IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE MIAN SAQIB NISAR 
MR. JUSTICE SARMAD JALAL OSMANY 
 
 
CIVIL APPEAL NO.514 OF 2008 
(Against the judgment dated 25.3.2008 
of the Lahore High Court, Lahore passed 
in Writ Petition No.9530/1998) 
 
 
Nasir Fahimuddin and others 
…Appellant(s) 
VERSUS 
Charles Philips Mills son of Patrick Mills, resident of 4/2-A, Habib 
Ullah Road, Lahore and others 
…Respondent(s) 
 
For the appellant(s): 
Ch. Khurshid Ahmed, Sr. ASC 
 
 
For respondent No.1: 
Mr. Amir Alam Khan, Sr. ASC 
 
 
For respondent No.2: 
Ch. Ihsan-ul-Haq, ASC 
 
 
Date of hearing: 
01.10.2014 
… 
JUDGMENT 
 
 
MIAN SAQIB NISAR, J.- This appeal with leave of the 
Court dated 13.5.2008 entails the following facts:- property bearing 
No.S-XX-25-S-22, Canal Park, Lahore measuring 02 kanals 01 
marla (suit property) admittedly was owned in the year 1940 by 
Katherine Helen Patinger. According to the respondents (respondent 
No.1 is her son, hereafter referred to as the respondent) she remained the owner 
throughout, while the appellants avow that the lady sold the suit 
property to Dr. Dewan Chand in 1940 and that on the partition of 
sub-continent the property was treated as an evacuee property. 
The appellants claimed that being displaced person from India they 
occupied the said property after the partition, and on account of 
C.A.514 of 2008.doc 
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such occupation, and the property being an evacuee property, they 
moved to the Settlement Department for the transfer thereof. As 
the property had two portions, and two occupants, one (portion) was 
transferred to Mufti Nasir Fahimuddin (the predecessor-in-interest of 
appellants No. 1 to 11) while the other was transferred to Muhammad 
Akhtar Mohsin (the predecessor-in-interest of appellants No. 12 to 16). The PTDs 
of the said property were issued to the two above named on 
1.2.1962 and 27.3.1965 
(Ex.P7 
and 
Ex.P8) respectively; and 
throughout the appellants have been in occupation of the said 
property. Further relevant facts of the case are:- that after the 
death of Katherine Helen Patinger on 19.12.1978, her son Charles 
Philips Mills, the respondent filed a suit against his father (the 
husband of the above-named lady) on 3.4.1979, as also impleading the 
public at large, averring that his father has abandoned and 
relinquished his right of inheritance in the said property in his 
favour and thus he now is the exclusive owner thereof. The father 
appeared in the matter, conceded to the suit of the respondent 
and, therefore, a consent decree dated 10.6.1979 was passed in 
favour of the respondent and against the father. It may be 
pertinent to mention here that the respondent, thereafter sold the 
property to Muhammad Akram (the predecessor-in-interest of other 
respondents) for a consideration of Rs.1,00,000/- (rupees one lac only), 
who was able to obtain an eviction order vide an ejectment petition 
against the appellants. However, this eviction order could not be 
executed for the reason that in the meantime, the appellants had 
filed a civil suit seeking the setting aside of the consent decree 
while asserting themselves to be the owners of the suit property on 
the basis of noted PTDs. The defendants of the case, namely, 
C.A.514 of 2008.doc 
-: 3 :-
Charles Philip Mills and Muhammad Akram filed separate written 
statements. In the written statement of the respondent, the defense 
set out was that the property was owned by his late mother (named 
above). She was a saintly woman who had inducted the appellants 
in possession of the property for providing them shelter on 
compassionate grounds and that they (plaintiffs) are thus the 
licensees under the lady and this status of the appellants remain 
unchanged. It was also asserted that the suit property was never 
an evacuee property; it was not a part of the compensation pool 
which could validly be transferred to the appellants; besides setting 
out the same defense, Muhammad Akram also took up the plea of 
being the bona fide purchaser of the suit property. It may not be 
out of context to mention that the ejectment petition which was 
filed by Muhammad Akram and in which the order of eviction had 
been obtained by him, was withdrawn on the pretext that now the 
matter about the title is sub-judice before the Civil Court. Issues 
were framed; parties were put to trial, the learned Civil Judge 
seized of the matter and dismissed the suit not only on merits, 
finding that the appellants have failed to prove a valid transfer of 
the property by the Settlement Department in their favour as an 
evacuee property, but also on the score that the suit challenging 
the consent decree dated 10.6.1979 in favour of the respondent is 
not maintainable because of the bar contained in Section 12(2) 
CPC. Aggrieved, the appellants filed an appeal which was 
disallowed on 18.12.1988. The appellants challenged both these 
decisions in revision before the learned High Court which was 
accepted. The suit was held to be incompetent, the same was 
treated as an application, under Section 12(2) CPC and the matter 
C.A.514 of 2008.doc 
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was remanded to the learned Appellate Court to decide it 
accordingly. On remand, the learned Revisional Court (as now the suit 
had been treated to be under Section 12(2) and revision could only lie against the order of the trial 
court dated 20.2.1988, therefore, this was treated to be a revision) dismissed the 
application (under Section 12(2)) on merits, holding that the appellants 
have not proved the property to be an evacuee property in nature, 
which could validly be transferred in their favour by the settlement 
department. The appellants challenged the above decisions vide 
constitution petition before the learned High Court, which has been 
dismissed through the impugned judgment. While dismissing the 
petition, it has been held by the learned High Court that admittedly 
the property was owned by the above-named lady before partition 
and there is no evidence on the record if she ever, before partition 
of the sub-continent, had sold the same (the property) to an evacuee 
owner, namely, Dr. Dewan Chand. No sale deed in this regard has 
been produced; from the appellants’ own evidence except for the 
PTO or the PTDs there is no record available with the Settlement 
Department to establish if the property in question was ever 
treated to be an evacuee property and transferred as such. The 
order passed by the Deputy Settlement Commissioner (on the basis of 
which PTO & PTD were issued) transferring the property to the appellants 
has also not been provided by them; it was also held that the 
allotment 
in 
favour 
of 
the 
appellants 
has 
not 
been 
established/proven by them. Thus the crux of the verdict of the 
learned High Court is that as the property was never established to 
be an evacuee property, it did not form part of the compensation 
pool and thus could not be transferred as an evacuee property to 
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the appellants. Leave in this case was granted to consider the 
following:- 
“The contention of Mr. Khursheed Ahmed, learned ASC 
for the petitioner is that the impugned order being in 
conflict with the expressed provisions of Section 12(2) of 
the CPC with principle reference to the jurisdiction of 
Court as envisaged by Section 42 of the Pakistan 
Administration of Evacuee Properties Act, 1957 and the 
nature of the proceedings instituted by way of suit 
No.484/1/1979, wherein the consent decree was obtained 
by the son against his father as well as general public 
prima facie appeared to be collusive. In view of the above 
contentions of the learned counsel and the point of law 
involved therein, leave to appeal is granted to consider 
the, inter alia, above contentions.” 
2. 
 
