Hanifan Bibi etc. vs Muhammad Tayyab

Stereo.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

C.R. No.562-D of 2015

Hanifan Bibi and others v.

Muhammad Tayyab

JUDGMENT

Date of hearing 23.6.2026 Petitioners by Mehar Irshad Ahmad Arain, Advocate.

Respondent by M/s. Ch. Ehsan Ullah Khan and Malik Yahya Mumtaz, Advocates.

Rasaal Hasan Syed, J. This civil revision is directed against judgment and decree dated 27.4.2015 of the learned Addl. District Judge, Chichawatni whereby appeal of respondent/plaintiff was accepted, judgment and decree dated 18.12.2012 of the learned Civil Judge, Chichawatni was set aside and suit of respondent was decreed.

2.Respondent/plaintiff instituted a suit for specific performance of agreement of sale dated 12.8.2004 claiming that late Ali Muhammad, predecessor of the petitioners, had executed the said agreement in his favour for the sale of suit- property in consideration of Rs.1,50,000/-, received Rs.75,000/- as earnest money and delivered its possession. It was alleged that later a sum of Rs.40,000/- was also received by late Ali Muhammad leaving an amount of Rs.35,000/- as payable balance consideration. It was asserted that respondent/plaintiff remained ready and willing to perform his part of obligation of agreement during the lifetime of Ali Muhammad and thereafter. The suit property on demise of Ali Muhammad devolved upon the petitioners as legal heirs who were initially willing to honour the commitment of their

predecessor but later refused to do so, as such, the suit was filed to enforce the agreement to sell through indulgence of court.

3.Petitioners/defendants through their joint written statement contested the suit by denying the execution of agreement by their predecessor and the alleged payment of any amount as consideration and maintained that the agreement was fabricated after the death of their predecessor and that the respondent had no right or cause of action to file the suit. Issues were framed and evidence was recorded; whereafter the learned Civil Judge dismissed the suit while returning findings against the respondent to the effect that the execution of agreement of sale could not be established; that payment of any amount of consideration as alleged could not be established; and that witness testimonies adduced by respondent were contradictory and unbelievable. The suit was, accordingly, dismissed vide judgment and decree dated 18.12.2012. Respondent/plaintiff filed an appeal thereagainst which was allowed by learned Addl. District Judge, Chichawatni vide judgment dated 27.4.2015, in result, the judgment and decree dated 18.12.2012 of Trial Court was set aside and suit was decreed. In the instant revision petition the judgment and decree passed in appeal by learned Addl. District Judge is now under challenge.

4.Heard.

5.Points raised by learned counsel for the parties have been duly considered in the light of the evidence and pleadings as also the other material available on file. Perusal thereof reveals that the claim of respondent/plaintiff in his suit was that on 12.8.2004, predecessor of petitioners, late Ali Muhammad had offered to sell the suit-property in his favour which the respondent agreed to purchase for a consideration of Rs.1,50,000/-. A sum of Rs.75,000/- was paid as earnest

money while at the request of the said Ali Muhammad a sum of Rs.40,000/- was further paid and that a sum of Rs. 35,000/- was outstanding which the respondent was ready and willing to pay to seek registration of sale deed and that respondent remained also ready and willing to perform his part under the agreement during the lifetime of late Ali Muhammad. After the demise of Ali Muhammad his legal heirs i.e. the petitioners were not willing to perform the part of agreement on behalf of deceased. Petitioners as legal heirs of deceased Ali Muhammad in their statements denied the execution of sale agreement by their predecessor and also the plea of alleged payment of any amount as part of consideration as alleged by the respondent. The joint defence was that there was no agreement to sell nor ever executed by the deceased and the document was fabricated after the death of Ali Muhammad and that the possession was never given to respondent/plaintiff either by late Ali Muhammad or by petitioners and that the respondent was not in possession of the suit property.

6.In evidence respondent/plaintiff appeared as PW-1 and produced Munir Ahmad son of Muhammad Ibrahim as PW-2; Shamas Iqbal, Record Keeper, DOR Office, Khanewal, as PW-3; Muhammad Jamil Akhtar son of Nazar Ali, Stamp Vendor as PW-4; Muhammad Nawaz Kathia, Advocate, Notary Public, as PW-5; Muhammad Charagh son of Noor Muhammad as PW-6; and also produced in documentary evidence copy of Cancellation Report as Ex.P-2 and copy of Register Haqdaran-e-Zameen for the Year 2003/2004 as Ex.P-3. Petitioners adduced one of the petitioners/defendant No.5 as DW-1 and Muhammad Ismail son of Sher Muhammad as DW-2 and produced copy of Fard Jamabandi of the suit- property as Ex.D-1.

