2026 S C M R 855

 2026 S C M R 855

[Supreme Court of Pakistan]

Present: Irfan Saadat Khan and Aqeel Ahmed Abbasi, JJ

Mst. ADDAN (Deceased) through L.Rs. ---Appellant

Versus

PROVINCE OF SINDH through Deputy Commissioner, Khairpur and

others ---Respondents

Civil Appeals Nos. 13-K and 14-K of 2020, decided on 1st October, 2025.

(On appeal from the judgment dated 17.04.2017 passed by the High

Court of Sindh, Bench at Sukkur in C.R.As. Nos. 122 and 123/2006).

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Sindh Land Revenue Act (XVII of 1967), S.52---Qanun-e-

Shahadat (10 of 1984), Art.49---Civil Procedure Code (V of 1908), O.VI,

R.4---Suit for declaration and injunction---Entries in revenue record---

Presumption---Fraud---Proof---Appellants / plaintiffs assailed gift deed,

27 years after its execution in favour of respondent / defendant, on the

plea of fraud---Validity---Appellants / plaintiffs alleged fraud and they

had to give particulars of fraud and also provide sufficient material

and evidence to support such allegation, whereafter, the burden

shifted upon respondent / defendant to prove genuineness of

transaction allegedly based on fraud---In absence of any particulars,

material or evidence to support allegation of fraud, lawful

presumption attached to official record in the shape of gift, statement

of donors and continued possession of suit land with respondent /

defendant could not be ignored---Long standing entries in revenue

record under Article 49 of Qanun-e-Shahadat, 1984 especially in

register of record of rights, carried presumptions of truth and could

not be controverted by mere oral evidence unless proved otherwise by

sufficient and convincing evidence---Judge in Chambers of High Court,

after careful scrutiny of facts and evidence produced by parties and

with proper understanding of legal positions had rightly held that

appellants / plaintiffs failed to establish fraudulent gift and mutation

of suit land in favour of respondent / defendant in revenue record---

Supreme Court declined to interfere in judgment passed by High

Court, as the same was un-exceptionable---Appeals were dismissed.

Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others

2016 SCMR 1417; Muhammad Iqbal and 5 others v. Allah Bachaya and

18 others 2005 SCMR 1447; Abdul Khaliq (deceased) through L.Rs. v.

Ch. Rehmat Ali (deceased) through L.Rs. and others 2012 SCMR 508;

Fazal Akbar v. Mst. Hussain Pari 1982 SCMR 738; Kanwal Nain and 3

others v. Fateh Khan and others PLD 1983 SC 53; Muhammad Akram

and another v. Altaf Ahmad PLD 2003 SC 688; Rehmatullah and others

v. Saleh Khan and others 2007 SCMR 729; Hasam-ul-Haq v. Federation

of Pakistan and others 2005 SCMR 346; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; State Bank of Pakistan v. Imtiaz Ali

Khan 2012 SCMR 280; Ayaz Ahmed Soomro through L.Rs v. Rasheed

Rehman through his L.Rs and others PLJ 2025 Civil (Note) 10; Noor Din

and another v. Additional District Judge Lahore and others 2014 SCMR

513; Aamar Tufail v. Muhammad Sadiq 2006 CLD 91; National

Insurance Corporation v. Al- Khan Construction Co. 2006 YLR 108;

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016

SCMR 24; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454; Nazir Ahmad

and another v. M. Muzaffar Hussain 2008 SCMR 1639; Malik Muhammad Khaqan v. Trustees of the Port of

Karachi (KPT) and another 2008 SCMR 428; Mubarik Ali through L.Rs v.

Amroo Khan through L.Rs 2007 SCMR 1714; Abdul Sattar v. Mst. Anar

Bibi and others PLD 2007 SC 609; Ghulam Muhammad and 3 others v.

Ghulam Ali 2004 SCMR 1001; Government of NWFP and others v.

Akbar Shah and others 2010 SCMR 1408; Raja Muhammad Afzal v. Ch.

Muhammad Altaf Hussain and others 1986 SCMR 1736; Syed Iftikhar-

ud-Din Haidar Gardezi and 9 others v. Central Bank of India Ltd.

Lahore and 2 others 1996 SCMR 669; Ali Muhammad v. Muhammad

Hayat and others 1982 SCMR 816; Nasir Abbas v. Manzoor Haider Shah

PLD 1989 SC 568; Khan Muhammad v. Muhammad Din through L.Rs.

