking up an inconsistent position. He is only pleading in the
alternative.

Questions relating to variation of a case are to be decided on grounds of notice and

prejudice. If the other party has notice of the variation and is not in any way prejudiced
by it the variation is permissible. Of course this does not mean that one cause of action
can be substituted by another, but in respect of the cause of action on which a suit is
based the Court is not debarred from permitting variation if there be no prejudice to the
opposite party.

The principle, secondum allegata probata, only means that a fact has first to be alleged by
a party in the pleading before it is allowed to be proved.

(c) Will---Several contestants under three Wills, arriving at a family settlement and suing
jointly a trespasser-Such settlement given effect to.

Nathulal Advocate Supreme Court instructed by Yousuf Rafi Attorney for Appellants.

Respondent in person.
Date of hearing: 4th April 1963.

JUDGMENT

B. Z. KAIKAUS, J.-The property in dispute in this appeal by special leave which

consists mainly of agricultural land was admittedly in the possession of one Moosa Khan
of village Deh Mohabat Wah, Taluka Khairpur at the time of his death which occurred on
the 20th September 1951. After his death disputes with respect to the right to succeed to
this property arose between parties who were all plaintiffs in the present suit. Plaintiffs 1
to 3 i.e., Budho, Palio and Ganhwar claimed the right to inherit the property of the
deceased on the ground of relationship. At the same time three Wills were alleged to have
been executed by the deceased on the 15th November 1928, the 19th August 1946 and the
2nd August 1951, respectively. The first of these Wills was in favour of plaintiff No. 1 i.e.
Budho alone, the second was in favour of plaintiffs Nos. 1, 2 and 4 i.e., Budho, Palio and
Mst. Saodan and the third was in favour of plaintiffs 2, 3 and 5 i.e., Palio, Ganhwar and
Mundhoo. As there was a dispute with respect to possession the Police sent up a case
under section 145, Cr. P. C. before a Magistrate who ordered that during the pendency of
the proceedings the property should remain in the possession of a Receiver. Ghulam Shah
who is the sole defendant in the present suit put in an application before the Magistrate
who was hearing the proceedings under section 145, Cr. P. C. for being made a party on
the ground that he was in possession. He was in fact made a party. His plea was that the
land in dispute belonged not to Moosa Khan, but to his own maternal grandfather Bijar
Khan and that this land had been handed over by Bijar Khan to Moosa Khan in trust for
the daughter and maternal grand-son of Bijar Khan. The Magistrate held that the land
was in possession of Ghulam Shah defendant. A revision filed against this order by the
plaintiffs before the Sessions Judge failed. The High Court was then moved and the High
Court directed the appellants to establish their title in a Civil Court. While the
proceedings under section 145, Cr. P. C. were pending a compromise had been arrived at
between all the five plaintiffs at the instance of one Haji Mir Ghulam Hussain by virtue
of which the plaintiffs agreed to be henceforth the owners of the land in dispute in shares
specified in the plaint.

The plaintiffs then filed the suit out of which this appeal arises for possession of the land
in dispute against Ghulam Shah defendant. They alleged in the plaint that three of them
i.e., plaintiffs 1 to 3 were relatives of the deceased Moosa Khan and, therefore, entitled to
inherit his property. They went on to state that the deceased had also executed three Wills
on three different dates in favour of three sets of persons. They then mentioned the
settlement that had been arrived at between the plaintiffs during the proceedings under
section 145, Cr. P. C. in accordance with which the land was to be owned by all the
plaintiffs in specified shares It was also stated in the plaint that plaintiffs were in
possession of the land in dispute and had been illegally dispossessed by the defendant
who was a trespasser. The reliefs claimed in the plaint were

(i) declaration that the plaintiffs were lawful heirs and owners of the property
in dispute

(ii) possession; and

(iii) mesne profits.

The defendant denied that the land in dispute belonged to Moosa Khan and alleged that
Moosa Khan was only a trustee of the land in dispute, the defendant and his mother being
the beneficiaries. With respect to the Wills the defendant said that they were forged and
invalid. The validity of the family settlement alleged in the plaint was also denied. Some
legal objections were taken and as a result the following issues were framed

(1) Is the suit not in proper form?

(2) Is the suit bad for misjoinder of the plaintiffs?

(3) Is the suit bad for misjoinder of the contradictory causes of action?

(4) Is the plaint not properly stamped and is the suit property under-valued?

(5) Is there no cause of action?

(6) Are the provisions of the D. A. R. Act applicable to this suit?

(7) Whether the plaintiffs are the heirs and relations of deceased Moosa Khan and
whether the pedigree shown by the plaintiff is correct?

(8) Does the suit property belong to Moosa Khan?

(9) Who had been in possession of the suit property after the death of deceased Moosa
Khan?

(10) Are the Wills, alleged by the plaintiffs, left by deceased Moosa Khan ? Whether they
are genuine and have any legal force ?

(11) Who was Bijar Khan, who are his heirs and how are they connected with the present
suit?

(12) Was there any family settlement between the plaintiffs and has it any bearing on this
suit? If yes, with what effect?

(13) Has the defendant any legal right or title to the suit property ?

(14) Are the plaintiffs entitled to any relief claimed by them?

(15) Were there any proceedings under section 145, Cr. P. C. in respect of the suit
property? If yes, what is their effect on this suit?
(16) What are the mesne prots of the suit land?

(17) What should the decree be ?

The suit was heard by Mr. Ghulam Hussain S. Ansari, a First Class Sub-Judge at
Khairpur. Apart from the legal issues the contest before the Sub-Judge appears to have
been mainly on the question as to whether the property was owned by Moosa Khan or
Bijar Khan for after disposal of the legal issues he dealt only with the question as to
whether the property belonged to Moosa Khan or Bijar Khan and having come to a
finding that it belonged to Moosa Khan he decreed the suit without going into the other
issues. An appeal was filed against this decision by the defendant and by consent of
parties the District Judge who heard the appeal made an order for remand with a direction
that findings be recorded afresh on all the issues in the suit. Mr. Ali Muhammad V.
Akhund, the successor of Mr. Ansari after remand held that the property in dispute was
owned not by Bijar Khan but by Moosa Khan. On the issue as to relationship of the
plaintiffs with Moosa Khan he found that none of the plaintiffs was proved to be related
to the deceased. On issue No. 10 the last of the three Wills was held to be genuine the
plaintiffs not having made any attempt to prove the other Wills. The family settlement, it
was held, had no effect on the suit. The suit was decreed only to the extent of 3rd of the
property in dispute on the ground that under Muhammadan Law a Will could he made
only in respect of 1/3rd of the property and with respect to the remaining 2/3rd, the
Sub-Judge held that it was to go to the Government by escheat. The legal objections to
the suit were all disposed of in favour of the plaintiffs.

