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Official Citation: 2025 LHC 526
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-02-26
Parties: Malik Abdul Rauf vs Malik Abdul Razzaq (deceased) through L.Rs., etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-02-26, officially reported as 2025 LHC 526. In this matter between Malik Abdul Rauf and Malik Abdul Razzaq (deceased) through L.Rs., 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.
Case cited as 2025LHC526
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Malik Abdul Rauf vs Malik Abdul Razzaq (deceased) through L.Rs., etc Case No.: Civil Revision No. 2363 of 2012 Date of Judgment:2025-02-26 Reported As: 2025 LHC 526 Result: Petition Dismissed
Judgment
ORDER Succinctly, respondent No.1 filed multiple suits against the petitioner viz. for declaration alongwith permanent as well as mandatory injunction, on 19.11.1999; for partition alongwith permanent as well as mandatory injunction against, on 12.02.2000; for declaration alongwith permanent injunction, on 23.12.2000 whereas the petitioner filed suit for declaration alongwith permanent injunction against respondent No.1, on 07.09.2001. In addition thereto, one Fazal Kareem also filed a suit for declaration against the petitioner, on 03.11.2001. All the five suits were consolidated and the learned Civil Judge, Gujranwala ("learned Trial Court"), vide consolidated judgment & decree, dated 08.06.2010, while decreeing the suit filed by the petitioner, dismissed the remaining four suits. Being aggrieved of the judgment and decree passed in the suit, filed by the petitioner, respondent No.1 filed an appeal which was accepted by the learned Additional District Judge, Gujranwala ("learned Appellate Court") through judgment & decree, dated 14.07.2012 and while reversing the findings of the learned Trial Court, the suit filed by the petitioner was dismissed. Being dissatisfied with the judgment and decree, passed by the learned Appellate Court, the petitioner has filed this revision petition. 2. Learned counsel for the petitioner submits that though consolidated judgment can be challenged through one appeal but attachment of decrees in all suits is inevitable and if an appellant fails to append the decrees in all the suits, decided through consolidated judgment, the appeal can only be treated in relation to the decree appended therewith; that though the petitioner filed application before the Appellate Court for dismissal of the appeal, filed by respondent No.1, being hit by the principle of res judicata but without deciding the fate of the said
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application, the Appellate Court proceeded to decide the main suit; that though father of the petitioner (donor) remained alive for six years after making gift in favour of the petitioner but he did not challenge the same before any forum, thus respondent No.1 was debarred to challenge the same in view of principle of spes-successionis; that non-challenging of the gift mutation by other legal heirs of Abdul Rasheed also affirms execution of a valid gift by the donor in favour of the petitioner; that when the petitioner established his possession over the suit land for more than forty five years, the Appellate Court could not upset the well-reasoned judgment passed by the learned Civil Judge; that admission on the part of the witnesses, produced by respondent No.1 that the petitioner, after getting site plan sanctioned, raised construction at the site, affirms that respondent No.1 was under notice of the gift; that completion of construction work at the site was also a notice to the public-at-large regarding exclusive ownership of the petitioner, thus, respondent No.1 could not claim that he was unaware about the gift deed executed in favour of the petitioner; that during the pendency of the suit before the learned trial Court a Local Commission was appointed, who submitted report verifying the possession of the petitioner over the suit land; that long standing possession of the petitioner over the suit land itself was a notice of valid gift in favour of the petitioner; that when Registry Moharar verified that certified copy, produced by the petitioner, was exact copy of the gift deed, the Appellate Court could not reverse the findings of the Civil Court; that Riffat Sultana, one of the sisters of the petitioner, filed conceding Written Statement before the learned Trial Court and Abdul Sami made statement before the Local Commission to the effect that he had no objection if the suit of the petitioner was decreed; that production of utility bills by the petitioner also stand proof of the fact that since the year 1979, he was in possession of the suit property as donee; that mala-fide on the part of respondent No.1 is evident from the fact that he filed suits after escalation in prices of real estate in the vicinity; that when the donor transferred the possession in favour of the petitioner, the gift in favour of the petitioner stood completed thus the same could not be interfered by the learned Appellate Court; that