7.Perusal of contents of plaint does not show as to whether the transaction was settled before the execution of agreement

of sale and who were the witnesses thereof; similarly, it does not disclose the date of payment of Rs.40,000/-. So much so no receipt was claimed to have been obtained for the alleged payment of earnest money or for Rs.40,000/-.

8.The petitioners had outright denied the existence of any sale transaction between late Ali Muhammad and the respondent/plaintiff and had categorically denied the execution of agreement or payment/receipt of any consideration by the deceased. Plea of possession was also denied. It was thus manifest from the pleadings that the petitioners completely controverted the sale transaction or execution of sale agreement, therefore, as per law heavy onus was upon the shoulders of respondent to prove the sale transaction in terms thereof including the bargain struck, the claim of alleged payment of earnest money, subsequent alleged payments and the execution of document purportedly made between the parties. It is settled rule that in a suit for specific performance to obtain decree, the claimant has not only to prove the agreement to sell by producing two marginal witnesses but also the receipt/proof of payment of alleged consideration amount claimed in the agreement. It is also a settled rule that it was incumbent upon the respondent plaintiff not only to fully set out the agreement in the pleadings on the basis of which suit was filed but also to specify the place where the predecessor of petitioners had consented to sell and the names of witnesses present at the occasion, date and time of the alleged settlement/transaction and also the execution of sale agreement.

9.Perusal of plaint shows that all the material particulars are missing; however, in the evidence while appearing as PW-1 plaintiff Muhammad Tayyab stated that deal was done in the baithak of his cousin Munir Ahmad and that the deal was made one day before during daytime at 11.00 a.m/12.00 p.m. In the

first instance it was neither stated in the plaint nor in the agreement that the deal was settled a day before or in the baithak of Munir Ahmad who entered appearance as PW-2; Munir Ahmad as such witness contradicted the statement of plaintiff/PW-1 by deposing that the deal was made at 10.00 a.m. when to the contrary, as per PW-1, it was on the same day when the stamp was executed. PW-1 in cross-examination stated that he identified late Ali Muhammad before the Stamp Vendor, Jamil Akhtar, as well as Muhammad Nawaz Kathia, Notary Public; but the statement was contradicted by PW-2 Munir Ahmad who stated that Ali Muhammad was identified by him before Stamp Vendor and Notary Public. Again, in their statements Stamp Vendor Jamil Akhtar as PW-4 and Notary Public Muhammad Nawaz Kathia, Advocate, as PW-5 stated that Ali Muhammad was not identified by any one in their presence. PW-1 in cross-examination deposed that Ali Muhammad, Munir Ahmad, Shah Muhammad and two sons of Ali Muhammad, namely, Muhammad Sajid Hussain and Ali Asghar were present before Jamil Akhtar Stamp Vendor but Jamil Akhtar, Stamp Vendor deposed that at the time of execution of stamp only two persons namely Ali Muhammad and Muhammad Tayyab came to him while PW-2 Munir Ahmad in his statement stated that at the time of execution of agreement of sale he alongwith Muhammad Tayyab, Ali Muhammad, Shah Muhammad, Sajid Hussain and Ali Asghar were present but he was contradicted by Chiragh/PW-6 Deed Writer who deposed that for scribing the agreement to sell Ex.P-1 Ali Muhammad, Muhammad Tayyab, Munir Ahmad, Shah Muhammad, came to him and no other person was present there.

10.The question which arises in this case is as to whether the document Ex.P-1, the execution whereof was in issue and enforcement thereof was claimed in the plaint, was admissible

in law or not. Article 79 of Qanun-e-Shahadat Order, 1984 mandates that the document required by law to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purposes of proving its execution, if there be two attesting witnesses alive and subject to process of court and capable of giving evidence. Article 17 of Qanun-e- Shahadat Order, 1984 further provides that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly. The matter clearly involving financial as well as future obligations as such attracted the provision of Article 79 supra. The plaintiff/respondent did not produce the other marginal witness, namely, Shah Muhammad in the evidence and banked upon the statement of Munir Ahmad PW-2.

