2022LHC4086

Form No.
HCJDA-38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
(i) Civil Revision No. 60875 of 2017
Khan Muhammad alias Muhammad through L. Rs.

Versus
Waryam and another
(ii) Civil Revision No. 69095 of 2017
Mian Noor Muhammad

Versus
Waryam and another
JUDGMENT
Date of hearing: 28.04.2022
Petitioner(s) by: Sheikh Naveed Shehryar and Bashir
Ahmad Mirza, Advocates (in C.R.
No.60875-2017)
Sheikh Sajid Mehmood, Advocate (in
C.R. No. 69095-2017)
Respondent (s) by: Mian Qamar-ul-Islam, Advocate
Sultan Tanvir Ahmad, J:- This single judgment shall
dispose of both the titled civil revisions being outcome of
the consolidated judgment and decree dated 05.07.2017
passed by learned Additional District Judge, Chiniot
whereby, civil appeal No. 114-RT of 2017 instituted by
Khan Muhammad alias Muhammad on 03.02.2015
against the judgment and decree dated 31.01.2015 passed
by learned Civil Judge, Chiniot has been dismissed and
civil appeal No. 122-RT of 2017 dated 28.05.2015 filed

Civil Revision No. 60875 of 2017
by Mian Noor Muhammad against the aforesaid
judgment and decree has been partially allowed.
(Hereinafter, Khan Muhammad alias Muhammad son of
Samanda shall be referred to as ‘Petitioner No. 1’, Mian
Noor Muhammad son of Muhammad Hayat shall be
referred to as ‘Petitioner No. 2’ and Waryam son of
Samanda shall be referred to as the ‘Respondent’).
2. Brief facts of the case are that the Respondent filed a
suit for declaration regarding half share in land
measuring about 53-Kanal and 15-Marla, which is further
detailed in head note of the plaint (hereinafter referred to
as the ‘Suit Land’), with the averments that the
Respondent and Petitioner No. 1 are real brothers and
they lived and worked together during the lifetime of
their father, when they purchased Suit Land from the
common source of income and since Petitioner No. 1
used to deal with the property matters he managed to get
the Suit Land transferred in his name. As per the suit,
when the Respondent discovered about the same, he
lodged protest whereupon iqrarnama dated 19.12.2003
was executed by Petitioner No.1, whereby, while
acknowledging that the Suit Land was purchased from
common source of income, Petitioner No. 1 has also
admitted that he is holding the Suit Land as ostensible

owner for the Respondent, however, Petitioner No. 1
deviated from the said commitment / iqrarnama and sold
the Suit Land to Petitioner No. 2 through sale deed No.
1741 dated 16.05.2006. The Respondent also claimed
that he is in possession of the Suit Land i.e. the property
falling in his share, since the purchase of the same.
3. At that stage another suit for permanent injunction
filed by Petitioner No. 1, with respect to the Suit Land,
was also pending adjudication. Both the suits were
consolidated. The Suit Land was sold, during the
pendency of the lis, by Petitioner No.1 to Petitioner No.
2. On 22.09.2011 amendment in plaint was allowed. In
the meanwhile, suit for permanent injunction filed by
Petitioner No. 1 was withdrawn. The learned trial Court
initially framed eleven (11) issues. Upon consolidation of
the suits, three (3) additional issues were framed. The
aforesaid amendment also resulted into framing of
additional issues. Later, withdrawal of suit of permanent
injunction resulted into abandoning certain issues.
Finally, the following position as to the issues was
settled: -
1. Whether the plaintiff is entitled to

declaration that he is owner in possession of
the suit property detailed in head note of the
plaint? OPP
2. Whether plaintiff is entitled to decree

for permanent injunction? OPP
3. Whether plaintiff of the connected suit

is entitled to decree for permanent
injunction? OPD
4. Whether plaintiff has no cause of

action? OPD
5. Whether suit of the plaintiff Varyam is

time barred? OPD
6. Whether plaintiff is estopped by his

word and conduct? OPD
7. Whether requisite court fee has not

paid if so its effect? OPD

is estopped by his words and conduct? OPP
(struck off)

has no cause of action of locus standi? OPP
(struck off)
10. Whether description of the property in