Both parties appealed to the District Judge. At the hearing of the appeals the parties
agreed that the District Judge should decide the following points

(l) Were the three Wills, alleged, left by Moosa Khan. Whether they are genuine and have
legal force.

(2) Whether Budho, Palio, Ganhwar, Mundhoo and Mst. Saodan were heirs of Moosa
Khan.
(3) Whether they can claim under the Wills and can this plea be allowed.

(4) If the property belonged to Moosa Khan or Bijar Khan.

(5) Whether the facts alleged by Ghulam Shah that Moosa Khan was entrusted with the
property by Bijar Khan and that he returned the property and parwana to Ghulam Shah
are true. If so what is the effect.

(6) Whether the joinder of the Deputy Commissioner is necessary in the Appeal No. 30 of
1958.

The District Judge found that the Wills were all genuine, that the property belonged to
Moosa Khan and not to Bijar Khan and there had been no entrustment of this property by
Bijar Khan to Moosa Khan. The Deputy Commissioner was found not to be necessary
party. With respect to the question whether three of the plaintiffs were heirs of the
deceased, the District Judge observed that they had not taken this point in the grounds of
appeal before him and, therefore, he would not allow them to agitate it. Although the
District Judge found on facts in favour of the genuineness of the Wills, he was of the
opinion that the suit was based not on the Wills but on simple inheritance. On this finding
alone he dismissed the suit. The plaintiffs filed an appeal against the judgment of the
District Judge in the High Court and the High Court agreed that the suit was not based on
the Wills and the judgment of the District Judge was upheld. Leave to appeal had been
granted in this case because it appear that a person who had according to the findings of
the Courts below no right to the property in dispute had been left in possession of it in the
face of the fact that Moosa Khan deceased who was admittedly the owner of this property
had made some Wills the genuineness of which was accepted and in which there was a
recital as to the relationship of the deceased with three of the plaintiffs.

The main question for decision in this appeal is whether the refusal of the District Judge
as well as the High Court to decree the suit on the basis of the Wills in spite of a finding
as to the genuineness of Wills was justified on account of the fact that the plaintiffs had
failed to base their claim on the Wills.
As already observed the plaintiffs had stated in the plaint that the deceased had made
three Wills. In three separate paragraphs each relating to one Will they had given
particulars of the Wills all of which had been registered. They had then stated the dispute
which arose between the plaintiffs some of whom claimed as relatives of the deceased
and some on the basis of Wills. They had then referred to the family settlement. In the
end they had stated that they were "as a matter of law and fact the owners of property in
dispute and were legally entitled to its possession". An issue had been framed with
respect to the genuineness of the Wills and evidence had been led on the issue. The trial
Court had after remand decided the suit on the basis of the last Will. On these facts prima
facie there does not appear any good reason for precluding the plaintiffs from claiming
the property of the deceased on the basis of Wills as against the F trespasser. However,
two Courts have agreed to dismiss the suit on the ground that claim was not based on the
Wills and it is necessary to examine their reasonings with some care. The District Judge
was of the opinion that an exhaustive study of the plaint would lead to the conclusion
which he arrived at. The following extract from his judgment contains the whole of the
reasoning on this point

……………………………………………………………………………………….

Plaint para. 4 mentioned that Budho and others are the only heirs and relations of Moosa
Khan. Para. No. 5 said that according to law and facts Budho and others were entitled to
possess the property left by deceased Moosa Khan. Paras. Nos. 6 and 7 mentioned the
properties left by Moosa Khan. There was reference to the three Wills under paras. 8 to
10 of the plaint. Paras. 11 to 16 referred to 145, Cr. P. C., proceedings. Paras. Nos. 17 to
18 referred to arbitration and family settlement. Tara. No. 20 mentioned that Ghulam
Shah had no legal and lawful claim to the property of deceased Moosa Khan. Para. No.
21 again definitely said that Budho and others are the owners of the property. Paras. 22
and 23 referred to cause of action and court-fee stamps. The relief clause mentioned that
Budho and others be declared lawful owners of the property.

The reading of the whole plaint would show that Budho and others claimed property as
relations and heirs of Moosa Khan. They did not claim the property under the Wills. The
perusal of the Judgment of the lower Court shows that Palio and others hive been given
property under the last Will executed in 1951.

I feel that the lower Court was wrong in doing it and the law on this point is practically
settled.
In the present case Budho and others claimed the property as heirs descended from the
common ancestor. They made reference to the Wills as ancillary documents, to prove the
relationship. The Court therefore cannot grant them any relief under the Wills which they
did not seek in their plaint. My finding therefore is that Budho and others cannot be
permitted to claim under the Wills in the present suit."

The District Judge has not referred to any particular statement in the plaint which may
support the conclusion that the plaintiffs were not suing on the Wills and regards this as
an effect of the reading of the plaint as a whole. He has, however, relied on the fact that
the plaintiffs claimed as "heirs" and "owners". He was also of the opinion that the Wills
were mentioned in the plaint in order to prove the relationship of the plaintiffs to the
deceased. He has not explained why he made this inference and in this connection it will
be proper to observe that there was nothing in the plaint showing that there was any
recital in any Will as to the relationship of the plaintiffs with the deceased.

The grounds on which High Court agreed with the District Judge will appear from the
following extract from its judgment

A perusal of the allegations made in the plaint leaves no doubt in my mind, that the
appellants have not based their claim on the basis of the Wills executed in their favour by
the deceased. On the other hand they have claimed the property in dispute as heirs of the
deceased. They have further relied in support of their claim on the family-settlement
entered into by them on the intervention of Sahibzada Haji Mir Ghulam Hussain Talpur
dated the 18th of March 1952, under which the property in dispute has been given in
definite shares to the appellants. Mr. Talpur contended that the question of the alleged
Will was specifically raised in the pleading and an issue was also struck on this point.
This is quite correct, but the important question for consideration is whether the
appellants had based their claim under the alleged Wills. There is not the slightest doubt
in my mind that the appellants have not done so. The impression which the plaint gives is
that although some of the appellants in the beginning claimed the property in dispute
under the Wills but they had abandoned their right under it and have asserted their right
as heirs and on the arrangement arrived at between them about the distribution of the
property left by the deceased. It is, therefore, quite apparent that the appellants have
deliberately given up their right under the Wills. In such cases, in my opinion, it is not
open to the appellant to change their case and to claim relief on a right which was not the
basis of the suit
The High Court appears to be of the opinion that the plaintiffs were basing, their case on
inheritance and the family settlement. The family settlement it should be clear was of no
avail at all against the defendant. It could not be a source of title as against the defendant
although it may have been of binding force in a dispute between those who were parties
to the settlement. The Sub-Judge had found that the family settlement was irrelevant and
that was the correct legal position. The High Court made an inference of abandonment by
the plaintiffs of their right on the basis of Wills from two facts, the first being that they
had claimed as heirs and the second that they had reached a settlement between them.
Neither of these facts was, in our opinion, sufficient to show that there was an
abandonment of the rights based on Wills.

