IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
Mr. Justice Ijaz ul Ahsan
Mr. Justice Yahya Afridi
Mr. Justice Jamal Khan Mandokhail

Civil Appeal No. 849 of 2015

(Against the judgment dated
20.05.2015 of the Lahore High
Court, Rawalpindi Bench, passed in
Civil Revision No. 232 of 2007)

Salamat Ali and others

…Appellant(s)
Versus
Muhammad Din and others
…Respondent(s)

For the Appellants: Mr. Muhammad Munir Paracha, ASC

For Respondents No. 1-4: Sh. Zamir Hussain, ASC

Syed Rifaqat Hussain Shah, AOR

For Respondents No. 5-21: Ex-parte.

Date of Hearing: 20.01.2022

JUDGMENT

Yahya Afridi, J.- This appeal challenges the judgment dated

20.05.2015 passed by the Lahore High Court in its revisional jurisdiction

under Section 115 of the Code of Civil Procedure, 1908 (“CPC”), whereby

the concurrent judgments of the trial and appellate courts have been set

aside and the suit of the appellants has been dismissed.

2. The matter in hand relates to the estate of one Nasir-ud-Din,

who passed away in the year 1959, and his estate comprising land

measuring 22-Kanals situated in village Jalalpur Sharif, Pind Dadan

Khan (“suit land”) devolved upon his nephew, Karam Elahi, as his sole

legal heir vide inheritance mutations No. 1433 and 1435, both dated
Civil Appeal No. 849 of 2015 2

14.10.1959 (“inheritance mutations”). Karam Elahi sold the suit land, as

well as the land that he jointly owned with his deceased paternal uncle

having inherited the same from his father, Shams-ud-Din brother of

Nasir-ud-Din, to several persons vide different sale deeds and mutations

(“further alienations”), and those persons further sold it to, or made

exchange with, other persons.

3. Salamat Ali and his siblings, children of Lal Din, and their

three paternal aunts and two daughters of the fourth paternal aunt

(“appellants”) challenged the said inheritance mutations and further

alienations, by filing a civil suit in the year 1982. Salamat Ali and his

siblings asserted that their father, Lal Din, was the predeceased son of

Nasir-ud-Din, while their paternal aunts and cousins asserted that they

were the daughters and granddaughters of Nasir-ud-Din, respectively.

The appellants claimed that they had been deprived of their legal share

in the legacy of their predecessor-in-interest, Nasir-ud-Din, by Karam

Elahi fraudulently vide the inheritance mutations and further

alienations, and prayed for declaring those mutations and alienations

void and ineffective against their rights.

4. Karam Elahi, the beneficiary of the inheritance mutations,

did not appear before the trial court and was thus proceeded ex-parte;

while the further transferees including Khushi Muhammad, the father of

Muhammad Din and three others, respondents No. 1 to 4 (“respondents”)

contested the suit of the appellants, denying the status of the appellants

as legal heirs of Nasir-ud-Din, and claimed themselves to be the bona

fide purchasers of the suit land, besides raising objection to the

maintainability of the suit on the ground of limitation.

Civil Appeal No. 849 of 2015 3

5. The trial court decreed the suit of the appellants. The

appellate court accepted the appeal of the respondents, set aside the

judgment of the trial court and dismissed the suit. The High Court

(“revisional court”), on revision petition of the appellants, set aside the

judgment of the appellate court, and remanded the appeal to the

appellate court, for afresh decision. On remand, the appellate court

dismissed the appeal and maintained the judgment of the trial court.

6. On a revision petition filed by the respondents, the revisional

court set aside the concurrent judgments of the trial and appellate courts

that had been rendered in favour of the appellants, and dismissed the

suit of the appellants on the grounds that the appellants had failed to

prove their assertion that they were legal heirs of Nasir-ud-Din and that

the suit filed by them challenging the inheritance mutations of the year

1959 in the year 1982, was time barred. Hence, the present appeal by

the appellants.

7. The learned counsel for the appellant vehemently contended:

that when there was positive evidence of witnesses who had “special

knowledge” about the relationship between the parties as per Article 64

of the Qanun-e-Shahadat 1984, there was no reason to disbelieve them,

especially when the respondents’ witnesses did not specifically negate

their statements; that the preponderance of probability was in favour of

the assertion of the appellants and that there was no “misreading of

evidence” leading to an “illegality or material irregularity” within the

scope of Section 115 of the CPC, justifying interference by the revisional

court in the judgments of the trial and appellate courts.