connected file is incorrect? OPP (struck of).
10-A. Whether defendant No. 2 is bona-fide

purchaser of the suit property vide
registration bearing No. 1741 dated
16.05.2006 without notice? OPD-2
10-B. Whether defendant No. 2 is entitled to

receive improvement charges over the suit
property if the suit is decreed? OPD-2
10-C. Whether defendant No. 2 is entitled to

receive special cost u/s 35-A CPC? OPD-2
10-D. Whether defendant No. 1 is

benamidar of the suit property and that real
owner is the plaintiff Waryam? OPP
11. Relief?
4. The parties led their respective evidence. Prior to
the amendment in the suit, the Respondent appeared as
PW-1. One Ghulam Jaffar appeared as PW-2. Later,
Muhammad Sarfraz son of the Respondent (special
attorney) appeared as PW-3. Mulazim Hussain son of
Shamir Ahmad, Farid son of Mama, Kamal Din son of
Ameer Din, Sheikh Muhammad Tariq son of Muhammad
Ayub, Raja Tasawar Abbas son of Ghulam Farid,
Shaukat Ali Shaukat record keeper, Muhammad Shafiq-
ur-Rehman Sub-Inspector Expert finger print Bureau,
Mukhtar Ahmad H.R.C. registrar office, Jhang appeared
as PW-4 to PW-11, respectively. As documentary
evidence from the Respondent side Exh.P1 to Exh.P40
were brought on the record. On the other hand, Petitioner
No. 1 appeared as DW-1, while Khushi Muhammad and
Allah Ditta appeared as DW-2 and DW-3 to support the
stance of Petitioner No.1. Mian Noor Ahmad / Petitioner
No. 2 appeared as DW-4 and deposed that he is bona-fide
purchaser of the Suit Land against the consideration of
Rs.600,000/-. As documentary evidence Exh.D-1 to
Exh.D-23 were brought on record.
5. The learned trial Court gave issue wise finding
and vide judgment dated 31.01.2015 granted following
relief to the Respondent:-

“As per may issue wise findings, the suit of

the plaintiffs is hereby decreed and the
plaintiff is declared as owner in possession
of ½ share in the disputed properties as
mentioned in the head note of the plaint. The
defendant No. 1is declared as Benamidar to
the extent of ½ share in the disputed
properties. The registered sale deed bearing
No. 1741 dated 16.05.2006 in favour of the
defendant No. 2 is also declared null and
void. No order as to costs. Decree sheet be
prepared accordingly. File be consigned to
the record room after its due completion and
compilation”.
6. The above judgment and decree was assailed by the
Petitioners before the learned District Court, Chiniot
through separate appeals. The appeal bearing No. 114-RT
of 2017 filed by Petitioner No. 1 has been dismissed and
the appeal bearing No. 122-RT of 2017 filed by
Petitioner No. 2 has been partially allowed (i.e. to the
extent of the transfer of share from PetitionerNo.1 to
Petitioner No. 2) by the learned Additional District
Judge, Chiniot vide consolidated judgment and decree
dated 05.07.2017.
7. Aggrieved from the aforesaid consolidated
judgment and decree the present civil revisions, under
section 115 of the Code of Civil Procedure, 1908 (the
‘Code’), have been filed.
8. Sheikh Naveed Shehryar, learned Senior Advocate,
appearing on behalf of Petitioner No. 1, has submitted

that the learned two Courts below have failed to
appreciate four constituents of benami transaction,
independently and in proper manners. Learned counsel
for Petitioner No. 1 has raised serious objections as to the
amendments allowed in the plaint by the learned trial
Court and it is argued that through the original plaint
transactions pertaining to the years 1973 and 1984 were
challenged and the same was hopelessly time barred; that
breach of iqrarnama dated 19.12.2003 was introduced
through amendment which is not just result of an
afterthought but at the same time it amounted to change
in the nature of the plaint, therefore, this amendment was
beyond the scope of Order VI, Rule 17 of the Code; that
word ‘benami’ was introduced in the plaint by way of
subsequent amendment, allowed by the learned trial
Court at belated stage, which is not acceptable as per the
law. The learned counsel has further argued that the
declaration of benami transaction cannot be sought for
partial title document; that independent issues were
required to be framed for the each constituent of benami
transaction, which even otherwise are missing in the
claim, hence the Respondent has failed to prove his case
and the suit is liable to be dismissed.

