Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Mirza Viqas Rauf), officially reported as 2026 LHC 1762. In this matter between AJMAL KAN and MST. ZEENAT JAN ETC, 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.

Full Judgment Text & Judicial Ruling

COURT: Lahore High Court (Honorable Mr. Justice Mirza Viqas Rauf) DECISION DATE: 11-03-2026 TAGLINE: The competency of the suit in presence of the previous litigation inter se parties and secondly, the effect of mutation No.1659 dated 03rd April, 2002, which is still unchallenged. CASE DETAILS: Civil Revision-Civil Revision (Against Decree) u/s. 115, C.P.C. 112-15 ============================================================ Stereo.HCJDA 38. Judgment Sheet LAHORE HIGH COURT RAWALPINDI BENCH RAWALPINDI JUDICIAL DEPARTMENT ….

CIVIL REVISION NO.112-D of 2015 AJMAL KHAN Versus Mst. ZEENAT JAN and others

JUDGMENT Date of hearing: 11.03.2026

Applicant by: Mr. Mubaris Khan Alizai, Advocate. Respondent No.1 by: Mr. Abdullah Samiullah, Advocate. Respondents No.3, 4, 6 & 8 by: Ex-parte. Respondents No.2, 5, 7, 9, 11 & 12 by: Nemo. Amici Curiae: M/s Muhammad Ilyas Sheikh and Ch. Imran Hassan Ali, Advocates.

MIRZA VIQAS RAUF, J. This application in terms of Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “ C.P.C.”) originates from the concurrent findings of the two courts, whereby suit for declaration instituted by respondent No.1 (hereinafter referred to as “respondent”) has been decreed. 2. Facts in brief necessary for adjudication of this revision application are that being aggrieved of gift mutation No.1150 dated 8th December, 1994, the respondent instituted a suit averring therein that she is residing in Birmingham , England and her father namely Muhammad Jan (hereinafter referred to as “ deceased”) passed away on 27 th January, 1995 , leaving behind the applicant as well as the respondents herein as his legal heirs. It is asserted in the plaint that Civil Revision No.112-D of 2015 -2-

the applicant succeeded in getting mutation No.1150 dated 8 th December, 1994 sanctioned, whereby property measuring 11 Kanal 18 Marla of the deceased was transferred in his name as a purported gift, excluding all other legal heirs , including the respondent and thus, she asserted that it is the result of fraud and is ineffective upon her rights. Suit was resisted by the applicant, who submitted his written statement wherein he controverted the assertions contained in the plaint , while justifying the gift mutation. From the divergent pleadings of the parties , multiple issues were framed and ultimately suit was decreed vide judgment dated 12 th September, 2011. Feeling aggrieved, the applicant preferred an appeal before learned Additional District Judge, Attock but remained unsuccessful , as his appeal was dismissed by way of judgment and decree dated 17 th December, 2014. 3. Learned counsel for the applicant submitted that there was a previous suit during the pendency of which all the legal heirs of the deceased except the respondent effected compromise in the light whereof suit was dismissed. It is contended that in view of previous litigation, the present suit was not proceedable and was clearly hit by principle of res judicata . Learned counsel submitted that even otherwise present suit is suffering with numerous defects and the impugned judgments and decrees are not tenable. Learned counsel emphasized that findings of the two courts are though concurrent but are not tenable at all , being the outcome of gross misreading and non-reading of evidence. Placed reliance on HAZRATULLAH and others versus RAHIM GUL and others (PLD 2014 Supreme Court 380). 4. Conversely, learned counsel for the respondent defended the impugned judgments and decrees with the contention that same are founded on proper appraisal of evidence and are unexceptionable. 5. In the light of respective contentions of learned counsel for the parties, on 18 th February, 2026 matter in controversy was encapsulated in two tiers and M/s Muhammad Ilyas Sheikh as well as Chaudhary Imran Hassan Ali, Advocates were appointed as amici Civil Revision No.112-D of 2015 -3-

