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Official Citation: 2025 SHC 162
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Muhammad Bux since deceased, through his Legal heirs vs Wali JUDGMENT
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-12-31, officially reported as 2025 SHC 162. In this matter between Muhammad Bux since deceased, through his Legal heirs and Wali 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 2025SHC162
Court Name: Sindh High Court Judge(s): Muhammad Hasan (Akber) Title:Muhammad Bux since deceased, through his Legal heirs vs Wali
JUDGMENT
Reported As: 2025 SHC 162 Result: Application Disposed of Judgment
JUDGMENT MUHAMMAD HASAN (AKBER), J.- This single consolidated Judgment will decide Civil Revision Application No.58 of 2022 and Civil Revision Application No.59 of 2022, being on the common questions of law and facts. Both these Civil Revisions have been preferred by the same Applicant(s) being legal heirs of Muhammad Bux (since deceased), wherein the consolidated Judgment dated 19.01.2022 and decree dated 24.01.2022 passed by learned Additional District Judge-I, Dadu have been assailed, whereby the Applicants' Civil Appeals No.84 of 2021 and 85 of 2021 'Muhammad Bux since deceased through his L.Rs Vs. Wali Muhammad & others' were dismissed. These appeals were preferred against the consolidated Judgment and Decree passed by the learned Senior Civil Judge-II, Mehar @ Dadu whereby, F.C. Suit No.253 of 2019 ('leading suit') filed by Respondent No.1 (Wali Muhammad) was decreed as prayed, whereas the F.C Suit No.12 of 2020 ('subsequent suit') filed by Muhammad Bux was dismissed. 2. Concisely, the facts are that the Respondent No.1 (Wali Muhammad) filed F.C. Suit No.253 of 2019 ('leading suit') for declaration and permanent injunction against the Applicant before the Court of learned Senior Civil Judge-II, Mehar @ Dadu, claiming therein that he owns commercial land being Survey No.267 admeasuring 02 acres in Deh Makhdoom Bilawal (Suit land) on which he had established petrol pump. The parties are relatives inter se, entangled in dispute over ancestral properties. It was averred that on 28th May 2019 at about 05:00 pm when the Respondent No.1 along with his sons went to the petrol pump for collection of profit amount, he saw that present
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applicants/defendants were occupying the said petrol pump and by issuing threats they forcibly dispossessed from his lawful property, which gave cause of action to Respondent No.1 to initiate the said Suit, with the following prayers (wherein certain prayers for mesne profits and possession were also allowed later under Order VI Rule 17 CPC). The final prayers, after amendments, were as follows: "a) It is most respectfully prayed that this Honourable Court may be pleased to pass judgment and decree in favor of the plaintiff and against the defendants declaring that the plaintiff is owner of the suit property on the basis of title documents. b) Declare that the private defendants are trespassers on the suit property and have acted illegally by dispossessing the plaintiff from the suit property. c) That this Honourable Court may be pleased to direct the private defendants to handover the physical possession of the suit property to the plaintiff. d) That this Honourable Court may be pleased to grant the mesne profits of the suit property to the plaintiff out of the sale of diesel and petrol at the rate of Rs.50,000 per month beginning from 27.05.2019. e) That this Honourable Court may be pleased to grant injunction in favor of the plaintiff and against the defendants restraining the defendants from alienating the suit property by creating third party interest themselves, through their agents, servants or whosoever. f) Cost of the suit property be borne by the defendants. g) Any other relief deemed fit and proper may be granted in favor of the plaintiff." 3. After admission of the leading Suit, summons were issued against the present Applicants, who filed their written statement. During pendency of the leading Suit, the Applicant/ Muhammad Bux (since deceased) being represented in these revisions through his legal heirs, filed F.C Suit No.12 of 2020 ('subsequent suit') for Specific Performance of contract, against Wali Muhammad and others, with the claim that the Suit land is in the name of Respondent No.1 vide entry No.246 dated 20.03.1997, however on 01.05.1997, Respondent No.1 entered into an Exchange Agreement ('Exchange Agreement') in respect to sale of the Suit land with Muhammad Bux, in exchange for his land and based whereon, Respondent No.1 acquired the land from Survey Nos.63, 66, 77, 79/1, 79/2 and 82 admeasuring 03-36 1/2 acres as share of Muhammad Bux. The Exchange Agreement was reduced into writing and was attested by two witnesses and it was agreed that transfer documents/registered sale deed would be executed later, while time was not essence of contract, as