 
 
IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
PRESENT: 
Mr. Justice Mushir Alam 
Mr. Justice Qazi Muhammad Amin Ahmed 
  
Civil Appeal No.1664 of 2014 
(Against judgment dated 22.09.2014 passed by the 
Peshawar High Court Abbottabad Bench in C.R. 
No.225 of 2008) 
 
 
Mst. Kalsoom Begum 
…Appellant(s) 
 
 
 
 
 
Versus 
Rizwan Shah & others 
….Respondent(s) 
 
For the Appellant(s): 
 
Barrister Umar Aslam, ASC 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For the Respondent(s):  
Mr. Manzoor Hussain, ASC 
 
Date of hearing: 
10.09.2020. 
 
 
 
 
 
ORDER 
 
           Qazi Muhammad Amin Ahmed, J.-Appellant/plaintiff, claiming 
to be a co-sharer in contiguity with concomitant rights, successfully  
pre-empted sale of land measuring 1-Kanal 3-Marla bearing Khasra 
No.2459/6027 in Khata No.3568/6997, situating within the revenue 
estate of Mansehra, effected through mutation No.53825 dated 27.1.2003, 
vide judgment/decree dated 30-11-2006, upheld by the learned Appellate 
Court vide judgment/decree dated 16.10.2008. The respondent/ vendee-
defendant filed Civil Revision No.225 of 2008, a learned Judge-in-Chamber 
issued pre-admission notice on 1.12.2008 to examine improvements on 
the suit land, claimed by the vendee-defendant while affirming appellant’s 
superior right as well as performance of Talab-e-Muwathibat being in 
accordance with law. Dissatisfied with the finding of the learned Judge on 
the aforesaid issues, the vendee-defendants, during the pendency of their 
civil revision assailed the order ibid through Civil Petition No.93 of 2009, 
however, it was dismissed as withdrawn on 6.8.2008 with a direction to 
the High Court to afford opportunity of hearing to the both sides. It was in 
this backdrop that the learned High Court set aside the judgments and 
decrees 
of 
the 
Courts 
below 
vide 
judgment 
dated 
2.4.2012  
Civil Appeal No.1664 of 2014 
 
 
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and remanded the case to the trial Court for decision afresh, assailed this 
time by the appellant through Civil Petition No.1247 of 2012 wherein leave 
was granted on 13.11.2012 in consequence whereof vide order dated 
23.01.2013 the High Court was directed to decide the revision petition on 
merit by itself, pursuant whereto, the High Court allowed the revision 
petition and dismissed the suit vide judgment dated 22.09.2014, vires 
whereof, are being assailed through this direct appeal, inter alia, on the 
grounds that the High Court ran into error to non-suit the appellant by 
holding that she lacked superior right of being a co-sharer in the estate as 
well as her failure to satisfactorily perform Talabs in accordance with law. 
Contrarily, the learned counsel for the respondents has defended the 
impugned judgment by arguing that after a long drawn legal battle the 
learned High Court had drawn conclusions just and fair duly supported by 
evidence brought on the record. The learned counsel, emphatically, 
pointed out appellant’s failure to produce the postman who had statedly 
delivered the notices to argue that the omission by itself was fatal to the 
suit; he has also highlighted “discrepancies” in the statements of witnesses 
to prove the Talabs with a particular reference to absence of their names in 
the plaint. The appellant was not a co-sharer in the estate at the relevant 
time, concluded the learned counsel. 
 2. 
 
Heard. Record perused. 
 3. 
 
Appellant’s superior right as a co-sharer in the estate is the 
foundation stone of her claim; factum of contiguity and easement are 
inseparably consequent thereupon; she has constructed her plea on the 
strength of a court decree dated 4.5.1976, holding field till date, a common 
ground, on the basis whereof, mutation was sanctioned as late as on 
15.1.2004, almost one year after the impugned sale as confirmed by 
Ghulam Raza, Patwari Halqa (PW-2) as well as mutation (Ex.PW-2/R-I); 
belated mutation weighed with the High Court to exclude the appellant 
from the estate. It is by now well settled that a mutation by itself does not 
create or destroy an existing right; it is merely reflection of revenue record, 
authenticity/validity whereof is to be essentially ascertained in the 
underlying transaction, a view held by this Court throughout in cases 
reported as Muhammad Lehrasab Khan Vs. Mst. Aqeel-un-Nisa and 5 others 
(2001 SCMR 338), Saadat Pervaz Sayan Vs. Chief Secretary, Government of 
Punjab, Lahore and 3 others (2003 PLC (C.S.) 1277), Muhammad Munir Vs. 
Civil Appeal No.1664 of 2014 
 