Learned counsel for the appellants has submitted that 
the property in question once having been treated and transferred 
as an evacuee property, even if it was erroneously so treated or 
transferred, the appellants could not be disentitled from the 
ownership thereof. Reliance in this behalf is placed on Muhammad 
Din and 8 others Vs. Province of the Punjab through Collector 
and others (PLD 2003 Lah. 441), Azizuddin Vs. Muhammad 
Ismail and others (1985 SCMR 666), Sher Bahadar Khan Vs. 
Qazi Islamuddin and another (PLD 1984 SC 213), Sardar and 
others Vs. Shaukat Ali and others (1990 SCMR 951) and Siraj 
Din and 5 others Vs. Custodian, Evacuee Property, Punjab, 
Lahore and 4 others (PLD 1975 Lah. 1270). It is also submitted 
that the consent decree which is collusive in nature and was/is 
meant to cause prejudice and/or deprive a 3rd party, such as the 
appellant, from their lawful right to property, is of no legal effect 
C.A.514 of 2008.doc 
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and a nullity in the eyes of law. In any case, the suit was filed by 
the son against his father, who had consented to the decree and 
thus when the appellants were not a party thereto, such decree 
would have no binding effect upon them, in view of Section 43 of 
the Specific Relief Act. Reliance in this behalf is placed upon 
Muhammad Iqbal and others Vs. Khair Din through L.Rs. and 
others (2014 SCMR 33). It is further submitted that Katherine 
Helen Patinger even though was alive till 1978, she never claimed 
ownership of the property in question or ever challenged the PTDs 
in favour of the appellants or took any legal action to seek 
declaration of her title or obtain the possession of the property. 
Resultantly on account of the above, the respondent who is her 
successor 
would 
have 
no 
locus 
standi 
to 
challenge 
the 
title/ownership/PTDs in favour of the appellants. Reliance in this 
regard is placed upon Abdul Haq and another Vs. Mst. Surrya 
Begum and others (2002 SCMR 1330) and Noor Din and 
another Vs. Additional District Judge, Lahore and others (2014 
SCMR 513). It is also argued that the suit of the appellants was 
converted by the learned High Court in the earlier round of 
litigation, as an application under Section 12(2) CPC and the 
matter was remanded to the learned Additional District Judge for 
treating it to be a revision petition (instead of appeal) to decide the 
same and because the allegation of fraud and misrepresentation 
had been proved in the matter by the appellants, the only course 
open for the courts was to allow the application by setting aside the 
consent decree dated 10.6.1979 and to remand the matter to the 
learned trial court to revive the suit enabling the parties to prove 
their title. It is also argued that all the courts below, particularly 
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the learned High Court has misread the evidence on the record. In 
this regard not only the statements of other witnesses produced by 
the appellants have been ignored and misread but particular 
reference in this context has been made to the statement of PW-2 
who in categorical and unequivocal terms has mentioned that both 
the predecessors-in-interest of the appellants have been making 
payment of property tax. Furthermore in his cross-examination 
PW-2 on a suggestion given by the respondent has mentioned that 
the PTD/PTO was issued to the appellants after treating the 
property to be an evacuee property. This part of the evidence has 
not been taken into account at all by all the courts below. It is 
submitted that after having withdrawn the ejectment petition on 
the pretext that now the question of title is sub-judice before the 
Civil Court, the respondents never filed any suit challenging the 
PTDs; it is also argued that in the facts and circumstances of the 
case, Civil Court has no jurisdiction in the matter for the purposes 
of determination of the validity of PTDs/PTO or the transfer of the 
property as an evacuee property to the appellants. 
3. 
 