the parties were brothers inter se, however peaceful possession was exchanged with each other in performance of such agreement. After getting possession of Suit land from Respondent No.1, the applicants established petrol pump with name 'Makhdoom Bilawal Petroleum Services', and also a hotel thereon and a few years back, computerized Weighing Machine (kanta) was also established on the Suit property. On the other hand, the Respondent No.1 also remained in possession of the land exchanged under the Exchange Agreement, and he is enjoying agricultural produce thereon since 1997. The applicants' side many times approached Respondent No.1 for execution of registered sale deed for the suit land, but Respondent No.1 kept him on false hopes. It is also averred that previously the respondent No.1's son (Nisar Ahmed) wanted to get a guest house (Musaffir Khana) constructed in front of the house of Muhammad Bux, on which objection was raised by the applicants' side, which annoyed the Respondent No.1, and as a reaction to the same and as a pressure tactic, he filed the leading suit against them. In this way, it was averred that the cause of action accrued to Applicant side firstly on 01.05.1997, when the Exchange Agreement was executed, and lastly on 01.06.2019 when respondent No.1 filed the leading Suit against. Muhammad Bux therefore filed the subsequent Suit, with the following prayers: "a) That this Honourable Court may kindly be pleased to pass decree for specific performance of contract directing the defendant No.1 to execute the registered sale deed in respect of sale of suit
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property in favor of plaintiff in continuation of exchange agreement to sell dated 01.05.1997 and in case of failure, the Nazir of this Honourable Court be appointed for registration of suit property in favor of the plaintiff from defendant No.2 to 4 and the plaintiff is ready to transfer his agricultural land bearing survey No.63, 66, 77, 79/1, 79/2, 82 admeasuring 03-36 1/2 acres in favor of the defendant No.1 in the offices of defendants No.2 to 4. b) To award cost of the suit to the plaintiff. c) Any other relief which this Honourable Court may deem fit and proper under the circumstances of the case." 4. After admission of the subsequent Suit, the Respondents filed their written statements. Thereafter by consent of the parties, both the suits were consolidated, and the following consolidated issues were framed by the learned trial Court: "1. Whether the suit No.253/2019 is not maintainable under law? 2. Whether the suit No.12/2020 is not maintainable under law? 3. Whether the plaintiff Wali Muhammad Panhwar is owner of suit property viz: survey No.267 admeasuring 02-00 acres situated in Deh Makhdoom Bilawal and is entitled for possession along with mesne profits? If yes, its effects? 4. Whether the plaintiff Wali Muhammad Panhwar established a petrol pump in the name of Makhdoom Bilawal Petroleum Service situated over the suit property and defendant No.5 is manager of the said petrol pump? 5. Whether the plaintiff Muhammad Bux Panhwar and defendant No.1 on dated 01.05.1997 entered into exchange agreement of sale of suit property viz; agricultural land bearing S.No.267 measuring 02-00 acres situated at Deh Makhdoom Bilawal Taluka and District Dadu against exchange with plaintiff's agricultural land bearing S.No.63, 66, 77, 79/1 & 2 and 82 admeasuring 03-36 1/2 as per share of plaintiff? 6. Whether after execution of agreement dated 01.05.1997 the parties are in possession of their respective lands as per agreement of exchange of properties? 7. Whether the sale/exchange agreement dated 01.05.1997 is forged and fabricated? If yes it's effects? 8. Whether the plaintiff Wali Muhammad had established petrol pump in the name of Makhdoom Bilawal Petroleum Service at Deh Jageer Taluka Johi at RD 200 at the left side of Larkana road but he has wrongly shown the existence of such petrol pump at the suit land? 9. Whether the plaintiff of F.C suit No.253/2019 namely Wali Muhammad Panhwar is entitled for relief claimed? 10. Whether the plaintiff of F.C suit No.12/2020 Muhammad Bux Panhwar is entitled for relief claimed? 11. What should the judgment and decree be in both suits?" 5. That the process of consolidation of suits, framing of Issues and recording of evidence were conducted by consent of the parties. Both parties led their respective evidences and after hearing the arguments of the respective counsels, the learned trial Court passed the impugned consolidated Judgment and separate decrees, whereby leading Suit of Respondent No.1 (Wali Muhammad) was decreed as prayed, whereas the subsequent suit of the Applicant (Muhammad Bux) was dismissed. The Applicants filed both the Civil Appeals against both the decrees, which were dismissed by the learned Appellate Court, vide the impugned judgment and decree. 6. Learned counsel for the applicants mainly contended that the respondent No.1 has failed to prove his claim through credible evidence, however, the learned trial Court decreed the leading suit, which decision was also erroneously concurred by the learned Appellate Court, without considering the evidence in its true perspective; that the respondent No.1 concealed the fact of the exchange agreement reduced in writing between the parties, hence no cause of action accrued to
