Hafiz Hussain Ahmad etc Vs Sartaj Ali etc

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R No. 917-P/2025

Hafiz Hussain Ahmad and others...........Petitioners Vs Sartaj Ali .................. ...................Respondent Present: Mr. Fazal Haq Yousafzai, Advocate, for the petitioners.

Mr. Bakhtzada, Advocate, for the respondent.

Date of hearing: 26.01.2026

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, the petitioners have challenged the judgment and decree of the learned Additional District Judge-X, Mardan dated 19.06.2025, whereby the appeal filed by the present petitioners was dismissed and thereby maintained the judgment and decree of the learned Civil Judge-X, Mardan dated 19.12.2024, who vide the same had decreed the suits of respondent / plaintiff, whereas the suit of petitioners / defendants was dismissed.

2.Precisely the facts leading to the filing of this petition are that the respondent / plaintiff namely,

Sartaj Ali initially filed suit No. 291/1 against the petitioner / defendant, namely Hafiz Hussain Ahmad for issuance of declaration, specific performance and permanent injunction on the ground that he has purchased property measuring 02 kanals from the said petitioner / defendant on the basis of a deed dated 14.06.2014 as he had already paid the sale consideration amount and possession has also been delivered to him but the petitioners / defendants are reluctant to enter and attest a mutation or registry in favour of respondent / plaintiff. Simultaneously, the respondent / plaintiff also brought another suit No.

292/1 against all the LRs of Rehmat Khan i.e. siblings and mother of said Hafiz Hussain Ahmad for declaration and permanent injunction on the ground that he has purchased 02 kanals of land from defendant No. 1 on the basis of sale deed dated 14.06.2014 on payment of whole sale consideration amount and possession was also handed over him, however, later on defendant No.1 refused to enter and attest mutation or registry in favour of respondent / plaintiff, therefore, he filed the said two suits. The third suit bearing No.

515/1 was filed by the present petitioners/plaintiffs, whereby the respondent / plaintiff was arrayed as a

defendant, for declaration to the effect that they are owner of the suit property as per the periodical record for the year, 2016 to the extent of their due shares and that defendant / respondent namely, Sartaj Ali has got no concern to interfere in the property of the petitioners / plaintiffs. All the aforesaid three suits were consolidated and as many as nine (09) consolidated issues were framed and the parties were directed to produce their evidence which they accordingly led and initially the said suit was dismissed by the learned trial court vide judgment and decree dated 17.06.2021, however, respondent / plaintiff felt himself aggrieved and challenged the same through a revision petition before the learned Revisional Court which was accepted by the learned Revisional Court vide order and judgment dated 19.10.2022 and the case was remanded back with the observation to procure the respective proforma F-1, F-2 & G under Order XI-A of CPC, and after recording the evidence of the parties decide the case afresh.

3.After the remand, the respondent / plaintiff submitted an application that he would rely on the evidence already recorded by the official witnesses namely, Aurangzeb (Stamp vendor) and Saeed-ur-

Rehman (Deed Writer) and the opponent counsel too endorsed his no objection, nevertheless the respondent / plaintiff namely, Sartaj Ali appeared in the witness box as PW-1, whereas Saleh Rehman Bacha was produced as PW-2 and Kishwar Ali was produced as PW-3, whereas one Tamheed Khan appeared as CW-1. After hearing the parties, the learned trial court vide one of the impugned judgment and decree dated 19.12.2024 decreed the suit No. 291/1 and 292/1 filed by the respondent / plaintiff, whereas the suit No.515/1 filed by the petitioners / defendants was dismissed. The petitioners / defendants considering themselves aggrieved preferred an appeal to the Court of Additional District Judge-X, Mardan, however, their appeal was also dismissed vide second impugned judgment and decree dated 19.06.2025, which judgments and decree have now challenged by the petitioners before this Court through the instant petition

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

5.It is the case of respondent / plaintiff that he has purchased the suit property from the petitioner / defendant No.1 vide deed dated 14.06.2014 and he has

already paid the whole sale consideration amount to the petitioner / defendant and possession of the purchased property has also been handed over to him since then.