curiae for the purpose of assistance. The said order is reproduced below for ready reference and convenience :- “This civil revision application arises out of a suit for declaration and injunction, instituted by respondent No.1 primarily questioning the validity of Mutation No.1150 dated 05 th December, 1994. It is an admitted fact that initially the mutation in question was challenged by the respondents No.2 to 4 by filing suit for declaration and injunction wherein respondent No.1 and 5 were defendants. Respondent No.1 was however, proceeded against ex-parte and ultimately rest of the parties got settled their matter and recorded their statements and suit was dismissed by way of order dated 29 th July, 1999. The applicant then got executed Mutation No.1659 dated 03 rd April, 2002 transferring land measuring 07 kanal 3, 3/4 marla in favour of respondents No.3 and 4. 2. Though suit has been concurrently decreed by the two courts but two pivotal questions remained unaddressed. Firstly, the competency of the suit in presence of the previous litigation interse parties and secondly, the effect of Mutation No.1659 dated 03rd April, 2002, which is still unchallenged. 3. In order to resolve the controversy effectively, M/s Muhammad Ilyas Sheikh and Chaudhary Imran Hassan Ali, Advocates are appointed as amici curiae to assist the Court. Office to deliver copies of all necessary documents to the learned amici.” 6. Chaudhary Imran Hassan Ali, Advocate as amicus curiae , while addressing arguments submitted that Section 11 of the C.P.C. is not attracted to the present case , as the previous suit was neither heard nor decided. In furtherance of his contentions, learned amicus curiae has also drawn attention of this Court towards Order XVIII of the C.P.C. He also pointed out significance of the words used in the order dated 29 th July, 1999 passed by learned Senior Civil Judge, Attock in the previous round on the basis of statement of the parties. Learned amicus submitted that in the light of previous statement s of the parties and more specifically of the applicant, the latter mutation is of no adverse bearing on the rights of respondent. Placed reliance on GHULAM NABI AND OTHERS versus Seth MUHAMMAD YAQUB AND OTHERS (PLD 1983 Supreme Court 344), GHULAM ALI and 2 others versus Mst. GHULAM SARWAR NAQVI (PLD 1990 Supreme Court 1 ), KHAN MUHAMMAD LATIF KHAN, ADVOCTE versus NAJAM ALI (1999 CLC 1409) and GHULAM QADIR versus AHMAD ALI and 8 others (2002 MLD 632). 7. On the other hand, Mr. Muhammad Ilyas Sheikh , Advocate learned amicus submitted that in the light of previous statement of Civil Revision No.112-D of 2015 -4-

the applicant recorded in the proceedings before the court , there is estoppel in his way to claim any right under the impugned mutation. It is contended by learned amicus curiae that gift mutation even otherwise is not proved by the applicant through any cogent and convincing material. Learned amicus submitted that the concurrent findings are based on proper reasoning. Placed reliance on HIDAYAT KHAN and others versus Mst. NASREEN and others (PLD 2025 Supreme Court 502) and Mst. FARZANA ZIA and others versus Mst. SAADIA ANDALEEB and others (2024 SCMR 916). 8. Heard. Record perused. 9. Parties to the suit are descendants of deceased, who passed away on 27th January, 1995. The root cause of controversy is mutation No.1150 (Exhibit -P7) whereunder land measuring 1 1 Kanal 1 8 Marla was purportedly gifted in favour of applicant by deceased. The respondent, being daughter of the deceased and sister of the applicant , while being offended from the gift mutation challenged the same by instituting the suit on the ground that it was fake and had been prepared to deprive her from the legacy of deceased. Suit was, however, contested by the applicant , being the defendant by filing written statement wherein he not only defended the gift mutation but raised multiple objections on maintainability of the suit. One of the objections on behalf of the applicant was that suit is barred by time to which effect , it is noticed that while instituting the suit, the respondent specifically asserted that she was residing abroad and was not having knowledge about the impugned mutation and when her husband came to Pakistan on 28 th March, 2004 , she became acquainted with the impugned gift mutation . To this effect Muhammad Sultan , being attorney of the respondent appeared as PW1, who reiterated the facts asserted in the plaint. He was though confronted with certain questions during cross -examination but his statement could not be shattered with regard to date of knowledge, so in view of availability of overwhelming evidence , suit was well within time and it was rightly adjudged so by both the courts. Civil Revision No.112-D of 2015 -5-

