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Official Citation: 2024 PLJ 616
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Muhammad Aslam and others vs Molvi Muhammad Ishaq (decd.) thr. L.Rs. JUDGMENT
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-12-31, officially reported as 2024 PLJ 616. In this matter between Muhammad Aslam and others and Molvi Muhammad Ishaq (decd.) thr. L.Rs. JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 SC 616
Court Name: Supreme Court of Pakistan Judge(s): Irfan Saadat Khan, Naeem Akhtar Afghan, Qazi Faez Isa (C.J) Title:Muhammad Aslam and others vs Molvi Muhammad Ishaq (decd.) thr. L.Rs.
JUDGMENT
Reported As: 2024 SCP 191, 2024 SCMR 1390, PLJ 2024 SC 616 Result: Order Accordingly Judgment JUDGMENT Irfan Saadat Khan, J. Leave was granted by this court in the instant matter vide Order, dated 29.10.2014, by observing as under: "Pursuant to the order dated 17.6.2014, the record requisitioned has been received; from perusal whereof, we are not sure if this is the original record or a reconstructed file. Be that as it may, learned counsel for the Petitioners has argued, that Abdul Jalil, Attorney of the respondents, had entered into a compromise before the learned High Court. He got his statement recorded before the Court to the effect, pursuant whereof the learned High Court passed the order dated 24.11.1979. This entire material independent of the statement of Abdul Jalil statedly record before the Executing Court on 26.5.1980 was sufficient to establish that the possession under the decree was delivered to the petitioners, with the clear area to which the petitioners were entitled under the preemption decree. These vital documents have not been taken into account by the learned High Court while disposing of the application under Section 12(2), CPC and such decision on account of serious misreading or non-reading cannot sustain in law. Leave is granted to consider the above. The record requisitioned must be retained." 2. This is a matter rife with litigation, and thus requires an elaborate narration of the facts giving rise to the lis before us as this is the third round of litigation between the parties. Muhammad Aslam, predecessor in-interest, of Muhammad Ayaz and others ("Appellants"), filed Suits bearing Nos.51/1, 52/1, and 53/1 of 1972 on 04.03.1972 for possession, through pre-emption, of the land bearing Khasras Nos.478, 486, 477, 479, 480, 489, 1381, 488, measuring 17 Kanals 13 Marlas situated in Mauza Kokal, to the extent of 1/5th share along with share in Shamlat or whatever area through mutation
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No.3637, dated 15.07.1971, which was proved to have been transferred on payment of PKR 200/- in favour of Abdul Qayyum son of Muhammad Ismail, resident of village Kokal, Tehsil Abbottabad (Subject-matter of Suit No. 51/1); suit for possession through possession in respect of Khasra No. 486 measuring 4 Marlas in column of cultivation, situated in Mauza Kokal, Tehsil Abbottabad or whatever area which was proved to have been transferred through mutation No. 3599, dated 03.03.1971, on payment of PKR 4/- in favour of Abdul Qayyum son of Muhammad Ismail, resident of village Kokal, Tehsil Abbottabad (Subject-matter of Suit No.52/1); and suit for possession through pre-emption in respect of Khasra Nos. 477, 479, and 480 measuring 4 Kanals 9 Marlas in the column of cultivation, through mutation No. 3596, dated 03.03.1971, and possession of land through pre-emption including share in Shamlat in respect of Khasra Nos.477, 486, 477, 479, 480, 489, 1381 measuring 10 Kanals 7 Marlas to the extent of 1/10th share and Khasra No. 488 measuring 7 Kanals 6 Marlas to the extent of 1/2 share or whatever area which was proved to have been transferred through mutation No. 3597, dated 03.03.1971, on payment of PKR 1200/-, situated in Mauza Kokal, transferred to Abdul Qayyum son of Muhammad Ismail, resident of village Kokal, Tehsil Abbottabad (Subject-matter of Suit No.53/1). The aforementioned Suits were contested by Abdul Qayyum by filing written statements and subsequently, all three Suits were decreed by the trial Court in favour of the predecessor-in-interest of the Appellants vide judgment and decree, dated 13.02.1973. Abdul Qayyum preferred Appeals, on 29.5.1973, which were allowed vide judgement and decree, dated 11.03.1974, and in consequence thereof all the three Suits decreed by the trial Court were dismissed. Thereafter, Muhammad Aslam, then filed Civil Revision Petitions Nos. 320/74, 321/74, and 322/74 before the High Court which were accepted vide judgment, dated 02.07.1978 and the Suits were decreed accordingly. Aggrieved by the decision in the Revision Petitions, Abdul Qayyum thereafter filed CPLAs bearing No.105-P, 106-P, and 107-P of 1978 before this Court. The decision in the Revision Petitions were then upheld by this Court, vide judgement dated 13.05.1979, which was a reported decision captioned as Abdul Qayyum[1]. This, therefore, concluded the first round of litigation between the parties in respect of the land bearing Khasras No. 478, 486, 477, 479, 480, 489, 1381. 