In order to prove the aforesaid fact as pleaded in his plaint, he has produced the stamp vendor of the said deed namely, Aurangzeb as PW-2 and who has exhibited the relevant record as Ex.PW 2/1. The respondent / plaintiff has also produced the scriber of the said deed namely, Sayed Ahmad as PW-1 and who has endorsed that he had scribed the said deed and has also exhibited the same as Ex.PW 1/1. The respondent / plaintiff has also produced both the marginal witnesses of the said deed namely, Noor Daraz as PW-3 and Saleh Rehman Bacha as PW-4, whereas the respondent / plaintiff namely, Sartaj Ali has himself appeared in the witness box as PW-5, therefore, in the given facts and circumstances, the respondent / plaintiff has produced an overwhelming evidence to prove the said deed and thus he has successfully discharged the required burden of proof.

6.It would also be relevant to mention here that all the material contentions of the respondent / plaintiff as pleaded by him in the plaint has also been admitted by the petitioner / defendant namely, Hafiz Hussain

Ahmad when he appeared in the witness box as DW-1 as he has made the following admission:- "ہی درتس ےہ ہک ریما وادل ومعض وطرو اخص ںیم امکل ےہ۔ ےھجم وارتث وادل وخد ںیم ہصح نہں ےلم اگ۔ ویکہکن اُس ےن اےنپ ایحت ںیم ےھجم اانپ ہصح دای اھت۔ ومعض وطرو ےک العوہ ریمے وادل اک دورسےیسک ومعض ںیم ااقتنل نہں ےہ۔ ےھجم ریمے وادل ےن ومعض وطرو ںیم ہصح دای اھت۔وجہک ںیمےنرفوتخایکےہ۔ازوخداہکہکرفامنیبن ُ"رپرفوتخرکوایےہ۔

In view of above clean breast admission by no body else but by the petitioner / defendant namely, Hafiz Hussain Ahmad himself which would show that their father was owner of the property in Mouza Toru Khas only where the suit property is situated and thus the petitioner / defendant namely Hafiz Hussain Ahmad being his son would get his legal share and thus even if he has sold his share to another person namely, Farman Nabi and not to the present respondent / plaintiff even then all the LRs of their common i.e. predecessor of the petitioners namely, Rehmat Khan could adjust each other, however, when the respondent / plaintiff has proved the execution of the said deed then for any controversy amongst the LRs of Rehmat Khan, the respondent / plaintiff would not be allowed to suffer.

Needless to mention here that there is no controversy

amongst the petitioners / defendants that Hafiz Hussain Ahmad is the son of Rehmat Khan who is the executant of the subject deed and that his father was owner of the property in Mouza Toru including the subject property.

7.Another aspect of this case is that though the respondent / plaintiff has relied on an un-registered deed dated 14.06.2014, however, the contents of the said deed would show that the respondent / plaintiff has paid the whole consideration amount and the possession of the suit property had also been handed over to him then and there, however, only execution of a mutation or registry was to be made and thus in case of a claim on the basis of an unregistered deed, the possession of subject matter gain more significance and become a decisive factor while deciding the rival claims of the parties. As far the present case is concerned, the handing over of possession of the suit property is specifically spelling out from the contents of the deed and the same has loudly been pleaded by the respondent / plaintiff in his plaint and court’s statement and such factum qua the possession of suit property has also been admitted by petitioner No.2 namely, Parvez son of Rehmat Khan while appearing

as DW-3, who during his cross examination, has honestly, fairly and candidly admitted as under:- ""ہیدرتسےہہکارایضدتموعہعاکہضبقرساتجیلعےکاپسےہ۔ In view of the above, an unregistered deed followed by possession is considered to be on a higher pedestal even than of a registered deed without possession. In a case1 the Apex Court has held that the defendants/petitioners have failed to shatter the evidence so produced by the plaintiff/Respondent No.1 in support of her stance and thereby the factum of transfer of suit house vide above said un-registered deed has been established. But in the peculiar circumstances of the case in hand, the question would be as to whether the above said un-registered sale/dower deed can be given any preference over the registered gift deed in favour of defendants/petitioners.

The answer to this question would be a simple yes. It has further been held in the ibid judgment that if a person being in possession of an un-registered deed qua transfer of certain rights in property along with possession of the same he can legally protect his rights in the property and even a registered deed subsequent Sardar Arshid Hussain and others .vs. Mst. Zenat Un Nisa and another (2017 SCMR

in time will not affect his/her rights. The first proviso to section 50 of the Registration Act, 1908 provides so that such rights in the property can be protected under section 53-A of the Transfer of Property Act, 1882.

Similarly, in another case2 the Apex Court has held that sale consideration was totally paid and possession was also delivered to the vendee/transferee but the registered document could not be executed. This Court held that "Section 53-A of Transfer of Property Act, 1882, in itself creates a right in favour of transferee to retain possession. Such right comes into existence when transferor put the transferee in possession in part performance of the contract/sale deed. Right created by Section 53-A in favour of the transferee in possession can be termed as an equitable title which he held in the property.

