Summary: (a) Civil Procedure Code (V of 1908) – S. 2(12), O. XX R. 12 – Mesne profits – Determination – Discretion of appellate court – Scope. Mesne profits are defined under S. 2(12) CPC as profits wrongfully received or that could have been received by a person in unlawful possession of property. O. XX R. 12 CPC allows courts to order an inquiry to determine the quantum of mesne profits. In the present case, although the trial court declined to award mesne profits due to lack of specific proof, the appellate court granted mesne profits at the rate of Rs. 10,000 per month with 10% annual increase by accepting respondents’ cross-objections. Supreme Court upheld this exercise of judicial discretion, observing that the property was within city limits and of commercial value, and the reasoning provided in para 14 of the appellate court’s judgment remained unshaken. — Fateh Chand v. Balkishan Dass (AIR 1963 SC 1405) distinguished. (b) Civil Procedure Code (V of 1908) – S. 11 – Res judicata – Prerequisites – Mere pleading insufficient – Burden to prove lies on party asserting bar. The petitioners failed to substantiate their claim of res judicata under S. 11 CPC. The record revealed no previous adjudication involving the same parties and subject matter. Allegations without documentary proof or reference to an earlier binding judgment cannot constitute a valid plea of res judicata. Petitioners' prior conduct, including posing as attorney for unrelated parties without authority, further weakened their position. — Mst. Tayyaba Khurram v. Province of Punjab, statement Exh.P-13, relied upon. (c) Civil Procedure Code (V of 1908) – O. XLI, R. 27 – Additional evidence in appeal – Discretionary – Vague applications – Admissibility and limitations. Rule 27 of O. XLI CPC permits the appellate court to admit additional evidence if necessary to pronounce judgment or where substantial cause exists. The petitioners’ application for additional evidence failed to disclose specific documents or their relevance. Though the appellate court omitted to pass an order on the application, the Supreme Court held that no useful purpose would be served by remanding the case, especially when petitioners failed to establish any lawful nexus with the suit property. — Hidayatullah v. Khurshid Khan (1987 CLC 832), Administrator, LMC v. Abdul Hamid (1987 CLC 1261) held inapplicable. (d) Pleadings – Limitation on new grounds at appellate stage – Supreme Court practice – Non-pleaded arguments not allowed. Arguments not raised in the memo of petition cannot be allowed at the appellate stage unless express permission is granted by the court. The petitioners sought to argue on mesne profits and res judicata without having raised these as specific grounds in the petition for leave to appeal. Such a strategy was held legally impermissible. (e) Civil Procedure Code (V of 1908) – Concurrent findings – Scope of Supreme Court interference – When barred. Supreme Court reiterated that it does not interfere with concurrent findings of fact by the trial, appellate, and High Court unless shown to be perverse, illegal, or based on misreading. In this case, all three courts upheld the respondents’ title and found the petitioners’ possession to be illegal. The petitioners admitted during hearing that they would not contest the case on merits, thus affirming the established findings. Disposition: Petition dismissed; leave to appeal refused. Costs imposed.

