Muhammad Gulfam Vs M. Ayaz Khan

I

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BEI{CH

(ludicial Department) C. R No. 279-412013

Muhammad Gulfam.

(Petitioner/s)

VS

Muhammad Ayaz Khsn and unother.

(Respondent/s)

Present Barrister Syed Ahmad Khan, Advocate, Syed Asif Shah, Advocate and Mr. Sajjad Afzal Khan, Advocate, for petitioners

Qazi Muhammad Arshad, Advocate, and Muhammad llyas Khan, Advocate, for respondents.

Dates of hearing: 11.06.2025

JUDGMENT

AUR,ANGZEB, J.. Through the instant civil revlslon petition, the petitioner/defendant has challenged the judgment & decree dated 24.06.2013 passed by learned District Judge, Battagram, whereby, the appeal filed by the respondent No.1/plaintiff, was accepted and thereby set aside the judgment and decree of the learned trial Court dated 04.07.2011, who vide the same had dismissed the suit of respondent No.1/ plaintiff.

2.Precisely, the facts of the case leading to the filing of the instant civil revision petition are that the respondent No.1/plaintiff filed a suit for declaration etc. against petitioner/plaintiff and respondent No.2, detail of which is fully mentioned in the heading of the plaint, which suit was duly contested by petitioner/defendant by filing written statement, whereas, respondent No. 2ldefendant namely Syed Sikandar Hayat Shah submitted his cognovit. In view of the pleadings of the parties, the learned trial Court framed issues and thereafter the parties were asked to produce their respective evidence which they have accordingly led and after hearing the arguments, the learned trial Court dismissed the suit of respondent No.l/plaintiff vide judgment and decree dated 04.07 .2011. The respondent No. l/plaintiff being aggrieved of the aforesaid judgment and decree preferred an appeal and the appellate Court after hearing arguments accepted the appeal of respondent No.l/plaintiff vide impugned judgment and decree dated 24.06.2013 and thereby set aside the judgment and decree of learned trial Court dated 04.07.2011 which judgment and decree has now been

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challenged by the petitioner/ defendant through the instant revision petition.

J. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

1.The record reveals that respondent No.1, herein referred to as the plaintiff, instituted a suit for declaration, asserting his lawful ownership and possession over the land located in different Mozas. Specifically, the plaintiff claimed ownership and possession of the suit property detailed as follows: land in Khata No.2161364 to 370 measuring 170 Kanals and 03 Marlas to the extent of ll3rd share situated in Moza South Batta Mori; land in Khata No.99l155 measuring l4l Kanals and 06 Marlas to the extent of 20912127 share; land in Khata No.1001156 measuring 1827 Kanals and 04 Marlas to the extent of 12182136546 share located in Moza Hill; land in Khata No.65/106 measuring 421 Kanals and 03 Marlas to the extent of 1/3rd share in Moza Malkal Gali; land in Khata No.165/324 measuring 166 Kanals to the extent of 1711996 share; land in Khata No.286/365 measuring 44 Kanals and 07 Marlas to the extent of

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ll3rd share; land in Khata No.285l354 measuring 46 Kanals and 17 Marlas to the extent of ll3rd share situated in Moza Shamlai; and lastly, land in Khata No.12l12 measuring 52 Kanals and 06 Marlas to the extent of t/3rd share located inMoza Banseir. The plaintiff contended that all the aforementioned properties were purchased through a written agreement (Iqrarnama) dated 17-12-2007.

The sale consideration agreed upon between the parties was Rs. 1,500,000/- (Rupees Fifteen Lacs Only). It was the case of the plaintiff that he paid the full consideration amount and was consequently handed over possession of the properties. Based on this transaction, the plaintiff maintained that he had become the rightful owner in possession of the disputed properties, and therefore, the defendants/respondents no longer had any legal right, title, or interest in the said properties.

5 Furthermore, the plaintiff alleged that despite the execution of the Iqrarnama and payment of the agreed consideration, certain revenue entries continued to reflect ownership in favor of the defendants. He claimed that such entries, made after the date of the agreement (i.e., post 17-12-

2007), were fraudulent, unlawful, and a result of misrepresentation of facts. These entries, according to the plaintiff, were not only illegal but also ineffective in law and did not affect his proprietary rights acquired through the Iqramama.

5 In order to substantiate his claim, the plaintiff produced several witnesses. Manzoor Hussain, Advocate and Oath Commissioner, appeared as PW-1 and verified that the deed Ex.PW-l/l bore his signature. However, during his cross-examination, he admitted that the deed had not been entered into the relevant official register.