10. Now adverting to the other merits of the case, it is noticed that suit property was admittedly owned by deceased regarding which mutation No.1150 was sanctioned by the revenue department in the name of applicant. It evinces from the record that initially a suit was instituted by respondents No.2 to 4 and Mukhtar Bibi predecessor - in-interest of respondent No.6 challenging the gift mutation before learned Senior Civil Judge, Attock, wherein the applicant and respondent alongwith respondent No.5 were impleaded as defendants. It would not be out of context to mention here that the respondent was proceeded against ex -parte whereas the remaining effected compromise in terms whereof , they got recorded their statements and ultimately suit was dismissed vide order dated 29 th July, 1999. The question now arises before the Court is as to “whether the previous litigation would operate as hurdle by any means in the way of respondent to institute the present suit”. 11. Before pondering upon above question, it would be apt to first have an understanding of the principle of res judicata embodied in Section 11 of the C.P.C. which for ready reference is reproduced below :- “Sec. 11.—Res Judicata—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” From bare perusal of the above referred provision of law it is manifestly clear that in order to attract the rigours of Section 11 (principle of res judicata), one has to prove co-existence of five pre- conditions, which are as follows :- i) The matter directly and substantially in issue in subsequent suit or the issue must be the same matter which was directly and substantially in issue either actually or constructively in former suit. Civil Revision No.112-D of 2015 -6-

ii) The former suit must have been a su it between the same parties or between parties under whom they or anyone of them claim. iii) The parties must have litigated under the same title in the former suit. iv) The Court who decided the former suit must have been a Court competent to try subsequent suit in which such issue is subsequently raised. v) The matter directly and substantially in issue in subsequent suit must have been heard and finally decided by the Court in the first suit. There is no cavil that the matter in issue inter se parties is the same but it clearly evinces that the previous suit was not finally heard and decided by the court rather it was dismissed merely in the light of statements of the parties, excluding the respondent. 12. Order XVIII of the C.P.C. provides the mode of hearing of the suit and examination of witnesses and unless a suit reaches at such stage and p asses through the test provided in the said provision of law one cannot say that suit was heard. Furthermore , if the statements of the parties recorded in the previous suit are examined, it is noticed that all the legal heirs of deceased except the respondent agreed that impugned mutation shall be cancelled . Moreover the widow as well as other daughters of the deceased agreed to relinquish their share in favour of the applicant and respondents No.3 & 4. Needless to observe that the relinquishment of the rights in the property/estate by the woman folk is always discouraged by the superior courts , being against the injunctions of Islam. To this effect guidance can be sought from GHULAM ALI and 2 others versus Mst. GHULAM SARWAR NAQVI (PLD 1990 Supreme Court 1). The relevant extract from the same is reproduced below :- “The main points, of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his, property opens. There is no State intervention or clergy's intervention needed for the passing of the Civil Revision No.112-D of 2015 -7-

title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. There is enough comment and case -law on this point which stands accepted. Reverting to the vesting of the property in a Muslim heir, as a corollary to what has already been said, it is further to be held that if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship--even of kinship. Thus the brother, the father, husband, son or vice versa, does not or cannot intervenue as an intermediary. Here we are dealing with the brothers trying though illegally, as if a guardian -in- inheritance-so-called, of a sui juris sister, on allegedly "moral" basis, to oust her. It is clearly prohibited by Islam. The females cannot be treated so in our system. And we cannot in the present constitutional and legal system import or apply any foreign system or so -called common law, or law of nature in preference to our own. (S ee Haji Nizam's case PLD 1976 Lahore 930); as approved in Mohammad Bashir's case (PLD 1982 Supreme Court 139). In this behalf, it would be of advantage to quote here the views, even of some non-Muslims, on two subjects of Islamic system: (a) Law of inheritance; and (b) females' position in it. Islamic Law of Inheritance: "The Muslim Law of Succession, Ilm -ul-Faraiz, which has been derived from the rules of succession to be found in the Quran" (See the L Text of the Quran at p. 98 -101 of the 2nd Edition of Muslim Law by Saksena), "or in the Traditions, as well as from such of the Pre -Islamic customs, as were approved of by the Prophet (P.B.U.H.)is a great achievement of the Muslim jurists. As coherence and logic have imparted perfection to the system, it deserves our admiration". F.B. Tyabji observes, "The Muslim law of inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious scheme of providing not merely for the selection of a single individual or homogenous group of individuals, on whom the estate of the deceased should devolve by universal succession, but for adjusting the competitive claims of all the nearest relations." As to the excellence of the system in a formal sense, Sir William Jones has observed: "I am strongly disposed to believe that no possible question could occur on the Muslim Law of succession which might not be rapidly and correctly answered." (Jones Works, VIII, 204). S. Viscy-Fitz Gerald's remark (S. V. Fitz Gerald, Muslim Law p. 20) in this connection is also very instructive, "In all systems of law, the doctrine of succession is, it has been said, the touchstone of the lawyer; the legal mind delights in its inevitable intricacies, the layman is repelled; and it is this truth of legal education of, Civil Revision No.112-D of 2015 -8-