Summary: (a) Civil Procedure Code (V of 1908)----S. 115—Revisional jurisdiction—Scope—Concurrent findings of fact—Registered sale deed—Improper reversal by High Court—Non-speaking order—EffectAppellants filed suit for possession and mesne profits on the strength of a registered sale deed dated 05.03.1989. Trial Court decreed the suit, holding appellants as owners and respondent in illegal possession. First Appellate Court affirmed findings. However, Revisional Court, while exercising jurisdiction under S. 115 CPC, reversed concurrent findings without providing cogent reasons or identifying jurisdictional errors. Supreme Court held that Revisional Courts cannot act as another appellate forum and must refrain from reassessing evidence unless findings are perverse or contrary to law. Reversal without reasoning, and without addressing binding nature of registered deed or prior litigation, amounted to a serious legal error. Impugned judgment of High Court set aside—Findings of Trial and Appellate Courts restored.Cited Cases:• District Council Sialkot v. Nazir Ahmed Khan 2001 SCMR 1641• Lahore Development Authority v. Sharifan Bibi 2010 SCMR 742(b) Evidence Act (I of 1872)----S. 91 & S. 92—Registered sale deed—Presumption of validity—Challenge to title—Burden of proof—Failure to prove consideration—EffectRespondent alleged he had paid consideration to the father of appellants, claiming joint ownership of suit property. Supreme Court held that once a registered sale deed stands in favour of appellants, presumption of ownership arises, and burden lies on the challenger to rebut it through cogent evidence. Respondent failed to produce any proof of alleged payments or joint ownership and did not seek specific performance or refund. Courts below rightly disregarded vague oral assertions. Revisional Court's failure to address these evidentiary gaps rendered its interference unwarranted and contrary to settled law.(c) Specific Relief Act (I of 1877)—S. 42—Declaratory relief—Challenge to registered instrument—Delay and failure to obtain relief—ConsequencesRespondent challenged appellants' title in a separate suit for cancellation of registered deed, which was dismissed by Trial Court and upheld by Appellate Court. Supreme Court noted that belated claims seeking cancellation without concurrent pursuit of specific relief or refund have no legal sanctity. Failure to challenge ownership through appropriate legal remedies bars collateral assertions in defence. Courts must give due weight to registered title documents when unassailed or unsuccessfully challenged—Revisional Court erred in undermining conclusive effect of prior judgments.(d) Civil Procedure Code (V of 1908)----S. 9—Jurisdiction of civil court—Possession suit—Nature and maintainability—Mischaracterization by High Court—EffectAppellants' suit was for possession and mesne profits, duly based on title acquired through registered sale deed. Supreme Court disapproved High Court's characterization of such suit as one for “administration,” noting it had no basis in pleadings or relief sought. Misreading of record by Revisional Court led to misapplication of law and unwarranted interference with valid decrees. Such jurisdictional error warranted correction under constitutional appellate jurisdiction.

Summary: Background: The dispute centers around possession and recovery of mesne profits for two shops in Swat. Initially owned by the former ruler of Swat, these properties were inherited and subsequently transferred to the plaintiffs through a gift deed. The defendants, who took possession of the shops with the plaintiffs' consent, later refused to return them. The plaintiffs claimed rightful ownership based on an inherited gift deed, while the defendants asserted ownership based on a prior sale to their father. -----Issues: 1- Whether the plaintiffs, who brought the suit for possession based on their title, could claim ownership despite failing to prove the gift deed. -----2- Whether the plaintiffs' failure to produce a declaration of title impacted the maintainability of their possession claim. -----3- Whether the demand for mesne profits was substantiated by the plaintiffs' evidence. -----Holding/Reasoning/Outcome: The Supreme Court dismissed the plaintiffs' appeal, reinstating the Trial Court's judgment. The Court found that the plaintiffs failed to prove ownership due to the absence of a valid gift deed. Additionally, the defendants' claim, supported by a prior sale agreement, cast doubt on the plaintiffs' title. The Court held that a mere possession suit was insufficient without a declaration of title given the disputed ownership. Consequently, the plaintiffs' claim for possession and mesne profits was denied. -----Citations/Precedents: Taj Wali Shah v. Bakhti Zaman (2019 SCMR 84) Sultan Mahmood Shah through LRs and others v. Muhammad Din and two others (2005 SCMR 1872)

Summary: Background: The petitioner filed a civil petition challenging the order of the Islamabad High Court regarding the inheritance of the estate of Sarfraz Ahmad Khan, who passed away in 2010. The estate included a house in Rawalpindi. The petitioner, along with his siblings, had agreed to evaluate the property and distribute shares according to Islamic law. However, after agreeing to a “Consent/Joint Statement,” the petitioner later contested it, claiming he did not understand what he had signed, despite being present with his counsel. He also filed a suit for partition and other claims in December 2021, 11 years after his father's death, which was triggered by his sisters' request for their inheritance. -----Issues: 1- Whether the petitioner’s claim that he did not understand the “Consent/Joint Statement” is justified. ----2- Whether the filing of the suit for partition and related claims affects the inheritance rights of the petitioner’s sisters and other legal heirs. ----3- Whether the petitioner’s actions in contesting the agreement and delaying the distribution of the estate justify the imposition of costs. -----Holding/Reasoning/Outcome: The court found the petitioner’s claim that he did not understand the “Consent/Joint Statement” unjustified. The petitioner, who was an educated individual and was present with his counsel at the time of signing, could not reasonably claim that he was unaware of the contents of the document. The court reiterated that the property of a deceased Muslim vests in the legal heirs immediately upon death, and the pendency of a suit for partition does not bar the rightful distribution of the estate. The petitioner’s actions were seen as an attempt to deprive his sisters of their rightful inheritance, which the court strongly disapproved of. The court emphasized the need to protect the inheritance rights of vulnerable members of society, including female heirs. The petition was dismissed as frivolous, and the court imposed a cost of 300,000 rupees on the petitioner, to be distributed equally among the respondents (the sisters). The court also noted that the respondents were justified in claiming mesne profits for the time they were deprived of their rightful shares.