non-judicial approach on the part of the learned Appellate Court is evinced from the fact that it has not even touched the points noted by the learned Trial Court in support of its decision. To fortify his contentions, learned counsel for the petitioner has relied upon the cases reported as Mst. Rabia Gula and others v. Muhammad Janan and others (2022 SCMR 1009), Muhammad Siddique (deceased) through L.Rs and others v. Mst. Noor Bibi (deceased) through L.Rs and others (2020 SCMR 483), Anjuman-e-Khuddam- ul-Qur'an, Faisalabad through President Qur'an Academy v. Lt. Col (R) Najam Hameed and 3 others (PLD 2020 SC 390), Ghulam Abbas and others v. Mohammad Shafi through L.Rs and others (2016 SCMR 1403), Abrar Ahmed and another v. Irshad Ahmed (PLD 2014 SC 331), Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299), Ghulam Muhammad v. Mian Muhammad and another (2007 SCMR 231), Mst. Nusrat Zohra v. Mst. Azhra Bibi and others (PLD 2006 SC 15), Muhammad Afzal v. Matloob Hussain and others (PLD 2006 SC 84), Muhammad Sadiq represented by Muhammad Sarwar and others v. Amir Muhammad and others (2006 SCMR 702), Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others (2005 SCMR 931), Shah Muhammad v. Atta Muhammad (2004 SCMR 369), Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232), Mubarak Ali v. Muhammad Ramzan and others (2004 SCMR 1740), Manzoor Ahmad and 4 others v. Mehrban and 5 others (2002 SCMR 1391), Din Muhammad and another v. Subedar Muhammad Zaman (2001 SCMR 1992), Muhammad Siddique v. Shah Pasand Khan and others (1979 SCMR 619), Muhammad Zaman Khan v. Inzar Gul and others (PLD 1957 (W.P.) Peshawar 129) and Syed Zahid Hussain through Special Attorney v. Syed Muhammad Hussain and others (2006 MLD 1016). 3. Mr. Shahid Mehmood Minhas, Advocate, representing respondent No.1(i to v) and 7 states that dubious character of the acclaimed gift deed is evident from the fact that in the said document area of the subject land has been mentioned as 12/13 marlas whereas actually the same is 10-
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Marlas; that if the house was gifted to the petitioner as to why he got attested mutation of inheritance in favour of legal heirs of Abdul Rasheed in the year 1987; that since the decrees passed in the suits, filed by respondent No.1, were inconsequential upon his future rights, he was under no compulsion to challenge them, hence, the principle of res judicata was not applicable to the appeal filed by respondent No.1 and that non-production of the original gift deed by the petitioner before the learned Trial Court creates serious doubts about its veracity. 4. Mr. Aurangzeb Mirza, Advocate, representing respondents No.4, submits that when the petitioner failed to prove execution of a valid gift in his favour no illegality has been committed by the learned Appellate Court while reversing the findings of the learned Trial Court; that a cursory glance over the gift deed shows that the same is bereft of the exact description of the property, thus, no decree could be passed in favour of the petitioner; that for execution of a valid gift, the petitioner should have been part of the gift proceedings but his non-association in said process casts serious doubts about the authenticity of the said document; that offer by the donor can only be accepted by the donee but it is a typical case wherein somebody else accepted gift on behalf of the donee; that non-production of the person, who accepted gift on behalf of the petitioner, raises serious doubts against the authenticity of the gift deed, being relied upon by the petitioner and that non-production of marginal witnesses of the gift deed also goes against the petitioner. 5. While exercising his right of rebuttal, learned counsel for the petitioner submits that since the identity of the property is not in dispute as respondent No.1 challenged the gift deed by providing the same description of the property as mentioned by the petitioner in his suit, the respondents have no cheeks to raise said point in these proceedings; that when the Registry Moharrar appeared before the Court and verified the contents of the gift deed, there was no compulsion for the petitioner to prove its execution by producing its marginal witnesses and that since the contentions, urged by the learned counsel representing the petitioner, remained unrebutted by the opposite side, this petition deserves acceptance. 6. Since none appeared on behalf of respondents No.8 to 15, despite repeated calls they are proceeded against ex-parte. 