2010 SCMR 1351; Aamir Afzal and another v. S. Akmal (deceased)

through L.Rs. and 2 others 2024 SCMR 1649; Taj Muhammad Khan

through L.Rs. and another v. Mst. Munawar Jan and 2 others 2009

SCMR 598; Maulvi Abdullah and others v. Abdul Aziz and others 1987

SCMR 1403; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008

SC 571 and Mehr Khan and others v. Mst. Basaee and others PLD 2008

SC 612 ref.

Iftikhar Javed Qazi, Advocate Supreme Court and Ghulam Rasool

Mangi, Advocate-on-Record for Appellants.

Hakim Ali Shaikh, Addl. A.G. Sindh, Sagheer Abbasi, Addl. A.G. Sindh

and Muhammad Iqbal Chaudhry, Advocate-on-Record for Respondents

Nos. 1 to 3.

Bhajandas Tejwani, Advocate Supreme Court, Manoj Kumar,

Advocate Supreme Court and Muhammad Iqbal Chaudhry, Advocate-

on-Record for Respondents Nos. 4 (i), (iii) to (vii).

Assisted by: Ms. Zainab Bashir, Judicial Law Clerk, Supreme Court of

Pakistan.

Date of hearing: 3rd September, 2025.

JDUGMENT

AQEEL AHMED ABBASI, J.---The instant Civil Appeals with the

leave of this Court have been filed against the common judgment

dated 17.04.2017, passed by the High Court of Sindh, Sukkur Bench

whereby Civil Revision Applications Nos.122 and 123 of 2006, filed

against the consolidated judgment dated 15.08.2006 and Decree dated

18.08.2006, passed by the learned 1st Additional District Judge,

Khairpur, were allowed and the consolidated judgments of the Courts

below were set aside. Consequently, Suit No. 22 of 1998 was decreed

and Suit No. 48 of 1998 was dismissed.

2. Brief facts of the case as recorded by the High Court of Sindh,

Sukkur Bench, Sukkur are that respondent No. 4 in the instant appeals

namely Jumo alias Juman was owner of agricultural land to the extent

of 9-00 (66 paisa) share in different survey numbers and also co-sharer

in different survey numbers to the extent of 1-01 share (total share is

10-1 acres) in Deh Deparja, Taluka Mirwah, District Khairpur. The appellant Mst. Addan and her sisters namely Mst. Koral, Mst. Makhan

and Mst. Subhan Khatoon gave their shares from the said land to

respondent No. 4 as gift through Entry No. 34 dates 06.05.1971 before

Mukhtiarkar in presence of witnesses, whereas, the appellant Mst.

Addan took another land from respondent No. 4 as exchange gift

through Quboliat Nama dated 13.04.1970. Respondent No. 4 was in

peaceful possession of the said land since last 30 years and cultivating

the same and paying land revenue. The appellants tried to dispossess

respondent No.4 from the suit land but failed and one week back

moved application to the Assistant Commissioner for cancellation of

entries, which act was illegal and therefore respondent No.4 filed Suit

No.22 of 1998 against the appellants, wherein, the respondent claimed

the following reliefs: -

a) That the Hon ble court may be pleased to declare that the

plaintiff is legal, lawful and rightful owner of the suit land

and Entry Nos.33 and 34 are legal and lawful and defendants

have no right or any concern with suit land.

b) To issue permanent injunction restraining the defendants not

to dispossess the plaintiff from suit land not interfere with

rights title and possession of the plaintiff and restrain the

defendant No.2 to cancel the Entry Nos. 33 and 34 in favour

of plaintiff in respect of suit land and not interfere in any

manner till the decision of suit.

c) To award costs of the suit.

d) Any other relief deemed fit and proper by this Hon ble Court

due to circumstances of the case.

The appellants filed written statement on 16.03.1998, wherein, they

raised legal objections regarding limitation and maintainability of suit.