9. Mr. Bashir Ahmad Mirza, the learned counsel of
Petitioner No. 2 has argued that the evidence given by
Mian Noor Muhammad (DW-4) has been totally ignored;
that no notice of revival of the suit after the acceptance of
civil revision on 05.11.2011 was ever received by
Petitioner No. 2, who is a bona-fide purchaser of the Suit
Land from its ostensible owner, for valuable
consideration and without notice of the claim or
pendency of the suit, therefore, his case is covered under
section 41 of the Transfer of Property, 1882. Learned
counsel has further contended that principle of lis
pendens does not apply to the case of Petitioner No. 2.
10. Conversely, Mian Qamar-ul-Islam, learned
counsel for the Respondent has submitted that the
possession of Suit Land as owner, source of consideration
and motive for transaction stood fully proved through
cogent and confidence inspiring evidence, given by as
many as eleven (11) PWs and in addition to the same, the
expert evidence has further corroborated the stance of the
Respondent. He explained that since the Suit Land is
owned by the two brothers, therefore, non-production of
titled documents by the Respondent in his evidence, is not
fatal for the case. Learned counsel has further argued that
the case of ‘benami’ transaction is set-up in paragraph

No. 3 of the plaint and in response to the same, the
written statement merely contained evasive denial, which
as such amounts to admission; that iqrarnama dated
19.12.2003 stood proved through the evidence of the
marginal witnesses, stamp vendor and by recognizing the
hand writing as well as signature of the deceased scribe,
which could not be controverted through specific denial
in the written statement or leading any evidence; that
receipt (Exh.P8) issued by seller of the property forming
major part of the Suit Land further proves the source of
consideration; that Petitioner No.1 himself requested the
learned trial Court for the comparison of his thumb
impression on the ‘iqrarnama’ which was allowed on
18.02.2014; that upon endorsement by the hand writing
expert through his report Exh. P12 and his on oath
evidence has left not even a lurking doubt as to the nature
of the transaction, therefore, the averments in the plaint
stood proved beyond an iota of doubt. The learned
counsel, while relying upon cases titled “Mst. Barkat Bibi
Vs. Khushi Muhammad and others” (1994 SCMR 2040),
“Fazal Subhan and another Vs. Chamnay and another”
(2017 MLD 2079) and case titled “Fazal-ur-Rehman and
2 others Vs. Begum Sughra Haque” (2000 MLD 562),
has contended that order dated 22.09.2011 passed by the

10
learned trial Court, allowing amendment in the plaint,
was never challenged, therefore, it attained finality. It is
further argued that not just Petitioner No. 1 failed to
challenge the aforesaid order but at the same time he has
accepted the order of amendment by filing the amended
written statement on 01.10.2011, therefore, the same
relate back to the time when the suit was filed and the
challenge to the amendment as well as plea of bar of
limitation cannot be raised at this stage.
11. I have heard the learned counsel for the parties
in length and perused the record with their able
assistance.
12. Firstly, I would like to take up the objections
raised by the petitioner side, as to the amendment(s)
allowed in the plaint and limitation. As per learned
counsel of Petitioner No. 1, original plaint simply
contained the prayer of declaration without mentioning
the word ‘benami’ or referring to iqrarnama dated
19.12.2003 therefore, the suit filed in 2004, based on
transactions pertaining to the year 1973 and 1984 was
time barred as well as the amendments in the plaint are
against the settled principles relating to Order VI, Rule
17 of the Code. Here, it is appropriate to reproduce the