Civil Appeal No. 849 of 2015 4

8. The learned counsel for the respondents contended in

rebuttal; that the appellants had produced no cogent, reliable evidence in

support of their assertion; that the oral testimony of some of the

appellants would not legally suffice to substantiate their assertion; that

no documentary evidence, such as the appellants’ birth certificates,

National Identity Cards and marriage certificates, was produced; and

that the revisional court had the jurisdiction to correct the material

irregularities in the judgments of the trial and appellate courts, which

the revisional court has legally and correctly exercised.

9. Valuable arguments of the learned counsel for the parties

have been heard, and with their able assistance, record of the case was

examined.

10. As the present case revolves around the legacy of Nasir-ud-

Din and the claim made by the appellants is based on their asserted

relationship with Nasir-ud-Din, it would be appropriate to commence our

discussion with the same. The appellants have asserted that Nasir-ud-

Din had four daughters, namely, Baigmaan, Fatima, Rasoolaan and

Ayesha, and one son, namely, Lal Din, who pre-deceased Nasir-ud-Din in

the year 1956, and he was survived by one daughter, Barkatay, and four

sons, Salamat Ali, Muhammad Ramzan, Barkat Ali and Niamat Ali. On

the other hand, the respondents claim Nasir-ud-Din to have died

issueless, and his nephew, Karam Elahi son of Shamas-ud-Din, the

brother of Nasir-ud-Din, had thus validly inherited the estate of Nasir-

ud-Din, as his sole legal heir.

11. The parties produced their evidence in support of their

respective assertions, and on appraising the same, the trial and appellate

courts concurrently found that the appellants had proved their assertion
Civil Appeal No. 849 of 2015 5

of being legal heirs of Nasir-ud-Din, while the revisional court, on

reappraising the same evidence, has come to a contrary finding. It would,

thus, be appropriate to first state on what standard of proof, the courts

were to appraise the evidence produced by the parties, and render its

finding thereon.

Evidential standards of proof applicable in civil cases

12. As to proof of a fact, clause (4) of Article 2 of the Qanun-e-

Shahadat, 1984 provides:

“(4) A fact is said to be proved when, after considering the matters

before it, the Court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition
that it exists.”

The conceptual analysis of this clause shows that in order to prove a fact

asserted by a party, it does not require a perfect proof of facts, as it is

very rare to have an absolute certainty on facts. This provision sets the

standard of a ‘prudent man’ for determining the probative effect of

evidence under the ‘circumstances of the particular case’. The judicial

consensus that has evolved over time is that the standard of

‘preponderance of probability’ is applicable in civil cases,1 the standard of

‘proof beyond reasonable doubt’ in criminal cases,2 and the in-between

standard of ‘clear and convincing proof’ in civil cases involving

allegations of a criminal nature.3 All these three standards are, in fact,

three different degrees of probability, which cannot be expressed in

mathematical terms, and are to be evaluated ‘under the circumstances of

the particular case’, as provided in clause (4) of Article 2 of the Qanun-e-

Shahadat, 1984.

1
Zaka Ullah v. Muhammad Aslam 1991 SCMR 2126.
2
Muhammad Asghar v. State 2010 SCMR 1706.
3
See: Sumaira Malik v. Umar Aslam 2018 SCMR 1432, for election matters,; Shamas-Ud-Din v.
Government of Pakistan, PLD 2003 SC 187 and Muhammad Ataullah v. Islamic Republic of Pakistan,
1999 SCMR 2321, for service matters; Chief Justice of Pakistan v. President of Pakistan PLD 2010 SC 61
Per Muhammad Nawaz Abbasi, J. for matters involving assertion/allegation of malafide of fact.
Civil Appeal No. 849 of 2015 6

13. In the present case, the evidence produced by the parties on

the disputed fact of the appellants’ relationship with Nasir-ud-Din, is to

be examined on the touchstone of the evidential standard of

“preponderance of probability”.

Evidence produced by the parties in support of their respective assertions

14. We note that appellants, Fatima Bibi (PW2) and Salamat Ali

(PW4), the co-plaintiffs in the suit, appeared in the witness-box and

testified in support of their assertion of being legal heirs of Nasir-ud-Din.

