2/15/22, 2:02 PM 2004 YLR 239 - Mirza ALLAH DITTA alias MIRZA JAVED AKHTAR Versus Mst.

rsus Mst. AMNA BIBI - LAHORE HIGH COURT LAHORE

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Mirza ALLAH DITTA alias MIRZA JAVED AKHTAR Versus Mst. AMNA BIBI

May 2, 2003 — LAHORE HIGH COURT LAHORE — Honorable Justice Abdul Shakoor Paracha —
Sheikh Naveed Shaharyar with Zahid Hussain Khan , M.A. Zafar — 2004 YLR 239

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Wali Muhammad was the owner of the house and a shop measuring 5 Marlas situated in
Khewat and Khatooni Nos.390/397, Khasra Nos. 17, 18, 23, 24 and 25. The claim of Mst. Amina
Bibi wife of Wali Muhammad‑respondent was that this house and the shop was given to her by
her husband‑Wali Muhammad in lieu of her dower, at the time of marriage. The contention of
Mirza Allah Ditta petitioner herein, was that the house and the shop was purchased by him
from Wali Muhammad through sale‑deed No. 2634 dated 12‑10‑1976. Mst. Amina Bibi wife of
Wali Muhammad sought a declaration by filing a civil suit in the Court of learned Civil Judge,
Mandi Baha‑ud‑Din against Allah Ditta and Wali Muhammad that she is owner in possession of
the suit house and a shop which was given to her by Wali Muhammad in lieu of dower and
sale‑deed No.2634 dated 12‑10‑1976 by Wali Muhammad in favour of the petitioner regarding
the suit house was illegal, collusive, based on fraud and ineffective upon her right over the suit
property and was liable to be cancelled with the prayer that a decree for permanent injunction
be passed in her favour restraining the petitioner to interfere in her possession over the suit
property. Another suit for possession through ejectment was filed by the petitioner‑Mirza Allah
Ditta against Mst. Amina Bibi and Wali Muhammad on the basis of sale‑deed No. 2634 dated
12‑10‑1976 in the Civil Court of Mandi Baha‑ud‑Din.

2. Both the suits were contested by the parties against each other by filing the respective
written statements. The suits were consolidated and from the divergent pleadings of the
parties, the following consolidated issues were framed by the learned trial Court:‑‑

(1) Whether the plaintiff Amina Bibi is owner and in possession of the suit property? OPP

(2) Whether the impugned registered sale‑deed dated 12‑10‑1976 by the defendant No.2 in
favour of the defendant No. 1 is illegal, void and ineffective qua the rights of the plaintiff? OPP

(3) Whether the suit is not maintainable in its present form? OPD‑1

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(4) Whether the suit has not been correctly valued? OPD

(5) Whether the suit is within time? OPP

(6) Whether the plaintiff of the connected suit, Mirza Allah Ditta is entitled to the possession of
the suit house as owner thereof in case the suit of Amina Bibi is dismissed? OPD‑1

(7) Whether the plaintiff of the connected suit, Mirza Allah Ditta, is entitled to amount of
Rs.10,800 as arrears of rent? OPD‑1

(8) Whether the registered sale‑deed in favour of Mirza Allah Ditta has been cancelled? OPD‑1

(9) Whether the connected suit of the plaintiff, Mirza‑Allah Ditta has not been correctly valued?
OPD‑2

(10) Relief.

3. The parties led their evidence. The learned Civil Judge, through a consolidated judgment and
decree dated 10‑7‑1991 dismissed the suit filed by Mst. Amina Bibi against Mirza Allah Ditta
and Wali Muhammad whereas, granted decree for ejectment in favour of the petitioner in suit
filed by them. The learned Civil Judge, recording finding on Issues Nos. 1 and 2 in favour of the
petitioner‑Allah Ditta and observed that in relevant Column No. 17 of the Nikahnama (Exh.P.1)
the detail of the properties given by Wali Muhammad to Mst. Amina Bibi was not recorded and
that the petitioner‑Allah Ditta is in possession of the shop, therefore, Mst. Amina Bibi could
have not claimed the ownership of the house and shop in lieu of her dower given to her at the
time of marriage by Wali Muhammad and the sale‑deed allegedly executed by Wali
Muhammad in favour of the petitioner is valid document.

4. As separate decrees were passed in both the suits, therefore, Mst. Amina Bibi preferred two
separate appeals. The learned Additional District Judge, reversed the judgment and decree of
the learned trial Court by accepting the appeal and observed that "it is proved on the record
that the suit property was given by Wali Muhammad to Amina Bibi on her marriage with him in
lieu of dower prior to the registration of sale‑deed of the suit property in favour of Allah Ditta.
Therefore, at the time of attestation of registered sale‑deed of the suit property i.e. 12‑10‑1976
Wali Muhammad was left with no interest whatsoever in the suit property after Nikah with
Amina Bibi which was performed on 4‑6‑1974". The appeal against the ejectment order was set
aside and the suit of the ejectment filed by Allah Ditta against Wali Muhammad and Amina Bibi
was dismissed as no relationship of landlord and tenant was proved on the record. As regards
the suit for declaration and permanent injunction with consequential relief filed by Mst. Amina
Bibi the same was partly decreed to the extent of suit house because Mst. Amina Bibi was in
possession of the suit house. The appeal to the extent of suit shop was dismissed on the
ground that admittedly Allah Ditta was in possession of the shop and no relief for possession
was sought by Amina Bibi, therefore, her suit to this extent was dismissed being incompetent in
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its present form. Particularly in these circumstances when no amendment in pleading was
sought by Mst. Amina Bibi.

5. During the course of arguments I have been informed by the learned counsel for the parties
that Mst. Amina Bibi has filed another suit for possession of shop against the petitioner‑Allah
Ditta.

6. The learned counsel for the petitioner‑Sheikh Naveed Shaharyar contends that Wali
Muhammad filed a Suit No.228 on 10‑11‑1982 seeking declaration regarding the house in
question (Exh.No.2). The same was dismissed as withdrawn on 10‑3‑1984. Thereafter he filed
another Suit No.368 on 22‑6‑1983 (Exh.P.3) for seeking declaration to the effect that he is the
owner in possession of the house and the sale‑deed dated 12‑10‑1976 is based on fraud and
ineffective upon his rights which was also withdrawn with permission to file the fresh, vide order
dated 18‑4‑1984 (Exh.P.4), therefore, Mst. Amina Bibi was not competent to file the suit for
declaration and permanent injunction against the petitioner Wali Muhammad in view of the
Order 23, rule 1, C.P.C. Further contends that it has not been proved on the record that the
house and shop in dispute were given to Mst. Amina Bibi by Wali Muhammad at the time of
marriage. He referred to the statement of Muhammad Rafique P.W. 2 to contend that Mian
Manzoor Ahmad Nikah Registrar, at the relevant time was sick therefore, Nikah was not
registered, in accordance with section 5 of the Muslim Family Laws Ordinance, 1961, and the
rules framed under section 11 of the Muslim Family Laws Ordinance No. VIII of 1961. It is added
that Allah Ditta‑petitioner was the owner of the house and the shop and this fact stands proved
by producing and exhibiting the copy of the sale‑deed dated 12‑10‑1996, and the finding of
the learned Additional District Judge to the effect that the "petitioner has failed to. discharge
the onus, that the sale‑deed in his favour was validly executed by Wali Muhammad with
consideration because the petitioner has not produced marginal witness of the sale‑deed in his
favour and he has also not produced the original sale deed on the record", are not sustainable
under the law. According to the learned counsel the onus of proving that the sale deed dated
12‑10‑1976 Exh.P.1 was result of fraud and without consideration, was on the
respondent‑plaintiff Mst. Amina Bibi. Further contends that the learned Additional District
Judge, Mandi Baha‑ud‑Din, misjudged and misconstrued the evidence brought on the record
by the petitioner to the extent of the suit house and he totally misread the admitted registered
sale‑deed in favour of the petitioner by Wali Muhammad, the husband of the respondent Mst.
Amina Bibi. Finally it has been contended that according to the judgment judgment dated
18‑11‑1980 (Exh.D.1) it was held that Wali Muhammad failed to prove that the registered
sale‑deed dated 12‑10‑1976 was based on fraud and therefore, the learned Additional District
Judge had no jurisdiction to annul the valid sale‑deed executed by Wali Muhammad in favour
of the petitioner through the impugned judgment passed in appeal.