11
order dated 22-09-2011 passed by the learned trial Court
whereby, the amendment was allowed in the plaint:-.
“Plaintiff intends to add additional ground in

plaint 1 to prove his ownership i.e. ground of
Benami. He already has alleged his
ownership. The suit property is the same.
Parties are also same. The complexion of the
suit shall not be changed by adding
additional ground of ownership. Certainly
the court has to see at the time of final
judgment as to whether any ground is proved
or not. It is well settled law that an
amendment in pleadings can be allowed at
any stage even at the stage of appeal,
provided complexion of the suit should not be
changed. So in the best interest of justice,
this application is accepted hereby subject to
payment of cost of Rs.1000/-. Now amended
plaint be submitted on 26.09.2011”.
13. It is a matter-of-fact that the amendments were
allowed by the learned trial Court, after adopting the
proper procedure as provided in the Code. Instead of
assailing the order(s) permitting the amendment(s),
Petitioner No.1 has not only opted to file the amended
written statement but he has also failed to challenge the
order(s) before the next fora or availing appropriate
remedy against the same. He further failed to set-up this
specific grievance in the memorandum of appeal, filed
before the learned Appellate Court, against the final
judgment. In case titled “Mst. Barkat Bibi Vs. Khushi
Muhammad and others” (1994 SCMR 2240) the
Honourable Supreme Court of Pakistan, while dealing

12
with the similar issue, reached to the conclusion that
failure to assail the order allowing amendment, at the
time of granting amendment application, in the given
circumstances, is fatal for the case. The following
observation of the Honourable Supreme Court of
Pakistan is highly relevant:-
“The learned counsel for the petitioner

contended that when the amendment was
allowed by the learned Judge, the claim for
specific performance had become time-
barred and therefore no decree could be
passed. The correct legal position is that
such objection had to be considered at the
time of granting the amendment
application. Once an amendment is
granted, it relates back to the date when the
suit was filed. As observed in Mst. Ghulam
Bibi and others V. Sarsa Khan and others
(PLD 1985 SC 345) after the amendment
has been allowed “the question of limitation
would then remain only of form and not of
substance”. Therefore, at this stage when
the amendment has been allowed, plea of
bar of limitation cannot be raised”.
(Emphasis supplied)
14. The case set-up in the original plaint is for
claiming share in the property on the basis of
consideration paid by the Respondent and held in the
name of Petitioner No. 1, in substance is a suit for
benami and subsequently mere insertion of word
‘benami’ and its acknowledgement in the shape of
iqrarnama has not changed the nature of the suit.

13
15. Even otherwise, without any protest or raising
challenge through appeal or revision, Petitioner No.1 has
filed his amended written statement and the perusal of
memorandum of appeal confirms that no specific
challenge in the said memorandum of appeal was set-up
against the orders of amendment(s). I am of firm view
that now this matter is past and closed transaction.
Besides Mst. Barkat Bibi case (Supra), more or less
similar view has been adopted in case titled “Waris Vs.
Muhammad Sarwar”(2014 SCMR 1025), “Muhammad
Ashraf through LRs Vs. Mst. Najma Begum alias Najma
Sultana and others”(2021 CLC 612 Lahore), “Kaura
and others Vs. Allah Ditta and others”(2000 CLC 1018
Lahore), “Ghulam Qadar Vs. Mst. FatehBano”(AIR
1934 Lahore 974).
16. The objection of Sheikh Naveed Shehryar,
learned counsel for Petitioner No.1, as to the limitation is
also not acceptable in view of the observation of this
Court, in the similar situation and involving benami
transaction, in case titled “Malik Muhammad Zubair and
2 others Vs. Malik Muhammad Anwar and 2
others”(PLD 2004 Lahore 515). The relevant part of the
said judgment is as follows:-

14
“Undoubtedly, the learned Court of appeal,

has not applied its mind to the complete
evidence on the record, but has decided the
matter, on the basis of two main reasons,
firstly, the suit has been filed after 31 years
and during his life time, Bashir has never
challenged the sale and kept mum, suffice it
to say that both these reasons are
unfounded, because the person would only
claim declaration of being the real owner,
when his title is denied by the
“Benamidar”.
(Emphasis Supplied)
17. To determine the question as to whether a
transaction is benami in character the following factors
have been established, through a number of judicial
pronouncements, as requirements to be taken into
consideration: -
(i) Source of consideration;

(ii) The party from whose custody the titled
documents were brought on the record;
(iii) Possession of suit property; and
(iv) Motive behind benami transaction.
18. Serious challenge is raised against the
impugned judgment on the basis that titled documents of
Suit Land was not in the custody of the Respondent and
he has merely produced its certified copies on the record.
However, this factor is reasonably explained by the
learned counsel for the Respondent by stating that
property is claimed to be in the joint ownership of two
brothers (Khan Muhammad/Petitioner No. 1 and