The appellants examined Allah Ditta (PW-1), the grandson (daughter’s

son) of Qutab Din father of Nasir-ud-Din, and Bashir Ahmad (PW-3), a

resident of the locality where Nasir-ud-Din died. They both testified that

Nasir-ud-Din had four daughters and one son, Lal Din, and Lal Din had

four sons and one daughter. All the witnesses produced by the plaintiffs

stood firm to the test of cross-examination, and their testimony of the

deposed fact could not be shaken. The appellants also produced

documentary evidence, such as the birth certificate of Lal Din (Ex-P1) and

his death certificate (Ex-P2), wherein he has been recorded as son of

Nasir-ud-Din, to prove their assertion. The quantum of evidence

produced by the appellants was sufficient to create a high degree of

probability of the relationship of the appellants with Nasir-ud-din to

exist. Accordingly, the evidential burden shifted to the

respondents/defendants to rebut the facts asserted by the

appellants/plaintiff.

15. In rebuttal, the respondents/defendants produced Khuda

Bakhsh (DW2) and Muhammad Din (DW3), who did not deny the asserted

relationship of the appellants with Nasir-ud-Din, rather only expressed

their ignorance about Nasir-ud-Din having four daughters and one son,
Civil Appeal No. 849 of 2015 7

Lal Din, and Lal Din having four sons and one daughter. Karam Elahi,

the beneficiary of the inheritance mutations, as aforementioned did not

appear to contest the suit and dispute the asserted relationship of the

appellants with Nasir-ud-Din, nor did the respondents call him as a

witness, to rebut the assertion of the appellants.

16. In view of the above evidence produced by the parties, we

find that the appellants/plaintiffs proved their assertion with high degree

of probability and the preponderance of probability was clear and evident

in favour of their stance regarding their relationship with Nasir-ud-din,

while the respondents/defendants failed to rebut the same through any

cogent evidence.

Jurisdiction of revisional court – interference of the concurrent findings of fact

17. The trial and appellate courts had rightly found the

preponderance of probability in favour of the appellants in accepting

their assertion of their relationship with Nasir-ud-din, whereas the

revisional court appears to have exceeded its jurisdiction by setting aside

their findings. We note that the concurrent findings on the crucial issue

of relationship recorded by the two courts was set aside by re-appraising

the evidence, without pointing out, what material evidence was misread

or non-read by the courts below or how their appraisal of evidence was

perverse or absurd. Needless to mention that a revisional court cannot

upset a finding of fact of the court(s) below unless that finding is the

result of misreading, non-reading, or perverse or absurd appraisal of

some material evidence. The revisional court cannot substitute the

finding of the court(s) below with its own merely for the reason that it

finds its own finding more plausible than that of the court(s) below.

Hence, the positive concurrent finding in favour of the appellants

Civil Appeal No. 849 of 2015 8

regarding their asserted relationship with Nasir-ud-din would legally

stand.

Application of limitation to inheritance cases

18. So far as the finding of the revisional court on the issue of

limitation is concerned, we find the same is in accord with the law

declared by this Court in Mst. Gharana v. Sahib Kamal Bibi4 and Atta

Muhammad v. Maula Bakhsh5, as well as in the recent case of Ghulam Qasim

v. Mst. Razia Begum6 wherein after referring to some of the leading

judgments on the issue, this Court opined that the law

of limitation would be relevant in inheritance cases, where third party

interest has been created in the property, as is in the present case.

19. In the present case, the trial court found the suit to be

within time by holding that limitation would run from the date the

appellants got knowledge about the fraudulent transaction. The appellate

court upheld the finding of the trial court observing that no limitation

runs against a fraudulent act. The revisional court set aside the findings

of the trial and appellate courts with the observation that the appellants

had failed to disclose the date of their knowledge, therefore, the suit

instituted by them in the year 1982 questioning the validity of

inheritance mutations of 1959 was hopelessly time-barred.

20. We find that all the three courts have failed to notice the

exception provided in section 18 of the Limitation Act 1908 (“Limitation

Act”), according to which the benefit of postponing the commencement of

the period of limitation provided to an injuriously affected person is not

applicable against a bona fide purchaser. The section reads:

4
PLD 2014 SC 167.
5
2007 SCMR 1446.
6
PLD 2021 SC 812.
Civil Appeal No. 849 of 2015 9

18. Effect of fraud. Where any person having a right to institute a suit
or make an application has, by means of fraud, been kept from the
knowledge of such right or of the title on which it is founded, or where
any document necessary to establish such right has been fraudulently
concealed from him, the time limited for instituting a suit or making an
application---
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming through him otherwise than in
good faith and for a valuable consideration,
shall be computed from the time when the fraud first became known to
the person injuriously affected thereby, or, in the case of the concealed
document, when he first had the means of producing it or compelling its
production. (Emphasis added)