Summary: the appellant contested the preliminary judgment and decree dated 08.05.2023 issued by the Civil Judge, Islamabad. The suit, initiated by the respondents on 26.06.2021, sought a declaration, separate possession through partition, rendition of accounts, recovery of mesne profits, and permanent and mandatory injunction for House No. 181, Gomal Road, Sector E-7, Islamabad. The learned civil court partially decreed the suit and appointed a local commission to determine the value of the shares of the respondents and the appellant. ----Issues: 1. Whether the suit property, House No. 181, can be partitioned given the CDA regulations. 2. Whether the suit was maintainable without the impleadment of all relevant parties. 3. Whether the suit for partition should proceed given the objections to pecuniary jurisdiction. 4. Whether the appellant's exclusive possession of the suit property should continue. 5. Whether the respondents have a right to access and sell their share in the suit property. ---Holding/Reasoning/Outcome: Holding: The court upheld the preliminary judgment and decree dated 08.05.2023, dismissing the appeal with costs. The court found that the suit property could not be partitioned as per CDA regulations and that the property should be auctioned with proceeds divided among the co-owners. Reasoning: The court reasoned that: The suit property, consisting of House No. 181-A and House No. 181-B, could not be bifurcated according to CDA regulations as the plot size did not meet the minimum requirements for subdivision. The objections regarding the pecuniary jurisdiction and maintainability were found to be attempts to delay the proceedings. The appellant had previously consented to the partition of the property, making her objections invalid. The appellant’s refusal to share possession with her co-owners and her attempts to involve other parties were seen as inequitable conduct. The learned civil court correctly appointed a local commission to assess the value of the shares and proposed a public auction for House No. 181-A, ensuring fair division of proceeds among the co-owners. Outcome: The appeal was dismissed with costs of Rs. 5,00,000/- payable to each of the respondents. The court affirmed the learned civil court's decision for public auction of the suit property, ensuring an equitable distribution of the sale proceeds. ----Citations/Precedents: Ghulam Rasool Vs. Muhammad Khalid (2006 YLR 2289) Azhar Hussain Shah Vs. Member Board of Revenue, Khyber Pakhtunkhwa (2016 YLR 1489) Mazullah Khan Vs. Taraja Begum (2020 YLR 2206) Ghulam Nabi Vs. Faisal Naveed (2003 SCMR 1794) Abdul Ghani Vs. Yasmeen Khan (2011 SCMR 837) Sultan Vs. Muhammad Hussain (2006 MLD 659) Muhammad Umar Khan Vs. Aziz Begum (2001 MLD 448) Aamir Masood Vs. Khurshid Begum (2001 MLD 159) Muhammad Adil Vs. Muhammad Amir (2023 SCMR 1032) Muhammad Haneef Vs. Abdul Samad (PLD 2009 SC 751) Manzoor Hussain Vs. Muhammad Nawaz (2010 SCMR 1042) Allah Bukhsh Vs. Bakhtawar (2018 CLC 1070)

