IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE MUNIB AKHTAR 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CIVIL APPEAL NO. 23-P OF 2017 
(On appeal against the judgment dated 
12.05.2017 passed by the Peshawar High 
Court, Peshawar in Civil Revision No. 699-
P/2013) 
 
Pirzada Noor-ul-Basar 
 
 
 
 
… Appellant 
Versus 
Mst. Pakistan Bibi and others 
 
…Respondent(s) 
 
For the Appellant: 
Mr. Javed Iqbal Gulbela, ASC 
(Through video link from Peshawar) 
 
 
For the Respondent (1): 
Mr. Abdul Sattar Khan, ASC 
(Through video link from Peshawar) 
 
 
For other Respondents: 
Ex-parte 
 
 
Date of Hearing: 
29.03.2023 
 
JUDGMENT 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal under 
Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973, 
the appellant has assailed the judgment dated 12.05.2017 passed by the 
learned Single Judge of the Peshawar High Court, Peshawar whereby the 
Civil Revision filed by the respondent No. 1 was allowed,  the judgments 
and decrees of the learned two courts were set aside and the suit of the 
respondent No.1/plaintiff was decreed.  
2. 
 
Briefly stated the facts of the case are that respondent Mst. 
Pakistan Bibi was married to one Noor Muhammad Khan in the year 1967. 
She filed a suit on 23.12.1998 seeking declaration to the effect that she is 
the owner of the suit property measuring 122 kanals 5 marlas situated in 
Mouzas Gambti, Tolkai and Qila Sher Pao, Tehsil Tangi through dower 
deed dated 09.04.1967 and the defendants have nothing to do with the 
CIVIL APPEAL NO. 23-P OF 2017 
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suit property. She also sought correction in the revenue record and sought 
permanent injunction against the defendants not to interfere in the 
possession of the plaintiff. It was averred by the respondent/plaintiff that 
her marriage took place with Noor Muhammad Khan, predecessor-in-
interest of the defendant Nos. 1 – 9 in the year 1967 and at the time of 
Nikah, the said Noor Muhammad transferred the suit property being 
owner in the name of plaintiff. She also claimed that after the Nikah and 
dower, she became full owner of the suit property and also took 
possession but being a Parda Nashin Lady she was unaware that the 
dower deed is not incorporated in the revenue record. It was further 
averred that the defendants are taking benefit of the wrong entries in the 
revenue record and transferred certain property in their name vide 
inheritance mutation Nos. 41 & 42 and also want to transfer the suit 
property in their name. The defendants did not join the trial proceedings 
and were declared ex-parte. Vide judgment and decree dated 24.01.2000, 
the suit of the respondent/plaintiff was decreed ex-parte. The 
appellant/defendants sought setting aside of the ex-parte decree, which 
was accepted by the First Appellate Court, who vide order dated 
29.05.2007 remanded the matter back to the Trial Court with the direction 
to give an opportunity of hearing to defendants. Ultimately, vide judgment 
and decree dated 31.07.2008, the suit of the respondent/plaintiff was 
again decreed. The appellant preferred appeal but the same was dismissed 
vide judgment dated 31.05.2010. The appellant then filed Civil Revision 
before the Peshawar High Court, which was accepted and the matter was 
again remanded to the Trial Court to record the cross-examination of the 
material witness RPW-8 and decide the case on its own merits. The 
learned High Court also directed to consider the evidence of the alleged 
tenants examined as PW-5 to PW-7 in the light of the revenue record. 
After post-remand proceedings, the learned Trial Court dismissed the suit 
of the respondent/plaintiff vide judgment dated 19.12.2012. Being 
aggrieved, she challenged the same before the First Appellate Court but it 
also met the same fate vide order dated 23.07.2013. Then she filed Civil 
CIVIL APPEAL NO. 23-P OF 2017 
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Revision No. 699-P/2013 before the learned Peshawar High Court, which 
has been allowed vide impugned judgment. Hence, the instant appeal.  
3. 
 
At the very outset, learned counsel for the appellant 
contended that the respondent No. 1 has claimed the property as dower 
but instead of seeking her remedy before the Family Court, she has filed 
the civil suit, which was not maintainable. Contends that the Nikah Nama 
was not authenticated document because neither any oral nor 
documentary evidence has been produced by the respondent/plaintiff in 
this regard. Contends that the learned High Court failed to take notice that 
according to Articles 103/104 of the Limitation Act, the time of limitation 
started from the year 1974 when the husband of the respondent died, 
therefore, the suit of the respondent/plaintiff was hopelessly barred by 
time. Lastly contends that the impugned judgment is the result of 
misreading and non-reading of the evidence, therefore, the same may be 
set at naught.  
4. 
 
On the other hand, learned counsel for the respondent No. 1 
defended the impugned judgment by stating that the learned High Court 
has passed a well reasoned judgment, which is based on correct 
appreciation of the evidence available on the record, therefore, the same 
needs no interference.  
5. 
 
We have heard learned counsel for the parties at some 
length and have perused the available record with their able assistance.  
6. 
 