Before we consider and explain the exception provided in the above

provision, it would be pertinent to understand the true purport of the

general rule encompassed in the section. In essence, this provision is a

safeguard against fraud committed to conceal from a person his right to

sue. It postpones the commencement of the period of limitation to the

date when the fraud first became known to the “person injuriously

affected”. Such injuriously affected person can, therefore, institute a suit

within the limitation period specified for such suit in the First Schedule

(“Schedule”) to the Limitation Act, but computing it from the date when he

first had knowledge of the fraud, whereby he was kept from knowledge of

his right to institute the suit.

21. We, however, must appreciate that the “fraud” envisaged in

this provision of the law only relates to concealing, not creating, the right

to sue and thus, affects only the limitation period and has nothing to do

with the cause of action and the relief prayed.7 It is also needless to

mention that, a plaintiff who wants to avail the benefit of section 18 of

the Limitation Act, must assert the commission of such fraud by the

defendant in the plaint, and should also give the particulars thereof, and

the date of knowledge as required under Rule 4 of Order VI of the CPC,

and then prove the same through positive evidence.8

7 In Re: Marappa Goundar AIR 1959 Mad 26; Yeswant Deorao v. Walchand Ramchand AIR 1951 SC 16.
8Naeem Finance Ltd v. Bashir Ahmad PLD 1971 SC 8; Izzat Bakhsh v. Nazir Ahmad 1976 SCMR 508; Faizum v. Nander Khan
2006 SCMR 1931; Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504.
Civil Appeal No. 849 of 2015 10

22. The umbrella concession qua the commencement of period of

limitation, under section 18 of the Limitation Act, has an express

exception, that is, when the disputed property is purchased by a third

person in good faith and for valuable consideration (bone fide purchaser),

the benefit of section 18 to the owner would then not be available against

such third person.

23. In the present case, Ghulam Hussain and Abdul Aziz sons of

Ahmad Din, the predecessors of respondents No.8 to 18, had purchased

and taken over possession of the major part of the suit land from Karam

Elahi, vide sale deed dated 12.05.1960 (Ex-D1). The record of the case is

silent on which dates, Karam Elahi, sold the remaining part of the suit

land to other respondents, as the appellants have not mentioned the

mutation numbers, in their plaint as well as in their evidence, whereby

the remaining part of the suit land was sold by Karam Elahi,. What is

important is that, the appellants have neither asserted in their plaint,

nor have discharged their initial legal burden to prove the same by

making statement on oath to that effect while appearing in the witness

box, that the respondents (further transferees) had not purchased the

suit land in good faith and for a valuable consideration or that they were

accessory to the fraud committed by Karam Elahi. Most importantly,

their possession over the suit land has not been disputed by the

appellants. For these reasons, the benefit of section 18 of the Limitation

Act is not available to the appellants against the respondents, and the

limitation period for the suit instituted by the appellants was to be

adjudged as per the regular limitation period provided in the applicable

Article of the Schedule to the Limitation Act.

Civil Appeal No. 849 of 2015 11

24. The suit instituted by the appellants was for declaration of

their proprietary rights in the suit land, which is covered by the

provisions of Article 120 of the Schedule to the Limitation Act - the

residuary provision that caters for cases not expressly provided under

the Limitation Act. This Article prescribes six years period of limitation

for instituting the suit to be computed from the time when the right to

sue accrues. It reads:

Description of suit. Period of Time from which

limitation. period begins to run.

120. Suit for which no period

of limitation is provided Six years. When the right to
elsewhere in this schedule. sue accrues.

The above provision only provides that the period of six years is to

commence, when the right to sue accrues. However, it does not state

when such right accrues.

25. A suit for declaration of any right as to any property is filed

under section 42 of the Specific Relief Act 1877 (“Specific Relief Act”).

