2012 PLP 1384 (SCMR)
Mst. MARYAM BIBI and others — Petitioners Versus MUHAMMAD RAFIQUE ANWAR and others — Respondents
| Citation | 2012 PLP 1384 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Sarmad Jalal Osmany, Ejaz Afzal Khan and Gulzar Ahmed, JJ |
| Parties | Mst. MARYAM BIBI and others — Petitioners Versus MUHAMMAD RAFIQUE ANWAR and others — Respondents |
| Primary Law | Specific Relief Act (I of 1877) |
Q1: What are the key laws and sections cited in 2012 PLP 1384 (SCMR)?
This judgment primarily cites: Specific Relief Act (I of 1877) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2012 PLP 1384 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Sarmad Jalal Osmany, Ejaz Afzal Khan and Gulzar Ahmed, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2012 PLP 1384 (SCMR) (Mst. MARYAM BIBI and others — Petitioners Versus MUHAMMAD RAFIQUE ANWAR and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Amir Alam Khan, Senior Advocate Supreme Court, Sardar M. Aslam, Advocate Supreme Court and M. Ilyas Khan, Advocate Supreme Court for Petitioners (in C.P. 1060-L of 2007).
- Gulzarin Kiyani, Senior Advocate Supreme Court for Petitioners (in C.P. 1117-L of 2007).
- Gulzarin Kiyani, Senior Advocate Supreme Court, Hamid Ali Mirza, Advocate Supreme Court, Jehangir A. Jhoja, Senior Advocate Supreme Court, Ch. Inayatullah Khan, Advocate Supreme Court, Maqbool Elahi Malik, Senior Advocate Supreme Court, Sardar M. Salam, Advocate Supreme Court and Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents (in C.P. 1060-L of 2007).
- Amir Alam Khan, Senior Advocate Supreme Court, Sardar M. Aslam, Advocate Supreme Court, M. Ilyas Khan, Senior Advocate Supreme Court, Kh. M. Farooq, Senior Advocate Supreme Court, M. Iqbal Ghaznavi, Advocate Supreme Court for Respondents (in C.Ps. 1117-L and 1118-L of 2007).
- Date of hearing: 12th June, 2012.
- 2. In the aforementioned circumstances, we queried Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court who appeared for some of the respondents claiming title upon sale by the petitioner, as to how in fact the sale in question was proved. Learned Senior Advocate Supreme Court read out a particular portion of the judgment of the Civil Court in which the entire evidence has been discussed and stated that in view of the same which stood un rebutted, the learned Civil Court came to the correct conclusion that the sale stands proved which in fact has been reiterated by the High Court.
- 4. In these circumstances, we had suggested to all the learned counsel that perhaps the matter could be remanded back to the Civil Court in view of the fact that the sale in question was never formally challenged by the petitioner i.e. she never sought a declaration that the sale deeds be cancelled and so also the fact that perhaps in both the judgments, the claims of at least those persons based upon orders from the Settlement Authorities were never touched. Mr. Amir Alam Khan, learned Senior Advocate Supreme Court and other learned Counsel have agreed, whereas Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court has stated that in view of un refuted and un-rebutted evidence on the record, the claim of his client at least stands proved.
- 5. We have already expressed our opinion as to the argument of Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court as afore-noted and we cannot agree with his proposition that the claim of his client stood proved in accordance with law. Consequently, we would remand the case to the Civil Court where the petitioners would have the right to amend the plaint, subject of course to all just exceptions and from which point the matter would start again. Accordingly, Civil Petition No.1060-L of 2007 is converted into an appeal and allowed in above terms. The Impugned Judgments of the learned High Court dated 13-2-2007 as well as that of the trial Court dated 6-5-2002 are set aside. We would also direct the learned Civil Court to decide the matter as quickly as possible preferably within a period of six months because it is an old case.
- Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court does not press these petitions, therefore, the same are dismissed as such.
Headnotes / Summary
(On appeal against the judgment dated 13-2-2007 passed by Lahore High Court, Lahore in R.F.A. No.582 of 2002).
S. 42
Constitution of Pakistan, Art. 185(3)
Claim of title on basis of alleged sale
Failure to examine marginal witnesses
Effect
Claim over property in question on basis of order of settlement authorities
Such claim not touched upon by courts below
Effect
Trial Court found that the plaintiff (petitioner) could not prove her title to the property in question in view of the fact that she had sold a few portions of the same to some of the defendants (respondents), while other defendants (respondents) claimed their title over the property on the basis of transfer order (T.O) from the Settlement authorities
Defendants claiming title over property upon sale by the plaintiff contended that the sale was proved in view of the judgment of the Trial Court
Sale in question had not been proved since it was not done in accordance with the law, i.e. marginal witnesses were not examined
Not sufficient for a party to just place certified copies on the record and then claim that they had been proved without following the proper procedure of the law
Sale in question was never formally challenged by the plaintiff, i.e. she never sought a declaration that the sale deeds be cancelled
Claims of the some of the defendants, which were based on orders from the Settlement authorities were never touched by both the courts below
Petition for leave to appeal was converted into appeal and allowed, impugned judgments of both the courts below were set aside and the case was remanded to the Trial Court, where the plaintiff would have the right to amend the plaint subject to all just exceptions. Mst. Maram Bibi alias Kumari Anne Balklah Kaul v. The Custodian Evacuee Property Punjab Lahore and 166 others 1996 SCMR 1483 ref.
Judgment & Decree
SARMAD JALAL OSMANY, J.
We have heard all the learned counsel appearing in this matter. The controversy and the factual aspects of the matter have been dealt with in the impugned judgment and hence we do not deem it fit to repeat the same. However, in essence the lis between the petitioner and the respondents in all the aforementioned CPLAs is as to the title to property bearing No.S-33-R-12 situated at 10-Montgomery Road, Lahore or a part thereof. The petitioner had succeeded in establishing before this Court that the said property is not evacuee in the case reported as "Mst. Maram Bibi alias Kumari Anne Balklah Kaul v. The Custodian Evacuee Property Punjab Lahore and 166 others" (1996 SCMR 1483). However, as there were many claimants to the property she was constrained to file a suit before the learned Civil Court in which the respondents in this matter were arrayed as defendants. The learned Civil Court came to the conclusion that the petitioner could not prove her title to the properties in view of the fact that she had sold a few portions thereof to some respondents but in so far as the other respondents are concerned who claimed their title on the basis of T.O. from the Settlement Authorities or those who in fact never contested the suit perhaps no findings were given. According to all the learned Counsel, the matter regarding the uncontested defence as well as the persons who claimed the properties on the basis of orders from the Settlement Authorities was not even discussed by the learned High Court in the Impugned Judgment. According to some of the learned counsel, the said judgment only deals with the vendees who allegedly had purchased the property in question from the petitioner and had upheld their claims.
2. In the aforementioned circumstances, we queried Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court who appeared for some of the respondents claiming title upon sale by the petitioner, as to how in fact the sale in question was proved. Learned Senior Advocate Supreme Court read out a particular portion of the judgment of the Civil Court in which the entire evidence has been discussed and stated that in view of the same which stood un rebutted, the learned Civil Court came to the correct conclusion that the sale stands proved which in fact has been reiterated by the High Court.
3. In our opinion, the said sale in favour of Boray Wala Bus Service has not been proved since it was not done in accordance with law i.e. the marginal witnesses were not examined etc. It is not sufficient for a party to a case just to place certified copies on the record and then claim that they have been proved without following the procedure prescribed by the law.
4. In these circumstances, we had suggested to all the learned counsel that perhaps the matter could be remanded back to the Civil Court in view of the fact that the sale in question was never formally challenged by the petitioner i.e. she never sought a declaration that the sale deeds be cancelled and so also the fact that perhaps in both the judgments, the claims of at least those persons based upon orders from the Settlement Authorities were never touched. Mr. Amir Alam Khan, learned Senior Advocate Supreme Court and other learned Counsel have agreed, whereas Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court has stated that in view of un refuted and un-rebutted evidence on the record, the claim of his client at least stands proved.
5. We have already expressed our opinion as to the argument of Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court as afore-noted and we cannot agree with his proposition that the claim of his client stood proved in accordance with law. Consequently, we would remand the case to the Civil Court where the petitioners would have the right to amend the plaint, subject of course to all just exceptions and from which point the matter would start again. Accordingly, Civil Petition No.1060-L of 2007 is converted into an appeal and allowed in above terms. The Impugned Judgments of the learned High Court dated 13-2-2007 as well as that of the trial Court dated 6-5-2002 are set aside. We would also direct the learned Civil Court to decide the matter as quickly as possible preferably within a period of six months because it is an old case. Civil Petitions Nos. 1117-L and 1118-L of 2007 Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court does not press these petitions, therefore, the same are dismissed as such. M.W.A./M-37/SC Order accordingly.