He further conceded that at the time of attestation, although acting in his capacity as an oath commissioner, he had failed to produce any notification or atthorization letter confirming his appointment. The plaintiff also presented Mohammad Ashraf, the deed writer, as PW-2. He testified that he had drafted the Iqrarnama dxed 17' 12-2007 and identified the document as Ex.PW- l/1. To further strengthen his case, the plaintiff produced respondent No.2/defendant as PW-5. This witness testified that his wife, Mst. Safia Begum, had passed away on 20.08.2008 and that during her

lifetime, she had executed a general power of attomey in his favor as far back as 1981. Acting upon her instructions and in his capacity as her attorney, he executed the Iqrarnama in favor of the plaintiff and also verified his own signatures on the document. He further affrrmed that the entire sale consideration of Rs.15,00,000/- had been duly received. Moreover, he stated that he had authorized his nephew, Syed Shehzad Hussain Shah (son of Syed Sajjad Haider Shah), through a separate power of attorney to proceed with further legal formalities and affirmed that a valid cognovit had been submitted. The plaintiff himself appeared as PW-7 and reiterated the same facts that on 17- 12-2007, he entered into an Iqrarnama with Mst.

Safia Begum through her attorney (defendant No.l), who assured that the property would be alienated as per legal procedure. However, despite such commitments, the defendants allegedly showed reluctance and failed to fuIfill their part of the agreement by not transferring the property in his name

Z It is important to note, however, that the Iqrarnama dated 17-12-2007 (Ex.PW-t/1) did

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not contain a specific or clear description of the properties in question. During cross-examination, the plaintiff himself admitted that he only had a general understanding of the property in terms of its measurement in Kanals. Similarly, PW-5 admitted that he could not speciS, the total quantum of property owned by Mst. Safia Begum in the respective Mozas. This lack of specificity raised serious doubts about whether the properties in dispute were indeed covered by the said Iqrarnama) making it difficult to determine if any of the mentioned properties formed part of the agreement.

Moreover, the Iqrarnama itself was an unregistered document. According to legal principles, an unregistered agreement does not confer title or ownership, particularly in relation to immovable property. Therefore, its legal effectiveness in transferring title was questionable.

E Additionally, the plaintiff produced Patwari Halqa of Moza Hill and Malkal Gali, Tehsil and District Battagram, as PW-3. This witness presented the relevant revenue records, including the Fard Jamabandi for the years 2008-09 (Ex.PW-3 ll) and 2006-07 (Ex.PW-3/2), Goshwara

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in the name of Syed Sikandar Shah (Ex.PW-3/3), and another in the name of Gulfam Khan (Ex.PW- 314).He also submitted Girdawri entries as Ex.PW- 3lD-l and Ex.PW-3lD-2. These revenue records collectively indicated that the plaintiff had not been recorded as in possession of the disputed properties, thereby casting further doubt on the alleged transaction and actual possession

2.Another crucial omission in the

plaintifPs case was the failure to produce the marginal witnesses of the Iqramama. Despite the importance of corroborative testimony m establishing the authenticity of such a critical document, no marginal witnesses were presented before the court. In the case of "Farid Bakhsh y;.

Jind Waddo and others" reported as 2015 SCMR 1044 it has been held that "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [atJ least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and copable of giving evidence. In the case of "Fa@!i and another vs. Khuda Bakhsh and others"

reported as PLD 2015 SC 187 it has been held that "Agreement to sell an immovable property squarely fell within the purview of the provisions of Art. 17(2) of the Qonun-e-Shahadat, 1984 and had to be compulsorily attested by the two witnesses and this was sine qua non for the validity of the agreement.

For the purposes of proof of such agreement it was mandatory that two attesting witnesses must be examined by the pqrty as per Art. 79 of the Qanun- e-Shahadat, 1984. Scribe of an agreement to sell immoveable property was not a substitute for an attesting witness, and did not legally qualify to be so, therefore, his evidence may have a supportive value, but was neither in line with the mandate of law nor did it meet the test of Art.79 of the Qanun- e-Shahadat, 1984". The same view has also been taken in the cases titled "@

others vs. Salmon All' reported as PLD 2003 SC 31 and "Shah Muhammad ush L.Rs and 4 others vs. Nawab Din" reported as 2006 MLD 823 10 Significantly, although the plaintiff based his entire claim on the general power of attorney allegedly executed by Mst. Safia Begum in favor of defendant No.2, that power of attorney was

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never exhibited in the evidence. Without producing and proving the power of attorney, the very foundation of the Iqrarnama stood unverified. Thus, the authenticity and validity of the agreement, as well as the authority of the person who executed it, remained unestablished in the eyes of the law. In view of these material shortcomings, non- specificity of the property, absence of proper registration, lack of corroborating evidence through marginal witnesses, and the non-production of the crucial general power of attomey, the learned appellate court failed to appreciate the legal significance and evidentiary gaps in the case. The cumulative effect of these deficiencies rendered the plaintiff s claim unsubstantiated and legally untenable.