Therefore, to ascertain when the right to sue accrues to a legal heir to

seek a declaration of his ownership right over the property inherited by

him and of his such right not to be affected by the further transfer of

such property, we need to consider section 42 of the Specific Relief Act,

which reads:

42. Discretion of Court as to declaration of status or right-- Any

person entitled to any legal character, or to any right as to any property,
may institute a suit against any person denying, or interested to deny,
his title to such character or right, and the Court may in its discretion
make therein a declaration that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title,
omits to do so.
(Emphasis added)

It becomes evident by reading the above provisions that the right to sue

accrues to a person against the other for declaration of his right, as to

Civil Appeal No. 849 of 2015 12

any property, when the latter denies or is interested to deny his such

right. It thus postulates two actions that cause the accrual of right to

sue, to an aggrieved person: (i) actual denial of his right or (ii)

apprehended or threatened denial of his right.

26. What “actions” can be termed as an “actual denial of right”,

and what a mere “apprehended or threatened denial of right”, in the

context of adverse entries recorded in the revenue record, is a question

that requires consideration. Admittedly, entries in the revenue record do

not create or extinguish proprietary rights. Such an entry may at most be

termed as a mere “apprehended or threatened denial” of right, and not

an “actual denial” of right. Accordingly, every new adverse entry in the

revenue record relating to proprietary rights of a person in possession

(actual or constructive) of the land regarding which the wrong entry is

made, gives to such person, a fresh cause of action to institute the suit

for declaration. The situation is, however, different in a case where the

person in possession (actual or constructive) of the land regarding which

the wrong entry is made, is ousted from such possession, besides a

wrong entry in the revenue record. In such a case, the act of ousting him

from the actual or constructive possession of the land, constitutes an

“actual denial” of his rights, and does not remain a mere “apprehended

or threatened denial”. Therefore, in such a case, if the person injuriously

affected by such an act of “actual denial” of his rights does not challenge

the same within the prescribed limitation period, despite having

knowledge thereof, then his right to do so becomes barred by law of

limitation.

27. In an inheritance case, like the present one, a wrong

mutation in the revenue record, as to inheritance rights does not affect

Civil Appeal No. 849 of 2015 13

the proprietary rights of a legal heir in the property, as the devolution of

the ownership of the property on legal heirs takes place under the

Islamic law, through inheritance immediately, without any formality

including sanction of inheritance mutation. Therefore, a wrong mutation

is a mere “apprehended or threatened denial” of right, not necessitating

for the person aggrieved thereby to institute the suit. The position is,

however, different when the co-sharer in possession of the joint property,

on the basis of a wrong inheritance mutation, sells the joint property, or

any part thereof exceeding his share, claiming him to be the exclusive

owner thereof and transfers possession of the sold land to a third person,

the purchaser. In such a circumstance, the co-sharer by his said act

“actually denies” the rights of the other co-sharer, who is only in

constructive possession of the same, and ousts him from such

constructive possession also by transferring the possession of the sold

land to a third person, the purchaser. In such circumstances, the right

to sue accrues to the aggrieved co-sharer from the date of such sale, and

transfer of actual possession of the sold land to the third person, the

purchaser.

28. Therefore, in the present case, the right to sue accrued to the

appellants on 12.05.1960 when Karam Elahi, their co-sharer, claiming

him to be the exclusive owner, sold and transferred possession of the

major part of the suit land exceeding his share therein, which he had

inherited from his own father, Shams-ud-Din brother of Nasir-ud-Din,

vide sale deed dated 12.05.1960 (Ex-D1), to Ghulam Hussain and Abdul

Aziz sons of Ahmad Din, the predecessors of respondents No.8 to 18. The

limitation period of six years provided in Article 120 of the Limitation Act

was, therefore, to be counted for the suit of the appellants from the said

date, i.e., 12.05.1960, when the benefit of section 18 of the Limitation

Civil Appeal No. 849 of 2015 14

Act was not available to them, as discussed above. The suit instituted by

the appellants on 15.04.1982 was thus hopelessly time barred, as

correctly held by the revisional court.

29. The issue of limitation is one of law, or at-least mixed one of

law and facts; therefore, the re-examination of findings of the court(s)

below on this issue by the revisional court falls within the scope of the

revisional jurisdiction. The trial and appellate courts had acted in the

exercise of their jurisdiction illegally by wrongly deciding the issue of

limitation, and the revisional court has rightly interfered with, and

overturned their findings on this issue.

30. For the above reasons, we find that the decision of the

revisional court, non-suiting the appellants on the ground of limitation,

is legally correct and made well within the scope of the revisional

jurisdiction. This appeal, therefore, fails and is dismissed, accordingly.

Judge

Judge

Judge
Islamabad,
20th January, 2022
Approved for reporting.

Arif