Controverting the above, learned counsel for the 
respondents have stated that it is an admitted fact that Mst. 
Katherine Helen Patinger was the owner of the property; she was 
not an evacuee, thus her property cannot be treated as an evacuee 
property and could, therefore, not form part of the compensation 
pool for further transfer in favour of the appellants. There is no 
evidence on the record whatsoever that the lady had ever sold the 
property in favour of Dr. Dewan Chand by any registered 
instrument, because the property in question was situated in the 
city of Lahore and the only legal and valid mechanism to transfer 
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the same was through a registered sale instrument, but this is 
conspicuously missing in the present case. The record of the 
Lahore Municipal Corporation, in which some proposals depict the 
name of Dr. Dewan Chand as owner/transferee of the property has 
been made without inviting objection in that context, thus such 
fact recorded is absolutely baseless for the reason that there is no 
registered instrument of transfer supporting either the proposal of 
change of ownership or even to establish that the property was 
validly transferred to Dr. Dewan Chand. Once this was not 
established, undoubtedly, the property could neither be treated to 
be an evacuee property nor could be validly transferred onto the 
appellants. It is also argued that the property was never treated to 
be an evacuee property before the target date i.e. 1.1.1957 in terms 
of the Pakistan (Administration of Evacuee Property) Act, 1957; the 
decree in favour of the respondent even if is a consent decree was a 
valid decree; there was no need for the respondents to file a 
separate suit challenging the PTDs in favour of the appellants as in 
the suit filed by the appellants, the question of ownership was an 
issue between the parties and as it has already been decided by the 
court of competent jurisdiction that such PTDs are not an adequate 
proof of transfer, the omission on part of the respondents in terms 
of challenging these PTDs by independent civil action has no 
adverse consequence or bearing on their rights. It is also argued 
that the lady had died in the year 1978 and since it was never 
brought to her notice that the appellants had procured PTDs in 
their favour, failure on her part in challenging those PTDs and not 
taking any action would not operate as estoppel against the 
respondent 
who, 
therefore, 
could 
not 
be 
precluded 
from 
C.A.514 of 2008.doc 
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challenging these PTDs at a later stage on the basis that no locus 
standi had passed on to the respondent in light of the judgments 
reported as Abdul Haq and another Vs. Mst. Surrya Begum and 
others (2002 SCMR 1330) and Noor Din and another Vs. 
Additional District Judge, Lahore and others (2014 SCMR 513). 
Above all, respondent No.2 was the bona fide purchaser for 
valuable consideration, therefore, his rights are duly protected in 
terms of Section 41 of the Transfer of Property Act. 
4. 
 