rather than any calculation of, material advantage, which is enshrined, in the 'Hadis': 'Learn the laws of inheritance and teach them to the people, for they are one -half of useful knowledge.' To Muslims the Sharia law of inheritance is ideally perfect; founded on the sure rock of divine revelation and worked out in the utmost detail by that mental ingenuity which God gave man for the purpose of understanding revelation. The logical strength of the system is beyond question; and, the fact that the results are sometimes impracticable does not in the Muslim eyes detract from its divine character. Human ingenuity admittedly cannot always carry out the fine distinctions of divine justice; and the system is reverenced as a matter of theological dogma even by those Muslims who, as a matter of custom, do not follow it." The claims of near relations have been rightly and justly adjudicated upon and in the words of Macnaghten: "In these provisions we find ample attention paid to the interests of all those whom nature places in the first rank of our affections; and indeed it is difficult to conceive any system containing rules more strictly just and equitable." (Macnaghten's preliminary remarks in 'Principles and Precedents of Muslim Law). The tribute paid to the system by Rumsey is no less exalted. He observes: "The Mohammedan Law of inheritance comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilised world." (Preface, p. 1). [See Saksena, Third Edition, on "Muslim Law Chapter XV Section 1 for these and other observations]. Females Position in Muslim Law. "We shall deal briefly with the rights of females to inheritance as given the Quran. The Prophet lays down in effect, that blood relationship is the cause of title to succession. Then the Quran goes on to describe the rights of females to succession. "Covet not the grace by which God hath preferred some of you to others; unto men there is a portion of what they have earned, and unto women the portion of what they have earned." "Men ought to have the portion of what their parents and kindred leave, women a part of what their parents and kindred leave, whether it be little or much, let them have a determinable portion." "With regard to children, God commandeth you (to give) the male portion of two femals, and if there be females more than two, they shall have 2/3rd of that which the deceased leaves; and if there be only one, she shall have a half." "Half of what, your wives leave, shall be yours, if they leave no issues, but if they leave issues, then a fourth of what they leave shall be yours. And your wives shall have a fourth part of what you leave if you have no issues, but if you have issues, they shall have an eighth (1/8th) part of what you leave after paying the bequests and debts". "In short, Quranic heirs called "sharers" consist of those relations who were previously excluded in favour of the customary heirs, but whose claim on the score of proximity was not inferior to them. They may be grouped under the following heads:-- (1) husband or wife, (2) female agnatic descendants, (3) heirs, ancestors, including female ancestors, who are not customary (4) sisters and brothers". collaterals, such as full and consanguine sisters and uterine sisters and brothers”.” Recently, in the case of Syeda FOUZIA JALAAL SHAH versus FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Civil Revision No.112-D of 2015 -9-