3. While the matter was subjudice before this Court in CPLAs No. 105-P, 106-P, and 107-P of 1978 the pre-emptor/decree holder filed Civil Review Petitions Nos. 20, 21, and 22 of 1978 before the High Court on 17.09.1978, for review of Order, dated 02.07.1978, passed in Revision Petitions No. 320/74, 321/74 and 322/74 to the extent of modification in the area of Khasra No. 488 from 1 Kanal 10 Marlas to 5 Kanals 2 Marlas and deposit of enhanced amount on the said excess area. Subsequently, in the said Review Petitions, three Applications, dated 27.10.1979, were also filed for compromise, shown to be signed by Muhammad Aslam, pre-emptor/decree holder and Haji Abdul Jalil, son of Haji Abdur Rehman, General Attorney on behalf of Abdul Qayyum vendee/judgment debtor on the ground that physical possession of the disputed land, as decreed by the High Court, vide judgment dated 02.07.1978, was handed over to the decree holder by the judgment debtor. In view of the statement of the parties and the compromise between them, the said Review Petitions were accepted, vide Order, dated 24.11.1979. The decree holder then filed Execution Petitions No. 16/10, 17/10, and 18/10 of 1980 on 15.04.1980 only to record satisfaction of the decree, as the possession of the disputed land had already been taken over by the decree holder from the judgment debtor. Thus, on the basis of the compromise Appellants filed Execution Petitions before the trial Court which were then allowed vide order dated 26.05.1980. This concluded the second round of litigation between the parties. 4. Molvi Muhammad Ishaq, the present Respondent, who was alive at that time, now being represented by his legal heirs, and was the real brother of Abdul Qayyum, son of Muhammad Ismail, then filed Suit No. 460/1 of 1987 on 21.09.1987 for permanent injunction against Muhammad Aslam, the predecessor-in-interest of the Appellants, for restraining him from interference in Khasra No. 488 measuring 7 Kanals 6 Marlas, situated in village Kokal, Tehsil and District
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Abbottabad. An Application for grant of temporary injunction was also filed by the Respondents and the trial Court directed the parties to maintain status quo vide Order dated 21.09.1987. An Application for initiating contempt proceedings was then moved against Muhammad Aslam, on 08.10.1987; for illegally dispossessing the respondents from the said land. Reply to the suit was then filed by the present Appellants on 16.11.1987 before the trial Court. On 29.05.1999, an amended Plaint with the prayer for possession of Khasra No. 488 was also filed by the Respondents. It was averred in the amended Plaint, that Abdul Qayyum, predecessor-in-interest of the Respondents, was the sole owner of the disputed property having the graves of his family members therein; and that he had also constructed a house upon the said disputed property and that Muhammad Aslam, the predecessor-in-interest of the Appellants, in connivance with Revenue Officials had got recorded the said house as `Ghair Mumkin School' in the said official revenue records. It was also averred that Muhammad Aslam had threatened him that he would forcibly take possession of the disputed land and the house and would open a school thereupon. 5. Muhammad Aslam, predecessor-in-interest of the Appellants contested the suit by filing amended written statement, on 07.09.1999, and asserted that he had already taken possession of the disputed property in the year 1980, during execution proceedings of the decree in the aforementioned pre-emption suits and the land belongs to him in view of the explicit compromise entered between the parties before the High Court on 24.11.1979. Based on the contesting pleadings of the parties, the Civil Judge-VI, Abbottabad framed issues and both the parties produced their evidences to prove their respective contentions and claims. Subsequently, the trial Court, decreed the suit in favour of the present Respondents, vide judgment and decree, dated 18.12.2008. The present Appellants then preferred Appeal, which was dismissed vide judgement and decree, dated 09.07.2009. Aggrieved thereof, the present Appellants then filed a Civil Revision, which came up for hearing before the High Court on 08.03.2010, which was found to be bereft of merits, and the same was dismissed accordingly. The judgment in the Civil Revision, dated 08.03.2010, was then challenged before this Court, in Civil Petition No. 692 of 2010, and this Court, vide Order, dated 14.09.2011, set aside the judgment of the High Court and remanded the matter to the High Court for a decision afresh. 