On merits, it was pleaded that respondent No.4 was not owner of the

suit land but was in illegal possession and Revenue Entry Nos. 33 and

34 are bogus. It was further pleaded that Mst. Addan and her sisters

had neither gifted their shares in the suit land to respondent No.4 nor

executed any Quboliat Nama in favour of respondent No.4. It was

further pleaded that the documents produced with the plaint were

bogus and did not confirm title upon respondent No.4. In the end, they

prayed for dismissal of the said suit. The appellants after about six

months of filing their written statement in Suit No.22 of 1998, filed Suit

No. 48 of 1998 against respondent No.4 and others for declaration,

joint possession, mesne profits and injunction, wherein, it was pleaded

that the suit land was the original property of Sher Muhammad, father

of respondent No.4 and appellant Mst. Addan and upon his death, his

entire property was devolved upon his legal heirs namely one son and

four daughters including the appellant Mst. Addan and respondent

No.4. It was further pleaded that respondent No.4 being the male

member of the family used to look after the entire property on behalf

of other shareholders and used to give them their due shares, which

continued till the end of 1995 and thereafter respondent No.4 stopped distributing the income of suit land amongst the share-holders. It was

further pleaded that upon receipt of notice of Suit No.22 of 1998, the

appellants came to know that respondent No.4 in collusion with the

Revenue Department committed fraud by putting Entry Nos. 33 and 34,

which were fraudulent and bogus and therefore the appellants filed

Suit No. 48 of 1998 against respondent No.4 and others, wherein, the

appellants claimed the following reliefs:-

a) By passing decree it be declared that Entries Nos.33 and 34

dated 06.05.71 of Deh Jo Form No. VII of Deh Deparja, Taluka

Mirwah is illegal and fraudulent, never executed by

plaintiffs and be declared null and void.

b) That mesne profits be awarded.

c) That plaintiffs be put in joint possession of suit land to the

extent of 0-17 paisa share.

d) That permanent injunction be issued restraining the

defendants not to interfere in the rights and title of plaintiffs

over suit land.

e) Costs of the suit be awarded.

f) Any other relief.

Respondent No.4 filed written statement on 08.02.1999, wherein, he

raised legal objections regarding limitation and maintainability of suit.

On merits, it was pleaded that the suit land was not the ancestral

property of late Sher Muhammad but respondent No.4 took the said

land from the Barrage Department in the name of his father Sher

Muhammad and spent huge amount upon the suit land for cultivation

purposes. It was further pleaded that respondent No.4 was in

possession of the suit land and paying land revenue and the appellants

have no right in the suit land. In the end, respondent No.4 prayed for

dismissal of said suit. The official respondents neither filed written

statements nor any application for the rejection of plaint in any of the

suits. On 15.03.1999, both the said Suits Nos. 22 and 48 of 1998 were

consolidated and Suit No.22 of 1998 was ordered to be the leading suit.

3. The following consolidated issues were framed by the Trial Court:

-

a) Whether either suit is maintainable according to law?

b) Whether Mst. Addan has executed gift in favour of Jumo alias

Juman?

c) Whether gift deed purported to have been executed by Mst.

Addan is legal, valid and binding?

d) Whether the Quboliat Nama dated 13.04.1970 has been

executed by Mst. Addan, if so, its effect?

e) Whether plaintiffs are entitled to the relief sought?

f) What should the decree be? 4. Respondent No.4 examined himself as PW-1 (Exhibit 45) and one

witness namely Ali Bakhsh as PW-2 (Exhibit-81) and produced

documentary evidence (Exhibits 46 to 80). On the other hand, the

appellants examined legal heir of Mst. Addan and attorney of other

legal heirs namely Muhammad Soomar as DW-1 (Exhibit-83) who

produced only power of attorney in his favour as Exhibit-84. However,

the official respondents did not produce any evidence. The learned

Senior Civil Judge by his consolidated Judgment dated 16.08.1999

dismissed Suit No.22 of 1998 and decreed Suit No.48 of 1998 to the

extent of 17 paisa share of Mst. Addan and directed respondent No.4 to

put Mst. Addan in joint possession to the extent of her 17 paisa share

within 30 days. Against the said consolidated Judgment, Respondent

No.4 filed Civil Appeals Nos. 69 and 77 of 1999, which were dismissed

by the learned Additional District Judge vide consolidated Judgment

dated 15.08.2006. Against the concurrent findings of both the Courts

below, Respondent No.4 filed revision applications under Section 115,

C.P.C., before the learned Single Judge of High Court of Sindh, Sukkur

Bench. The judgment passed by the learned Single Judge of High Court

of Sindh, Sukkur Bench, Sukkur in the above revision applications has

been impugned before this Court through instant Civil Appeals.

5. Learned counsel for the appellants has vehemently argued that

the impugned judgment whereby the judgments of the two Courts

below have been set aside is based on misreading and non-reading of

the evidence, therefore, the same is liable to be set aside. It has been

contended by the learned counsel for the appellants that the learned

Single Judge of the High Court has failed to appreciate that once the

mutation of the subject property was challenged by the appellants, the

respondent No.4 relying upon such mutations was required to prove

such original transaction which resulted into the entry of attestation of

such mutation under dispute. It has been further contended by the

learned counsel, that the respondent did not examine any witness to

prove oral gift and mutation as required under Article 79 of the

Qanun-e-Shahadat Order 1984, ( QSO ) therefore, no reliance could be

placed on such documents. Per learned counsel, the appellants were

entitled to inherit the property left behind by her deceased father

(Sher Muhammad), which right could not be denied on the basis of

oral assertion of surrender of such right by female in favour of male

member of the family. Learned counsel has further argued that there

is no limitation in law for a co-sharer in the inherited property to

enforce right of inheritance against another co-sharer, therefore, the

learned Single Judge of High Court was not justified to hold that claim

of the appellants was time barred. Per learned counsel, both the

judgments of the Courts below are based upon proper appreciation of

evidence and law, therefore, such concurrent findings cannot be set

aside by the learned Single Judge of the High Court unless decision of

the Courts below was totally illegal or suffered from material

irregularities. It has been prayed that the impugned judgment may be

set aside and the judgments passed by the Courts below in favour of

appellants may be restored. In support of his contentions, the learned

counsel for the appellants has placed reliance on the following cases: 1. Peer Baksh through L.Rs. and others v. Mst. Khanzadi and

others (2016 SCMR 1417),

2. Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others

(2005 SCMR 1447),

3. Abdul Khaliq (deceased) through L.Rs. v. Ch. Rehmat Ali

(deceased) through L.Rs. and others (2012 SCMR 508),

4. Fazal Akbar v. Mst. Hussain Pari (1982 SCMR 738),

5. Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983

SC 53 FB),

6. Muhammad Akram and another v. Altaf Ahmad (PLD 2003 SC

688),

7. Rehmatullah and others v. Saleh Khan and others (2007 SCMR

729),

8. Hasam-ul-Haq v. Federation of Pakistan and others (2005

SCMR 346)

9. Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1859).

6. Conversely the learned counsel for respondent No.4 has

vehemently controverted the submissions made by the learned

counsel for the appellants and submitted that the consolidated

judgment passed by the learned Single Judge of the High Court is based

on sound reasoning and proper appraisal of the evidence produced by

the parties as well as lawful interpretation of the provisions of law

attracted in the instant case. It has been contended by the learned

counsel that both the Courts below did not examine the documentary

evidence and the lawful entries relating to mutation of the subject

land in favour of respondent No.4 by the Revenue Authorities,

whereas, in view of mere allegations of fraud, without any evidence to

this effect, the lawful presumption attached to the public record of

revenue relating to genuineness of the Revenue entries cannot be

disbelieved nor can be ignored while deciding the lis in hand for the

reasons that the subject land was not part of the estate left behind by

the deceased (Sher Muhammad). It has been further contended by the

learned counsel that the judgments passed by the two Courts below

are in violation of mandatory provisions of Order XX Rule 5, C.P.C.,

hence, cannot be considered as reasoned judgments for the reason

that the learned Senior Civil Judge has failed to decide the point of

limitation, and mis-interpreted the law regarding registration of gift,

also misread the evidence of the appellants and ignored the evidence

of the private respondents. Learned counsel has contended that Suit

No.48/1998 filed by the appellants was not maintainable for being

barred by time under Section 3 of the Limitation Act 1908, as

according to learned counsel, the cancellation of documents i.e. the gift

and revenue record was sought after the lapse of about 27 years.

Learned counsel in this regard has placed reliance on State Bank of

Pakistan v. Imtiaz Ali Khan (2012 SCMR 280), Ayaz Ahmed Soomro

through L.Rs v. Rasheed Rehman through his L.Rs and others (PLJ 2025 Civil (Note) 10) and Noor Din and another v. Additional District Judge

Lahore and others (2014 SCMR 513). Per learned counsel, in order to

wriggle out from this objection, the appellants misled the Court while

treating the subject land as part of inherited property of late Sher

Muhammad, whereas, the subject land was already gifted in favour of

the respondent No. 4 by all the sisters including the appellant namely

Mst. Addan. Learned counsel while referring to provisions of Order XX

Rule 5, C.P.C. has submitted that since the consolidated issue No. 1 was

formulated to decide the maintainability of both the suits therefore, it

was the duty of the Trial Court as well as the Appellate Courts to

record their findings on the issue of maintainability, particularly, the

issue of limitation involved in instant matter which has not been done,

therefore, both the judgments and decree passed by both the Courts

below are illegal. Learned counsel has placed reliance on Aamar Tufail

v. Muhammad Sadiq (2006 CLD 91) and National Insurance

Corporation v. Al- Khan Construction Co. (2006 YLR 108). Per learned

counsel, the learned Single Judge of the High Court while hearing the

revision applications has rightly observed that it was the duty of the

Courts below to examine the maintainability of both the suits in the

light of the relevant facts and law applicable there and has been

pleased to hold that the suit filed by the appellants seeking declaration

and cancellation was hopelessly barred. It has been further argued by

the learned counsel for the respondents that no findings or any valid

reasoning was recorded by the Courts below relating to gift and

mutation in the revenue record in favour of respondent No.4 whereas,

on mere assumptions and conjunctures, it was observed that a gift was

not valid for the reason that there was no acceptance contrary to the

facts and the admitted documents. Moreover, the possession of the

subject land was handed over to the respondent which fact alone is the

proof of acceptance of the gift. Per learned counsel, except appellant

none of the sisters have come forward to allege fraud against

respondent No.4 in respect of the subject land, which aspect of the

matter has been ignored by both the Courts below. In this regard

learned counsel has referred to revenue record in the shape of Form

No. VII wherein the statement of the four sisters including the

appellant Mst. Addan is available along with signature/thumb

impression (Exhibit 47 available at pages-94, 95 and 95-A of the file).

Learned counsel has submitted that the entire case of the appellants is

based upon solitary evidence of Muhammad Soomar who at the time

of gift was a minor boy (8 years), who otherwise could not produce any

documentary evidence or any independent witness to support the

allegation of fraud in respect of the revenue record and the respective

entries relating to subject land. While concluding his submissions

learned counsel for the respondents has supported the exercise of

revisional jurisdiction by the learned Single Judge of the High Court

while passing the impugned judgment and submitted that in case of

grave illegality, misleading and non-reading of the evidence, the

Revisional Court has the authority to set aside the findings of the

Courts below keeping in view the available record and the evidence

produced by the parties. It has been prayed by the learned counsel that both the Civil Appeals Nos. 13-K and 14-K/2020 may be dismissed

and the impugned judgment dated 17.04.2017 passed by the learned

Single Judge of the High Court be maintained. In support of his

contentions, the learned counsel has placed reliance in the following

cases:

1. Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others

(2016 SCMR 24)

2. Nabi Bakhsh v. Fazal Hussain (2008 SCMR 1454)

3. Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR

1639)

4. Malik Muhammad Khaqan v. Trustees of the Port of Karachi

(KPT) and another (2008 SCMR 428)

5. Mubarik Ali through L.Rs v. Amroo Khan through L.Rs (2007

SCMR 1714)

6. Abdul Sattar v. Mst. Anar Bibi and others (2007 PLD SC 609)

7. Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR

1001)

7. Similarly, both the learned Additional Advocates General namely

Mr. Hakim Ali Shaikh and Mr. Sagheer Abbasi, representing the

official respondents have supported the impugned judgment passed by

the learned Single Judge of the High Court and contended that in view

of the official record available in the shape of statement of donors and

mutation in the revenue entries as well as the possession of the subject

land on the basis of gift in favour of respondent No.4, the appellants

have failed to make out any case on the allegation of fraud

particularly, in the absence of any evidence or material produced

before the Courts below in this regard. It has been submitted that the

Courts below have failed to appreciate the relevant facts and the law,

particularly, the law relating to limitation and maintainability of Suit

No.48/1998 filed by the appellants, which prima facie, was not

maintainable on the point of limitation, whereas, no consequential

relief was sought for cancellation of the revenue entries.

8. We have heard the learned counsel for both the parties, perused

the record with their assistance and have also gone through the

impugned judgment passed by the learned Single Judge of the High

Court while exercising revisional jurisdiction and the judgments of the

Courts below as well as the law applicable to the facts of the instant

case.

9. Perusal of the impugned judgment passed by the learned Judge of

Sindh High Court, reflects that, having examined the evidence

produced by both the parties in detail and the conclusion drawn by the

Courts below, the learned Single Judge of the High Court has been

pleased to observe that both the Trial Court as well as the Appellate

Court have failed to examine the maintainability of the suits, inspite of

the fact that while framing the consolidated issues in both the suits, the issue No.1 was related to maintainability of the suits. For seeking

cancellation of documents, the period of limitation has been provided

under Article 91 of the Limitation Act, 1908. Since the appellants were

seeking declaration against the gift and the mutation in the revenue

record in favour of respondent No. 4, therefore, it was the duty of the

court to examine period of limitation in terms of Article 91 of the

Limitation Act, 1908 as the suit No. 48/1998 was filed by the appellants

after 27 years, hence, the suit was not maintainable for being barred

by law of limitation. Reliance in this regard can be placed on the case

of Government of NWFP and others v. Akbar Shah and others (2010

SCMR 1408) wherein, it has been held as under: -

6 It is the obligation of the Court to look into the point of limitation

without there being objection of any party in terms of section 3

of the Limitation Act, 1908.

As per findings of the learned Single Judge, it has been declared that

both the Courts below did not dilate upon the maintainability of the

suits and thus violated the provisions of Order XX Rule 5, C.P.C., and

Order XLI Rule 31, C.P.C., which requires that a Court shall record its

finding on each and every issue framed, and the points for

determinations separately, through well-reasoned judgment. Reliance

in this regard can be placed on the case of Raja Muhammad Afzal v.

Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736) wherein, it

has been held as under:-

'Judgment' has been defined in section 2, clause 4 (9) of the Civil

Procedure Code as 'judgment' means the statement given by the

Judge of the grounds of a decree or order' and Order has been

defined in clause 14 of the same section as 'formal expression of

any decision of a civil Court which is not a decree'. Further,

Order XX, Rule 4, sub-rule (2) prescribes that judgment of Courts

other that the Court of a small causes 'shall contain a concise

statement of the case, the points for determination, the decision

thereon, and the reasons for such decision'. Rule 5 of the same

Order provides 'in suits in which issues have been framed the

Court shall state its finding or decision with reasons therefore

upon each separate issue, unless the finding upon anyone or

more of the issues is sufficient for the decision of the suit.

(emphasis provided)

Further reliance can be placed on Syed Iftikhar-ud-Din Haidar

Gardezi and 9 others v. Central Bank of India Ltd. Lahore and 2 others

(1996 SCMR 669) wherein, it has been held as under: -

This case is also hit by rule 31 as all the points which were argued

and relied upon by the learned counsel for the appellants were

not considered for their proper determination on the basis of

available evidence. The Civil Courts had to decide the disputes

issue-wise as far as it would be practicable in the given situation

in each case. It is not the case of learned counsel for respondents that issues were abandoned with consent of learned counsel for

the appellants. In case, learned counsel for the parties agree that

specified issues alone should be dealt with, then, of course,

Courts need not enter into discussion on other issues for their

decision. No such consent was, admittedly, obtained in this case

when the appeal was decided. We would also hold that evidence

of Saeed Ahmad D.W. was not considered by the High Court for

the just decision of the appeal. This being so, the appeal of the

appellants shall be deemed to be still pending decision before

the High Court.

(emphasis provided)

Reference can also be made to the case of Ali Muhammad v.

Muhammad Hayat and others (1982 SCMR 816) and Nasir Abbas v.

Manzoor Haider Shah (PLD 1989 SC 568).

10. Perusal of the record further reveals that despite framing of

legal issue as to maintainability of either suit both the Courts below

did not record any findings in this regard, which amounts to material

irregularity and, therefore, failed to exercise the jurisdiction so vested

in both the courts. The learned Single Judge of the High Court while

having taken cognizance of this aspect of the matter in detail, was,

therefore, justified to exercise the jurisdiction so vested under Section

115, C.P.C., and has rightly concluded that Suit No.48/1998, filed by the

appellants seeking declaration to the effect that the gift and the

revenue entries Nos. 33 and 34 pertaining to the subject land, are

illegal, by alleging fraud, is liable to be dismissed on account of

limitation as the suit was barred by 27 years from the date of gift and

mutation in the revenue record as entries Nos. 33 and 34. It has been

further observed by the learned Single Judge that suit was otherwise

liable to be dismissed for the reason that merely seeking declaration,

joint possession and mesne profit along with injunction was sought by

the appellant in her suit No.48/1998, whereas, no consequential relief

i.e. seeking cancellation of the gift or revenue entries, was made. As

per proceedings before the Courts below, it has transpired that the

appellant in order to wriggle out from explaining the delay of more

than 27 years in filing the suit in the above fora attempted to take a

stance that since the appellant is seeking right of inheritance as co-

sharer of the subject land, therefore, no limitation would run against

such declaration. However, the record reveals that admittedly, the

subject land is in constant possession of the respondent No.4 since the

gift is in his favour and mutation is in his name in the revenue record

against the entries Nos. 33 and 34 dated 06.05.1971 of Deh Jo Form No.

VII of Deh Deparja, Taluka Mirwah. Moreover, the appellant did not

produce any documentary evidence nor examined any confidence

inspiring independent witnesses to support the allegation of fraud,

except son of the appellant i.e. Muhammad Soomar, who while

recording his statement on oath, neither referred to any material nor

produced any evidence to support the allegation of fraud, whereas, no

particulars whatsoever were given, nor any material was referred to

by the appellant to this effect, thus failed to make out a case of alleged fraud. It is settled legal position that the person alleging fraud has to

give particulars of the fraud and also to provide sufficient material

and the evidence to support such allegation, whereafter, the burden

shifts upon the respondent to prove the genuineness of the transaction

allegedly based on fraud. Reliance in this regard can be placed on the

case of Khan Muhammad v. Muhammad Din through L.Rs. (2010 SCMR

1351) wherein, this Court has been pleased to hold as under: -

5...It is well settled principle of law that initial burden to prove

execution of documents is on party which is relying on

documents. Once this onus is discharged, burden to prove

factum of fraud or undue influence or genuineness of

documents shifts to party which alleges fraud

11. In the instant case, in the absence of any particulars, material or

the evidence to support the allegation of fraud, the lawful presumption

attached to the official record in the shape of gift, statement of donors

and continued possession of the subject land with respondent No.4

cannot be ignored. Reliance in this regard can be placed on the case of

Aamir Afzal and another v. S. Akmal (deceased) through L.Rs. and 2

others (2024 SCMR, 1649) wherein, this Court has been pleased to hold

as under: -

5. The High Court, while exercising its revisional jurisdiction under

section 115 of the C.P.C., has set aside the concurrent findings of

facts and law rendered by two competent Courts. In the opinion

of the High Court, the onus of proving the execution of the

Memorandum was on the appellants and they had failed in

discharging such onus. It is noted that rule 4 of order VI of the

C.P.C. explicitly provides that in all cases in which the party

pleading relies, inter alia, on fraud, shall state in the pleadings

particulars with dates and items if necessary. It is settled law

that the parties are required to plead all facts that may

constitute a cause of action for any relief or in defence, as the

case may be. A party which alleges a fact has to prove the same

and the ingredients of fraud have to be narrated and stated by

giving particulars thereof. It is settled law that fraud must be

specifically alleged and its particulars unequivocally stated. This

Court has consistently held that general allegations, however

strong the words may be, are insufficient to constitute an

assertion of fraud and that vague allegations in a plaint are not

enough

(emphasis provided)

Similarly, reliance can also be placed on the case of Taj Muhammad

Khan through L.Rs. and another v. Mst. Munawar Jan and 2 others

(2009 SCMR 598) wherein, this Court has been pleased to hold as

under: -

6 In another case Abdul Karim v. Muhammad Akram, 1995 CLC 130,

a legal proposition has been laid down that he who alleges a fact

has to prove the same and the ingredients of fraud have to be narrated and stated by the person alleging the same. Further

reference can be made to the case of Tom Boevey Barrett v.

African Products, Ltd. AIR 1928 PC 261, wherein it was held that

the fraud must be definitely alleged and its particulars

unequivocally stated. In another case titled Ghulam Shabbir v.