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him for filing the leading Suit, which aspect was also not considered by both learned Trial & Appellate Court; that both the Courts below failed to consider that the respondent No.1 claimed that he had established the petrol pump over the suit land, however he had not produced any documentary proof to support his such assertion, while the applicants produced entire documents of sale and purchase of petrol and other related documents; that the Respondent No.1 failed to furnish license of the petrol pump purportedly to have established the same; that though the respondent No.1 failed to prove his claim but his case was only decreed on the premises that disputed survey numbers were into record of rights in his name, however the rest of documents produced by applicants were discarded by the learned trial Court; that the judgments and decrees passed by learned Courts below are result of misreading and non-reading of evidence and in illegal exercise of jurisdiction, as such, the case may be remanded because the documents relied by applicants have not been considered; that both parties are brothers and they had privately distributed exchanged their landed properties after demise of their predecessor but this fact has not been considered by the learned trial Court; that the Mukhtiarkar Revenue Dadu has supported the claim of applicants on the point of possession; that the applicants are in possession of suit land and they have built petrol pump thereon while the respondents have falsely claimed their ownership over the said petrol pump; that sufficient evidence has been brought on record by the applicants in support of their claim but same has been ignored by the learned trial and appellate Courts; that respondent No.1 had prayed for declaration of ownership of petrol pump but the learned trial Court has declared him as owner of entire suit survey number 267; that the learned trial as well as appellate Court did not appreciate the evidence in its true perspective and passed the impugned consolidated judgment and separate decrees in hasty manner which are not sustainable under the Law. He further argued that the reliefs of mesne profits and possession were not prayed originally in the memo of plaint, but it was later on, through an application under Order VI Rule 17 CPC, that the same was allowed by the trail Court. Even after the amendment, the amended issues were not added but it was only mentioned in the impugned Judgment. Learned counsel prayed for allowing these revisions applications by setting-aside the impugned judgments and decrees and relied upon 2022 SCMR 360, PLD 1994 Peshawar 228, 2005 SCMR 135, 2009 SCMR 623, 2002 CLC 819, PLD 2006 Karachi 497, 1968 SCMR 573, 2019 SCMR 1930 and 2019 SCMR 567. 7. Controverting the above arguments, learned counsel for the respondent No.1 argued that the respondent No.1 is real owner of suit property; that the possession of subject petrol pump was with the respondent No.1 and same was being managed by his manager, subsequently, applicants side illegally occupied the same; that no such exchange agreement was executed between the parties and the alleged agreement is false and fabricated one which is liable to be cancelled; that the applicants have failed to prove the execution of alleged exchange agreement in accordance with law as the attesting witnesses were not examined by them; that sufficient oral and documentary evidence was produced by the respondent No.1 in support of his claim as well as in rebuttal of claim of applicants, therefore, the learned trial Court has rightly extended relief in his favor which was extended by learned Appellate Court; that there is no misreading and non-reading of evidence as trial was conclude and Suits were decided after leading evidence by both sides; that the impugned judgments and decrees are well reasoned and in accordance with Law and same do not require any interference of this Court, therefore same may be upheld and the revisions may be dismissed. 8. During course of hearing, both the learned counsels informed that Execution Application No.3 of 2020 was filed by the Respondent side for implementation of Decree, wherein till date, decree to the extent of handing over of possession has already been satisfied when the possession was handed over by the Applicant side on 04-10-2022. However with respect to the issue of mesne profits, both learned counsels submitted that because the trial Court did not calculate the quantum of mesne