6. The High Court then passed the Order, which is now impugned before this Court being Civil Appeal No. 1429/2014, dated 27.03.2014 which, as stated above, is the third round of litigation between the respective parties. The relevant portion of the order of the High Court reads as follows: "10. At the very outset, it is worth mentioning that this Court has also allowed today three petitions filed under Section 12(2) CPC by the legal heirs of deceased Abdul Qayyum son of Muhammad Ismial and the decree passed in favour of the predecessor-in-interest of the petitioners in preemptions suits were set aside along with the execution proceedings and dismissed the preemption suits, inter alia, on the ground that the decree-holder/pre-emptor Muhammad Aslam had not deposited the entire preemption amount ('Zar-e-Shufa') enhanced and fixed by this Court vide order dated 02.07.1978 in CR NO. 320/74 before the target date i.e. 07.09.1978. 12. When this Court analyzes the judgments of both the Courts below, it is observed that the Courts below have gone into all aspects of the questions/issues and given reasons therefor. In as much as the entire pleadings, the oral and documentary evidence on record were taken into consideration and their findings are supported by legal justification and evidence on record. No misreading or non-reading of material evidence or jurisdictional error could be pointed by the learned counsel for the petitioners. On facts, both the Courts below have rendered their concurrent findings, which this Court does not find to be arbitrary, capricious or out rightly absurd, warranting this. Court to invoke and exercise its revisional jurisdiction.
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13. Accordingly, for the reasons stated hereinabove, the present revision petition being devoid of merit is dismissed." 7. Apart from the aforenoted Appeal another Appeal bearing No. 1430 of 2014 was also filed by the present Appellants. The background of this Appeal being that a contempt Application, dated 08.10.1987, for flouting the status quo order dated 21.09.1987 passed by the trial Court, in the suit bearing No. 460/1 of 1987 by the present respondents, was moved and the trial Court vide Order, dated 18.12.2008, directed issuance of contempt of Court proceedings against the present Appellants. The said Order of the trial Court, on contempt Application as well as on the main suit, was challenged by the Appellants on 02.04.2009 before the Appellate Court, which dismissed the same vide Order dated 09.07.2009. This Order was then challenged before the High Court, in Civil Revision bearing No. 341/2009, which too was dismissed vide order dated 08.03.2010. The said Order alongwith the Order of dismissal in Civil Revision filed by the Appellants was then challenged before this Court and this Court set aside the same for de novo consideration vide Order dated 14.09.2011. The High Court then, once again, dismissed the same vide Order dated 27.3.2014, which is also impugned before us, vide Appeal No.1430 of 2014, by the present Appellants. 8. In addition to these two Appeals, three more Appeals bearing No. 1431 of 2014, 1432 of 2014, and 1433 of 2014 have also been filed by the present Appellants against the Order of the High Court dated 27.03.2014. The background of these three Appeals being that the Appellants filed three Applications under section 12(2) Code of Civil Procedure, 1908 ("CPC") dated 14.02.1990 challenging that the review proceedings, where the land under dispute, bearing Khasra No. 488, have been allotted by the revenue authorities in favour of the Appellants, were incorrect and these entries made in the revenue record may be reversed since the same were obtained by way of fraud and misrepresentation by the present Appellants. The said Applications were allotted Nos. 16/6 of 1990, 17/6 of 1990, and 18/6 of 1990 and thereafter were dismissed by the trial Court vide order dated 18.02.1991 by deciding the same in favour of the present Appellants. Being aggrieved with the said order Appeals were preferred before the Appellate Court by the present Respondents. The said Appeals were then accepted by the Appellate Court vide order dated 25.09.2008. The Respondents then filed petition bearing No. 101 of 2011 before the High Court. While the said petition was pending before the High Court, in a connected case this Court vide order dated 14.09.2011 observed that instead of filing Applications under section 12(2) CPC before the trial Court, the Respondents ought to have filed these Applications before the High Court. This Court then vide above referred order of 14.09.2011 converted the Applications filed under section 12(2) CPC before the trial Court to be the one filed before the High Court. These Applications were then allotted CM No. 234-A, 235-A, and 236-A by the High Court and vide Order, dated 27.03.2014, were then allowed. The Appellants, being aggrieved with the said Order, have preferred, the present above numbered Appeals before this Court. Needless to state that the Writ Petition bearing No. 101 of 2011 filed by the present Respondents before the High Court since has become infructuous and was accordingly disposed of vide the same Order of 27.03.2014. 9. Mr. Saad Umar Buttar, ASC along with Sh. Mehmood Ahmed, AOR appeared in the instant matter and stated that this was the third round of litigation between the parties and in the first two rounds of litigation the matter, with regard to the dispute pertaining to Khasra No. 488, has already been decided and resolved in favour of the present Appellants. He stated that a compromise was entered between the parties, duly recorded by the learned single Judge of the Peshawar High Court, vide diary sheet, dated 24.11.1979, and the same was entered between the parties in front of him. He stated that the said diary-sheet would clearly reveal that it contained not only the signatures of the learned Judge but also that of Abdul Jalil, General Attorney of Abdul Qayyum, the predecessor-in-interest of the present Respondents, and the Counsel of the (late) Muhammad