Heard. One of the important questions involved in this 
matter is whether the property in question was an evacuee 
property, had formed part of the compensation pool and has been 
validly transferred by the Settlement Department in favour of the 
appellants. In context of the above, certain facts are of considerable 
importance and thus need to be mentioned here. Admittedly the 
property was owned by Ms. Patinger in the year 1940 according to 
the record of the Municipal Corporation which has been produced 
by the respondents as Ex.P1 to Ex.P5, which clearly depicts that 
some change in the ownership took place in 1940 and per the same 
Ms. Patinger sold out the property to Dr. Dewan Chand. Ex.P1 is a 
copy of the notice dated 18.11.1940 issued to Ms. Patinger under 
the provisions of Section 65 of the Punjab Municipal Act, 1911 
which postulates as follows:-“please take notice that the assessment list is 
being completed and published as required by section 64 of the Punjab Municipal 
Act 1911, and that the Administrator will proceed to revise the valuation and 
assessments on the 20th day of December 1940”. There is no record of the 
lady responding to the above. Ex.P2 which is the report of the 
concerned Municipal Corporation dated 26.9.1946 approved by the 
Secretary, Municipal Corporation clearly proves that the property 
C.A.514 of 2008.doc 
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in question had been sold in favour of Dr. Dewan Chand. In this 
context the contents of the requisite documents are relevant which 
read as:- 
“I have verified at site and find that the property in 
question has been sold to Dr. Dewan Chand c/o Mr. 
Devraj Anand tenant house No.22 street No.25 Canal 
Park, Lahore. The ownership may therefore be changed 
accordingly”.  
 
This document is supported by a notice under Section 122 of the 
City of Lahore Corporation Act, 1941 which is addressed to Dr. 
Dewan Chand which reads as:- 
“Please take notice that I propose to make the 
amendments given below in the assessment list in respect 
of land-building S x x 25 & 22 (Canal Park). The relative 
entries may be inspected at _______. Objection in writing 
to the proposed amendment may be delivered at the 
Municipal Office on or before 17.01.1966”.  
 