and 14 others (PLD 2025 Federal Shariat Court 1) the Federal Shariat Court has also held that any custom or usage, which affects the rights of inheritance of women in any manner whatsoever, irrespective of the name by which it is called or known in any area of the country, is un-islamic and illegal and calls for actions against the perpetrator of such crime under Section 498 -A of P.P.C., as such actions by the relevant authorities of the State falls within the scope of Amr bil Maroof Wa Nahi Anil Munkar, which is an important duty of the State under the Act X of 1991 (Enforcement of Shari’ah Act, 1991). 13. To the above effect it is noticed that while deciding the previous suit on the basis of statements of respective parties the learned Senior Civil Judge, Attock has recorded certain pivotal observations, which too are very pertinent for the proposition at hand. Same are reproduced below :- “3. The parties have entered into compromise. The plaintiff No.3 Mst. Mukhtar Bibi and plaintiff No.4 Akbar Jan appeared in the court on 27.7.99 and made a statement of relinquishment of their rights. At the same time plaintiff No.1 appeared as general attorney on behalf of the defendant No. 2. The defendant No.1 Muhammad Ajmal also made a statement to the effect that sisters have relinquished their rights to the property and the property gifted to him by his father vide mutation No. 1150 dated 5.12.94 be distributed amongst the real brothers in equal shares. Since the plaintiff No.1 has become general attorney for the defendant No.2 who is sister of the plaintiffs No.1 and 2 and defendant No.1 whereas defendant No.3 being sister of the parties did not appear, as such, it has become a sort of consent decree which otherwise can not be granted specially in absence of the legal heirs viz defendants No.2, 3. In these circumstances the suit is dismissed, however, the defendant No.1 can transfer the property if standing legally in his name to his real brother if so interse decided by them subject to all just exceptions and legal restraint, with no order as to cost. File to records.” The above noted discussion and survey make the answer to the framed question very unequivocal and specific. Thus I feel no cavil to hold that in the circumstances principle of res judicata does not attract at all to the present case. Reliance to this effect can be placed on GHULAM NABI AND OTHERS versus Seth MUHAMMAD YAQUB AND OTHERS (PLD 1983 Supreme Court 344) wherein somewhat similar facts and circumstances, the Supreme Court of Pakistan held as under :- Civil Revision No.112-D of 2015 -10-

“9. Another objection to the maintainability of the suit proceeds from the contention that the matter had become res judicata in the appellants' suit. This suit, as already stated, had been filed against Sh. Fazal Elahi and respondent Seth Muhammad Yaqub for a permanent injunction. Sh. Fazal Elahi having conceded the suit in his written statement filed on 15 -6-1966 the appellant's counsel prayed to the Court on 16 -6-1966 that the suit be dismissed "بعینہ دادرسی " without any further proceeding, whereupon the suit was dismissed the same day in the following words: "بروۓ بیان بالا دعویٰ بعینہ داد رسی خارج کیا جاتا ہے۔ It is submitted that the order in terms it was made was, though not a decree, an executable order and that Seth Muhammad Yaqub who had notice of the suit but had stood -by and let the order be passed was bound by it and could not collaterally bypass it. His failure to object to the withdrawal of the suit as having borne fruit operated as res judicata in regard to his interest in the property qua the appellants as also his co -defendant S h. Fazal Elahi and as such his present suit was barred by the p rinciple of res judicata particularly of constructive res judicata . Reference was made to Phillips v. Mitchell (1), in which it had been held that a ground of attack in a subsequent suit, if could have been alleged as ground of defence in a former suit but was omitted, was hit by the principle of res judicata. It was also submitted in this connection that at least Sh. Fazal Ela hi who had conceded the suit was bound by the order and as such any decree for specific performance passed against him for transferring the property would be ineffective. It was further submitted that for the matter to be res judicata it was not necessary that there must have been passed a judgment or decree but that even an order passed by consent, express or implied, binds the parties. Reliance for this was placed on Muhammad Salim v. Mohiuddin (2) and Bakhtawar v. Amin (3). But the same as we will presently see have no relevance. 10. It is to be noted that in the appellants' suit, Seth Muhammad Yaqub had filed a written statement contesting the suit and the validity of any deal in regard to the property between Sh. Fazal Elahi and the appellants. Obviously his interest was in conflict with that of his co-defendant Sh. Fazal Elahi. The applicability of the principle of res…

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