7. I have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with this petition, as well as the case-law cited at the bar. 8. Firstly, taking up the plea of the petitioner that since the principle of res-judicata was applicable to the appeal, filed by respondent No.1, the same was to be dismissed on that score, I am of the view that respondent No.1 filed suits for partition; for declaration to the effect that gift deed, dated 12.04.1979, is forged and fictitious and for declaration to the effect that the property being joint in nature, the petitioner had no right to raise construction at the site without proper partition. The decree in the suit for partition and declaration against raising construction by the petitioner at the site had nothing to do with the suit filed by the petitioner seeking declaration to the effect that he was the exclusive owner of the suit property on the basis of gift deed, dated 12.04.1979. Insofar as the decree in the third suit whereby respondent No.1 challenged the validity of gift deed 12.04.1979 is concerned, it was optional for respondent No.1 either to challenge it or not but the appeal filed by him against the decree passed in favour of the petitioner could not be held non-maintainable in view of principle of res judicata especially when all the suits were decided by learned Trial Court through consolidated judgment and decree. The Apex Court of the country in the case of Khair Muhammad v. Muhammad Hussain and others (PLD 2006 SC 577), while dealing with a question as to whether appeal can be rejected while pressing into service the principle of res-judicata on the ground that all decrees drawn pursuant to a consolidated judgment have not been appended, has inter-alia concluded as under: - "15. From perusal of the above precedent cases, it is clear that preponderance of opinion has been in favour of the view taken by the learned Full Bench of the Lahore High Court in Mt.
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Lachhmi's case. We are of the opinion that in the facts and circumstances of the case, one appeal against the decree passed in the suit of the respondents was sufficient to get rid of the adjudication made by the single judgment and the unappealed decree did not operate as res judicata. It is also held that the decree passed in appeal by the learned first Court of appeal shall have precedence over the decree passed by the trial Court in Suit No.55-A." If the authenticity of the objection raised by learned counsel for the petitioner is adjudged in the light of the afore-referred judgment of Hon'ble Supreme Court of Pakistan, the same does not hold any water and is accordingly spurned. 9. As far as the plea of the petitioner that without deciding the fate of the application, filed by the petitioner for dismissal of the appeal on the basis of principle of res-judicata is concerned, I am of the view that in routine if a forum decides to dispose of the main case without deciding the miscellaneous application(s) its decision cannot sustain, however, when the matter stands decided conclusively, the decision of the said forum cannot be held non-maintainable. Reliance in this regard is placed on Silver Star Insurance Company Limited, Lahore through Chief Executive v. Messrs Kamal Pipes Industries, Lahore and another (2023 CLD 1342) wherein a learned Division Bench of this Court, while dealing with the consequences of non-decision of a miscellaneous application before the main case, has inter-alia held as under: - "7.**** Moreover, it is not persistent rule that in all eventualities, the miscellaneous applications ought to have been decided before final determination of the controversy because this principle is adhered to for the sake of justice. If the matter is otherwise conclusively determined by the Court, the sole factum of in decision of some application(s) shall not frustrate the proceedings/verdict of the Court. Guidance can be taken from dictum laid down in Peer Bakhsh and others v. Nabi Bakhsh and others (2002 YLR 1630), Hashwani Hotels Limited through Senior Manager v. Sindh Insurance Tribunal, Karachi and 3 others (2016 CLD 1790) and Mst. Mairaj Bibi and 4 others v. Muhammad Shafique through L.Rs. and others (PLD 2020 Lahore 888)." If the fate of the objection of learned counsel for the petitioner against decision of the main appeal without disposing of the miscellaneous application filed by respondent No.1, seeking dismissal of the appeal in view of principle of res-judicata, is seen in the light of the afore-quoted judgment of a learned Division Bench of this Court, there leaves no doubt that when the appeal filed by respondent No.1 was decided by the learned Appellate Court after dilating upon all pros and cons of the case, the said omission cannot be considered fatal especially when the petitioner has miserably failed to prove execution of valid gift in his favour. 10. Now reverting to the merits of the case, I have noted that the entire case of the petitioner hinges upon gift deed, dated 12.04.1979. A perusal of the said document shows that the exact description of the property, subject matter of the gift deed, has not been mentioned. Though, no Khewat number, Khasra number or Khatooni Number has been mentioned in the Gift Deed but while filing suit, the petitioner incorporated details of the suit house which were not part of the gift deed. The omission of said important antecedent in the gift deed raises serious objection against its veracity. Reliance in this regard is placed on the cases of Rasheeda Begum and 9 others v. Rauf Subhani and others (2025 CLC 47), Mst. Hussain Bano v. Mst. Asia Khatoon (2021 CLC 855), Saeed Akhtar through Attorney v. Mohammad Amin and 14 others (2020 YLR Note 37) and Meher Taj v. Ajmal Khan and 7 others (2020 MLD 1948). In the case of Rasheeda Begum and 9 others (Supra) the Hon'ble High Court of Azad Jammu & Kashmir while dealing with the consequences of non- mentioning of description of property in the relevant document has inter-alia held as under: - "In view of the pleadings of the parties and arguments the question required to be resolved is as to whether the land was purchased by Kifayat Ali Khan, predecessor of appellants from father of defendants Nos.1 and 2 or the suit land is in the ownership of counter plaintiff? The plaintiff Kifayat Ali Khan based his claim on a receipt Exh.PA. A perusal of Exh.PA reveals that description of