The proposed amendment in this case was substitution of the 
name of Dr. Diwan Chand as the owner of the property and Ms. 
Patinger was notified of the above fact. The subsequent record of 
the Municipal Corporation, Lahore clearly indicates that the 
change in the ownership of Dr. Dewan Chand had been duly 
incorporated in the relevant record and it is Dr. Dewan Chand who 
has been not only mentioned as the owner of the property, but was 
required to make the payment of the requisite property tax. In this 
context, Ex.P5 is a challan pertaining to the year ending 1940 in 
which the value for the purposes of tax has been mentioned as 
Rs.540/-, the property is shown to be vacant, but the record 
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reflects that the ownership rests with Dr. Dewan Chand. In Ex.P11 
which is form No.24 i.e. Survey List of Rent of Urban Properties, 
Dr. Dewan Chand is again shown to be the owner of the property. 
All this record has been produced and proved through the 
concerned official of the Municipal Corporation and such record is 
the one which has been maintained under the law i.e. under the 
Municipal Corporation Act, 1911. Therefore according to the 
provisions of Article 92 of the Qanoon-e-Shahadat Order, 1984 it 
carries presumption of correctness. No evidence at all has been 
lead by respondents to dispel this presumption or to even mention, 
if these documents and the record has been forged and fabricated 
by the appellants. On the basis of the above documentary evidence, 
a valid conclusion can be drawn that in the year 1940 lady 
Patinger had sold the suit property to Dr. Dewan Chand and the 
process of change of ownership commenced straightaway and it 
continued till 1946 when per the report presented as Ex.P2 it was 
confirmed that Dr. Dewan Chand is owner of the property and this 
report is founded upon inspection by the authorized and competent 
official and finally approved by the Secretary. It may be pertinent to 
mention here that the conclusion about the veracity of the above 
record needs to be examined in light of the conduct of lady Patinger 
also. From the year 1940 onwards, Ms. Patinger is not claimed or 
proved to have ever paid any property tax; she is not shown to be 
in possession of the property either directly or indirectly. It is the 
case of the respondents that Ms. Patinger had inducted the present 
appellants in possession who were immigrants from India, but 
there is no evidence at all on the record except the bare statement 
of Charles Patinger, father of the respondent who even fails to 
C.A.514 of 2008.doc 
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mention which month, year etc., as to when, how, and in whose 
presence appellants were inducted in the property. The onus to 
prove that the appellants were the licensees in the property was 
upon the respondent but this onus has not been discharged at all. 
Furthermore according to the written statement of the respondent 
No.1, Ms. Patinger had been alive till 19.12.1980 (otherwise the record 
reflects that she died in the year 1978) which is about 33 years after the 
creation of Pakistan but during all this period she never ever paid 
any property tax to the concerned property tax department; never 
asked the appellants to vacate the property; never ever initiated 
any proceedings, meaning thereby that she herself knew and 
acknowledged through her conduct and silence that the property 
had already been sold by her in favour of Dr. Dewan Chand and, 
therefore, had no connection, right or interest in the property. After 
her death, all of a sudden, the respondent in a surreptitious 
manner filed a suit against his father claiming that his father had 
relinquished his share in favour of the respondent, obtained a 
decree to that effect and sold the property onto respondent No.2. 
Question that agitates our mind is why, if the appellants were 
licensees of Ms. Patinger, which interest had devolved upon the 
respondent, did they never ask the appellants to vacate the 
property, rather in a covert manner the respondent filed a suit and 
obtained a decree in his favor. The object of the decree in fact, as 
the subsequent events reveal, was to have a declaration by a court 
to the title of the property which otherwise, the respondent could 
not prove on the basis of the record of the Municipal Corporation 
which vividly was against him and once the decree was obtained, it 
is then that the property was sold to respondent No.2 in such a 
C.A.514 of 2008.doc 
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strange and improbable manner. Otherwise, excepting the consent 
decree itself, there was no record to prove that Ms. Patinger or the 
respondent were the owners of the property. The very fact of filing 
of the suit by itself is sufficient to establish that the respondent 
knew that the property had been sold by his mother in favour of 
Dr. Dewan Chand who was an evacuee. The property had been 
declared to be an evacuee property and had been accordingly 
transferred in favour of the present appellants in whose favour the 
PTDs had been issued in the years 1962 and 1965 and for seeking 
the possession of the property from the appellants, the respondent 
had to cross the hurdle of challenging the said documents first. It 
is for this reason that the respondent never ever approached the 
appellants or ever made any attempt to terminate their license; 
asked for the restoration of possession, but in a secretive manner 
filed the suit mentioned above, which undoubtedly is kind of a 
cover given to ultimately dispossessing the appellants without ever 
having to prove his title in the property; it seems to be a device. 
Even in the Court we repeatedly asked the learned counsel for the 
respondents, if after 1940 the property had ever been assessed by 
the property tax department or remained in name of Ms. Patinger 
to which the learned counsel did not have a positive reply. We have 
questioned if lady Patinger even after the creation of Pakistan had 
ever paid property tax of the property in question, to which again 
we received no response. Likewise we did not receive an answer 
with regards to whether the lady ever interacted with the property 
or the appellants in her capacity as the alleged owner of the suit 
property during the time period of 33 years. Obviously the reason 
for non-payment of property tax was that Ms. Patinger was no-
C.A.514 of 2008.doc 
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longer the owner, because in the relevant record the change of 
ownership had taken place in the name of Dr. Dewan Chand and 
she, on account of not having any connection with the property, as 
mentioned above, had not paid any property tax and never dealt 
with the property or the appellants. Otherwise it is most 
improbable that an owner would be so negligent and stay aloof and 
oblivious of his/her property. Even the respondent or his father 
(husband of the lady) are not shown to have ever dealt with the property 
on her behalf. Again this is most unlikely and improbable. The 
argument repeatedly made by the respondents has been that there 
is no record of a registered sale deed. In this context, it is true that 
in the urban areas a sale has to be made per a registered 
document in terms of Section 17 of the Registration Act, 1908 
which if not complied with attracts the consequences prescribed by 
Section 49 of the Registration Act, 1908. However, in the instant 
case, why should it be presumed that the sale was not conducted 
per the law. The possibility cannot and should not be ruled out 
that it was not possible for the respondents to find out the exact 
date of the sale deed, when the same was not on the record of the 
Municipal Corporation. In any case, since the property had been 
treated as an evacuee property, it was the duty of the respondents 
to challenge the PTDs in favour of the appellants instead of filing a 
suit for declaration against his father. The initial onus to disprove 
the said sale to Dr. Dewan Chand, in light of the Lahore Municipal 
Corporation record and on account of the PTDs, was on the 
respondent. It is settled law that once a property is treated to be an 
evacuee property even erroneously, then the same cannot be held 
to be otherwise and the Civil Court in this behalf would have no 
C.A.514 of 2008.doc 
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jurisdiction, specifically where no attempt had been made to 
challenge the PTDs before the concerned Settlement Authorities 
before the repeal of the evacuee law or even conceding for a 
moment that the Civil Court has jurisdiction in this matter, before 
the Civil Court directly. In this context, the judgment reported as 
Muhammad Din and 8 others Vs. Province of the Punjab 
through Collector and others (PLD 2003 Lah. 441) is of 
importance, the relevant portion thereof reads as follows:- 
“From the above, it stands settled that when there is a 
question about the evacuee nature and treatment of a 
property as such, the civil courts have no jurisdiction in 
the matter. In the instant case, not only that the property 
was treated as an evacuee property, but, the same had 
also been transferred and permanently settled in favour 
of the predecessor-in-interest of the petitioners, Noor 
Muhammad, predecessor-in-interest of respondent No.3, 
and Nazim-ud-Din. The Civil Courts in the suit, filed by 
the respondents, seeking declaration of their title on the 
basis of PTD, issued in their favour, had no jurisdiction 
to hold such transfer as void, because the property was 
non-evacuee and, therefore, its treatment and transfer to 
the petitioners could not be made……………Even if the 
property had been erroneously treated and transferred as 
evacuee, their right in the property, stood extinguished 
and they had no legitimate title, which could be passed 
onto Abdul Rashid by way of gift, from whom, 
respondents No.2 and 3 could acquired a lawful title, by 
stepping into the shoes of the original owners…………It 
has been settled till now that, where the property had 
been treated and transferred as an evacuee property, 
even if erroneously, and the non-evacuee owners did not 
seek their remedy under the law in force at the relevant 
time, their title to such property stood extinguished and 
they could not assert their right of ownership before the 
C.A.514 of 2008.doc 
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Civil Court, after the repeal of the evacuee/settlement 
law, on account of lack of jurisdiction.” 
 