7. Conversely Mr. M.A. Zafar, the learned counsel for the respondents, contends that earlier Suit
No.228 dated 10‑11‑1982 (Exh.P.2) which was dismissed as withdrawn on 10‑3‑1993, filed by

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Wali Muhammad was in respect of house only, whereas the second Suit No. 368 dated
22‑6‑1983 (Exh.P.3) was regarding the house and the shop, and the challenge was thrown to
the sale‑deed allegedly executed by Wali Muhammad in favour of Allah Ditta‑petitioner. The
same was withdrawn through an order dated 18‑4‑1984 (Exh.P.4), subject to the payment of
Rs.120 as cost with permission to file afresh suit. Mst. Amina Bibi was not the party in both the
above‑stated suits and furthermore, this point was not raised by the petitioner in the trial Court.
No issue was framed on the point that the suit of Mst. Amina Bibi was barred under Order 23,
rule 1, C.P.C. and was hit on the principle of res judicata. The petitioner has not raised this point
during the arguments in appeal, therefore, he is estopped to raise this plea for the first time
while arguing the revision petition. Further contends that Muhammad Rafique P.W. 2 was the
Nikah Registrar, who signed the Nikahnama as such the Nikah of Mst. Amina Bibi with Wali
Muhammad on 4‑6‑1974 through Nikahnama Exh.P.1 which was filled and signed by the
brother of Mst. Amina Bibi as P.W.3 Ghulam Rasul cannot be declared as void simply because
the same was not registered under section 5 of the Family Laws Ordinance, 1961 (No. VIII of
1961) and the rules framed under it. Further contends that Wali Muhammad appeared in Court
as D. W. 2 and he has stated that he never alienated the suit property in favour of Allah Ditta,
and .the registered sale‑deed dated 12-10‑1976 was result of fraud. Mst. Amina Bibi also raised
the plea of fraud and misrepresentation. The moment she had made a statement on oath, onus
would shift to Allah Ditta, to prove that the sale‑deed in, question was executed by Wali
Muhammad in his favour in accordance with law. He further contends that the original
sale‑deed has not been produced in Court and the petitioner has not discharged the onus of
proof, regarding the execution of the sale‑deed in his favour by Wali Muhammad under Articles
78 and 79 of the Qanun‑e‑Shahadat Order, 1984.

8. I have considered the arguments of the learned counsel for the parties and perused the
record, with their assistance.

9. The first and most important question in this case which is to be resolved between the parties
is Nikah of Mst. Amina Bibi with Wali Muhammad and the effect of non‑registration of .the
marriage. To prove the marriage of Mst. Amina Bibi with Wali Muhammad, she herself appeared
as P.W.1, whereas Wali Muhammad appeared as D.W. 2. Both have on oath stated that their
marriage was solemnized on 4‑6‑1976 and the Nikah was performed. The form of the
Nikahnama was filled and signed by both husband and wife. She produced Muhammad
Rafique, Nikah Registrar as P.W. 2. He categorically stated that the Nikah of Mst. Amina Bibi
with Wali Muhammad was recited by him. Ghulam Rasul, the brother of Mst. Amina Bibi also
appeared as P.W. 3 and stated that he signed the Nikahnama (Exh.P.1). It was not the
requirement of law, under the provisions of Muslim Family Laws Ordinance, 1961, that for a
valid Nikah the same should be registered under section 5 of the Muslim Family Laws
Ordinance No. VIII of 1961 or the rules made thereunder it. This is not disputed that Nikah was
performed in the presence of the witnesses. The Court has to accept the version of Mst. Amina
Bibi with Wali Muhammad regarding the marriage/Nikah on 4‑7‑1976, on the basis of