 
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Muhammad Saleem and others (2004 SCMR 1530), Arshad Khan Vs. Mst. 
Resham Jan and others (2005 SCMR 1859), Mst. Janntan and others Vs. 
Mst. Taggi through LRs and others (PLD 2006 S.C. 322), Muhammad Ishaq 
Vs. Muhammad Shafiq and 9 others  (2007 SCMR 1773), Haji Muhammad 
Anwar Vs. Muhammad Ahmed and others (2007 SCMR 1961), Abdul 
Rasheed through LRs and others Vs. Manzoor Ahmad and others (PLD 2007 
SC 287), Mst. Suban Vs. Allah Ditta and others (2007 SCMR 635) and 
Muhammad Yaqoob Vs. Mst. Sardaran Bibi and others (PLD 2020 S.C. 338). 
The Court decree though incorporated after inordinate delay, nonetheless, 
had conferred the status of a co-sharer upon the appellant way back in the 
year 1976, additionally establishing contiguity with the suit land as well as 
easement rights appertaining thereto. Absence of the postman from 
witness-box who had actually delivered notices (Ex.PW-3/3-5) along with 
relevant receipts (Ex.PW-1/1-3) does not violate the law declared by this 
Court requiring official attendance to establish dispatch of notice of Talab-i-
Ishhad as Muhammad Yousaf, Clerk GPO Mansehra appeared as PW-1 to 
bring on record the relevant details and thereby successfully established 
dispatch of the required notice to the respondents. It has been held in the 
case of Liaqat Ali and others Vs. Safdar Khan (2020 SCMR 863) that “we are 
also not impressed by the argument that the postman who had actually delivered the notice 
ought to have appeared in person instead of Fazal Majeed , Registration Clerk GPO and 
Zahid Ahmed, Postman, who respectively appeared as PW-2 and PW-3. Plaintiff by 
producing these official witnesses along with relevant receipts and acknowledgement due 
aptly discharged the onus to establish dispatch of notice. There is perpetual continuity in 
State business, sustained by officials in succession”. The appellant discharged the 
onus to prove dispatch of notice by producing official witnesses from the 
concerned post office as the mode adopted by her is in accord with the 
provisions of section 26 of the West Pakistan General Clauses Act, (Act VI), 
1956, reproduced below: 
“26. Meaning of service by post.—Where any Provincial 
Act, authorizes or requires any document to be served by 
post, whether the expression “serve” or either of the 
expressions “give” or “send” or any other expression is 
used, then, unless a different intention appears, the 
service shall be deemed to be effected by properly 
addressing, pre-paying and posting by registered post, a 
letter containing the documents, and, unless the contrary 
is proved, to have been effected at the time at which the 
letter would be delivered in the ordinary course of post.” 
Civil Appeal No.1664 of 2014 
 
 
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Adverting to the statements of the witnesses produced by the appellant to 
establish Talab-i-Muwathibat and Talab-i-Ishhad, held by the learned High 
Court as discrepant, upon our analysis, we have not been able to persuade 
ourselves to subscribe to the view taken by the learned High Court as the 
alleged contradiction in their depositions may not be viewed as major or 
significant. The appellant acquired knowledge of the impugned sale soon 
after her return to Pakistan after performance of Hajj. Some variations in 
the statements of witnesses, blown out of proportion, are merely narrative 
variations that inevitably occur in honest human discourse after flux of 
time; these do not destroy the contextual integrity of the declarations so as 
to defeat a valuable statutory right, vesting in the appellant. The appeal is 
allowed; impugned judgment of the High Court is set aside and the 
judgments and decrees of the trial Court and that of the Appellate Court 
are restored. No order as to costs. 
 
 
Judge 
 
 
 
Judge 
Islamabad, the 
10th September, 2020 
Not approved for reporting 
Azmat/- 
 