When a person makes a statement of a fact in the plaint he is entitled to rely upon that
fact in support of the relief which he claims and it is not necessary for him to say in the
plaint in so many words that he relies upon it. Order VI, rule 2, of the Civil Procedure
Code provides-

"R. 2. Every pleading shall contain, and contain only, a statement in a concise form of the
material facts on which the party pleading relies for his claim or defence, as the case may
be, but not the evidence by which they are to be proved, and shall, when necessary, be
divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be
expressed in figures."

It is not necessary for a plaintiff to state in the pleadings the legal effects which flow from
the facts that he alleges. He is bound to state the facts and is confined to a statement of
facts. He is presumed to rely upon all the facts which he states in the plaint, because
according to the rule quoted above he is to state the material facts on which he relies. Of
course, it is open to a party to give up in relation to a particular suit or proceedings the
right which accrues to him from a particular fact, but such an abandonment is to be
established beyond all doubt and cannot be infered from the mere fact that the plaint
contains other facts from which too the same legal right flows. On a proper reading of the
plaint in the present case the inference should be that the plaintiffs have placed before the
Court all the facts which were relevant whatever the legal effects of those facts and then
on the basis of those facts have asked for certain reliefs. By what process those reliefs
flow from the facts alleged it was not necessary to explain in a plaint which is to contain
by law only facts. It may be observed here that on the basis of relationship only three of
the plaintiffs were entitled to succeed to the deceased, two of them being so entitled only
on the basis of the Wills. The substance of the plaint is that some of the plaintiffs are
related to the deceased, others have Wills in their favour, they have now settled the matter
between themselves, and as against a trespasser they are entitled to a decree because it is
some of them who are entitled to the property in dispute and the shares in which they
hold the property is not a matter which is the concern of the defendant.

Even on a general consideration of the plaint it would not be a reasonable conclusion that
there had been an abandonment of the right based on Wills, but there were in addition a
number of facts which should have prevented the Courts below from giving effect to the
plea that the suit had not been based on the Wills. An issue as to the genuineness of the
Wills had been framed. Evidence on this issue had been led and neither at the time of
framing the issues nor when evidence was led was there any objection raised by the
defendant that this was not a matter relevant to the suit. On the other hand there was an
objection in the written statement that the suit was bad for joinder of contradictory causes
of action. This apparently referred to both relationship and Wills or it may have referred
even to the settlement though that is improbable because the settlement could give no
cause of action as against the defendant. On the basis of the objection as to misjoinder
issue No. 3 had been framed. When the suit was remanded by the District Judge with the
consent of both the parties, it was agreed between the parties that the decision was to be
on all the issues framed, i.e., the defendant expressly agreed that the issue as to the Wills
should also be decided. After remand the trial Court decreed the suit on the basis of the
Wills to the extent of 3rd of the property and no objection was taken at the time of the
argument before the Sub-Judge that the suit could not be based on the Wills for there is
no mention of any such objection in the judgment of the Sub-Judge.

We have found no variation of the case as originally put forward in the plaint but even if
there were some variation it would, considering the circumstances, have been ignored.
Questions relating to variation of a case are to be decided on grounds of notice and
prejudice. If the other party has notice of the variation and is not in any way prejudiced
by it the variation is permissible. Of course this does not mean that one cause of action
can be substituted by another, but in respect of the cause of action on which a suit is
based the Court is not debarred from permitting variation if there be no prejudice to the
opposite-party.

In the present case it is obvious that the defendant had full notice of the case of the
plaintiffs based on the Wills. There was an issue framed, evidence had been led and there
are other circumstances which show that the defendant was not objecting to the case
based on Wills. The defendant had full opportunity of rebutting proof of the Wills. It may
be stated here that the Wills were all registered documents one of them being of the year
1928 and that the defendant had in a previous statement accepted the genuineness of the
Wills. Even if one of the Wills was genuine the defendant was not entitled to retain
possession of the property in dispute.
There are observations in the judgment of the High Court which show that they regarded
the right based on the Wills as inconsistent with the right based on inheritance. The
learned Judges relied upon the following passage in a Madras case :-

"Where a man is entitled to one of two inconsistent rights and he has with full knowledge
done an unequivocal act indicating his choice of the one he cannot afterwards pursue the
other which after the first choice is by reason of the inconsistency no longer open to
him."

At another place the learned Judges said: "there is no doubt that the rule of secundum
allegata et probata is not strictly applied in respect of pleadings in this country; but there
are certain well recognised rules under which only this rule is by-passed. One of them is
that an inconsistent case, not raised by way of alternative pleadings, can only be allowed
if it would not cause any prejudice to the parties." It is to be explained in the first place
that there is no inconsistency between a case based on a Will and a case based on
inheritance. No objection on the ground of inconsistency can be taken because a number
of facts are alleged all of which can be the source of rights of the plaintiff even if the
assumptions of those facts or transactions be not consistent with each other. A person may
state-

(i) that as a matter of fact he was himself the owner of the property by purchase from a
person who laid claim to it though it stood in the name of another;

(ii) that he was a nephew and an heir of the deceased in whose name the property stood;

(iii) that the deceased had made a Will in his favour ; and

(iv) that the deceased had during his life made a sale of the property to him.
The assumption of the Will, the right of inheritance and the sale is that the deceased
owned the property in dispute and this is not consistent with the plea that the plaintiff
himself was owner of the property by purchase from a rival claimant, but there is no
objection at all in law to a plaintiff relying upon all the above mentioned facts as sources
of his title. There is no bar to a person relying upon more than one alternative source of
title. An alternative case should be distinguished from an inconsistent case. No two facts
can be said to be inconsistent with each other if both could have happened. The test of
inconsistency between two facts would be that a plaint which contains both the facts
could not be verified as true by a plaintiff: If for instance the plaintiff alleges a document
to be a forgery and at the same time states that the execution by him of the document is
the result of undue influence, the pleas are inconsistent with each other and a plaintiff
cannot verify both the statements of facts as true. In the case before us the two alleged
inconsistent facts are only the Will and the relationship. There is obviously no
inconsistency between the facts themselves. When a party puts forward more than one
source of his title he is not taking up an inconsistent position. He is only pleading in the
alternative.