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Aslam. According to him, from the above compromise, it was clear that the matter with regard to Khasra No. 488 had been settled between the parties and the Respondents, with mala fide intention, had subsequently filed the suit bearing No. 460/1 of 1987 before the trial Court on 21.09.1987 by claiming ownership in respect of the same Khasra, i.e. 488. He stated that Abdul Jalil, who was the Attorney of Abdul Qayyum, was present in the Court at the time of signing the compromise and it was a strange to note that no action whatsoever was taken by Abdul Qayyum against his Attorney during his lifetime from 1979 to 1988, as during the said period he was alive, and it was only after his death that the present Respondents filed a suit against the present Appellants in respect of the aforenoted Khasra No. 488. He stated that sanctity is always attached to Court's proceedings, and therefore, the trial Court, Appellate Court, and the High Court were not justified in allowing the request of the Respondents. Hence, according to the learned Counsel, the orders of three Courts below were a result of misreading or non-reading of the evidences and thus were erroneous and are liable to be set aside. 10. The learned Counsel next contended that the three Courts below had also erred in not considering the fact that the suit bearing No. 460/1/1987 was filed in the year 1987, i.e. eight years after the compromise, by the (late) brother of (late) Abdul Qayyum, namely Molvi Muhammad Ishaq. He stated that (late) Abdul Qayyum in his lifetime had not denied the factum of giving Power of Attorney to Haji Abdul Jalil or that he was not authorized to enter into a compromise with the present Appellants. Hence, according to the learned Counsel, the very initiation of legal proceedings by the (late) brother of the Abdul Qayyum against the present Appellants was nothing but an afterthought on his part just to usurp the property of the present Appellants and to dispossess them in an unwarranted manner. He stated that the proceedings initiated by the present Respondents against the Appellants were hopelessly and miserably time barred but this aspect has not been considered by the three Courts below. In support of his contention the learned counsel relied upon dicta of this Court in Sarfraz[2]. 11. The learned Counsel further stated that the Appellants after the compromise were put in possession of the land comprising 05 Kanals and 02 Marlas and no objection in this regard was ever raised by either (late) Abdul Qayyum or his legal heirs or Molvi Muhammad Ishaq or his legal heirs, as the case may be, from 1979 to 1987. He stated that on the land the Appellants had constructed a School, namely, Quaid Public School, which is presently being run by them satisfactorily; whereas the Respondents are bent upon closing down the same to cause misery to the students enrolled therein. 12. So far as the aspect of short payment of Zar-e-Shufa is concerned, the learned Counsel submitted that from the perusal of the judgment, dated 02.07.1978, passed by the Peshawar High Court in C.R. No. 320/1974, it was clear that the Court had directed the Appellants to deposit an amount of PKR 120/-, which was deposited by them on 27.07.1978. According to him, this argument of the Respondents that since the decree contained a payable amount of PKR 128/-, and the Appellants had only paid PKR 120/-, thus they were liable to be evicted from the ownership of Khasra No. 488, held no merit as whatever amount was determined and was required to be paid by the Appellants, as per the directions of the High Court's Order, dated 02.07.1978, was paid by the Appellants in a timely manner; hence there was no default on part of the Appellants, with regard to the payment of Zar-e-Shufa. He stated that if there was some mistake in respect of recording of the amount payable by the Appellants as Zar-e-Shufa by the High Court, the Appellants could not be penalized for it. He stated that it was a settled proposition of law that no one should suffer on account of lapses on the part of the Court. He, therefore, stated that this aspect of the case was also ignored by the three Courts below and, therefore, in his view, the said Orders were liable to beset f aside being erroneous, perverse, and not in accordance with the law.