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Nikahnama (Exh.P.1 and Exh.D.2). For valid Nikah, the presence of two witnesses is mandatory
but when both man and woman admit that the factum of Nikah, and the solemnizing the
marriage with each other, the requirement of producing two witnesses under the law is not
mandatory. In the case reported as Arif Hussain and Azra Parween v. the State PLD 1982 FSC 42,
while interpreting the provisions of section 10 of Offence of Zina (Enforcement of Hudood)
Ordinance No.VIII of 1979, alongwith the provisions of Muslim Family Laws Ordinance No. VIII
of 1961, it has been ruled that:‑‑

10. The presumption of truth would attach to the Nikah which is acknowledged by both the
spouses. See case or Humaira Mahmood v. The State and others PLD 1999 Lah. 494 while
interpreting the term "Nikah", it has been ruled that‑‑

"(f) Nikah. Term `consent', to Nikah means a conscious expression of one's desire without any
external intimidation of coercion. In situations where consent to marriage is in dispute and a
challenge is through to Nikahnama which is being owned by man and woman who claim to be
husband and wife then the presumption of truth would attach to Nikahnama which is being
acknowledged by both spouses and not by intervener."

11. The earlier Suit No. 228 dated 10‑11‑1982 (Exh.P.2), filed by Wali Muhammad was in respect
of house only which was dismissed as withdrawn on 10‑3‑1993. Mst. Amina Bibi was not party
to the suit, whereas the second Suit No.368 dated 22‑6‑1983 (Exh.P.3) was regarding the house
shop and the same was withdrawn through the order dated 18‑4‑1984 (Exh.P.4) subject to the
payment of Rs.120 as cost with permission to file a fresh suit. Mst. Amina Bibi was not party in
both the above suits. In this view of the matter, the present suit was not hit by Order 23, rule 1,
C.P.C. Further no issue was framed on the point that the suit of Mst. Amina Bibi was barred
under Order 23, rule 1 of the C.P.C. and was hit on the principle of res judicata. The petitioner
has not raised this point during the argument in appeal, therefore, he cannot argue this point
for the first time in this revision petition.

12. The original sale‑deed in favour of Allah Ditta allegedly, executed by Wali Muhammad has
not been produced in Court. Wali Muhammad appeared in Court as D.W. 2 and has stated that
he never alienated the suit property in favour of Allah Ditta and the registered sale‑deed dated
12‑10‑1976 was result of fraud. Mst. Amina Bibi also raised the plea of fraud and
misrepresentation. The moment she made a statement on oath, onus has shifted to Allah Ditta
to prove that the sale‑deed in question was executed by Wali Muhammad in favour of the
petitioner was in accordance with law. To prove the execution of the sale‑deed the reading of
Articles 78 and 79 of the Qanun‑e‑Shahadat Order, 1984 are relevant which reproduced as
follows:‑‑

"78. Proof of signature and handwriting of person alleged to have signed or written
document produced.‑‑‑If a document is alleged to be signed or to have been written wholly or

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in part by any person, the signature or the handwriting of so much of the document as is
alleged to be in that person's handwriting must be proved to be in his handwriting. "

"79. Proof of execution of document required by law to be attested.‑‑‑If a document is

required by law to be attested, it shall not be used as evidence until two attesting witnesses at
least have been called for the purpose of proving its execution, if there be two attesting
witnesses alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of
any document, not being a Will, which has been registered in accordance with the provisions of
the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports
to have been executed is specifically denied. "

There are different modes of proving the document according to Qanun‑e‑Shahadat order
which are as under:‑‑

(i) By calling the person who signed or wrote the document.

(ii) By calling a person in whose presence the document was signed or written.

(iii) By calling a handwriting expert.

(iv) By calling a person acquainted with the handwriting of the person by whom the document
is supposed to be signed or written.

(v) By comparing in Court the disputed signature or writing with some admitted signature or
writing.

(vi) By proof of an admission by the person who is alleged to have signed or written the
document that he signed or wrote it.