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property is not mentioned in the same that which of the land has been sold through the said receipt. It was enjoined upon the plaintiff to produce the marginal witnesses of the receipt in order to prove the same under Article 79 of the Qanun-e-Shahadat Order, 1984 or to mention the reasons that why the marginal witnesses of the receipt are unable for recording their statements and if the marginal witnesses had died, it was necessary to brought on record the proof of their death or non-availability for recording their statements but plaintiff neither produced marginal witnesses of receipt nor mentioned any reason for their non-availability. The plaintiff also failed to produce the writer of the receipt, thus the Courts below were justified to observe that plaintiff has miserably failed to prove the execution of the document Exh.PA" 11. Considering from another angle, the petitioner, with a view to prove contents of gift deed, examined Sarfraz Ahmad (PW-2), an associate of Ch. Ghulam Mustafa, Deed Writer, who was no more live at the time of recording of evidence. During cross examination, the said witness admitted that neither property number of the suit house nor its boundaries have been mentioned in the relevant register. He further admitted that parentage of Abdul Rauf (petitioner) was not incorporated in the relevant register. Further, the admission on the part of the said witness that there was interpolation against serial No.1057. Moreover, in the gift deed instead of mentioning the exact measurement, it has been incorporated as 12/13 marlas which fact alone is sufficient to impugn the authenticity of gift deed. 12. It is of common knowledge that a Muslim can gift his property in favour of his blood relation(s). The three essential ingredients for a valid gift have been described under Para 149 of the D.F. Mullah's Principles of Mohammadan Law. As per the referred Para, there should be an offer by the donor and its acceptance by or on behalf of the donee and delivery of possession. Insofar the case in hand is concerned, a bird's eye-view of the gift deed shows that the offer made by the donor was accepted by one Wali Muhammad on behalf of the petitioner. There is no cavil with the fact that gift can be accepted by anybody else on behalf of the donee but non production of said person in the evidence put serious dent to the authenticity of the gift deed. It is well entrenched by now that when a party withholds best available evidence, it is bound to face its consequences. Reliance in this regard is placed on the case reported as Muhammad Boota through L.Rs. v. Mst. Bano Begum and others (2005 SCMR 1885) and the petitioner cannot claim any exception as he did not give any reason for non-production of the person who accepted gift on his behalf. 13. While assisting the court learned counsel for the petitioner took specific plea that since Naseer Ahmad, Registry Moharrar (PW-1), while appearing in the witness box, verified the contents of copy of gift deed produced by the petitioner, there was no compulsion for the petitioner to produce its marginal witnesses or the person who accepted gift on his behalf. In this regard, I do not agree with learned counsel for the petitioner for the reason that mere registration of a document with Sub- Registrar concerned, per se cannot be considered as a proof regarding its authenticity rather the said fact can only be used to treat a document as public one. Reference in this regard can be made to the cases of Mst. Nazeeran & others v. Ali Bux and others (2024 SCMR 1271) and Khalid Hussain and others v. Nazir Ahmad and others (2021 SCMR 1986). In the latter case, the Apex Court of the country, while dilating upon a question relating to the genuineness of a document merely on account of its registration with the relevant authority, has inter-alia concluded as under: - "8. We are cognizant of the principle that the factum of registration of a document is essentially a notice to the public regarding its existence and validity, and having been registered by the Sub- Registrar in the performance of his official act there is a presumption of truth attached thereto under the law7. But the moment the said document is challenged by the alleged executant or his successor-in-interest, that presumption stands rebutted, and the beneficiary thereof has to prove not only the execution thereof, but also the original transaction embodied therein. As the inquiry