8.It is relevant to mention here that under Article 117 of The Qanun-e-Shahadat Order, 1984, if any person who desires to obtain a favourable judgment from the Court of law is bound to prove all those facts which he/she has taken in his/her pleadings, either in the plaint or in the written statement. Article 117 being relevant is reproduced below:-

Syed Hakeem Shah v. Muhammad Idrees (2017 SCMR 316)

“117. Burden of proof.– (1) Whoever desires any Court to give judgment as to any legal right of liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

The aforesaid Article of The Qanun-e-Shahadat Order, 1984 declares that any person who desires a Court to issue a judgment in his/her/their favour, has/have to prove the existence of all those facts which he/she/they has/have pleaded in his/her/their plaint, and as stated hereinabove that the record/evidence would reveal that respondent/ plaintiff has proved the existence of all those facts on which he has based his plaint. In this case, respondent/plaintiff has proved his claim through legally admissible cogent and confidence inspiring evidence, whereas petitioners/defendants have failed to prove their case. In a case3 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 that those facts exist and burden of proof lies on him. The terminology and term of 3 “Nisar Ali vs. Muhammad Asghar” reported as 2022 SCMR 1054

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 is 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 plaintiff to prove the same. Where the evidence of plaintiff was self- contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff.

It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant. The lawsuits are 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 is the burdensome duty of the Court to detach the truth from the falsehood and endeavor should be made in terms of the well-known metaphor, "separate the grain from the chaff" 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 a case 4 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 adversary.

9.It is also relevant to mention here that when once the plaintiff succeeds to prove his/her stance, then under Article 118 of The Qanun-e-Shahadat Order, 1984 the burden will shift to the defendant and then under Article 119 of The Qanun-e-Shahadat 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 is reproduced below:- “119. Burden of proof as to particular fact: 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. Illustrations

(a)A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to C. A must prove the admission. 4 “Muhammad Latif vs. Bashir Ahmed and 7 others” reported as (2004 CLC 1010)

(b)B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it.”

The aforesaid provision unmistakably cast duty on the petitioners/defendants to prove all those facts which they have taken/agitated in their written statement, but they could not prove the same through any positive and legally admissible evidence. In a case5 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 person.

10.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 respondent/plaintiff and as against this, the petitioners/defendants have not succeeded to put any legal weight in their scale so as to turn it in their favour by producing any legally admissible evidence and thus they have to face its consequences. In a case6 the Hon’ble Apex Court has held that in civil dispensation of justice, courts are to adjudge the lis on the standard “Messrs Noorani Travels Karachi vs. Muhammad Hanif & others” reported as

2008 SCMR 1395

6 “Abdul Rehman & others vs. Mst. Allah Wasai & others reported as 2022 SCMR

of preponderance of probability of evidence produced by the parties, and the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance 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 case.

11.In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/defendants and in favour of the respondent/plaintiff, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non-reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in its revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon’ble Apex Court in its recent judgment7, in which it was also held that section 115, C.P.C empowers and mete out the High Court to satisfy Nasir Ali vs. Muhammad Asghar. (2022 SCMR 1054)

and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law.

Furthermore, the High Court has very limited jurisdiction to interfere in the conclusions arrived at by the courts below while exercising power under section 115, C.P.C. Similarly, in a case8, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of Salamat Ali and others vs. Muhammad Din and others reported as PLD 2022 Supreme Court 353

misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon’ble Apex Court in a case9 where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. It was also held by the Hon’ble Apex Court in para-10 of the judgment Muhammad Sarwar and others vs. Hashmal Khan and others reported as PLD 2022 Supreme Court 13

rendered in a case10 that in the case11 this Court declared that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115 C.P.C. Between two possible interpretations, the one adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. In a case12 it was also held by the Hon’ble Apex Court that the High Court has a narrow and limited jurisdiction to interfere in

the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the Mst. Zarsheda vs. Nobat Khan reported as PLD 2022 Supreme Court 21 Shahbaz Gul and others v. Muhammad Younas Khan and others reported as 2020

SCMR 867

Khudadad vs. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933

nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.

12.In view of the above discussion and exposition of law on the subject, this Revision Petition being bereft of any merit is hereby dismissed and consequently, the impugned judgments and decree of the two Courts below dated 19.12.2024 and 19.06.2025 are maintained and upheld.

Announced

Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah