1

IN THE COURT OF MUHAMMAD SOAIB CIVIL JUDGE IV

ABBOTTABAD

1.Bibi Asia d/o Munawar Shah. 2. Javed Shah. 3. Chanzeb Shah sons
of Mehmood Shah (LRs of Hajra bibi). 4. Syed Mehmood Shah s/o
Mudasar Shah. 5. Abdur Rasheed. 6. Muhammad Ilyas sons of Aziz
Khan. 7. Mst: Balqees widow. 8. Murad. 9. Shehzad. 10. Shahid.
11. Awais, sons of Abdul Latif r/o Banda Sher Khan Tehsil & District
Abbottabad. 12. Asim Malik son. 13 Mst: Safeena Bibi, widow of
Muhammad Sadique r/o Dhonsaki, Tehsil Wazir Abad, District
Gujranwala. 14. Ali Asghar s/o Mir Abdullah Muhammad r/o Banda
Faiz Ali Khan, District Abbottabad. 15 Muhammad Hanif Shah sons.
16 Bibi Mumtaz d/o Munawar Shah, caste Syed, r/o Banda Sher
Khan, Tehsil & District Abbottabad.
defendants
SUIT FOR DECLARATION ETC

JUDGMENT
1. Plaintiffs through amended plaint has sought declaration that,
he is owner in possession of the suit property, detailed in the
plaint on the strength of registered deed # 1170 dated
27.10.2005, registered deed # 495 dated 12.04.2006, registered
deed # 443 dated 03.04.2006, mutation # 18242 dated
20.02.2006 & mutation # 18599 dated 24.03.2006, to the
extent of 2K 10M, whereas defendant # 1 and predecessor in
interest of defendant # 2 & 3 had alienated the property in
excess of their shares, thus have got no proprietary right in the

suit property, therefore, mutation # 7747 dated 20.05.1975 in

favor of defendant # 4 and mutation # 7980 dated 28.06.1976
in favour of defendant # 5, 6 and predecessor in interest of
defendants 7 to 11 and similarly mutation # 10349 in favour of
defendants 12, 13, being in excess of their shares, illegal,
based on fraud and collusion and liable to be cancelled.
Mutation # 7981 & mutation # 9197 in favor of defendant # 14
are also illegal and against the rights of the plaintiff and liable
to be cancelled.
Addedly, perpetual injunction and possession has also been
sought in payer bay of the plaint.
2

Brief facts as narrated in the plaint are that, plaintiff is owner

in possession of property to the extent of 02K-10M in the suit
khasra numbers, whereas defendants/their predecessors have
alienated the suit property in excess of their shares and later on
mutations in favour of defendants 5 to 14 have been attested,
which are illegal against the law and fact. That predecessor in
interest of defendant namely Gul Muhammad Shah had
alienated

the

property

through

mutation

7980

dated

28.06.1976 in favour of defendants # 5 & 6 and predecessor in

interest of defendants 7 to 11 and subsequently through
mutation # 7981, property were further transferred in favour of
predecessor of defendants 1 to 3, 15 & 16. That defendant # 1
vide mutation # 9197, transferred property in favour of

defendant # 14 to the extent of 16 Marals, which is also in

excess of her share. That defendants were asked time and
again to cancel the said mutations, but they denied hence the
instants suit.
3

Defendants were summoned through process of the court,

defendant # 1 appeared, and contested the suit by submitting
written statement, raising therein legal as well as factual
objections, whereas rest of the defendants did not bother to
appear, hence were placed and proceeded against exparte.

It is pertinent to mention that initially instant suit was filed on

26.05.1999, by one Abdul Latif Shah s/o Munawar Shah
against 12 defendants. During the course of trial, present
plaintiff, filed an application on 08.06.2006 for impleadment
as necessary party in the instant suit as plaintiff. Application
was accepted and he was impleaded as plaintiff in the suit, but
on 07.07.2006, the original plaintiff, Abdul Latif Shah, filed
an application for withdrawal of his claim on the ground of
compromise, which was accepted and suit was dismissed as
withdrawn to the extent of plaintiff, Abdul Latif Shah and his
name was deleted from the plaint and the present plaintiff
remained the sole party in the column of plaintiffs. The suit
was proceeded and after conclusion of the trial the same was
dismissed vide judgment and decree dated 11.11.2010.
Appellant/plaintiff assailed judgment & decree of court before

the learned appellate court, whereby on acceptance of the

appeal vide order dated 30.03.2012, case file remanded to the
trial court, with the direction to allow the appellant/plaintiff, to
submit amended plaint.
The order of the learned appellate court were further agitated
before the august High court, Abbottabad bench, in CR # 292
of 2012, whereby civil revision were dismissed.
On receipt of the case file on remand, plaintiff submitted
amended plaint, and only defendant # 4, appeared and
contested the suit.
5

Divergent pleadings of the parties were reduced into the

following issues with mutual consent of the learned counsel
for the parties:-

ISSUES
1. Whether plaintiff has got cause of action?
2. Whether plaintiff is estopped to sue?
3. Whether suit is bad for mis joinder/non joinder of necessary
parties?
4. Whether plaintiff is owner in possession of suit property to the
extent of 02K-10M, on the strength of registered deed # 1170
dated 27.10.2005, registered deed # 495 dated12.04.2006,
registered deed # 443 dated 03.04.2006, mutation # 18242
dated 20.02.2006 and mutation # 18599 dated 24.03.2006?

5. Whether mutation # 7747 dated 20.05.1975, mutation # 7980

dated 28.06.1976, mutation # 10349 and mutations # 7981 &
9197, are wrong, illegal, and liable to be cancelled?
6. Whether defendants 5 to 14 cannot claim ownership in the suit
property on the basis of wrong mutations? and revenue record
is liable to be rectified?
7. Whether defendants have encroached upon the share/property
in possession of plaintiff?
8. Whether plaintiff is in possession of excessive property than
his due share?
9. Whether plaintiff is entitled for the decree as prayed for?
Relief
6.