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13. Insofar as the Appeal filed on the contempt application is concerned, the learned counsel for the Appellants submitted that no contempt was made by the Appellants as they had acted as per the compromise entered between the parties before the High Court way back in 1980, hence, on this aspect also the three Courts below had erred in observing that the Appellants had flouted the Order of the trial Court with regard to the status quo to be maintained by the parties. 14. Insofar as the three Appeals under Section 12(2) CPC, decided in favour of the Respondents are concerned, here again the counsel for the Appellants stated that: firstly, these Applications were hopelessly and miserably time barred as these were filed in the year 1992 whereas according to him the cause of action, if any, arose in the year 1987; and secondly, there was no fraud or misrepresentation on the part of the present Appellants so as to justify the Respondents to file Applications under Section 12(2) CPC, as they had always acted in a bona fide manner and as per the directions given to them by the High Court. He further stated that the directions of the High Court contained in the Order dated 02.07.1978 had now been merged in the Order of the Supreme Court, dated 13.05.1979, therefore, there was neither any violation nor any element of fraud or misrepresentation on the part of the Appellants; an aspect, which in the learned Counsel's view, had also been ignored by the three Courts below, and therefore needed to be vacated as the Appellants had already been declared to be the owners of land comprising of 05 Kanals and 02 Marlas of Khasra No. 488 by the High Court but the Respondents were bent upon displacing the Appellants from their land by unnecessarily dragging them into litigation in one case after another for more than 5 decades. He, therefore, finally prayed that the 5 appeals may be allowed with costs imposed upon the Respondents. 15. Barrister Umer Aslam Khan, ASC appeared on behalf of the Respondents and stated that there was no doubt this was the third round of litigation between the parties. He stated that Haji Abdul Jalil was not authorized to enter into a compromise between the parties and the said compromise, in his view, was non-est in the eye of law. He stated that a perusal of the record would reveal that Haji Abdul Jain has categorically denied his signatures present on the Power of Attorney and has recorded his statement before the trial Court wherein he stated that he had never appeared before a Court of law, in connection with the matter concerning the land in question. 16. The learned Counsel for the Respondents further stated that when (late) Molvi Muhammad Ishaq found some alteration in the jamabandi in the year 1987, he immediately, filed a suit bearing No. 460/1 of 1987 and the trial Court was quite justified in directing the parties to maintain status quo in the matter. He stated that (late) Muhammad Aslam, along with his sons, since, had forcibly took possession of the land, therefore, contempt Application was rightly filed before the trial Court in which the Appellants were duly found guilty by the said Court. 17. The learned counsel next contended that it was a settled proposition of law that in case of lesser amount of payment of Zar-e-Shufa, the matter is always decided against the person required to pay the said amount. He stated that since the Appellants have paid PKR 8/- less than the amount as determined in the decree, hence, no lease in this regard could be given to them. In this regard the Counsel relied upon the decisions rendered in Syed Ishaque Hussain[3], Khadim Hussain[4] and Hafiz Muhammad Ramzart[5]. He next submitted that the non-payment of Zar-e-Shufa by the Appellants had given a cause of action to the Respondents, therefore, they quite rightly filed the suit No. 460/1/1987 against the Appellants and concurrent findings of all the three Courts below were rightly in favour of the Respondents. 18. The learned Counsel stated that the Appellants are not entitled for possession of the land in question with regard to Khasra No. 488 and even if for arguments sake it was assumed that they were entitled to a portion of the land in Khasra No. 488 it would be to the extent of 01 Kanal and 10 Marlas only and not 05 Kanals and 02 Marlas, as claimed by the Appellants. He stated that the Appellants took advantage of the compromise entered by an unauthorized person before the High
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Court and now wanted to dispossess the Respondents from their ancestral property by playing fraud with the connivance of the revenue authorities. The learned Counsel next stated that the Applications under Section 12(2) CPC were filed within time as correction in the jamabandi was made in the year 1987 whereas these Applications were filed on 05.06.1990, which were very much within the limitation period as per Article 181 of the Limitation Act, 1908 ("Limitation Act"). He stated that this aspect was also decided by the High Court in their favour vide the impugned judgment dated 27.03.2014, when this Court vide Order dated 14.09.2011 remanded the matter for deciding the Applications under Section 12(2) CPC filed by the Respondents. He, therefore, stated that in view of these facts, all…
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