As regards the question raised by the learned counsel for the 
appellants that Ms. Patinger had not challenged the PTDs in favour 
of the appellant during her lifetime, therefore, no locus standi shall 
pass on, the judgments reported as Abdul Haq and another Vs. 
Mst. Surrya Begum and others (2002 SCMR 1330) and Noor Din 
and another Vs. Additional District Judge, Lahore and others 
(2014 SCMR 513) are relevant. This aspect of the matter has to be 
viewed in light of the conduct of lady Patinger because she had 
lived for about 33 years and despite that had never ever asserted 
herself to be the owner of the suit property. Obviously in such 
circumstances her conduct would prove that she was not claiming 
the ownership of the property and, therefore, was estopped in 
terms of Article 114 of the Qanoon-e-Shahadat Order, 1984. 
Consequently, no valid locus standi would pass on to her son for 
claiming ownership and thus son could not have passed a valid 
title in favour of respondent No.2. As far as the effect of the consent 
decree dated 10.6.1979 is concerned, suffice it to say that such 
decree in terms of Section 43 of the Specific Relief Act would only 
be binding inter se the parties i.e. the respondent and his father 
and would have no legal significance to affect and prejudice the 
rights of a third person. In the above context, the judgment 
reported as Muhammad Iqbal and others Vs. Khair Din through 
L.Rs. and others (2014 SCMR 33) is of relevance. These aspects 
have not been taken into account by the courts below who have 
only decided the matter on the basis that the sale deed by Ms. 
Patinger in favour of Dr. Dewan Chand has not been produced. 
C.A.514 of 2008.doc 
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Suffice it to say that per the PTDs issued in favour of appellants, 
and the order passed by Iqbal Ahmed Khan dated 20.12.1959, the 
property was transferred to the appellants.  
5. 
 