11.During arguments an attempt was made to explain that the marginal witness had connived with other party and was not willing to appear in the court to corroborate the statement of other marginal witness but there is no evidence or proof of connivance of the witness on record. The learned Civil Judge rightly referred to the rule in Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089) where it was observed to the effect that agreement to sell having been attested by two witnesses and executed after promulgation of Qanun-e-Shahadat Order, 1984 ought to have been proved in accordance with Article 79 thereof and in case only one witness was produced while the other witness was not produced, evidence shall not meet the requirement of said provision of law. Reliance was also correctly placed on Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lah. 367) where it was observed that document will not be deemed to be proved if only one attesting witness is produced.

Explanation given for non-appearance of other witness, was illusory and untenable. Reference can also be made to the case of Federation Of Pakistan through Secretary, Ministry of Defence Rawalpindi and another v. Messrs Farrukh International (Pvt.) Ltd. through Proprietor (2023 SCMR 1118) and Khudad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933) wherein it was observed to the effect that document which pertains to financial and future obligations is required to be attested by at least two witnesses and that any party relying upon such document is required to produce its two marginal witnesses in order to prove its execution in accordance with law. The Trial Court correctly relied upon Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 as interpreted in the precedents supra and rightly concluded that the agreement to sell was not proved as the fundamental requirement of law was not satisfied and complied with.

12.The learned Addl. District Judge erroneously relied upon Article 81 of Qanun-e-Shahadat Order, 1984 and assumed that the document was admitted and, therefore, the requirement of two witnesses became insignificant. The view taken by learned Addl. District Judge was not only against law but also against the facts proved on record. Petitioner/defendant No. 5 had contested the suit throughout and never made any conceding statement before the court. In view of the contest of suit by petitioner/defendant, the plaintiff/respondent was duty bound to prove the execution of document which was seriously disputed. Even otherwise it is settled rule that any alleged admission of co-defendant does not bind the other defendants. Reference to this effect can be made to the rule in Shah Muhammad and 2 others v. Dullah and 2 others (2000 SCMR 1588) and Allah Rakha through L.Rs. v. Nasir Khan and 4 others (2007 CLC 154). As regards the alleged admission by

the co-defendant it is observed that in the joint written statement filed by all the defendants (petitioners herein) they had disputed seriously the execution of any agreement of sale by their predecessor late Ali Muhammad or the payment of any consideration amount to him and specifically stated that the document was fabricated. It appears that later during the pendency of suit, except defendant No.5, the other defendants recorded their conceding statements on 28.1.2012 and 02.2.2012 but few days later they filed an application that the consideration was never paid and by fraud their consent was taken. It was in these circumstances that the Trial Court rightly observed that appreciation of entire evidence made it clear that the execution of agreement to sell dated 12.8.2004 was not proved and that the defendants who conceded could transfer their ownership and that the suit could not be decided on the basis of any alleged admission by some of co- defendants which was not binding on the other defendants and that the suit had to be proved independently against the contesting defendants by plaintiff which having not been proved in accordance with law, suit could not be decreed.

13.In this case as pointed out supra material particulars of the transaction were not given in the plaint. There is no mention of time and place qua the oral bargain or transaction in the plaint and names of the witnesses were also missing. So much so it was not claimed that the transaction was settled before the execution of document but the plea was taken in the evidence for the first time which too suffered from contradictions as per statements of PW-2 and PW-1 discussed supra while no receipt for payment of Rs.75,000/- was produced and same was the position regarding Rs.40,000/- claimed to have been paid nor any date, time or place for payment of Rs.40,000/- was given in the plaint. In law the plaint must contain all material particulars about the

transaction which being missing in this case and the evidence led on the subject being inadmissible, could not be considered. Even with regard to the claim for payment of consideration, as the evidence of respondent was self-contradictory and unbelievable and respondent/plaintiff failed to establish the payment of consideration amount by him to Ali Muhammad predecessor of the petitioners/defendants, as such, the claim made was not liable to be decreed.

14.The facts noted supra were duly taken note of by the learned Civil Judge who rightly dismissed the suit while the findings recorded by learned Addl. District Judge were based on misreading and non-reading of evidence and also inadmissible and contradictory which suffer from material illegality and jurisdictional error and liable to be reversed which is accordingly set aside. Resultantly, the revision petition is accepted; impugned judgment and decree dated 27.4.2015 passed by learned Addl. District Judge, Chichawatni is set aside and judgment and decree dated 18.12.2012 of Civil Judge, Chichawatni, whereby suit of plaintiff/respondent was dismissed, is restored. No Order as to costs.

(RASAAL HASAN SYED)

JUDGE

Announced in open Court on 30.6.2026.

JUDGE

Approved for reporting

JUDGE

*Rabbani*