Summary: (a) Contract Act, 1872: ----Specific Performance—Breach of Contract—Compensation and Mesne Profits—Privity of Contract Where a party to an agreement to sell immovable property is unable to fulfill its obligations due to a failure to acquire title from the original owner, the subsequent purchaser (third party) is entitled to claim compensation for breach of contract. Under Section 43 of the Transfer of Property Act, 1882, a person who fraudulently or erroneously represents their authority to transfer property is liable for damages if they fail to fulfill their contractual obligations. In the present case, the appellants failed to secure ownership of the property under the first agreement, rendering them incapable of transferring it to the respondent under the second agreement. Consequently, the respondent was entitled to compensation as stipulated under the contract. ----Cited Cases: Abdul Hameed v. Shamasuddin, PLD 2008 SC 140 Nadeem Sadiq v. Dewan Masih Gulraiz, 2022 YLR 2151 Rasheeda Begum v. Muhammad Yousuf, 2002 SCMR 1089 Shah Muhammad v. Atta Muhammad, 2005 SCMR 969 Muhammad Ibrahim v. Fateh Ali, 2005 SCMR 1061 ----Disposition: Appeal dismissed, and compensation of Rs.70,00,000/- along with mesne profit at 15% per annum was upheld in favor of the respondent. (b) Civil Procedure Code, 1908 (C.P.C.): ----O. XXIII, R. 1—Withdrawal of Suit—Bar on Fresh Suit—Effect of Withdrawal When a plaintiff withdraws a suit without obtaining the court's permission to file a fresh one on the same subject matter, they are precluded from instituting any subsequent suit on the same cause of action under Order XXIII, Rule 1(3), C.P.C. In this case, the first suit for specific performance of the original agreement to sell was withdrawn by the appellants, and the subsequent suit on the same cause of action was rejected by the court. This rejection was never challenged, solidifying the appellants' inability to enforce their claims against the original owner. ----Cited Cases: Muhammad Iqbal v. Muhammad Hussain, PLD 1986 SC 70 Muhammad Sadiq v. Muhammad Ramzan, 2002 SCMR 1821 Arbab Ali v. Noor Bakhsh, 2003 CLC 1670 ----Disposition: The appellants’ inability to perform their obligations under the agreement due to the withdrawal of the initial suit nullified their claims for specific performance. (c) Transfer of Property Act, 1882: ----S. 43—Transfer by Unauthorized Person—Right of Third Party Purchaser Under Section 43 of the Transfer of Property Act, 1882, if a person represents that they are authorized to transfer certain immovable property and fails to deliver on such representation, they are liable for damages to the transferee. In this case, the appellants, while not having ownership of the suit plot, entered into an agreement with the respondent for its sale. Their failure to transfer the property by the stipulated date resulted in liability for compensation as specified in the contract. ----Cited Cases: Muhammad Iqbal v. Muhammad Hussain, PLD 1986 SC 70 ---Disposition: The appellants' misrepresentation and failure to perform their contractual obligations justified the compensation awarded to the respondent. (d) Agreement to Sell—Rights of Third Party Purchaser—Compensation vs. Specific Performance: A third-party purchaser who enters into an agreement to sell with an intermediary party (who themselves lack title) cannot seek specific performance if the intermediary fails to secure ownership. However, the third-party purchaser retains the right to claim compensation and mesne profits as stipulated in the agreement. The respondent’s entitlement to Rs.70,00,000/- compensation and 15% per annum mesne profits aligned with clause 8 of the agreement, which provided for these remedies in case of non-fulfillment of obligations. ----Cited Cases: Abdul Hameed v. Shamasuddin, PLD 2008 SC 140 Rasheeda Begum v. Muhammad Yousuf, 2002 SCMR 1089 ----Disposition: The decree for compensation and mesne profit was upheld. (e) Privity of Contract—Role of Special Power of Attorney: A special power of attorney executed by a party in favor of another for pursuing litigation does not bar the attorney from seeking independent remedies arising from separate contractual obligations. In the present case, the execution of a power of attorney in favor of the respondent for pursuing the first suit did not preclude him from seeking compensation under the subsequent agreement to sell. ----Disposition: The execution of the special power of attorney did not obstruct the respondent’s right to seek compensation. (f) Real Estate Agreements—Speculative Transactions and Litigation: Speculative transactions in real estate, where purchasers attempt to sell immovable property before acquiring title, frequently result in contractual breaches and prolonged litigation. The courts emphasized the need to discourage such speculative agreements that waste judicial resources. ----Cited Cases: Abdul Hameed v. Shamasuddin, PLD 2008 SC 140 ----Final Disposition: The appeal was dismissed with costs. The decree awarding Rs.70,00,000/- as compensation along with mesne profit at 15% per annum w.e.f. 05.07.2015 was upheld.

Summary: Order of interim mesne profits-Scope of Sections 7 and 8 of the Punjab Partition of Immovable Property Act, 2012

Summary: (a) Specific Relief Act (I of 1877)-------Ss. 42, 8 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration,possession, mesne profits and permanent injunction---Rejection of plaint---Report of localcommissioner---Scope---Petitioners assailed order of trial court whereby plaint was rejectedunder O. VII, R.11, C.P.C.---Validity---Trial Court had to look into the contents of the plaintand examine the same on its face value---Trial Court could have rejected the plaint if itmanifested any infirmity as enumerated in O.VII, R.11, C.P.C. to avoid wastage of time andunnecessary harassment of the opposite party---None of the clauses of O.VII, R.11, C.P.C.were attracted in the present case rather the order of the trial court was based on the report oflocal commissioner---Report by local commissioner could not have been made a basis fordecision of the case rather it was the duty of the trial court to examine the localcommissioner followed by an opportunity of cross-examination to the parties---Revisionpetition was accepted and the matter was remanded to the Trial Court for decision on merits.

