Dilshad Alam & others Vs Yakmin Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 735-M/2024

(Dilshad Alam and others Versus Yakmin Khan ) Present:

Mahboob Ayub, Advocate for petitioners.

Mr. Amjad Ali Khan, Advocates for respondent.

Date of hearing: 18.09.2025

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- This civil revision petition has been filed

petitioners/defendants Dilshad Alam and others whereby they have called in question the judgment dated 24.10.2024 of the learned Additional District Judge-I, Buner whereby appeal of

respondent/plaintiff was accepted by setting aside the judgment and decree dated 16.02.2023 of the learned Civil Judge-II/Illaqa Qazi, Buner vide which suit of the plaintiff had been dismissed.

2.Briefly stated, respondent/plaintiff Yakmin Khan instituted a civil suit against the petitioners seeking declaration and cancellation of mutation Nos. 3283 and 3288 dated 14.11.2017, and mutation No. 3491 dated 26.04.2019, on the allegation that Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the defendants had defaulted in payment of the remaining sale consideration of Rs.6,400,000/- arising out of a land sale transaction fully described in the plaint. In the alternative, he prayed for recovery of the aforesaid amount, along with permanent injunction restraining defendant No.3 from further alienating the suit property, and for possession of the same as consequential relief. The petitioners/defendants contested the suit through written statement, denying the allegations and asserting that the entire sale consideration had already been paid in lump sum, whereupon the impugned mutations were duly attested and possession delivered, leaving no outstanding liability. On the basis of the divergent pleadings, the trial Court framed necessary issues and recorded evidence of both sides, ultimately dismissing the suit vide judgment and decree dated 16.02.2023. The respondent/plaintiff, being aggrieved, filed an appeal which was allowed on 24.10.2024, remanding the matter to the trial Court for fresh decision in accordance with law, hence this petition.

3.Arguments heard and record perused.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

4.The case set up by the respondent/plaintiff is that he had sold the disputed land to defendant No.1, Dilshad Alam, through defendant No.2, Nisar Muhammad, for a total consideration of Rs.7,440,000/-. Out of this amount, Rs.1,000,000/- was paid in cash at the time of transaction, while the balance of Rs.6,440,000/- was promised by defendant No.2 to be paid later the same afternoon ()عصرویلہ. Trusting this assurance, the plaintiff affixed his thumb impression on the mutations.

According to the plaintiff, defendant No.1, who was abroad at that time, also assured him of the payment of the remaining sale consideration, but subsequently failed to honour this commitment and, instead, transferred the suit property to defendant No.3 through a secret sale transaction. The above assertion was specifically denied by the defendants, who maintained that the entire sale consideration had been paid in lump sum. Consequently, the burden squarely lay upon them to substantiate this stance. The learned appellate Court, while differing from the trial Court, has carefully examined the mode of payment pleaded by the defendants. In their written statement, the defendants had categorically Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

asserted that the entire amount had been paid to the plaintiff in lump sum. However, when defendant No.2 appeared as DW-4, he deviated from this stance and claimed that he had paid Rs.1,000,000/- to the plaintiff on the very date of transaction by withdrawing the same from the bank, whereas a further sum of Rs.3,400,000/- was allegedly paid by him when Muhammad Alam, brother of defendant No.1 had brought the mentioned amount.

Surprisingly, neither Muhammad Alam was produced as a witness before the Court nor was any documentary proof of withdrawal from the bank was placed on record. Even more significantly, during cross-examination, PW-3 Gul Faraz Khan stated that petitioner No.1 had paid Rs.1,000,000/- in cash and, in addition, delivered an Altas vehicle valuing Rs.30 to 35 lacs. This assertion is completely inconsistent with the defence pleaded in the written statement and contradicts the version of DW-4, thereby creating serious doubts about the veracity of the defendants’ claim. The trial Court, while dismissing the plaintiff’s suit, appears to have been influenced primarily by certain admissions attributed to the plaintiff. However, such admissions, by themselves, Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

could not constitute conclusive proof of receipt of Rs.6,440,000/- by him, particularly when the burden of establishing payment of such a substantial amount rested entirely upon the defendants. In these circumstances, the learned appellate Court was justified in not subscribing to the findings of the trial Court and in holding that the defendants had failed to discharge the onus placed upon them.

5.The learned appellate Court has also

rightly taken notice of the question of possession over the suit land, which constitutes a most crucial aspect of the controversy but was unfortunately left unattended by the trial Court. In this regard, the respondent/plaintiff had taken a specific stance in para No.4 of the plaint, which is reproduced hereunder for ready reference:

) ہی ہک اکی ہتفہزگرےنےک ابووجدہیقب زرعیب ہن ےنلمورت ری نم دمی4 وکومفئیل1ےنیاعہیلعربمن2ےسراہطبرکےکیاعہیلعربمن2ےنیاعہیلعربمن ےن نیقی دالای ہک ی وک ہیقب زرعیب دلج از دلج لم1رپ اکل رکےک یاع ہیلع ربمن اجاگیئ۔ ی ےب رکف رےہ۔ نیقی دنا ی رکا ی ہک عدتیوہی ارا ی ی ےک زر ہضبقےہاوراتووصیلہیقبزرعیبزرہضبقرہیگی۔

The above assertion of the plaintiff was

specifically denied by the defendants in their written statement in the following terms:

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

اسیج ہک رمبت رکدہ ےہ طلغ وھجٹ اک دنلپہ ےب اینبد اور اصف4 ۔ رقفہ ربمن۴ ااکنر ےہ۔ یلیصفت وجاب رقفہ اجی ابال نم دای ایگ ےہ۔ ی ےن ہلمج زر عیب تشمکی ووصل رکےک ہضبق وحاہل رکےک امدعب رہ دو ااقتنالی عیب اطمبقب اقونن و اضہطبدرجودصتقیدشہںیہ۔

From the foregoing divergent stances, it is evident that the possession of the disputed land was a material point in controversy. The trial Court, however, failed to frame any specific issue in this respect, thereby omitting to determine who, in fact, was in possession of the suit property at the relevant time. This lapse has rendered the judgment of the trial Court deficient, as the issue of possession goes to the very root of the matter and has a direct bearing on whether the transaction between the parties had attained finality. Accordingly, the appellate Court, in remanding the case for fresh adjudication, has committed no illegality. Rather, it correctly held that the trial Court was bound to examine this aspect of the case and to determine, on the basis of evidence, whether the transaction stood completed in all respects or whether the retention of possession by the plaintiff supported his stance regarding non-payment of the balance sale consideration. The remand, therefore, was not only Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

justified but also necessary to secure a just and proper adjudication of the controversy between the parties.

6.As a sequel to the above discussion, the findings of the learned appellate court are found in accordance with law and evidence on record which call for no interference from this Court. Resultantly, the impugned judgment of the learned appellate Court is maintained and this revision petition is dismissed being devoid of merit.

Announced Sd/- Dt:18.09.2025

JUDGE

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah