Form No.HC.

JD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Case C.R No.2252/2015

Mst. Humaira Begum etc. VS. Uzma Awan etc.

S. No. of order/ Date of order/ Order with signatures of Judge, and that of parties
proceedings Proceedings or counsel, where necessary

05.08.2015 Ch. Khurshid Ahmad, Advocate for the petitioners.

This civil revision calls in question the

judgment and decree dated 25.06.2015 and
16.02.2013, passed by the learned courts below,
whereby the suit for possession through partition
filed by the respondents was decreed.
2. The necessary facts for the disposal of this
petition are, that the respondents filed a suit for
possession through partition of the suit property on
the grounds, that Muhammad Amin deceased,
predecessor/father of the parties to the suit, died
leaving behind the petitioners/defendants and
respondents/plaintiffs as his legal heirs; that
Muhammad Amin deceased, at the time of death,
left behind the suit property; that the suit property
consisted of a residential building and shops which
is in joint possession of the parties, therefore, the
same be partitioned among the heirs of deceased
Muhammad Amin.
3. The suit was contested by the petitioners,
who are legal heirs of Muhammad Jamil, real son of
deceased Muhammad Amin, through written
statement, wherein it was alleged, that the
C.R No.2252/2015 -2-

respondents, who are daughters of Muhammad

Amin, have no concern whatsoever with the suit
property, as deceased Muhammad Amin, the
predecessor of the parties, in his lifetime, transferred
the suit property by way of gift in favour of his real
son namely, Muhammad Jamil, the predecessor of
the present petitioners.
The learned trial court, out of the
controversial pleadings of the parties, framed
necessary issues, recorded evidence of the
respective parties and finally decreed the suit. The
present petitioners/defendants being aggrieved
thereof, filed an appeal which was dismissed, hence,
this civil revision.
4. Learned counsel for the petitioners has
mainly argued, that the suit filed by the respondents
was not maintainable because of the reason, the
proper court fee was not affixed and the suit was not
valued in accordance with law. Further contended,
that the deceased father of the parties to the suit
namely, Muhammad Amin, in his lifetime
transferred the property by way of gift in favour of
his real son namely, Muhammad Jamil, deceased
predecessor of the present petitioners, therefore, the
respondents have no concern whatsoever with the
suit land. For this purpose, the learned counsel has
relied upon the copy of the Assessment Form
commonly known as P.T.1 issued by the Excise &
Taxation Department. Further submits, that the suit
property is in possession of the petitioners from the
last forty years and the property tax is being paid by
the petitioners or predecessor of the petitioners
C.R No.2252/2015 -3-

namely, Muhammad Jamil, therefore, the petitioners

have become owner of the suit property.
5. Heard. Record perused.
6. It is not denied, as evident from the record,
that parties to the suit are legal heirs of deceased
Muhammad Amin, who at the time of his death, left
one son and three daughters along with the suit
property, the suit property was in the name of the
predecessor of the parties namely, Muhammad
Amin and still exists in his name and that the
petitioners have miserably failed to place on record
any document in support of their contention, that the
suit property was transferred in the name of their
predecessor namely, Muhammad Jamil by the
predecessor of the parties and original owner
namely, Muhammad Amin. Both the learned courts
below have concurrently reached to the conclusion,
that the parties to the suit being the legal heirs of
deceased Muhammad Amin are owner of the
property to the extent of their shares, the property is
still joint and the petitioners/defendants have failed
to bring on record anything to show and prove the
transfer of suit property by deceased Muhammad
Amin in favour of his son Muhammad Jamil,
therefore, it can safely be observed, that the
petitioners just to deprive the daughters of deceased
Muhammad Amin have taken this ill-founded and
misconceived stance but could not prove through
any iota of evidence. This proposition has already
been resolved by the Hon’ble Supreme Court of
Pakistan through a landmark judgment cited as
Ghulam Ali and 2 others Vs. Mst. Ghulam Sarwar
C.R No.2252/2015 -4-

Naqvi (PLD 1990 Supreme Court 1). The relevant

part of the judgment is reproduced as under:
“It is not so for the first time that it is
being so held, Even earlier commentators
on Islamic Law (its inheritance branch in
particular) have indicated the same
approach with reference to some decided
cases. The heir in possession was
considered to be in constructive
possession of the property on behalf of all
the heirs in spite of his exclusive
possession, e.g., the possession of the
brothers would be taken to be the
possession of their sisters, unless there
was an express repudiation of the claims
of the sisters by the brothers. Hyder Khan
v. Chanda Khan (501 IC 691 (All).
While dealing with express
repudiation and ouster, it was observed
that: “There cannot be ouster without a
demand and a refusal, or without a clear
declaration brought home to the
knowledge of the co-sharers that lesser
profits were being paid because the others
were being ousted from the remainder of
the share. A mere omission to pay profits
does not in itself constitute ouster, and
still less so, when something, though not
the whole, is paid. The mere partition
among the males without reference to the
female heirs does not mean much in the
shape of ousting them from their rights.
Circumstances may exist in which an
inference of knowledge can be drawn, or
in which the laches or negligence of the
co-owners is so great that knowledge will
be presumed but a case of that type would
have to be exceptional. The law does not
penalise a co-owner who relies on the
honesty of his co-sharer, and therefore
ordinarily the mere fact that he does not
take the trouble to assert his rights as he
may be entitled to, would not justify an
inference of ouster.” (Mohammad
Aminudin v. Md. Abdur Rahman 1941
N.L.J. 467)
C.R No.2252/2015 -5-

It has further been observed in the judgment

supra:
“As is discussed in the case of Haji
Nizam (approved in Mohammad Bashir’s
case) which was also a case of clash of
Islamic principles against those of other
systems-a widowed daughter-in-law,
seeking maintenance for her minor child
against the grandfather, it is the duty of
the Courts within the permissible fields,
as specified therein, to enforce Islamic
law and principles. This case also
required similar, if not better, treatment.
The scope of rights of inheritance of
females (daughter in this case) is so wide
and their thrust so strong that it is the
duty of the Courts to protect and enforce
them, even if the legislative action for
this purpose of protection in accordance
with Islamic Jurisprudence, is yet to take
its own time.
In the rural areas where 80% of
the female population resides, the
inheritance rights of the females are not
as protected and enforced, as Islam
requires. Cases similar to this do come
up even to Supreme Court. In a very
large majority of them the Courts act
rightly and follow the correct rules. But
it is a wide guess as to how many females
take the courage of initiation or
continuing the legal battle with their
close one in matters of inheritance, when
they are being deprived. The percentage
is very low indeed. Neither the Courts
nor the law as at present it stands
interpreted, are to be blamed. The social
organizations including those in the legal
field are yet to show up in the rural area.
They are mostly managed by Urban
volunteers. When will they be able to
move out of mostly managed by Urban
volunteers. When will they be able to
move out of sophisticated methods of
American speech/ seminar system and all
that goes with it, in the enlightened
urban society? It is a pity that while an
ubranised brother, who is labourer in a
C.R No.2252/2015 -6-

neighbouring Mill, has the protection of

such mass of Labour Laws; which
sometimes even Courts find it difficult
properly to count-right from the
definition of ‘rights’, up to the
enforcement’ even in homes, through
‘Social Security’ Laws, with web of
network of ‘Inspectorates’ etc. who are
supposed to be helping him at every step,
his unfortunate sister, who is deprived of
her most valuable rights of inheritance
even today by her own kith and kin—
sometimes by the urbanized brother
himself, is not even cognizant of all this.
She is not being educated enough about
her rights. Nearly four decades have
passed. A new set up is needed in this
behalf. Social Organizations run by
women have not succeeded in rural field.
They may continue for the urban areas
where their utility might also be
improved and upgraded. At the same
time they need to be equipped with more
vigorous training in the field of Islamic
learning and teachings. They should
provide the bulk of research in Islamic
Law and principles dealing with women.
It is not the reinterpretation alone which
is the need of the day but a genuine effort
by them for the reconstruction of the
Islamic concepts in this field. It cannot
be achieved by the use of alien manner
or method alone.”