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profits therefore such matter is still pending before the Executing Court, whereas the exact amount of mesne profits has not been calculated till date. 9. Learned Assistant Advocate General, Sindh stated that official respondents are proforma party, since the matter is a private dispute inter se relatives brothers and no Government interests were involved. 10. I have heard learned counsel for respective parties and with their able assistance, scanned through the evidence produced by the parties, summary whereof is that, on Issues No.1 and 2, qua maintainability of both the suits, the burden was upon both the parties respectively, who failed to produce any evidence or to point out to any provisions of law which could have hindered filing of the two suits and therefore such Issues were rightly decided in Negative by the learned trial Court. With respect to Issues No.3 and 4 which are interconnected, the primary burden was on Respondent No.1 to establish his ownership rights, possession and establishment of petrol pump on the suit property, who examined himself at Ex.24 and asserted his averments in the plaint and produced registered sale deed and computerized copy of village form VII-B. The respondent No.1 was cross examined at length by the Applicant side but the registered sale deed and other documents could not be shattered. On the other hand, Muhammad Bux examined his attorney Ghulam Omar at Ex.44 who stated that on 01.05.1997 his father and his uncle (Wali Muhammad) made an agreement on agricultural land and exchanged survey No.63, 66, 67, 79/1 and 79/2 and 82 of his father with survey No.267 in name of Wali Muhammad and he admitted the title of Wali Muhammad on survey No.267. Further the Mukhtiarkar Taluka Dadu stated in written statement that in entry No.244 of VF-VII-A from survey No.267, an area of 02-00 acres being a share, is entered in the name of Wali Muhammad son of Allah Bux Panhwar. The Applicant side failed to prove execution of the exchange agreement, therefore, the Respondent No.1 was held to be also entitled for possession. As for the arguments of the learned counsel for the Respondent that the suit property is only patrol pump, the trial Court framed a specific issue to which the Applicants did not raise any objection. In his examination-in-chief, Respondent No.1 also stated that his land bearing survey No.267 is situated in Deh Makhdoom Bilawal and on such land he got permission and installed a Patrol Pump with name Makhdoom Bilawal Patrol Service. He further stated that Defendant No.5 is his Manager at patrol pump. The Respondent No.1 also produced registered sale deed where the patrol pump is installed and he also exhibited letter of National Tax Certificate at Ex.24/C and also exhibited an Order under section 170(3) of Income Tax Ordinance with his name at Ex.24/E. The Respondent No.1 was cross examined by the counsel for Applicants at length, but his version could not be shattered and he successfully proved that patrol pump was established by him. On the contrary, the Applicant's attorney Ghulam Omar was examined at Ex.44, who stated that they constructed patrol pump on the exchanged land of survey No.267 in year 1997 and also reconstructed the same patrol pump in year 2017, and Respondent No.1 has fraudulently claimed ownership of patrol pump. He further stated that Respondent No.1 has no ownership on the patrol pump. However, Applicant side could not show any document regarding license of patrol pump or approval thereof and other enquiries necessary for grant of license certificate and they only produced receipts of purchasing of tanks. Hence in case of non-submission of sufficient documents of grant of license, such documents cannot be relied upon, therefore, the Applicant failed to rebut the claim of Respondent No.1. In this way, Respondent No.1 has proved that he himself established the patrol pump in his own property with name of Makhdoom Bilawal Patrol Service. The Respondent No.1 proved both these issues which were decided by the learned trial Court in his favour. 11. It is however noted that in the same Issue No.3, to the extent of grant of mesne profits, the submissions put forth by Mr. Hashmi learned counsel for the Applicants draws attention to multiple