15
Waryam/the Respondent), therefore, the titled documents
can be in the possession of any of them. This explanation
appears to be reasonable and the same is based on the
record. The four factors, discussed above, are
considerations and guidelines for determining the issues
involving benami transactions. Failure of deposit of title
documents in evidence by claimant of benami
transaction, provided it is reasonably explained, does not
always has consequence of failure of claim. In case titled
“Al-Hajj Muhammad Rafique Vs. Mst. Khalida Shehzad”
(2003 CLC 559) it is observed by this Court that no
absolute formula or acid test uniformly applicable to
determine if the transaction is benami in its nature can be
laid and the question, as to the character of transaction, is
largely one of fact. It will be beneficial to reproduce the
following paragraph from the judgment of “Al-Hajj
Muhammad Rafique”case (Supra):-
“The question whether a transaction is a

Benami in character or not has to be
decided keeping in view a number of
factors/consideration which have been re-
established through a number of judicial
pronouncements. At first, I would refer the
case of Yeleswarapu Ganjamma (1925 Mad.
980), in which while discussing on the
nature of Benami transaction it was held
that the source of purchase money is only
one criterion though an important criterion;
similarly, the custody of documents is also
not conclusive criterion. In case of
16
Ramdhan AIR 1926 Nag. 109, it was

observed that onus of proof is on party
raising plea of Benami, strong evidence is
necessary. Source of purchase money and
other circumstances must also be considered
besides oral evidence. In the case of Mst.
Zohra Begum and 6 others v. Muhammad
Ismaeel 1995 CLC 242, it was held that the
question whether a particular sale is
Benami or not in largely one of fact, and
for determining this question, no absolute
formula or acid test uniformally applicable
in all situations can be laid down”.
(Emphasis Supplied)
19. In case titled “Muhammad Sajjad Hussain Vs.
Muhammad Anwar Hussain” (1991 SCMR 703) the
Honourable Supreme Court of Pakistan while refusing to
decline the relief (of benami) for not producing the titled
document in evidence, has observed as follows:-
“Be that as it may, since the appellant was

the ostensible owner of the second house, he
obtained the title deed from the House
Building Finance Corporation and,
therefore, the production of the title deed by
the appellant is itself not sufficient to
negate the other evidence which tends to
prove that the appellant was Benamidar
particularly keeping in view as many as 41
receipts for the payment of the loan amount
to the House Building Finance Corporation,
8 receipts for the payment of the property
taxes for the years 1968-69 to 1976-77, 8
receipts for the payment of K.M.C. taxes for
the period of 1969-70 to 1976-77, and four
receipts for the payment of ground rent to
the K.D.A. for the period from 1968 to 1971,
were produced by the respondent”.
(Emphasis Supplied)
17
20. As far as the possession of the Suit Land is
concerned, it is specifically pleaded in the plaint that the
Suit Land is in the possession of the Respondent. Further,
PW-3 in his examination-in-chief deposed as follows: -
‫ نصف رقبہ پر‬،‫رقبہ کی خانگی تقسیم برابر برابر ہوئی‬

‫ہمارا قبضہ ہے اور نصف رقبہ پر خان محمد کا قبضہ‬
‫ہے۔ جب جھگڑا شروع ہوا تو خان نے مورخہ‬
‫کو میرے والد کے حق میں اشٹام‬ 19.12.2003
‫تحریرکر کے دیا تھا اشٹام خان نے خریدا تھا جسکو‬
‫ظفر قریشی عرضی نویس نے تحریر کیا تھا۔ اس وقت‬
‫میں بھی ساتھ تھا میرا والد مالزم ولد شمیر قوم ممبرا‬
‫بھی ساتھ تھا اور فرید بار بھی ساتھ تھا بوقت تحریر‬
‫اشٹام میں موجود تھا۔‬
21. This part of the statement went un-rebutted. No
noticeable question was asked to PW-3 (Muhammad
Sarfraz son of Waryam) regarding the aforesaid
possession, as claimed in his examination-in-chief.
Khasragardawaries, Exh.P3, Exh.P4 and Exh.P38, are
also reflecting the possession of the Respondent.
Petitioner No. 1 when appeared as DW-1 completely
failed to deny the possession in his examination-in-chief.
I have not noticed any material piece of evidence, on the
record, suggesting anything other way around. It is not
the case put forth, before this Court, by Petitioner No. 1
that possession was obtained as leaseholder or merely for
cultivation. There is no allegation of per force