13. Wali Muhammad‑petitioner neither produced the scribe nor marginal witness of the
sale‑deed in his favour. In this view of the matter, it can be concluded that the petitioner has
failed to prove the execution of the sale‑deed in his favour by Wali Muhammad. The learned
Civil Judge illegally dismissed the suit of declaration filed by Mst. Amina Bibi and decreed the
suit for ejectment against filed by the petitioner‑Allah Ditta learned Additional District Judge
rightly the basis of correct reading of and correct interpretation of law accepted the appeal of
Mst. Amina Bibi. No illegality or irregularity has been committed by the learned Additional
District Judge in accepting the appeal.

Resultantly, this revision petition fails and dismissed with costs.

This order shall dispose of the following applications:‑‑

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(i) Civil Miscellaneous 1 of 2002.

(ii) Civil Miscellaneous 2 of 2002.

(iii) Civil Miscellaneous 3 of 2002.

(iv) Civil Miscellaneous 4 of 2002.

(v) Civil Miscellaneous 1 of 2003.

2. Through Civil Miscellaneous 1‑C of 2002, the applicant seeks to implead the legal heirs of
Wali Muhammad who were respondents before the learned Appellate Court but has been
omitted by the petitioner and has not been arrayed as respondents in the above captioned civil
revision.

2‑A. Civil Miscellaneous 2 of 2002.‑‑ This is an application under section 151, C.P.C. for
seeking amendment in the prayer clause of the above captioned civil revision. Civil
Miscellaneous 3 of 2002.‑‑ This is an application under section 151, C.P.C. for placing on
record the decree sheet of the suit for ejectment filed by the petitioner, against Mst. Amina Bibi.
Civil Miscellaneous 4 of 2002.‑‑‑This is an application for condonation of delay in filing the
decree sheet. Civil Miscellaneous 1‑C of 2003.‑‑‑This is an application for impleading Munir
Ahmad son of Mutali Khan, as respondent, who purchased the property from Mst. Amina Bibi
during the pendency of the civil revision.

3. Applicant Mirza Allah Ditta (petitioner) and respondent Mst. Amina Bibi claimed themselves
to be the owners of the disputed house. Mirza Allah Ditta based his claim on the sale‑deed
allegedly executed by Wali Muhammad, who was the husband of Mst. Amina Bibi‑respondent,
whereas Mst. Amina Bibi asserted that she acquired the house from her husband Wali
Muhammad in lieu of her dower. Both the parties filed suits against each other. Mst. Amina
Bibi‑respondent filed suit for declaration and cancellation of the sale‑deed allegedly executed
by her husband‑Wali Muhammad in favour of Allah Ditta, whereas the applicant filed suit for
ejectment against Mst. Amina Bibi and her husband‑Wali Muhammad. Both the suits were
consolidated. Vide judgment and decree of the learned trial Court the suit for declaration filed
by the respondents was dismissed. Mst. Amina Bibi, whereas the suit for ejectment filed by the
applicant was decreed on 10‑7‑1991.

4. Respondent‑Mst. Amina Bibi filed two appeals before the learned Additional District Judge,
who vide his judgment and decree dated 5‑12‑1995 accepted the same and set aside the
judgment and decree of the learned trial Court dated 10‑7‑1991. The suit filed by the applicant
was dismissed whereas, the suit filed by Mst. Amina Bibi was decreed to the extent of the house
in dispute only. With regard to the shop, suit of the respondent was held to be not competent
as she had not prayed for the possession in her plaint.

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5. The respondent Mst. Amina Bibi did not challenge the judgment and decree of the learned
Additional District Judge, dated 5‑12‑1995 with regard to dismissal of her suit vis‑a‑vis shop in
question. However, the applicant filed a civil revision but inadvertently legal heirs of Wali
Muhammad son of Muhammad Din could not be impleaded. It is contended that Wali
Muhammad was just a pro forma respondent. He had no interest in the property in question.
The legal heirs of Wali Muhammad, who was just a pro forma respondent, be allowed to be
impleaded as respondent. Reliance has been placed on the case of Sardar Muhammad and 2
others v. Haider Zaman and 3 others PLD 1993 Peshawar 81 to contend that non- impleadment
of a pro forma respondent is not fatal, however in order to do away any hyper-technical
objection, the petitioner seeks the impleadment of the legal heirs of Wali Muhammad as pro
forma respondent. Further it is contended that since two suits between the same parties were
brought together which were consolidated and disposed of through a consolidated judgment
in which two separate decrees were prepared and the civil revision has been filed without copy
of the decree passed in ejectment suit, non‑filing of the decree is not fatal. Further contends
that the applicants be allowed to place on the record the decree passed in suit for ejectment
and delay in filing decree be condoned. In this behalf the learned counsel placed reliance on
the following cases: ‑‑

(i) Sardar Menhajuddin Ahmad and another v. Sudhir Kumar Sinha and others PLD 1959 Dacca
316.