In respect of the above extract from the judgment of the High Court three more
observations are needed. The first is that the High Court has regarded the principle of
secundum allegata el probata as applicable to the circumstance of this case. The principle
only means that a fact has first to be alleged by a party in the pleading before it is allowed
to be proved. But there it had been alleged in the plaint that the deceased had made Wills.
Even the particulars of the Wills had been given. The second observation called for is that
the High Court had itself accepted the principle that a new plea can be allowed if it would
trot pause any prejudice to the opposite-party. Although the High Court accepted this it
did not advert to the fact that an issue had been framed with respect to the Wills and the
defendant had been allowed to lead evidence to disprove the Wills. The learned Judges of
the High Court did say that the defendant may have been misled by the fact that the suit
was based on inheritance and may not have insisted on strict proof of the Wills and may
not have fully cross-examined the witnesses produced, but the defendant never made any
such complaint. He never said that he had on account of a misapprehension not led any
evidence as to the Wills or that he wanted a fresh opportunity with respect to disproof of
the Wills. In fact when the trial Court heard arguments on the question of Wills he fully
argued the matter without objection.

The learned Judges have also relied upon the observations reproduced above from an
Indian case wherein it was said that "if the party has with full knowledge done an
unequivocal act indicating his choice of the one he cannot afterwards pursue the other
right." But the learned Judges have not referred to any such unequivocal act.
There was another aspect of the matter which was ignored. Even if the suit was not based
on the Wills it could not have been dismissed on this finding alone. The suit was based
not only on ownership but on previous possession which had been distinctly alleged in
the plant. In the plaint it had been stated that the plaintiffs had been dispossessed by the
defendant. On this point there was even a finding in favour of Mundhoo plaintiff by the
trial Court. In fact in the appeal before the District Judge this finding had not been
challenged at all by the defendant for it was not one of those points which he was called
upon to decide by the consent of parties. A person in possession of land has a good title
against the whole world except the person with title. The plaintiffs, therefore, could not
have been non-suited unless the finding given by the trial Court that Mundhoo plaintiff
was in possession was set aside by the High Court. As this finding had not been
challenged at all before the District Judge, it was prima facie not liable to be disturbed by
the High Court at all.

We have come to the conclusion that the plaintiffs were entitled to base their claims on
the Wills. There is no dispute now that on the basis of the Wills the plaintiffs would be
entitled not to 1/3rd of the property decreed but to the whole of it because it is only an
heir of a Muslim who can object to the whole of the property passing to the legatee under
a Will. If there be no heirs the legatee takes the whole of the property and no part of it
passes by escheat to the State. Some of the plaintiffs are entitled to the whole of the
property in dispute. As a matter of fact it is only the last Will which is to be given effect
to and that Will is in favour of three plaintiffs and in the absence of any other
consideration the decree should have been in favour of those three plaintiffs. However,
the plaintiffs who are entitled to the property are accepting the rights of those who are not
so entitled, and as between the plaintiffs there is a family settlement which binds them all.
The defendant is not interested in the question as to which of the plaintiffs should be
granted a decree and he has not taken any objection on this score. Under the
circumstances it will not be improper to award a decree in this case not to three of the
plaintiffs, but to all of them. The decree and judgment of the High Court is, therefore, set
aside and the plaintiffs are awarded a decree with costs throughout as prayed for in the
plaint, the mesne profits to be determined by the executing Court.

A. H. Order accordingly.
P L D 1956 (W. P.) Peshawar 27

Before Habibullah Khan, J

Subedar MUHAMMAD FAYAZ KHAN-Petitioner

Versus

Raja AKHTAR ZAMAN KHAN and others Respondents

Civil Revision No. 104 of 1954, decided on 11th November 1955 against the judgment
and decree, dated 27th February 1954 of Faizullah Khan, District Judge Hazara,
Abbottabad.

(a) Revenue Auction sale-Of estate of dead Lambardar---For default in payment of land
revenue of his village for period subsequent to his death-Violation of provisions of
Chapter VI, Punjab Land Revenue Act (XVII of 1887)-Civil suit to set aside sale-Punjab
Land Revenue Act (XVII of 1887), S. 158 (2).

A civil suit is competent, wherein the plaintiff (son) claims to set aside a revenue
auction-sale of the estate of his deceased father, a Lambardar, for default in payment of
land revenue of his village for a period subsequent to the Lambardar's death.

The sale is a violation of a mandatory provision of law, viz., Chapter VI of Punjab Land
Revenue Act (XVII of 1887), which prescribes notices and proclamations etc. against the
defaulter. The Civil Court therefore has jurisdiction to entertain the suit.
An allegation of fraud in the plaint is not necessary.

Baggu Khan v. Ghulam Mustafa Khan P L D 1951 Lah. 360, A I R 1923 Cal. 428 and
Syed Shah v. Khuda Bakhsh P L D 1954 Lah. 606 ref.

(b) Pleading-Fraud-Use of specific word in pleadings not necessary-Allegations of facts

amounting to fraud enough.

It is not necessary for a plaintiff to specifically allege fraud. It is enough if he alleges

facts, which, if proved, would make out a case of fraud.

Kazi Abdur Rashid for Respondents 1 and 2.

JUDGMENT

HABIBULLAH, J.----This revision petition is an off shoot of an auction-sale of

agricultural land held under the Land Revenue Act. The facts of the case are not in
dispute, and the point involved is one of law, namely, whether a Civil Court has
jurisdiction to take cognizance of a suit for possession, whereby the validity of such a
sale is challenged.

One Raja Safdar Zaman of Khanpur was a Lambardar of village Hattar, and as such, his
duty was to recover land revenue from the villagers, and deposit it into the Government
Treasury. It is alleged that he did not pay to the Government the land revenue in respect
of the period from Kharif 1946 to Rabi 1949. As a result his property in village Khanpur
was put to auction and sold to Subedar Muhammad Fayaz and Raja Gauhar Zamir, on 4th
April 1949. Raja Akhtar Zaman, a son of Raja Safdar Zaman, brought a suit for
possession of his share in the property against the Provincial Government, Subedar
Muhammad Fayaz, and Raja Gauhar Zamir. The suit was vehemently contested on
various grounds, which gave rise to a number of issues. Without going into the merits of
the case, the trial Court dismissed the suit, holding that a Civil Court had no jurisdiction
to entertain it, in view of section 158, subsection (2) of the Land Revenue Act. The
plaintiff went up on appeal to the Court of the District judge, who held that the case of the
plaintiff was substantially based on allegations of fraud, and as such, a Civil Court was
competent to try the suit. He accordingly remanded the case to the trial Court under
section 151 Civil P. C., for decision on other issues. Subedar Muhammad Fayaz, the
purchaser of the suit property, has now preferred a revision petition to this Court. The
Provincial Government has also been impleaded along with Raja Akhtar Zaman as
respondent.