18
possession. It emerges that the possession was obtained
by the Respondent of the Suit Land, to the extent of his
share, as owner, soon after purchase of the Suit Land and/
or execution of the purchase documents.
22. In case titled “Malik Muhammad Zubair
(Supra), this Court, along with the above said four
considerations, also discussed the fifth one i.e. “conduct
of the parties, as to how, the property was dealt”. The
above discussion and evidence on record also satisfies
this concern because the conduct of the parties is clearly
indicative that the Respondent is in possession of the Suit
Land as of a right and not in any other capacity.
23. As far as the motive is concerned, the same can
be ascertained by determination of the intention of the
parties, at the time of transaction, which can be gathered
from surrounding circumstances including the
relationship of parties. The Respondent all the way
through maintained that he and his brother were living in
joint family system, where he used to work in the fields
and property matters were dealt by Petitioner No. 1. On
account of relationship, the Respondent never had any
reason to doubt that this stage could arise. Sheikh Naveed
Shehryar, learned counsel for Petitioner No. 1 argued
that the ‘motive’ required to be proved in such

19
transaction has to be one of the conventional kind, like
avoidance of tax or some public functionary avoiding to
disclose his wealth. I disagree with this argument. There
is no such requirement of law that to establish a
transaction of benami motive has to be stained with
malice. The requirement of law is to see character of
transaction and intention of the parties at the time of the
transaction, which is not necessarily required to be
criminal one. In this regard the relation of the parties
sometimes can be quite important. It was not uncommon
in our society to purchase properties in the names of
spouse or children or even brothers or parents.
24. To prove the source of consideration, the
Respondent produced manifold evidence, oral and
documentary. Exh.P8 is receipt dated 23.09.1984
(hereinafter referred to as the ‘Receipt’) issued by
Muhammad Yar, the general attorney of seller-Allah
Bakhsh. The Receipt reflects that the payment was made,
on equal basis, by the Respondent and Petitioner No.1 in
the following words:-
‫امروزہ رجسٹری کی بمطابق خواہش وریام و خان محمد‬

‫مزکوران کی خان محمد مزکور تکمیل کروا رہا ہوں۔‬
‫زر بیع مبلغ دو الکھ سات ہزار پانچ صد روپے‬
‫ روپے نصف جن کے مبلغ ایک الکھ تین ہزار‬207500
‫ روپے سکہ رائج‬103750 ‫سات صد پچاس روپے‬
20
‫والوقت اسالمی جمہوریہ پاکستان ہوئے ہیں نقد ازاں‬

‫ خان محمد پسران سمندا اقوام ممبرا‬،‫مسمیان وریام‬
‫ساکنان چمکڑی والہ چنیوٹ سے برابر وصول پا لئے‬
‫ہیں۔‬
25. One Kamal Din appeared as PW-6 and confirmed
that the payment was made in his presence in the
manners narrated in the Receipt and as claimed in the
suit. The Receipt contains thumb impressions of the
parties and the said witness. Iqrarnama dated 19.12.2003
is brought on record as Exh.P9, which also contains
thumb impressions of the Respondent and Petitioner
No.1 and two attesting witnesses namely Mulazim
Hussain (PW-4) and Farid (PW-5). Exh. P9 (iqrarnama),
enfolds acknowledgement by the Petitioner No. 1,
confirming the entire chain of events narrated in the Suit,
besides his undertaking to transfer the Suit Land in the
name of the Respondent. The source and payment of
consideration is also acknowledged as follows in the Exh.
P-9:-
‫مشترک خاندان کے تحت رہتے اور زمیندارا کرتے ہیں۔‬

