Amir Afzal Khan vs Jaffar Ali Shah etc.

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Civil Revision No. 1465 of 2011

Amir Afzal Khan (deceased) and others versus Jaffar Ali Shah (deceased) and others

JUDGMENT

Dates of hearing 20.05.2026, 04.06.2026 & Petitioners by: Ch. Muhammad Aslam, learned Advocate Respondents by: Mr. Kanwar Naveed Ahmad, learned Advocate

Sultan Tanvir Ahmad, J:– The petitioners are claiming that their predecessor namely Amir Afzal Khan- deceased (the ‘Purchaser’) has purchased property measuring 7-K & 12-M, further specified in the suit (the ‘Suit Property’), from Rafaqat Ali-deceased (the ‘Seller’) against the consideration of Rs. 8,000/- through agreement to sell dated 26.08.1981 (the ‘Agreement’) and paid Rs.7,500/- on the same day for which separate receipt dated 26.08.1981 (the ‘Receipt’) was also executed; that the remaining consideration of Rs. 500/- was agreed to be paid at the time of execution of registered deed, for which no time period or cut-off date was settled.

2.Ch. Muhammad Aslam, learned advocate for the petitioners, has argued that the petitioners have produced the scribe (PW-1) who also witnessed the Agreement, and one of the marginal witnesses since passed away;

therefore, his signature / thumb impression, on the Agreement and the Receipt, have been identified by his son. Thus, the learned Appellate Court has misread the evidence while dismissing the suit. He stated that article 79 of Qanun-e-Shahadat-Order-1984 (QSO) does not apply as the Agreement was executed prior to the promulgation of QSO. The learned advocate has also filed the written arguments.

3.Mr. Kanwar Naveed Ahmad, learned advocate for the respondents, has invited the attention of the Court towards various parts of evidence and stated that the petitioners badly failed to prove the Agreement, payment of any consideration and the possession in pursuance of the Agreement, thus, no mistake is made by the learned Appellate Court.

4.Heard. Record perused.

5.Issue No.4 is framed by the learned trial Court to examine the question of limitation. Article 113 of the Limitation Act-1908 (the ‘Limitation Act’) visualizes two situations. Firstly, when the date of performance is fixed and secondly, when no cut-off date is agreed by the parties. The second part necessitates the Court to ascertain the date when the plaintiff had notice about the refusal of the performance of an agreement in question. The learned trial Court found the issue in favour of the petitioners, perhaps persuaded by the fact that in paragraph No. 7 of the suit the Purchaser pleaded the cause/refusal two days prior to the institution of the same. This being a mixed question of law and facts, should have been decided on the basis of the preponderance of evidence. No doubt the Limitation Act permits bringing an action within three years of notice of

refusal, when no date of performance is given in an agreement, but this cannot be treated as permission to initiate frivolous cases by merely pleading a clueless and self-created date of notice of such refusal.

6.The present suit is instituted after about two decades of the Agreement. The Purchaser appeared as PW-3 and regarding the year of death of the Seller, he stated that the Seller died 22 / 23 years before 27.04.2005 (when he was being cross-examined). He admitted that the inheritance mutation has been passed in favour of the legal heirs of the Seller, who are reflected as owners in the revenue record and in the relevant column, Wazeera and Muhammad Hussain are mentioned as tenants. There is no convincing reason on the record for their failure to file suit during the lifetime of the Seller and then to institute the claim, against the widow and orphans, after unusually long duration.

7.The refusal of the respondents or notice thereof is evasively pleaded in the plaint, without asserting the place of such refusal or manners of notice and any other person to behold the event of notice as well as the alleged refusal. The Purchaser then failed to produce any witness to state in his favour, during the whole trial, regarding the notice of refusal. The Purchaser claimed that out of Rs.8,000/-, the substantial portion (i.e. Rs.7,500/-) was paid in the year 1981 and only a meager amount of Rs. 500/- remained payable. There is no prudent response to the natural question as to why the Purchaser, despite payment of almost the entire consideration, kept waiting for two decades and never insisted on his right. Was he waiting for the death of the Seller as well as one of the witnesses and the other witness to become untraceable, enabling him to introduce the scribe to replace a marginal

witness? The case is noticeably built on highly unlikely events.

8.Needless to observe that evidence of a scribe as a substitute for a marginal witness has its own parameters. Scribe does not sign or endorse an agreement in the capacity as a marginal witness or with the same state of mind. In the present case, the scribe appeared as PW-1 and categorically admitted that he is not a witness to the payment of consideration, which, being one of the most important ingredients, was required to be independently proved. His evidence as to the reason for not noting the numbers of National Identification Cards of anyone who have allegedly executed Exh. P-1 and Exh. P-2 contradicts the evidence of PW-2.

9.Ch. Muhammad Aslam, learned Advocate for the petitioners has stated that the learned Appellate Court has ignored that the Agreement was executed before enforcement of QSO; therefore, Articles 17 & 79 of the QSO are not a valid yardstick for adjudging the evidence of the petitioners. Even then, the Agreement was to be proved by the parameters of section 68 of the Evidence Act-1872. One witness would have sufficed to support the Seller, provided the Seller’s own evidence is credible and plausible, and then the produced marginal witness has some logical flow and consistency; otherwise, it militates against the proof of disputed documents.

10.In view of the foregoing reasons, I found no merits in this petition, which is accordingly dismissed. No order as to costs.

(Sultan Tanvir Ahmad) Judge Approved for reporting

Iqbal* Judge