In order to determine the question whether the suit is based on an allegation of fraud, it is
necessary to give briefly the history of the proceedings, which resulted in the auction-
sale. The most striking factor in the case is the death of Raja Safdar Zaman Lambardar,
which admittedly took place on 8th July 1946, long before the period for which the land
revenue is alleged to have fallen due. Inheritance mutation in the name of his other son,
Raja Asif Jah, was entered on 3rd September 1946, and attested on 22nd November 1946.
Later, on the representation of Raja Akhtar Zaman plaintiff, the property of his father was
mutated in his name also. In spite of the fact that Raja Safdar Zaman had already died he
was shown alive in the revenue records and a defaulter of land revenue for the subsequent
period from Kharif 1946 uptil Rabi 1949.

Now, it is quite obvious that the Lambardar, being dead, could not recover land revenue
from the land-owners, and as such, he could not have been treated as a defaulter. The
learned counsel for the petitioner was at great pains during the course of his arguments to
explain as to why Raja Safdar Zaman Lambardar was shown alive in the revenue records
when the revenue officials knew perfectly well that he was dead and the land revenue was
not recoverable from him in his capacity as a Lambardar.

The position is that the property of Raja Safdar Zaman has been sold in an auction under
the Land Revenue Act, for the recovery of imaginary land revenue, which could not have
and has not been realized by him, from the people. The proceedings for the sale of his
property were taken under Chapter VI of the Punjab Land Revenue Act. Section 81
requires that a copy of the proclamation shall be served on the defaulter and be pasted in
a conspicuous part of the office of the Tahsildar of the Tahsil in which the property to be
sold .is situate. The provision is mandatory and the service of a copy of the proclamation
on the defaulter cannot be dispensed with. The Lambardar, being dead, it is quite clear
that this provision of law has not been complied with.
Again section 84 provides that "if at any time before the bidding at the auction is
completed the defaulter pays the arrears in respect of which the property has been
proclaimed for sale, together with the costs incurred for the recovery thereof, to the
officer conducting the sale, or proves to the satisfaction of that officer that he has already
paid the same either at the place and in the manner prescribed under section 63, or into
the Government Treasury, the sale shall be stayed".

From the above it is obvious that if the defaulter is served with a notice, and he pays the
arrears of land revenue in the manner prescribed in the section, the sale shall be stayed,
but in the present case, the Lambardar, being dead, could not have been afforded any
opportunity by the revenue officials to get his property released from the attachment and
sale by the payment of the arrears.

It is as clear as broad day-light that the whole proceedings from the beginning to end in
respect of the auction and sale of the property were conducted in flagrant violation of the
mandatory provisions of law and without the least regard for the fact that the property of
a dead man was being sold, a measure not contemplated by law.

It has been contended on behalf of Subedar Muhammad Fayaz petitioner that the plaintiff
did not specifically mention fraud in his plaint or evidence. The omission of the word
"fraud" in the plaint, or in the evidence, would not advance the case of the petitioner. It is
not necessary for a plaintiff to specifically allege fraud. It would be quite sufficient for
him if he alleges certain facts, which, if proved, would make out a case of fraud. In my
opinion, the plaintiff has given in his plaint those particulars and elements, which, when
considered together, would amount to an averment of fraud. In para. 4 of the plaint, Raja
Akhtar Zaman plaintiff alleged the following: -

"The auction of the property in suit is illegal and liable to cancellation. Land revenue for
Kharif 1946 to Rabi and Kharif 1947, and Rabi and Kharif 1948 has been wrongly shown
as due and the land sold for its recovery, though the father of the plaintiff had died before
Kharif 1946. Therefore, his father was not a defaulter of land revenue . . . . . . "

The above allegations clearly mean to suggest that Raja Safdar Zaman, being dead, could
not have been a defaulter of the land revenue for the succeeding years, and as such, his
land had been fraudulently and illegally sold in auction. It is not quite understandable as
to what else the plaintiff was required to say in order to make out a case of fraud. The
plaint and the evidence considered together make it abundantly clear that the proceedings
in respect of the sale of property were fraudulent. Apart from what has been stated above,
it may be pointed out here, that if a Civil Court finds that a certain act has been done in
clear contravention of some mandatory provisions of law, it is vested with jurisdiction to
interfere at once and redress the wrong. This is now an established principle of law
recognized on all hands. The auction-sale in question is a glaring instance of negation of
law and the procedure laid down by the Punjab Land Revenue Act. The authorities
reported in Baggu Khan v. Ghulam Mustafa Khan (P L D 1951 Lah. 360) A I R 1923 Cal.
428 and Syed Shah v. Khuda Bakhsh (P L D 1954 Lah. 606), support the view, that where
an authority acts in contravention .of the provisions of law, a Civil Court can interfere
and take cognizance of the suit.

I am strongly of the opinion, that in the present case, the revenue authorities have not
only acted in clear violation of the mandatory provisions of the Land Revenue Act, but
have also conducted themselves in a most irresponsible manner by concealing the death
of the Lambardar, and showing him alive in the revenue records, though they knew fully
well that he had died, and they had actually attested the inheritance mutations of his
estate in the name of his son, Asif Jah, long before the land revenue became recoverable.
Consequently, I concur in the order of the learned District Judge, and dismiss the revision
petition with costs.

A. H. Petition dismissed.
1988 C L C 678

[Lahore]

Before Amjad Khan, J

Syed ASHIQ HUSSAIN SHAH--Petitioner

versus

Mst. SABAN--Respondent

Civil Revision Nos. 121/D and 120/D of 1988, decided on 26th January, 1988.

(a) Civil Procedure Code (V of 1908)--

---S. 115--Revision--Appellate Court has the privilege to appreciate the evidence

existing on the record to come to a conclusion different from the one reached by the Trial
Court and question of mere appreciation of evidence cannot entail interference in exercise
of revisional jurisdiction.