(ii) Manzoor Ahmad v. Additional District Judge‑III, Rahimyar Khan and another 1988 CLC 436.

(iii) Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892.

(iv) Siraj Din and others v Rajada 1989 SCMR 1780.

(v) Abdullah v. Faqir Ullah and others 1981 SCMR 585.

(vi) Government of Punjab through the Secretary, Communication and Works Department,
Lahore and others v. Ashers Trading Construction Co. 2002 SCMR 1070.

6. It is added that the amendment in the prayer clause prayed for, if allowed, shall not change
the structure of the civil revision. Finally it has been contended that Munir Ahmad, who has
purchased the property from Mst. Amina Bibi during the pendency of the suit is a necessary
and proper party, be impleaded as respondents.

7. Conversely, the learned counsel for the respondent contends that legal heirs of Wali
Muhammad were already on record before the learned Appellate Court and the revision is not
competent as the said legal heirs have not been impleaded as respondents in the present civil
revision. Further adds that the amendment in the prayer clause sought for, may change the
structure of the civil revision. Adds that the decree sheet passed in the civil suit filed by the
petitioner for ejectment has not been appended alongwith the civil revision and the civil
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revision has become time‑barred. This Court has no jurisdiction to condone the delay under
section 5 of the Limitation Act. He states that Munir Ahmad be impleaded as necessary party,
who has purchased the property‑house from Mst. Amina Bibi.

8. I have considered the arguments of the learned counsel for the parties and perused the
record.

9. Wali Muhammad was a pro forma- respondent because both the parties claimed that they
have stepped into the shoes of Wali Muhammad. In this view of the matter, omission to
implead the legal heirs of Wali Muhammad who were already on the record before the learned
Appellate Court and are pro forma respondents, is not fatal to the case of the petitioner. It has
been ruled in the case of Sardar Muhammad and 2 others v. Haider Zaman and 3 others PLD
1993 Peshawar 81, that, "In civil revisions, defect of non‑impleadment of pro formas defendants
would not be fatal if it has not prejudiced rights of parties concerned."

10. It is admitted position between the parties that two suits between the same parties having
common issues were disposed of by one consolidated judgment but two separate decrees were
prepared. It is established principle of law that if one filed against both the decrees then in
eventuality decree against appeal which has not been filed does not operate as res judicata. See
case of Abdullah v. Faqir Ullah and others 1981 SCMR 585. In the case reported as Shukar Din
and others v. Nazir Ahmad and others 1993 CLC 1367 it has been ruled that: "Even if formality
of filing another copy of decree in another suit was not followed and copy of decree was not
appended with grounds of appeal, it would make no difference. When composite judgment was
passed and challenged in appeal, no procedural illegality and rather technicalities should stand
in way of disposal of appeal on merits". In the present case the record of the Court has been
summoned. The Court has the power to exercise suo motu powers of revision to see legality of
the order of the learned Courts, therefore, to my mind non‑filing of another copy of the decree
passed in other suit would not make any difference and the petitioner can be allowed to file the
decree passed in connected suit and the delay in same can be condoned. The amendment in
the prayer clause of the civil revision may not change the structure of the civil revision.

Resultantly, all these applications are allowed. The legal heirs of Wali Muhammad have been
brought on the record by the learned counsel for the petitioner. The amended memo. of
revision petition has been filed. The petitioner is allowed to place on the record the decree
passed in the connected suit by condoning the delay. Munir Ahmad, who has purchased the
property is allowed to be impleaded as respondent. The civil miscellaneous are disposed of in
the above terms.

S.A.K./A‑885/L Petition dismissed.

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