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legal and factual aspects, which are separately discussed and decided in the later part of this Judgment. 12. Regarding Issues 5 and 6, the same were also interconnected and the burden of both these issues was upon the Applicant side to prove the exchange agreement and their possession in terms of such agreement. The Applicants examined Ghulam Omar as attorney at Ex.44, who stated in his examination-in-chief that on 01.05.1997 his father (Muhammad Bux) and his uncle (Wali Muhammad) made agreement on agricultural land by which, survey No.63, 66, 67, 79/1, 79/2 and 87 [which were in the name of his father (Muhammad Bux)] were exchanged with Survey No. 267 Deh Makhdoom Bilawal [which was in the name of his uncle (Wali Muhammad)]. In order to discharge burden, the defendant produced the Exchange Agreement, wherein two attesting witnesses are shown, one of them as Sono son of Waryam Panhwar and the other one was Muhammad Uris son of Adam Khan. But during the evidence, Applicant's attorney examined Lutufullah, who was the Assistant Engineer Irrigation and another witness Sarfraz who was Secretary Union Council Allahabad. Neither the witness Muhammad Uris was produced in the witness box, nor any solid evidence was produced to establish the death of the witness Sono Khan. Even no one from the family of Sono Khan was examined by the Applicant side to establish that he has expired and to establish the exact date of his death. Moreover, the other attesting witness Muhammad Uris was also not produced, nor his whereabouts were given by the Applicant's attorney, and therefore, the Applicant side failed to prove the execution of the exchange agreement, whereon their entire claim was based. 13. It would be relevant to note here that mode of proof is the procedure by which the "relevant" and "admissible" facts have to be proved, the manner whereof has been prescribed in Articles 70 to 89 of the Qanun-e-Shahadat Order 1984. In other words, a "relevant" and "admissible" fact, is admitted as a piece of evidence, only when the same has been proved by the party asserting the same. In this regard, the foundational principle governing proof of contents of documents is that the same are to be proved by producing "primary evidence" or "secondary evidence". Guidance in this regard can be taken from 'Mst. Akhtar Sultana V. Major (R) Muzaffar Khan Malik' PLD 2021 SC 715. 14. Article 79 of the Qanun-e-Shahadat Order 1984 mandatorily provides that where a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and capable of giving evidence. Exclusion to this rule has been provided only with respect to those registered documents which are admitted. 15. The term "attested", as provided under Section 3 of the Transfer of Property Act, 1882 means attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant. 16. Sub-Article 2(a) of Article 17 of the Qanun-e- Shahadat Order 1984 provides that for competence of a person to testify, it generally requires that, the number of witnesses required in any case, shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. However specially in matters pertaining to financial or future obligations, an instrument if reduced to writing, shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly, subject to Hudood or special laws. On this subject, in the case of 'Sheikh Muhammad Muneer V. Mst. Feezan' (PLD 2021 SC 538) the Supreme Court also sought Guidance from the Holy Qur'an and recorded the same, which is reproduced below, as provided in Verse 282 of the second chapter, Surah Al- Baqarah, which comprehensively deals with agreements: In the name of Allah The Beneficent The Merciful
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"O ye who believe! when you deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing. Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah has taught him, so let him write. Let him who incurs the liability dictate, but let him fear his Lord Allah. And not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate faithfully. And get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind. The witnesses should not refuse when they are called on. Disdain not to reduce to writing for a future period, whether it be small or big: it is more just in the sight of Allah, more suitable as evidence and more convenient to prevent doubts among yourselves. But if it be a transaction which you carry out on the spot among yourselves, there is no blame on you if you reduce it not to writing. But take witnesses whenever you make a commercial contract; and let neither scribe nor witness suffer harm. If you do (such harm), it would be wickedness in you. So fear Allah; for it is Allah that teaches you. And Allah is well acquainted with all things." 17. The Holy Qur'an therefore requires that the number of witnesses should be not less than two men or a man and two women (so that the one may remind the other if she forgets). 18. Applying the above guidance, principles and mandatory requirements to the facts of the present case, it can be safely concluded that the Exchange agreement was neither a registered document, nor was it admitted by the Respondent side, and therefore the mandatory requirements of Article 17 of the Qanun-e-Shahadat were fully applicable to it. Once, no attesting witness was produced to prove the exchange agreement, the restrictions as provided under Article 79 of the Qanun-e-Shahadat Order would be fully applicable. 19. With regards to the next argument by applicant side that one of the witness was not alive, Article 80 of the Qanune Shahadat Order would come into picture, which…
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