‫خان محمد سربراہ ہے۔ وریام کھیت میں کام کرنے اور‬
‫کروانے کی ذمہ داری نبھاتا ہے۔ جبکہ خان محمد‬
‫سربراہ ہونے کی وجہ سے نگران کے طورپر کام کرتا‬
‫ہے۔ امدن و خرچ کا حساب و کتاب خان محمد کے‬
‫اختیار میں ہے۔ امدن کی رقم خان محمد اپنے پاس جمع‬
‫رکھتا ہے۔ ہر دونوں برادران میں مشترک طور پر‬
21
‫مشترک کاروبار زمیندارا کی امدن میں سے قیمت ادا‬

‫) رجسٹر بیع نامہ‬1 ‫کر کے زرعی اراضی بذریعہ‬
‫ کنال‬8 ‫ اراضی بقدر‬2.5.1973 ‫ مورخہ‬398 ‫نمبری‬
)2 ‫ مرلے ازاں اطاعت حسین ولد محبت حسین‬19
5.3.1984 ‫ مورخہ‬819/1 ‫رجسٹرڈ بیع نامہ نمبری‬
)3 ‫ مرلے ازاں محمد یار ولد بہادر‬18 ‫ کنال‬5 ‫رقبہ بقدر‬
23.9.1984 ‫ مورخہ‬7097/1 ‫رجسٹرڈ بیع نامہ نمبری‬
‫ مرلے ازاں ہللا بخش ولد شمس‬18 ‫ کنال‬38 ‫رقبہ بقدر‬
‫ مرلے واقع موضع‬15 ‫ کنال‬53 ‫الین منجملہ رقبہ بقدر‬
‫ تحصیل چنیوٹ‬2 ‫ موضع چنیوٹ نمبر‬،‫جات کوڑالہ‬
‫ضلع جھنگ خرید کر رکھا ہے۔ اراضی مذکورہ کے ہر‬
‫برادران نصف نصف کے مالکان ہیں ۔‬ ‫دو‬
26. The above acknowledgement was proved through
unshaken examination of the marginal witnesses (PW-4
and PW-5) as well as stamp vendor (PW-7). The scribe
since was not alive, his nephew appeared as PW-8,
recognizing the handwriting and signature of the scribe.
Record keeper from A.D.C. office also appeared to
confirm the register of stamp. Upon request of Petitioner
No.1 his thumb impression on the acknowledgement was
sent to Finger Print Bureau, Punjab for comparison which
gave following opinion:-
“Opinion, The impression marked as Q on the

Agreement document No. 4865 dated
09.12.2003 (Ex.PA) is identical with the left
thumb impression (K/L) of Khan on his stamp
paper. Nine characteristic points of identity
have been charted and illustrated in detail by
means of descriptive symbols in the enclosed
22
set of photographic enlargements marked as

Q/Q…K/L/L”.
Note:- For evidence, the Summons can be sent
on Fax No. 042-99211372
Sd/-
1. Name (M. Shafiq-ur-Rehman)
2. Rank S.I/Expert
3. Dated 18.04.2014
The opinion of the Expert in Case of Waryam

V/S Khan etc is forwarded for information
along with documents mentioned above.
27. Muhammad Shafiq-ur-Rehman, Sub-Inspector /
Expert Finger Print Bureau, Lahore was summoned by
the learned trial Court, on the specific request of the
Petitioner No.1, who has not just confirmed the expert
report but specifically refuted the possibility of scanning
the thumb impressions on the stamp paper and also ruled
out any possibility of forgery, during his cross-
examination. The evidence, in favour of the Respondent,
is in a complete chain, which is substantiating each other.
This evidence though denied by Petitioner No.1 and his
witnesses but preponderance of evidence on record is
suggestive that the consideration was paid jointly by the
Respondent and Petitioner No.1.
28. As far as the argument of Mr. Bashir Ahmad
Mirza, learned counsel for Petitioner No.2 that he being
bona-fide purchaser of the Suit Land is entitled to the