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made under the Registration Act with regard to the execution of the document by the alleged executant is not a judicial inquiry by a Court, but is confined to the purposes of registration, and that too, as a departmental duty." If the plea of the petitioner that since PW-1 verified the contents of the copy of gift deed, produced by the petitioner, there was no necessity for the petitioner to prove its execution by producing scribe and marginal witness is considered in the light of the afore-referred judgments of Hon'ble Supreme Court of Pakistan it becomes more than clear that registration of a document with the relevant authority can be considered for registration purposes only but the said fact cannot be used to prove its authenticity especially when credibility of said document has been challenged by the opposite side. 14. Considering from another angle, PW-1, during cross-examination clarified that if a document is presented for registration without the requisite identification numbers of the property of said document, the same is returned to the party concerned with said objection. Further, the said witness was unable to give satisfactory reply as to why gift deed, subject matter of the dispute between the parties, was registered despite the fact that it was bereft of description. In this backdrop, it is not safe to rely upon the statement of said witness to establish that valid gift was executed in favour of the petitioner. 15. It is important to mention over here that as per Article 79 of Qanun-e-Shahadat Order, 1984, a written document must be attested by two witnesses. Further, in the event of any dispute regarding authenticity of said document, beneficiary of said document is bound to produce its marginal witnesses in addition to the scribe. Insofar the case in hand is concerned, when respondent No.1 challenged the veracity of the gift deed, executed in favour of the petitioner, the latter being beneficiary of the said document was bound to prove its execution by producing marginal witnesses as well as the person who accepted gift on his behalf in addition to the scribe but having not done so, it cannot be believed that the petitioner discharged his onus to prove the execution of valid gift in his favour. 16. While addressing the court, learned counsel for the petitioner put much emphasis on the fact that Local Commission appointed by the learned Trial Court in its report confirmed the possession of the petitioner over the suit land. There is no cavil with the fact that the Local Commission reported that the petitioner was in possession of the suit house but said fact could not be considered as conclusive proof of the fact that a valid gift was executed in favour of the petitioner rather the same could only be used as supportive piece of evidence while deciding the matter between the parties. At the cost of repetition, it is observed that when the petitioner failed to establish execution of valid gift in his favour, the report of the Local Commission solely could not be used to decree his suit. 17. It is very strange to note that on the one hand the petitioner claimed that the suit house was gifted to him by his father but attestation of mutation of inheritance in favour of all the legal heirs of Abdul Rashid (donor) on 22.11.1987 on the move of the petitioner himself speaks otherwise. Further, a perusal of agreement (Ex.DW-2/1) shows that other brothers of the petitioner allowed the petitioner to exclusively use suit house. The said document, being pivotal for decision of lis between the parties, is imaged herein below:- A perusal of the above document brings it to limelight that while clarifying that the suit house was jointly owned by the legal heirs of Abdul Rashid, the petitioner was allowed to utilize the said premises as a temporary arrangement with the clarification that the owners could get the same partitioned on permanent basis. The petitioner being signatory of the above-imaged document could not wriggle out of the commitment made therein. 18. During the course of arguments, learned counsel for the petitioner put much emphasis on the fact that since petitioner raised construction at site without any objection from the other legal
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heirs, including respondent No.1, execution of valid gift in his favour was proved. In my humble opinion, due to peculiar facts and circumstance of the case, the said fact cannot singly be used to believe that valid gift was executed in favour of the petitioner. It is well established by now that if a co-sharer raises construction on a land, jointly owned by different persons, he does so at his own risk and cost. Likewise, the installation of utility apparatuses and payment of utility bills also cannot be considered as proof of ownership as held by the Hon'ble Supreme Court of Pakistan in its…
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