Summary: Background:The dispute revolves around a piece of land measuring 56 acres and 28 ghuntas situated in Deh and Taluqa Tando Adam, District Sanghar. The land, originally evacuee property, was granted to Shah Azizullah Abbasi and his wife Mst. Tayyeba Khatoon. Upon the death of Shah Azizullah Abbasi, his widow Mst. Tayyeba Khatoon and their children (respondents No. 1 & 2) sought transfer of the land in their names. However, they were informed by the revenue authorities that the land had been sold to the appellants by their deceased parents. This led to legal proceedings initiated by respondents No. 1 & 2 seeking declaration, permanent injunction, cancellation of documents, possession, and mesne profits.---Issues:The main issue concerns the validity of the sale transactions purportedly made by the deceased owners to the appellants.The credibility of the evidence presented, including the authenticity of the revenue records and the alleged witnesses of the sale transactions, is in question.---Holding/Reasoning/Outcome:The High Court held that the appellants failed to prove the validity of the sale transactions. The evidence presented, including oral statements purportedly made by the deceased owners and the alleged witnesses, lacked credibility.Examination of the revenue record revealed irregularities, including inconsistencies in page numbering and ink impressions, suggesting tampering and manipulation.The Court directed disciplinary action against the revenue department officials responsible for manipulating the records and suggested criminal action if necessary.The appeal was dismissed, affirming the judgment of the High Court.---Conclusion:The Court upheld the decision of the High Court, finding no merit in the appeal. Additionally, the Human Rights Case (H.R.C.) filed for early hearing became redundant and was disposed of accordingly.---Quote: Disputed sale transactions are based on oral statements purportedly made by the deceased before the revenue authorities and allegedly witnessed by persons none of whom was from the side of the deceased. The disputed statements of the witnesses neither contain their CNIC numbers nor their addresses, but only their purported thumb impressions, which show that they were illiterate. None of the witnesses of the disputed statements was examined in Court. Examination of the register of Village Form VII shows that the page that contained one of the two disputed transfer entries was apparently subsequently inserted. It is sufficient to hold that the transaction of sale has not been proved.

Summary: -----1. Benami Transactions – Burden of Proof: (Benami Transactions; Civil Procedure Code, 1908) The burden of proving a transaction as benami lies on the party asserting it. This must be discharged with clear, cogent, and definite evidence. Mere possession or a family relationship does not suffice to prove ownership in a benami transaction. (PLD 1972 SC 139; 2014 SCMR 1779) -----2. Ownership and Possession – Legal Title vs. Alleged Family Settlement: (Specific Relief Act, 1877; Section 42) Legal ownership, as evidenced by registered documents, prevails over claims based on alleged oral family settlements, especially when such settlements are unsupported by independent evidence or documentation. Possession alone does not establish ownership rights. -----3. Power of Attorney – Scope and Limitations: (Contract Act, 1872; Power of Attorney Act, 1882) A power of attorney is limited to the express authority granted within its terms. Authorization to manage, construct, or collect rent does not extend to transferring ownership or creating proprietary rights in favor of the attorney. -----4. Mesne Profits – Entitlement of Owner: (Code of Civil Procedure, 1908; Order XX Rule 12) A rightful owner is entitled to mesne profits for the period during which possession was unlawfully retained by another. In this case, mesne profits at Rs.5,000 per month were granted from the date of suit till delivery of possession. -----5. Family Arrangements and Trust – Evidentiary Requirements: Claims of ownership arising from oral family arrangements or implied trust must be substantiated with documentary or independent evidence. Absence of corroborative evidence renders such claims baseless. -----6. Long Possession – Not a Substitute for Ownership: Long possession, even exceeding two decades, does not confer ownership rights against a legal owner, particularly when such possession arises from trust or agency. -----7. Disposition Appeals Dismissed: The judgment of the trial court decreeing respondent No.1’s suit for possession and mesne profits and dismissing the appellant’s suit for declaration was upheld. Mesne profits of Rs.5,000 per month were confirmed.