(b) Witness--
--- Statement of a witness is not liable to be read out of its context nor are the other parts
of the same statement capable of being disregarded to pick out only one part thereof for
the disposal of a lis and moreso when such a statement cannot be equated with an
admission in law.--[Evidence].

Jalal Din and another v. Nawab and others A I R 1941 Lah. 55 ref.

(c) Civil Procedure Code (V of 1908)--

---O. VIII, R. 3--Every allegation of fact of which a defendant does not admit the truth
must be dealt with specifically to be denied--When a matter is put to issue and burden of
proof and disproof is taken upon themselves by the parties, they cannot be allowed to fall
back upon the rule of implied admission.

(d) Civil Procedure Code (V of 1908)--

---S. 115--Revision--Scope--Appellate Court is final authority with regard to, findings

to fact--When there is no error of jurisdiction involved in reading such findings, there
does not exist any case for exercise of revisional jurisdiction in the case.

Awan Muhammad Hanif Khan for Petitioner.

ORDER

This and the connected Civil Revision No. 120/ D of 1988 arise respectively out of two
suits filed by the parties. The petitioner filed a suit on 18-5-1983 for specific
performance of an agreement (Exh.P.l) alleged to have been executed in his favour on
19-2-1983 by the respondent and she brought a suit on 10-4-1984 for declaration of
invalidity of the same agreement for the reason of its being void on account of coercion
and fraud practiced upon her. By way of consequential relief, she also prayed for a decree
of possession of the relevant land measuring 10 marlas situated in village Shahpur, Tehsil
Kamalia, District Toba Tek Singh being passed in her favour. Both the suits were
consolidated in the trial Court on account of similarity of question of law and fact
involved in them and even the two appeals brought in the District Court were decided
together by means of a consolidated judgment, therefore, these civil revisions have also
been heard together and this order will deal both of them.

2. The facts forming the background of this litigation, to be briefly stated, are that the
petitioner Syed Ashiq Hussain was the original owner of the 10 Marlas land in suit which
he had sold out to the respondent Mst. Sahban somewhere in the year 1982 for a
consideration of Rs.7,000. Then, he brought the present suit on 18-5-1982 for specific
performance of the agreement, dated 19-2-1983 and, simultaneously, prayed also that in
the alternate a decree for payment to him of Rs.17,000 may he passed against the
respondent. He alleged that she had undertaken to sell this land to him for a consideration
of Rs.8,500 and had also executed an agreement on 19-2-1983 in his favour upon
receiving the entire consideration under the promise that she will get the land transferred
in his name under the pain of having to pay to him Rs.17,000 in the event of her failure to
do so. On these averments, while claiming specific performance of this agreement, the
petitioner also claimed in the alternate for a decree for payment of Rs.17,000 being
passed in his favour by way of refund of Rs.8,500 (the original consideration received by
her) with an additional sum of Rs.8,500 as the penalty for infringement of the agreement.
This suit was contested by the respondent by denying the averments made in the plaint
and it had made quite a head-way when the respondent filed her suit on 10-4-1984 with
the assertions that the petitioner being an influential Zamindar of the Ilaqa had put her
under undue pressure and had secured her thumb-impression on the agreement in dispute
by frightening her. Petitioner contested her suit by reiterating validity of the agreement
relied upon by him. A total of five issues including that of the relief had been set down
for trial in the suit of the petitioner and, after consolidation of the two suits, two more
issues bearing Nos.4-A and 4-B were framed to respectively determine the genuineness
of the agreement in dispute and her entitlement to the grant of special costs. Parties led
their evidence, upon the consideration whereof learned trial Judge held the agreement to
be valid and liable to be specifically performed. In consequence, by his judgment, dated
3-2-1987, he passed a decree for specific performance in favour of the petitioner and
dismissed the suit of the respondent, Mst. Sahban.

3. There were two appeals filed thereagainst by Mst. Sahban in the District Court to
challenge the respective decrees passed by the trial Court. Therein, learned District Judge
reconsidered the entire evidence to form the opinion that the agreement in question is not
genuine for the reason that there was no reliable evidence led with regard to any
understanding having ever reached between the parties for transfer of the land to the
petitioner and onus of proof being heavy on him to prove the due execution of the
agreement at Peer Mehal by a petition writer named Kh. Muhammad Dildar who had,
however, not been brought to the witness-box and instead two witnesses of the
petitioner's own choice belonging to adjoining Chaks were made the witnesses against
the residence of the lady being in village Shahpur in Tehsil Kamalia where the land in
dispute was also situated but there was no one from that village to have witnessed the
agreement EX.P.1. He also took notice of the petitioner's assertion that the defendant and
her husband Nathu had both accompanied him for execution of the agreement at Peer
Mehal and disbelieved it for the reason that-he was not made to scribe to the agreement
which was rather unusual inasmuch as the two marginal witnesses of the agreement were
the residents of different villages at the distances of four and two miles each. For these
and a number of other similar reasons set out in detail in his judgment, learned District
Judge proceeded to discard their evidence and since he was dealing with a document
allegedly executed by an old and illiterate lady and there was no evidence available at all
with regard to any understanding ever reached between the parties for the transfer of the
land to the petitioner and muchless any with regard to her having had the opportunity of
availing herself of independent advice, he upheld her assertion with regard to her having
been forcibly abducted away to have the agreement prepared under coercion. Learned
District Judge also took notice of the attending facts and circumstances, namely, that the
land in dispute had become valuable inasmuch as the petitioner had himself admitted it to
have become worth Rs.25,000 to 30,000 on account of its proximity to a patrol pump
wherein he had firth share and he may have hence been tempted to somehow secure back
the land to himself. He even made a pointed reference to the contents of the agreement
for the reason that there was no money at all paid in the presence of the petition-writer
and it was rather stated therein that the entire amount of Rs.8,500 had been received by
her and even the possession of the suit land had been delivered, therefore, the sequence of
events tended to show that this, if at ail, may have happened before the execution of the
agreement in the village itself and if this could be a true averment voluntarily made by
her then, it was beyond comprehension as to why a registered sale-deed may not have
been secured by the petitioner to have instead got only an agreement to sell written out
despite the fact that those averments clearly amounted to an out and out sale and not to a
mere agreement. In consequence, learned District Judge was persuaded to accept the
version of Mst. Sahban and in result, by his judgment, dated 23-5-1987, he accepted
both the appeals into dismissing the suit of the petitioner and decreeing the one filed by
Mst. Sahban with costs by setting aside the judgment and decrees passed by the trial
Court.