23
relief as per Section 41 of the Transfer of Property Act,
1882 is concerned, it is noticed that there is no denial of
the fact that he has purchased the Suit Land during the
pendency of the lis, hence, there is no force in the
arguments in view of the law settled by Honourable
Supreme Court of Pakistan in case titled“ Muhammad
Ashraf Butt and others Vs. Muhammad Asif Bhatti and
others”(PLD 2011 SC 905) and reiterated in case titled
“Mst. Tabassum Shaheen Vs. Mst. Uzma Rahat and
others” (2012 SCMR 983) that rule enshrined in section
52 of the Transfer of Property Act, 1882 describes that
the rights of the parties of the suit, who ultimately
succeed in the matter are not effected in any manner
whatsoever on account of alienation, and the transferee of
the property shall acquire the title of the property subject
to the final outcome of the lis. The Honourable Supreme
Court of Pakistan in the said cases has left no cavil to the
proposition that the transferee of the suit land, even the
purchaser for value; without notice of pendency of the
suit, in the ordinary judicial parlance known as a bona-
fide purchasers, is bound by the result of the suit in all
respects, as his transferor would be bound and the
transferee cannot acquire any legal title free from the

24
clog of his unsuccessful transferor, and for all purposes
has to swim and sink with his predecessor-in-interest.
29. The upshot of the above discussion is that the
titled civil revisions have no merits and, therefore, these
petitions are dismissed but the parties shall bear their
own costs.
(Sultan Tanvir Ahmad)

Judge
Announced in open Court on___________
Judge
Irfan Shah

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Form No.

(i) Civil Revision No. 60875 of 2017

Khan Muhammad alias Muhammad through L. Rs.

(ii) Civil Revision No. 69095 of 2017

Mian Noor Muhammad

Sultan Tanvir Ahmad, J:- This single judgment shall

dispose of both the titled civil revisions being outcome of

the consolidated judgment and decree dated 05.07.2017

passed by learned Additional District Judge, Chiniot

whereby, civil appeal No. 114-RT of 2017 instituted by

Khan Muhammad alias Muhammad on 03.02.2015

against the judgment and decree dated 31.01.2015 passed

by learned Civil Judge, Chiniot has been dismissed and

civil appeal No. 122-RT of 2017 dated 28.05.2015 filed

by Mian Noor Muhammad against the aforesaid

judgment and decree has been partially allowed.

(Hereinafter, Khan Muhammad alias Muhammad son of

Samanda shall be referred to as ‘Petitioner No. 1’, Mian

Noor Muhammad son of Muhammad Hayat shall be

referred to as ‘Petitioner No. 2’ and Waryam son of

Samanda shall be referred to as the ‘Respondent’).

2. Brief facts of the case are that the Respondent filed a

suit for declaration regarding half share in land

measuring about 53-Kanal and 15-Marla, which is further

detailed in head note of the plaint (hereinafter referred to

as the ‘Suit Land’), with the averments that the

Respondent and Petitioner No. 1 are real brothers and

they lived and worked together during the lifetime of

their father, when they purchased Suit Land from the

common source of income and since Petitioner No. 1

used to deal with the property matters he managed to get

the Suit Land transferred in his name. As per the suit,

when the Respondent discovered about the same, he

lodged protest whereupon iqrarnama dated 19.12.2003

was executed by Petitioner No.1, whereby, while

acknowledging that the Suit Land was purchased from

common source of income, Petitioner No. 1 has also

admitted that he is holding the Suit Land as ostensible

owner for the Respondent, however, Petitioner No. 1

deviated from the said commitment / iqrarnama and sold

the Suit Land to Petitioner No. 2 through sale deed No.

1741 dated 16.05.2006. The Respondent also claimed

that he is in possession of the Suit Land i.e. the property

falling in his share, since the purchase of the same.

3. At that stage another suit for permanent injunction

filed by Petitioner No. 1, with respect to the Suit Land,

was also pending adjudication. Both the suits were

consolidated. The Suit Land was sold, during the

pendency of the lis, by Petitioner No.1 to Petitioner No.

2. On 22.09.2011 amendment in plaint was allowed. In

the meanwhile, suit for permanent injunction filed by

Petitioner No. 1 was withdrawn. The learned trial Court

initially framed eleven (11) issues. Upon consolidation of

the suits, three (3) additional issues were framed. The

aforesaid amendment also resulted into framing of

additional issues. Later, withdrawal of suit of permanent

injunction resulted into abandoning certain issues.

Finally, the following position as to the issues was

1. Whether the plaintiff is entitled to

2. Whether plaintiff is entitled to decree