08/08/2026
🚨صرف خانۂ کاشت میں نام درج ہونے کی بنیاد پر کوئی شخص کسی خاص رقبے کو فروخت کرکے اس کا قبضہ منتقل نہیں کر سکتا، جب تک اس رقبے پر موقع پر اس کا حقیقی قبضہ موجود نہ ہو۔🚨
2025 SCMR 211
[Supreme Court of Pakistan]
Present: Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ
AMJAD ALI and others ---Petitioners
Versus
ANWAR SHAH and others ---Respondents
C.P.L.A No. 223-P of 2015, decided on 21st November, 2024.
(Against the judgment dated 08.12.2014 passed by Peshawar High Court, Bannu Bench in C.R. No. 38-B of 2008).
Specific Relief Act (I of 1877)---
----Ss.8, 42 & 54---Suit for possession, declaration and injunction---Adverse possession---Electricity bills---Proof of possession---Suit filed by predecessor-in-interest of appellants was decreed in his favour but Lower Appellate Court allowed appeal and suit was dismissed---Judgment and decree passed by Lower Appellate Court were maintained by High Court---Validity---Possession of suit property was with predecessor-in-interest of respondents/defendants who had electricity consumption meter in their name but the same did not bear any fruit for them and had no effect on merits of the case---Such entries could never be termed as equivalent to ownership---Predecessor-in-interest of appellants was owner of suit house and after his death, the appellants stepped into his shoes---Status of predecessor-in-interest of respondents was that of a tenant and thereafter, respondents had stepped into his shoes---Sale mutations were of no help to predecessor-in-interest of respondents and their possession of suit house was not less than that of a trespasser---Supreme Court set aside judgments and decrees passed by Lower Appellate Court and High Court as Trial Court had rightly granted decree in favour of appellants---Appeal was allowed.
Sabit Ullah Khan, Advocate Supreme Court for Petitioner.
Muhammad Shoaib Khan, Advocate Supreme Court for Respondents.
Date of hearing: 30th October, 2024.
JUDGMENT
MAZHAR ALAM KHAN MIANKHEL, J.---The predecessor of the petitioners had filed a suit for ejectment against the predecessor of present respondents. The suit after recording of pro and contra evidence was decreed in his favour vide judgement and decree dated 26.11.2009. It appears from the record that during pendency of the suit, the predecessor of both the parties had passed away and the appeal before the District Judge was filed by the LRs of defendant/respondents against the LRs of plaintiff/petitioners. The appeal was allowed vide judgment and decree dated 09.07.2010 filed by the present respondents against the present petitioners resulting in dismissal of suit of the present petitioners. The present petitioners feeling aggrieved approached the High Court. Learned Judge in Chambers of the High Court after hearing both the parties dismissed the Civil Revision of the present petitioners by upholding the judgment and decree of the Appellate Court. The petitioners still not satisfied, have filed instant petition for leave to appeal.
2. After hearing the learned counsel for the petitioners on 23.09.2024, the respondents were put on notice. The learned counsel for the parties were heard on 31.10.2024 and available record of the case was perused. Perusal of the record would reflect that prior to the present suit for ejectment, the predecessor of the respondents, Haji Yar Badshah had filed a suit for declaration by claiming ownership of the suit house on the strength of adverse possession against the predecessor of present petitioners, Khalil Khan but his suit was dismissed by the Trial Court on merits and his appeal thereagainst also met the same fate. When the very ownership of the predecessor of petitioners, Khalil Khan was denied by the predecessor of respondents, Haji Yar Badshah, he filed instant suit for ejectment against Haji Yar Badshah, the predecessor of respondents. During pendency of the suit, the present respondents also filed an application for their impleadment as defendants in the suit as they had purchased the landed property in suit Khasra Numbers much prior to the filing of instant suit for ejectment vide 04 different mutations i.e. Mutations Nos. 511, 512, 513 and 514 all attested on 29.06.1993 but their application for impleadment was dismissed by the Trial Court and their revision petition against the same also met the same fate but during pendency of the suit, their predecessor passed away and they were impleaded as legal heirs in the array of defendants. This is the reason that in a suit filed on 30.03.1993, written statement was filed very late on 26.07.1999. The record of the case would reveal that the stance of the respondents is based on the above said 04 mutations and an unregistered sale deed regarding a house in favour of their predecessor. The respondents in their written statement had a categoric stance that Khasra No.356/71 measuring 05 Kanals was comprised of many owners in the column of ownership and the column of cultivation and there were many houses built in the said Khasra Number. The Revenue Record available on the file regarding the above noted Khasra Number would also confirm the stance of the respondents. The record would further reflect that the predecessor of present petitioners namely Khalil Khan was also shown as owner in possession of the suit Khasra Number including other co-sharer namely Mashal Khan in the column of cultivation. The mutations relied upon by the respondents present on