11.It is settled law that the plaintiffs could not be allowed to draw any benefits from the lapses or lacunas in the case of defendants and it is entirely for the plaintiff to prove their case independently as required under Article 117 of The Qanun-e-Shahadat Order, l9B4 and it would be thereafter that the burden would shift to the defendant to prove his own stance as required under

Articles 118 and 119. The aforesaid burden of proof on the part of the plaintiff is enrooted in Article 117 of The Qanun-e-Shahadat Order, 1984 which declares that arry person who desires a Court to issue a judgment in his favour has to prove all those facts which he has pleaded in his plaint. The aforesaid Article of The Qanun-e-Shahadat Order, 1984 declares that any person who desires a Court to issue a judgment in his favour has to prove all those facts which he/they has/have pleaded in his/their plaint, and the evidence/record would reveal that the petitioner/plaintiff has proved the existence of all those facts on which she has based his plaint. In the case of "Nisar Ali v/s Muhammad Asshar" reoorted as 2022 SCMR 1054 it was held by Hon'ble Apex Court that "according to the Article 117 of the Qanun-e-Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, he must prove thot those facts exist and burden of proof lies on him. The terminologt and term of phrase "burden of proof' entails the burden of substantiating a case. The meaning of "onus probandi" is that if no

evidence is produced by the party on whom the burden rs cast, then such issue must be found against him. The burden of proof for the deceitful transaction rests normally on the person who impeaches it. In a suit for declaration alleging that the sale was fictitious, the onus is on the plaintrffto prove the same. It is a well settled exposition of law that the plaintiffmust succeed on the strength of his own case rather than the weakness of the defendant. The lawsuits ore determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharged the onus of proof which can be scrutinized as a whole together with the contradictions, discrepancies or dearth of proof, It ts the burdensome duty of the Court to detach the truth fro* the falsehood and endeavor should be made in terms of the well- lcnown metophor, "separote the grain from the cha-{f'which connotes and obligates the Court to scrutinize and evaluate the evidence recorded in the lis judiciously and cautiously in order to stand apart the falsehood from the truth and judge the quality and not the quantity of evidence"

Similarly, in the case of Muhamma d Latif vs.

Bashir Ahmed and 7 others reported as 2_0,01_ CLC 1010, the Lahore High Court has held that"it is settled proposition of law that a party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversarll'

12.It is also relevant to mention here that when once the plaintiff succeeds to prove his stance, then under Article 1 18 of Qanun-e-Shahadat Order, 1984 the burden will shift to the defendant and then under Article 119 of Qanun-e-Shahdat Order, 1984 such defendant who wishes the Court to believe existence of a particular fact then such defendant is bound to prove the same. The aforesaid burden on such person is enrooted in Article 119 of The Qanun-e-Shahadat Order, 1984, which declares The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. In the case of "Messrs Noorani Travels Karachi v/s Muhammad Hanif & others" reported as 2008 SCMR 1395 it was held by the Apex Court that"as per Article 119 of the

Qanun-e-Shahadat Order, burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another Derson".In the case of "Atta Muhammad v/s Nasir-ud-Din" reported as PLD 1993 Peshawar 127, it was held by this Court that "burden of proof that such entries were correct was on the party in whose favour such entries existed and not on the pqrty challenging correctness of such entry"

13 It is also settled law that civil cases are to be decided on the basis of preponderance of evidence. In the present case the same surely tilts in favour of petitioner/defendant and as against this, respondent No.l/plaintiff could not succeed to put any legal weight in his scale so as to turn it in his favour and thus he has to face its consequences. In the case of 'Abdul & others v/s Mst. Allah & others" reoorted as 2022 SCMR 399 the Hon'ble Apex Court has held that "in civil dispensation ofjustice, courts are to adjudge the lis on the standard of preponderance of evidence produced by the parties. And the decision of the

court would tilt in favour of the party havtng preponderance of evidence. As for the burden of proving a fact is concerned, it gains importonce and relevence, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the cose".

14.It is also well settled that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence and as such in this case after analyzing and evaluating the evidence on file, the findings recorded by the learned trial Court are correct and are the result of proper appreciation of evidence. In the case of uMst. Az.ra Gulz.ar v/s Muhammad Faroou & another" reoorted as 2022 SCMR 1625 it was held

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by the Apex Court that "in a case inconsistency of judgment between the two Courts below the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid iudgment that the settled lan in this regard is that revisional Court in such like

situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law". In the case of "Mgdg@!

and 4 ers v. Marun Beoari and 3 others" reported as PLD 1969 SC 617 it was held by the Apex Court that *if the finding of fact reached by the first appellate Court is at variance with that of the trial Court and as such the finding being at variance with that of the trial Judge, the two will noturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two dffirent findings have respectively proceeded'. This view is fortified by a long chain of judgments i.e. Alloo v. Sher Khan snd others (PLD 1985 SC 382), Abbas Ali Sh uh and 5 v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khudq Dad Khan (2004 scMR 1046), Karim Bakhsh throush L.Rs. and others v. Jin dwodda and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 scMR s86), Muh Hassan v.

Khalil ur Rehmon (2007 576\ and o.B.E.

Insurance Onternationslt Ltd. v. Jsffar Flour qnd Oit Mills Ltd. (2008 SCMR lBn

15.In view of the above, the findings recorded by the learned appellate court suffer from misreading of the evidence and are, therefore, not legally sustainable. Consequently, the impugned judgment and decree of the appellate court dated 24.06.2013 are set aside, and the judgment and decree of the trial court dated 04.07.2011 are restored and maintained. As a result, the instant revision petition is allowed.

Announced (> I tr.06.2025 Tahir Saleem ?\)

JUDGE