4. These two revision petitions have been brought to assail the respective decree passed in
the appeal below. Learned counsel argues that the appellate judgment stands vitiated on
account of misreading of evidence and has in this behalf pointed to the statement of
Zahoor D.W.2 which, in his view, was entitled to be accepted inasmuch as a statement
appears in his cross-examination to the effect that the land had been sold for Rs.8,500.

The assertion with regard to the misreading of evidence is clearly incorrect inasmuch as
learned District Judge has duly attended to that statement in paragraph 5 of his judgment
and has refused to attach any importance to the portion of the statement now relied upon
by the learned counsel which is not only preceded by the unequivocal statement that the
witness did not have knowledge of the sale but also there are the unambiguous statements
made by him in the earlier parts that the area had not been sold by her. It is the privilege
of an appellate Court to appreciate the evidence existing on the record to come to a
conclusion different from the one reached by the trial Court and questions of mere
appreciation of evidence cannot entail interference in exercise of revisional jurisdiction.
Although there is no illegality or disregard of any principle of appreciation of-evidence
involved in the one-made by the learned District Judge, yet, the contention raised cannot
be given effect to for the reason also that the statement of a witness is not liable to be read
out of its context nor are the other parts of the same statement capable of being
disregarded to pick out only one part thereof for the disposal of a lis and moreso when
such a statement cannot be equated with an admission in law. In Jlal Din and another v.
Nawab and others A I R 1941 Lah. 55 it was observed as under:-

"There is no rule of law that a party must be bound by the statement of his witnesses,
though the belief in such a rule is -not uncommon and does great harm in judicial trials in
some of the subordinate Courts."

5. The next argument of the learned counsel relates to the assertion with regard to forcible
abduction of the respondent and the execution of the agreement having been brought
about under coercion which, in his view, is an afterthought for the reason of her failure to
raise such a plea in defence of the suit of the petitioner and was hence liable to be
discarded. A reference to the written statement filed by the respondent in the suit of the
petitioner manifests that she has therein clearly denied the relevant paragraph 2 of the
plaint as being incorrect and based on misstatement. Learned counsel has not been able to
lay hand upon any law enjoining that in the presence of such a pleading further averment
of attending facts was also necessary to be made and his reliance may, at best, be on the
provisions of Order VIII, Rule 3 of the C . P . C . which merely enjoin that every
allegation of fact of which a defendant does not admit the truth must be dealt with
specifically to be denied. Written statement of the respondent makes a due compliance of
this provision of law and even otherwise when a matter is put to issue and burden of
proof and disproof is taken upon themselves by the parties, they cannot be` allowed to
fall back upon the rule of implied admissions. Hence, this is contention also fails.

6. No other point has been argued before me. Actually, this dispute gets concluded with
the findings of fact reached in the appellate Court below which is the final authority with
regard thereto. There is no error of jurisdiction involved in the impugned judgment and
decrees- and hence, there does not exist any case for exercise of revisional jurisdiction.
In result, both the civil revisions are dismissed in limine.
M . B . A . / A-274 / L Revisions dismissed.
2003 Y L R 3047

[Peshawar]

Before Shahzad Akbar and Ijaz-ul-Hassan, JJ

ABDUR RAUF---Petitioner

Versus

Mst. RAFIA GUL and 2 others---Respondents

Writ Petition No.1038 of 2001, decided on 22nd May, 2003.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched---Constitution of Pakistan (1973), Art. 199---Constitutional

petition--Suit for dissolution of marriage on ground of Khula and recovery of amount as
price of plot given to the wife by husband as consideration of marriage and return of
furniture given to wife by her father at the time of marriage---Decree for dissolution of
marriage had not been challenged, but dispute essentially between the parties was in
respect of plot in question and return of furniture---Couple lived together hardly for 7/8
months after their marriage and there was no issue out of the said wedlock--Material on
record had proved that allegation of cruelty against petitioner had not been established
through convincing evidence and respondent wife seemed to have left the house of the
petitioner husband without any justifiable reason and declined to join him without any
fault of the petitioner-husband--Decree for dissolution of marriage on the bases of
Khula' could only be passed when Court, after appraisal of evidence on record, would
come to the conclusion that there left no trace of harmony in life of spouses and their
living together as husband and wife was not possible within limits of God---Petitioner
husband had already attained a decree for restitution of conjugal rights from the Court of
competent jurisdiction which decree was not challenged ---Respondent wife having left
the house of petitioner husband without any justifiable reason and without any fault on
the part of petitioner-husband, she was not entitled for possession or price of plot given
to her by petitioner-husband in lieu of dower--Disgruntled wife was not entitled for
return of benefits in case of dissolution of marriage through Khula---Respondent-wife,
however, could get furniture given to her by her parents at the, time of
marriage---Judgment and decree of Court to the extent of price of plot, was declared to
be illegal, void and of no legal effect by the High Court.

(b) Islamic Law---

----Marriage---Payment of dower---Marriage was a civil contract and not a sacrament

and was meant for comfort, love and compassion of the spouses---Husband was bound
to keep his wife with love and affection, respect and provide her maintenance during
subsistence of marriage---Islam had laid down the parameters for spouses to live within
those bounds and if parties would transgress those parameters, they should relieve each
other and break matrimonial tie with kindness---Dower was a debt and husband was
under obligation to pay the same on demand.

Abdul Maabood Khattak for Petitioner.

H. Zahir Shah for Respondents.

Date of hearing: 5th May, 2003.

JUDGMENT

IJAZ-UL-HASSAN, J.---Short facts relevant for the purpose of this writ petition are,
that Abdur Rauf Awan, petitioner married Mst. Rafia Gul respondent on 12-2-1997 in.
consideration of a plot measuring 10 Marlas situated in 'Bhara Khu' Islamabad, gold
ornaments weighing 20 tolas and a sum of Rs.1,000 per month as maintenance.
Unfortunately, immediately after the marriage, the relations between the couple became
strained due to stated ill treatment of the petitioner and Mst. Abida Parveen first wife of
the petitioner and above all impotency of the petitioner. The respondent left the house of
the petitioner and started living with her mother at Peshawar. The respondent claims to
have joined the petitioner in his house at Karachi at the instance of her mother but the
married life could not sail smoothly. Ultimately, she filed suit on 12-10-1999 before
Judge Family Court, Peshawar, for dissolution of marriage, recovery of gold ornaments,
recovery of Rs.5,00,000 price of plot or possession of plot, recovery of Rs.50,000 as
medical expenses, recovery of Rs.100,000 as price of furniture etc. and recovery of
Rs.12,000 as maintenance from December, 1997 to May, 1998 at the rate of Rs.2,000 per
month. The suit was resisted and the allegations were denied: It was averred in para. (iv)
of the written statement:--

In view of the pleadings of the parties following issues were formulated for trial:--

(1) Whether the plaintiff has got a cause of action?