Nur Begum PLD 1977 SC 75, A Full Bench of this Court headed by

Mr. Justice Muhammad Yaqub Ali, the then Chief Justice, laid

down that in pleadings general allegations, however, strong may

be the words in which they are stated, are insufficient even to

amount to an averment of fraud, meaning thereby vague

allegations in the plaint are not enough. In Banwari Lal and

others v. Shaikh Shukrullah and others, AIR 1940 Patna 204, it

was observed that a litigant to prefer the charge of fraud should

place specific details thereof. The same view was adopted in case

of Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703, observing

that where charges of fraud are intended to be made full

particulars thereof ought to be given in the pleadings, either as

originally framed or as amended for that purpose. In

Muhammad Umar v. Muqarab Khan and another 1968 SCMR 983,

where in the plaint neither the particulars of fraud had been

mentioned nor evidence led in support thereof, the suit was

dismissed and this Court refused leave to appeal. The onus to

prove fraud and misrepresentation was on the

plaintiffs/petitioners who have miserably failed to discharge the

same by producing sufficient convincing evidence

12. Moreover, the acceptance of gift can be express or implied and it

can be seen from the conduct of donor and donee as in the instant

case, respondent No.4 in pursuance of gift had taken over the

possession soon thereafter, which fact has remained undisputed

throughout before the Courts below as well as before the learned

Single Judge or before this Court. Reliance in this regard can be made

to the case of Maulvi Abdullah and others v. Abdul Aziz and others

(1987 SCMR 1403) wherein it has been held as under: -

Although no reference was made to section 129 of the Transfer of

Property Act, yet it was held after discussing the other

provisions of the Transfer of Property Act and Registration Act

that a gift by a Muslim would be complete even if there is no

writing; and, it depends, for its validity, upon: (1) a declaration

of gift by the donor; (2) acceptance of gift expressly or impliedly

by or on behalf of the donee, and (3) delivery of possession of

the subject-matter by the donor to the donee. If these three

conditions are complied with the gift is complete. Registration of

the document will not be helpful if either of the aforementioned

conditions are not satisfied. A written instrument in any case

would not create a gift but is a mere evidence of the gift and as

such would not in the case of a Musalman require registration.

The gift was, therefore, held as complete under the Muslim Law

and as such operative notwithstanding the non-registration of

the gift deed itsel (emphasis provided)

The respondent No.4 while producing above documents and having

recorded statement on oath, which could not be disproved by the

appellants in cross-examination, discharged the onus of proof

regarding validity of gift and mutation in revenue record in his favour.

Whereas, the appellants miserably failed to disclose the particulars

and refer to any confidence inspiring material or evidence to support

the allegations of alleged fraud.

13. Without prejudice to hereinabove factual and legal position, it

will not be out of place to observe that in terms of Article 49 of QSO,

long standing entries in revenue record especially in register of record

of rights carry presumptions of truth and cannot be controverted by

mere oral evidence unless proved otherwise by sufficient and

convincing evidence. Reliance in this regard can be placed on the case

of Mazloom Hussain v. Abid Hussain and 4 others (PLD 2008 SC 571)

wherein, it has been held as under: -

11. Where a presumption of truth is attached to a document, it

cannot be discarded unless proved otherwise by convincing and

cogent evidence and the burden of proof that the entries in the

record of rights are wrong, is or the party who alleges it.

Reliance can be placed in this context on the cases of Sundar

Singh v. Chhajju Khan AIR 1934 Lahore 309 and The Evacuee

Trust Property Board and others v. Haji Ghulam Rasul Khokhar

and others 1990 SCMR 725.

Further reliance in this regard can be placed on the case of Mehr

Khan and others v. Mst. Basaee and others (PLD 2008 SC 612) wherein,

it has been held as under: -

7 The long-standing entries in the Revenue Record specially in the

Register of Record of. Rights do carry presumption of the truth

and cannot be controverted by mere oral evidence unless

proved otherwise by sufficient and convincing evidence as laid

down in the cases of Hakim Khan. v. Aurangzeb and another

(1979 SCMR 625), Sundar Singh v. Chhajju Khan (AIR 1934

Lahore 309) and the Evacuee Trust Property Board and others v.

Haji Ghulam Rasool Khokhar and others (1990 SCMR 725). The

plaintiffs-respondents have successfully proved their case. The

documentary evidence containing the entries qua the appellants

have not been controverted by the appellants. They kept silent

over the right and remained in a State of dormancy for such a

long time.

(emphasis provided)

14. As a sequel of hereinabove facts and the law attracted in the

instant matter, we are of the firm view that the learned Single Judge of

High Court of Sindh after careful scrutiny of the facts and evidence

produced by the parties, and having proper understanding of the legal

positions as emerged in the case has rightly held that the appellants have failed to establish a case of fraudulent gift and mutation of the

subject land in favour of respondent No.4 in the revenue record.

Accordingly, the impugned judgment passed by the learned Single

Judge of High Court of Sindh, Sukkur Bench, Sukkur is un-

exceptionable, therefore, both the appeals being devoid of any merits

are hereby dismissed with no order as to cost.

MH/A-51/SC Appeals dismissed.