There are some other judgments of this Court

cited as Ghulam Zainab and another v. Said Rasool
(2004 CLC 33), Ghulam Muhammad and another v.
Muhammad Ramzan through L.Rs (2007 MLD
1769), Agricultural Development Bank of Pakistan
through Attorney v. Khalid Aziz Malik and 6 other
(2010 CLD 1 [Lahore]) and Muhammad Asghar
and others v. Hakam Bibi through L.Rs and other
(2015 CLC 719). In the judgment supra (2007
MLD 1769) it has been observed, that in the case of
C.R No.2252/2015 -7-

oral gift, the donee had to prove the time, date and
place as to where the offer of gift was made to the
donee which was accepted by the donee and how
the delivery of possession was made to the donee. In
this case, the petitioner simply stated in the
pleadings and also argued by the learned counsel for
the petitioner, that the suit property was transferred
by Muhammad Amin, the predecessor of the parties,
in favour of Muhammad Jamil, his real son, but the
petitioners have miserably failed to bring on record
any iota of reliable and confidence inspiring
evidence particularly regarding the time, date and
place and in whose presence the property was
transferred by the predecessor of the parties i.e.
deceased Muhammad Amin in favour of
Muhammad Jamil, his son.
7. As regard the valuation of the suit, the
learned appellate court has dealt with this aspect of
the case in detail and rightly concluded, that simply
on this ground, the judgment of the learned trial
court, keeping in view the peculiar circumstances of
the case, could not be set aside.
8. As regard the stance vehemently argued by
the learned counsel for the petitioners, that the
predecessor of the petitioners namely, Muhammad
Jamil had been paying the property tax and are in
possession of the suit property from the last forty
years, therefore, had become the owners. I am
afraid, that the stance taken by the learned counsel
for the petitioners has any substance or force. It has
already been ruled in plethora of judgments and
settled principle of law, that the record of Excise &
Taxation/Property Tax and P.T.1 issued by the
C.R No.2252/2015 -8-

Excise & Taxation Department in any case is not the

title document and on the basis of this, nobody can
be permitted to grab the inherited property and legal
right of any other co-owner/legal heir particularly
the daughters who are, as observed by the Hon’ble
Supreme Court of Pakistan in the judgment supra,
are the weaker segment of the society. Reliance is
placed on Muzaffar Khan v. Sanchi Khan and
another (2007 SCMR 181), wherein it is observed,
that on the basis of P.T.1 maintained by the Excise
& Taxation Department, could not claim to be
owner of the property. Reliance is also placed on Sh.
Muhammad Rafique v. Sh. Muhammad Jameel
(2015 MLD 642 [Lahore]) and Irfan and 5 others
v. Surriya Jabeen and 4 others (2012 CLC 605
[Lahore]).
9. Although the learned counsel for the
petitioners argued the case at length at the
preliminary stage but could not point out any
jurisdictional defect, legal infirmity, misreading and
non-reading of evidence, with the concurrent
conclusion rendered by the learned courts below,
therefore, there is hardly any reason to interfere
therewith. I find support from the recent valuable
judgment of the Hon’ble Supreme Court of Pakistan
titled “Cantonment Board through Executive
Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed
and others” (2014 SCMR 161). The relevant part of
the esteemed judgment is reproduced as under:-
“In other words, the provisions of section
115, C.P.C. under which a High Court
exercises its revisional jurisdiction, confer an
exceptional and necessary power intended to
secure effective exercise of its
 C.R No.2252/2015 -9-

superintendence and visitorial powers of

correction unhindered by technicalities. The
revisional jurisdiction of the High Court
cannot be invoked against conclusions of law
or fact, which do not, in any way, affect the
jurisdiction of the Court. In the instant case,
the learned High Court, in law, could not
have investigated into the facts or exercised
its jurisdiction on the basis of facts or
grounds, which were already proved by the
parties by leading evidence. We are of the
considered view that the judgment impugned
in these proceedings is unexceptionable. The
learned High Court was justified in not
interfering in the concurrent findings of fact
which were based on the material brought on
record and proper appreciation of evidence. ”

10. Reliance is also placed on Mst. Zaitoon

Begum v. Nazar Hussain and another (2014 SCMR
1469) and Noor Muhammad and others v. Mst.
Azmat-e-Bibi (2012 SCMR 1373).
11. Resultantly, this civil revision has no force
and the same is dismissed in limine with no order as
to cost.

(Ali Akbar Qureshi)

Judge

Approved for reporting

Judge
Abdul Hafeez