It may not be out of place to mention here that with 
regard to whether the sale was made by lady Patinger in favour Dr. 
Dewan Chand, the following was admitted by PW-1 when 
questioned by the respondents’ side:- 
ہﯾ"  ﮯﺳ مﮨ ںﯾﻣ ﯽﮔدﻧز ﯽﻧﭘا ﮯﻧ نﺋاﺮﺗﮫﮐ نﻠﯾﮨ ہﮐ ﮯﮨ تﺳرد
 سﭨوﻧ ﯽﺋوﮐ ﯽﮨ ہﻧ روا ﺎﮫﺗ ﺎﯾﮐ ہﻧ مﯾﻠﮐ وﮐ ہﻋزﺎﻧﺗﻣ دادﺋﺎﺟ ﯽﮫﺑﮐ
"ﺎﮫﺗ ﺎﯾد هﺮﯾﻏو  
 
Further when father of respondent No.1 appeared as DW-1, he in 
categorical terms mentioned that he was out of the sub-continent 
for a considerable period and has no knowledge about the dealing 
of the property. He unequivocally mentioned that  دادﯾﺋﺎﺟ تﻻﺎﺣ ﮯﮫﺟﻣ"
 ہﯾوﻋدﺗﻣ1940  ﺮﮐ ﮯﻟ ﮯﺳ1946 "ﺎﮫﺗ ﺮﮨﺎﺑ ںﯾﻣ ہﮐﻧوﯾﮐ ﺎﮫﺗ ہﻧ مﻠﻋ ﺎﮐ کﺗ. As far as 
respondent No.1 is concerned, he also could not have any 
knowledge regarding whatever had happened during 1940 to 1946 
because according to him he was born on 21.7.1945 and was too 
young to know. It is not his case that his mother had ever apprised 
him that she had inducted the appellants as licensees in the 
property, however, it is also significant to mention that in his 
cross-examination he has deposed as under:- 
 ہﻧ موﻠﻌﻣ مﺎﻧ ہﯾﻘﺑ هوﻼﻋ ﮯﮐ نا ﮯﮫﺗ ضﺑﺎﻗ هﺮﯾﻏو ﺮﺗﺧا روا نﯾدﻟا مﯾﮩﻓ"
 دﻌﺑ ﮯﮐ یﺮﭨﺳﺟر ںﯾﮨ5  ﺎﮫﺗ ﻼﭼ ہﺗﭘ ﺎﮐ نﯾﺿﺑﺎﻗ نا ﮯﮫﺟﻣ دﻌﺑ ﮯﮐ هﺎﻣ
 فﺮﺻ ﮯﻧ مﮨ ۔ﮯﮫﺗ ضﺑﺎﻗ ﮯﺳ تﯾﺛﯾﺣ سﮐ ہﮐ ﮯﮨ ہﻧ مﻠﻋ ﯽﺋوﮐ ﮯﮫﺟﻣ 
 ہﯾ ﮯﻧ ںﯾﻣ ﯽﮫﺗ ﯽﮐ ﺮﺋاد ﯽﻠﺧد ﮯﺑ تﺳاوﺧرد فﻼﺧ ﮯﮐ نﯾد مﯾﮩﻓ
ﺳﮐ ﯽﻠﺧد ﮯﺑ تﺳاوﺧرد وﮐ ﯽ
 یوﺮﯾﭘ دوﺧ ںﯾﻣ ﯽﮫﺗ ید ہﻧ ﺮﭘ contract
 ﺎﮐﭼ ﺮﻣ نﯾدﻟا مﯾﮩﻓ با ﯽﮫﺗ ﯽﺋوﮨ تﻟادﻋ ہﻌﯾرذﺑ نﯾدﻟا مﯾﮩﻓ لﯾﻣﻌﺗ ﺎﮫﺗ ﺎﺗﺮﮐ
 ﯽﺋوﮨ ںﯾﻣ ﯽﻠﺧد ﮯﺑ لﯾﻣﻌﺗ بﺟ ﮯﮨ طﻠﻏ ہﻧ ﮯﮨ ہﻧ مﻠﻋ اوﮨ توﻓ بﮐ ﮯﮨ
"ﺎﮫﺗ ﺎﮐﭼ ﺮﻣ نﯾد مﯾﮩﻓ وﺗ  
 