Parties were accorded opportunity to produce their evidence.

Plaintiff relied on the pre-remand recorded, whereas
contesting

defendant

4,

besides

conducting

cross

examination on PW4 also recorded his statement in defense as

DW1.
7.

Tahir Faraz Abbasi, advocate, rendered his professional

assistance for the plaintiff, whereas Muhammad Shoaib Khan,
advocate, made his submission on behalf of defendant # 4.
Record perused. Issue wise findings are as under:-

Issue #2
Estoppel needs cogent and convincing evidence, which
defendants could not establish on record against plaintiff,
hence issue is decided in negative.

Issue # 3
Defendant raised an objection that, suit in hand is bad for
non/mis joinder of necessary party. Plaintiff has filed the
instant suit for declaration cum perpetual injunctions, against
defendants. Plaintiff has arrayed all the persons, having
proprietary interest in the matter in dispute, defendant could
not pointed out any party, wrongly arrayed or to be arrayed as
necessary party, hence issue is decided in negative.
Issue 4, 5,& 6
All the issues being interlinked, taken jointly for ease of
discussion.
Plaintiff alleged that he is owner in possession of suit property
to the extent of 02K 10M, on the strength of various registered
sale deeds as well as mutations, and mutation # 7747 dated
20.05.1975, mutation # 7980 dated 28.06.1976, mutation #
10349 and mutation # 7981 & mutation # 9197 are wrong,
illegal and liable to be cancelled.
In support of his claim plaintiff as PW4, recorded his
statement. As per ExPW4/1, plaintiff purchased property from
Mst: Munawar Jan to the extent of 1.15 marlas, vide ExPW4/2
& Ex-PW4/3, plaintiff purchased property from defendant # 4.
Similarly, vide mutation # 18242 & vide mutation # 18599,
plaintiff also purchased property from Mst: Munawar Jan. In
cross examination, (conducted after remand), witness/plaintiff,

admitted it correct that, he purchased property from Mst:

Munawar Jan alongwith possession as well as from defendant,
Mehmood Shah, alongwith possession i.e, exact narration is
reproduced as under:________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
________________________________________________
Witness further admitted that he has also filed another suit,
titled Muhammad Sadique vs Qazi Abdul Wadood etc, in
respect of the suit property which is pending adjudication and
also admitted that he had also filed a suit for partition. Witness
admitted that disputed property is constructed one, and
admitted it correct that, if the excessive share from possession
of Latif Shah is taken back, then his problem would be
resolved.
In defense defendant # 4 as DW1, narrated that, he is in
possession of his property, however plaintiff purchased
property from his sister alongwith possession and later on after
insistence plaintiff also purchased property from him. Plaintiff
was entered into a compromise in the year 2006, which is
mark A. In cross examination nothing favourable could be
extracted.

In light of the available record, it transpires that plaintiff vide

registered sale deeds and mutations purchased property
alongwith its possession, and the same fact has been admitted
by the plaintiff in his statement, ibid. Similarly, plaintiff
challenged certain mutations being attested in excess of shares
of the defendants. It is pertinent to mention that the same
mutations were entered prior to the entrance of plaintiff in the
suit property. Plaintiff purchased property in the year 2006 and
impugned mutations had been attested in the year 1975/76.
Plaintiff admitted that possession to the extent of 2K-10M lies
with him, in respect of which he has also filed a separate suit
for partition, before the competent forum. There is no cavil to
hold that, plaintiff cannot challenge the mutations on he
pretext of excessive shares of the parties as defendants # 5 to
14, are having possession in the suit property, which could not
be disturbed on the alleged stance of the plaintiff, taken at
much belated stage. Proper course for the aggrieved party lies
in proper partition. Plaintiff could not establish on record that,
due to alienation of the property, he has suffered. Issue # 4 is
decided in affirmative, whereas issues # 5 & 6 decided in
negative.
Issue # 7
Plaintiff stated that defendants have encroached upon his
shares/property, however encroachment on his property in

possession, has not been established through material

evidence. Plaintiff in his testimony did not utter a single word
regarding fact of encroachment nor produced any independent
evidence, of worth reliance, which could suggest that,
defendants have made encroachment in the suit land. Issue is
decided in negative.
Issue # 8
I has been proved on record that, plaintiff purchased suit
property vide registered sale deeds and mutations, to the
extent of 02K 10M and he is in possession of the same.
Plaintiff could not establish that he is possession of less share
than his due nor defendant proved excessive share of plaintiff.
Hence issue is decided in negative.
Issue # 1 & 9
In light of the evidence coupled with the record, plaintiff had
not been able to prove his case, against defendants, hence has
got no cause of action and held not entitled for the relief as
prayed for.
Relief
Plaintiffs failed to prove his case, hence suit of the plaintiff
stands dismissed. No cost. File be consigned to record room
after its completion and compilation.
Announced
03.12.2015

Muhammad Shoaib
Civil Judge IV,
Abbottabad

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CERTIFICATE
Certified that this judgment consists of Ten pages, each page
has been read, signed and corrected wherever necessary.
Muhammad Shoaib
Civil Judge IV,
Abbottabad

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Order # 61
03.12.2015

Clerk of counsel for the parties present.

Vide detailed judgment of today consists of ten
pages, placed on file, Plaintiffs failed to prove his
case, hence suit of the plaintiff stands dismissed. No cost.
File be consigned to record room after its completion and
compilation.
Announced
03.12.2015

Muhammad Shoaib
Civil Judge IV,
Abbottabad