This case has a chequered history. There is no denial to this 
fact that the matter is lingering on since 1998 and it was thrice remanded 
back to the learned Trial Court due to one reason or the other. In the first 
two rounds, the suit of the respondent/plaintiff was decided in her favour 
and the same was decreed. It was in the third round that the learned Trial 
Court dismissed the suit of the respondent/plaintiff, which judgment was 
upheld by the learned Appellate Court. Probably, it was due to this reason 
that the learned High Court has threadbare examined the evidence to find 
out as to what was the reason that the learned two courts below in the 
instant round of litigation have decided the case against the 
respondent/plaintiff. It was the case of the respondent that she is owner 
CIVIL APPEAL NO. 23-P OF 2017 
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in possession of the suit property through dower deed dated 09.04.1967, 
which is Nikah Nama and the same has been exhibited in evidence as 
Ex.PW-4/2. It was further claimed that in the revenue record, the suit 
property was still in the name of her husband, due to which the 
defendants are bent upon to transfer the disputed property in their name 
and inheritance mutation Nos. 41 & 42 were wrongly attested. In the said 
Nikah Nama, it is clearly mentioned that the suit property was given to the 
respondent by her husband Noor Muhammad in lieu of dower in the year 
1967. There is no denial to this fact that the said Noor Muhammad was 
owner of the suit property and there was no bar on him to transfer the 
property to her wife in his lifetime. Although the learned counsel for the 
appellant tried to challenge the authenticity of the Nikah Nama before this 
Court but it is an admitted position that the same was never objected to 
before the lower forums in any round of litigation. It is for the first time 
that the learned counsel has raised this question before this Court. This is 
settled law that this Court in its appellate jurisdiction would generally not 
determine any ground or question of fact that had not been pleaded or 
raised by the parties at early stage before the lower court & High Court 
and has been for the first time raised in appeal before this Court. The 
appellant has no right to raise an absolutely new plea before this Court 
and seek a decision on it nor could such plea be allowed to be raised as a 
matter of course or right on the pretext of doing complete justice. 
Reliance is placed on Wali Jan Vs. Government of KPK (2022 PLC(CS) 336). 
Even otherwise, we have noted that in the very plaint of the appellant 
before this Court, this fact has been admitted in para ‘E’. The learned High 
Court has rightly held that the Nikah Nama is a 30 years old document and 
according to Articles 100 & 79 of the Qanun-e-Shahadat Order, 1984, the 
presumption of correctness is attached to it. The land in question was in 
exclusive ownership of the respondent and she used to receive Ijjara from 
the tenants. The two tenants of the respondent namely Israr-ud-Din (RPW-
6) and Noor Muhammad (RPW-7) appeared in the witness box and stated 
on oath that they are cultivating the suit property for the last 40 years on 
behalf of the respondent. They also admitted that they are paying Ijjara to 
CIVIL APPEAL NO. 23-P OF 2017 
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the respondent. Learned counsel for the appellant could not show us 
anything, which could suggest that the said tenants were ever approached 
by the appellant for payment of Ijjara even after the death of Noor 
Muhammad. The witness produced by the appellant namely Maqsood 
Ahmed also admitted that the property in question belonged to the said 
Noor Muhammad and that the respondent was his wife. So far as the 
question of limitation is concerned, the learned counsel argued that 
according to Articles 103/104 of the Limitation Act, 1908, the time of 
limitation to file a suit started from the year 1974 when the husband of 
the respondent died, therefore, the suit of the respondent/plaintiff was 
hopelessly barred by time. However, we do not tend to agree with the 
learned counsel. Article 103 speaks about the time period of three years 
by a muslim for exigible dower (mu’ajjal) “when the dower is demanded 
and refused or where, during the continuance of the marriage no such 
demand has been made when the marriage is dissolved by death or 
divorce.” Whereas Article 104 speaks about the time period of three years 
by a muslim for deferred dower (mu’wajjal) “when the marriage is 
dissolved by death or divorce.” Admittedly, the property was in the 
exclusive possession of the respondent and the tenants were also paying 
Ijjara to her. The respondent never said that she did not receive the dower 
rather it was her claim that she is enjoying the proceeds/fruit of the land. 
Therefore, the matter in-fact related to wrong entries in the revenue 
record and the same in no way can be termed as a matter relating to 
dower. The learned High Court by placing reliance on the judgment of this 
Court reported as Abdul Sattar Khan Vs. Rafiq Khan (2000 SCMR 1574) and 
Articles 120 and 144 of the Qanun-e-Shahdat Order, 1984 has rightly held 
that the period of six years is to be counted from the date when the right 
to sue accrued. In these circumstances, neither the suit of the respondent 
can be termed as barred by time nor she had to approach the learned 
Family Court for redressal of her grievances. The learned High Court has 
rightly held that respondent was a Parda Nashin Lady and under no 
circumstances it can be presumed that she had the knowledge that after 
the Nikah and the Nikah Nama, the registration as well as the 
CIVIL APPEAL NO. 23-P OF 2017 
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incorporation in the revenue record was mandatory. Under the bona fide 
belief, in our part of the world, the presumption of completeness of 
transaction, after the execution of Nikah Nama is there and since the Ijjara 
was being received by her, as such, she was under bona fide belief that 
during the lifetime of Noor Muhammad as well as after his death, the 
transaction is complete and she is the owner of the property in question.”  
7. 
 
For what has been discussed above, we are of the view that 
the learned High Court while passing the impugned judgment has 
scrutinized the evidence in its true perspective, which being well reasoned 
does not warrant interference. Consequently, this appeal having no merit 
is dismissed.  
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
29th of March, 2023 
Approved For Reporting 
Khurram 
 
 