file as Ex.PW 4/3 to 4/6 would reflect that the 04 brothers Anwar Shah etc., sons of Haji Yar Badshah purchased share of 05 Marlas each, that too, in the column of cultivation from the above noted Khasra Number which is a joint property. The above discussion would confirm the fact that the Khasra Number noted above is comprised of prior to 1963-64 and the said entries have continued till the last Jama Bandi available on the record for the year 1999-2000. The record would further confirm that at the time of purchase of the respondents through the above noted mutations, the Khasra Number had changed its nature and character decades ago, as noted above from agricultural to that of residential property. The purchase of the respondents through the above noted mutations is only to the extent of transfer of shares in the property in their names that too, only to the extent of record and no specific possession of any area was given to them on the spot. The main reason for the same is that ownership in the revenue record is available but there was no open and vacant land nor the vendor of the respondents was in physical possession of any specific piece of land which he could have transferred. This very purchase through the above noted mutations by the respondents is no more than a paper work and has created the confusion and the learned Judge in Chambers of the High Court and the Appellate Court were not properly assisted in this regard which has resulted in misreading of evidence and non-appreciation of the material evidence on the record. The entries of the revenue record specially in the column of cultivation regarding sales have created many problems on the revenue side. These entries are not updated in the relevant columns of ownership at the time of preparation of new Jama Bandis. Because of such entries in the Revenue Record specially in the column of cultivation, the recorded owners by selling their shares with the connivance of the revenue officials, only to the extent of papers, and their vendors practically have nothing to deliver them at the spot. By this exercise the recorded owners whose names simply appear in the revenue record and the middle man normally the revenue officials both get the monetary benefits and by this exercise the persons in unlawful physical possession of the property at the spot, attempt to get regularize their possession. The other drawback of the sales in column of cultivation is that the names of the said owners remain intact in the column of ownership and sometimes they also resell the property twice on the strength of entries in the column of ownership. This procedure should be changed and improved as early as possible. The Senior Member, Board of Revenues of all the provinces have time and again been asked to overcome this issue just to protect the rights of the people. Besides the above, the agricultural lands having changed their nature and character from agricultural to that of residential should be regularly excluded from the operation of the West Pakistan Land Revenue Act, 1967 as provided in section 3 of The Act. Further transactions in such areas should be managed and controlled under the Registration Act, 1908 and not under the Act of 1967. This exercise will surely lessen the burden and worries of the people and will also be helpful for the officials for maintaining the records.
The argument of the learned counsel for the respondents is that they are in possession of the suit house and the electricity consumption meter is also in their name will not bear any fruit for them and also will not affect the merits of the case. Such entries can never be termed as equivalent to ownership. The record of the case would further confirm the fact that the suit filed by the predecessor of respondents on the strength of adverse possession had the same boundaries, which have been given in the present suit of the petitioners. It is unacceptable that the predecessor of the respondents once claimed ownership of the suit house on the strength of adverse possession against the predecessor of petitioners and thereafter denies the title of his defendant by alleging a sale by some co-sharer in his favour through an unregistered sale deed and then the same has not been proved in accordance with the law. For what has been discussed above, we are clear in our mind that the predecessor of the petitioners was the owner of the suit house and after his death, the petitioners have stepped into his shoes. The status of the predecessor of the respondents was that of a tenant and thereafter, the present respondents have stepped into his shoes. The sale mutations, as discussed above, are of no help to them and their possession of the house, henceforth will not be less than a trespasser. The Trial Court had rightly granted a decree in favour of the petitioners whereas the findings in appeal and the civil revision are totally against the record and the law. Hence, instant petition is converted into appeal and allowed. Resultantly, the judgment and decree of the Peshawar High Court and the Appellate Court are hereby set aside and that of the Trial Court gets restored with costs throughout.
Needless to mention that parties are in litigation over this house prior to 1990. The executing court is expected to conclude the ex*****on proceedings and restore the possession to the petitioners as early as possible but not later than four months.
MH/A-52/SC Appeal allowed.