(2) Whether plaintiff is estopped to sue?

(3) Whether the suit of the plaintiff is hit by res judicata?

(4) Whether jurisdiction of this Court is barred to the extent of para. (Jeem) of the
plaint?

(5) Whether suit of plaintiff is based on mala fide, hence liable to be dismissed with
costs?

(6) Whether the behaviour of defendant was cruel and harsh towards the plaintiff?
(7) Whether defendant is impotent, if so, its effect?

(8) Whether the dower of the plaintiff is partially paid in the shape of payment of
Rs.1,00,000?

(9) Whether during the period of "Ghairabadi" defendant has failed to provide
maintenance to the plaintiff?

(10) Whether plaintiff is entitled to the decree for dissolution of marriage?

(11) Whether plaintiff is entitled to the decree for recovery of gold ornaments,
maintenance and Rs.50,000 as expenses incurred on medical treatment?

(12) Whether plaintiff is entitled to the decree for recovery of Rs.1,00,000 value of
furniture etc.?

(13) Whether plaintiff is entitled to the decree as prayed for in para. (Jeem) of the
plaint?

(14) Relief.

2. In evidence Mst. Rafia Gul appeared as P. W.1 and she produced her mother Mst. Bibi
Hajira who was examined as P.W.2. As against this, Abdur Rauf appeared as D.W.1 and
the statement of Dr. Shafique Ahmad, Gynecologist was recorded as D.W.2. Mst. Rafia
Gul repeated the allegations and charged her husband for impotency. She also charged her
husband and his first wife for ill treatment.
3. Upon consideration of the evidence adduced by the parties, learned Judge Family
Court, Peshawar, proceeded to hold that respondent has not been able to prove cruelty or
impotency of the petitioner that both the parties cannot live together as husband and wife
within the prescribed limits of God Almighty and that respondent is entitled for grant of
decree for dissolution of marriage by way of Khula. Having held so, he partially decreed
the suit by his judgment and decree dated 20-5-2000. An appeal was preferred before
learned District Judge, Peshawar which was entrusted to learned Additional District
Judge, Peshawar for disposal. The learned Appellate Court modified the impugned
judgment and decree of trial Judge and came to the conclusion that respondent wife has
succeeded in proving the alleged cruelty on the part of petitioner-husband and she is
entitled for the recovery of 8 Tolas gold ornaments or its value as well as for recovery of
Rs.2,50,000 as price of plot. The other reliefs granted were left intact.

4. Feeling aggrieved of the impugned judgments and decrees, petitioner-husband has

invoked Constitutional jurisdiction of this Court through instant writ petition.

5. We have heard Mr. Abdul Maabood Khattak, Advocate for petitioner-husband and Haji
Muhammad Zahir Shah, Advocate for respondent-wife. We have also gone through the
entire material with their assistance. The decree for dissolution of marriage has not been
challenged. The dispute is essentially in respect of plot in question and return of the
furniture stated to have been given to respondent-wife at the time of marriage.

6. A perusal of the record would reveal that after marriage the couple lived together
hardly for 7/8 months. There is no issue out of the wedlock. The petitioner-husband is
already married and this fact was in the knowledge of respondent-wife at the time of her
marriage with petitioner-husband. Having scanned the material on record we are of the
considered view that the allegation of cruelty has not been established through
convincing evidence and the respondent-wife seems to have left the house of
petitioner-husband without any justifiable reason and declined to join him without there
being any fault on the part of the petitioner-husband. We also find that learned trial Judge
was fully competent to dissolve the marriage of couple in absence of plea of Khula', on
coming to the conclusion that in view of the facts and circumstances of the case it was no
more possible for the couple to live together amicably as husband and wife within the
limits ordained by Allah. A decree for dissolution of marriage on the basis of Khula' is
only passed when the Court, after the objective appraisal of the evidence on record,
comes to the conclusion that there is left no trace of harmony in the life of the spouses
and their living together as husband and wife is not possible within the limits of God. It is
well-settled that if on the basis of the material on the record or circumstances prevailing
in the case the conscience of the Court is satisfied that it shall not be possible for the
parties to live together as husband and wife within the limits 1H prescribed by Allah, the
spouses should be separated on the ground of Khula'. The marriage under Islamic Law is
a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Qur'an and
it is for comfort, love and compassion. It is the bounden duty of a husband to keep his
wife with love and affection, respect and provide her maintenance during subsistence of
marriage. Islam has laid down the parameters for spouses to live within those bounds and
if the parties transgress those parameters they should relieve each other i.e. they may
break the matrimonial the with kindness. It is not denied that dower is a debt and the,
husband is under obligation to pay the same on demand.

7. It may not be out of place to mention here that petitioner-husband has already obtained
a decree for restitution of conjugal rights on 26-7-1999 from the Court of
Mirza-Sarfaraz Ahmad, Civil and Family Judge, Malir, Karachi. This decree has not been
challenged. The same is still intact. Surprisingly, both the Courts below have omitted to
mention this fact in their impugned judgments and decrees.

8. Having found that respondent-wife left the house of the petitioner-husband I without
any justifiable reason and without any fault on his part, we are of the view that
respondent-wife is not-entitled for possession of plot, statedly given to respondent-wife
by the petitioner-husband in lieu of dower. A disgruntled wife is not entitled for return of
benefits in case of dissolution of marriage through 'Khula' as held by this Court in an
unreported judgment in. Karim Ullah v. Shabana and two others (Writ Petition No. 1102
of 2001).

9. Regarding the return of furniture or payment of its price, it is submitted by learned

counsel for petitioner-husband that the furniture is lying in the house of
petitioner-husband at Karachi and the respondent-wife shall be at liberty to take away
the same at any time.

As the marital tie between the couple has already been broken and respondent-wife is not
willing to go to Karachi, it shall be the responsibility of petitioner-husband to arrange for
the transportation of the furniture to respondent-wife's house at Peshawar. This shall be
done within one month from the date of announcement of this order. The findings of the
Courts below on the remaining reliefs granted to respondent-wife are maintained, except
recovery of Rs.2,50,000 as price of plot.
10. In the result and for the foregoing reasons, we accept the petition and declare the
impugned judgment and decree to the extent of Rs.2,50,000 as price of plot as illegal,
void and of no legal effect. We make no order as to costs.

Petition accepted.

H.B.T./892/P