C.A.514 of 2008.doc 
-: 18 :-
We are not persuaded that on account of non-production of said 
sale deed or any other record from the Settlement Department 
except PTDs which have been proved to have been genuinely 
issued, the appellants are not able to prove their ownership, 
because the respondents had never challenged the genuineness of 
the PTDs and therefore, the same have not been in dispute. It is 
not the case of the respondent that those are forged and fabricated 
documents. If the other record is not available with the Settlement 
Department, no prejudice can be caused to the appellants. Thus 
from the totality of the facts, we are of the view that the property in 
question was sold by Ms. Patinger in favour of Dr. Dewan Chand; 
the name of the purchaser was duly reflected in the record of the 
Municipal Corporation; lady Patinger never paid property tax till 
the date she remained alive; she never even contacted the 
appellants for the purposes of seeking the possession of the 
property or asserting herself to be the owner; she had also not 
been registered as an owner with the relevant tax authorities; she 
in her lifetime had never challenged the PTDs in favour of the 
appellants or sought the eviction of the appellants from the 
property and it is not expected of a property owner to allow 
strangers to use or reside in his/her property without any 
compensation for such a long period of time and not seek their 
eviction or assert his/her rights over the property; consent decree 
was procured by respondent No.1 in a strange and surreptitious 
manner which otherwise is not binding upon the present 
appellants; immediately after the decree having been obtained, the 
property was allegedly sold to respondent No.2 and he in a dubious 
manner procured the eviction order against the appellants and 
C.A.514 of 2008.doc 
-: 19 :-
tried to take over the possession of the property but having failed 
in that regard subsequently withdrew the eviction application as 
well.  
6. 
 
Thus we find that since the learned courts below failed 
to consider these aspects of the matter, the judgments impugned 
cannot be sustained, which are hereby set aside and by allowing 
the application of the appellants under Section 12(2) CPC, the suit 
of the respondent is dismissed, as there shall be no fruitful 
purpose served to allow revival of the suit and order for the retrial 
as all the issues between the parties have been settled in the 
proceedings under Section 12(2) CPC. Besides, as the decree dated 
10.6.1979 in favour of respondent is being set aside, the sale deed 
made by him on the basis of above in favour of respondent No.2 
has lost is validity and efficacy as well. In terms of the above, this 
appeal is allowed and the impugned orders/judgments are set 
aside. 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
1st October, 2014 
Not Approved For Reporting 
Waqas Naseer/* 
