Ayaz ul Haq Vs Haji Gul Rehman and another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R No.761-P/2022

Ayaz ul Haq Vs Haji Gul Rehman and another

Date of hearing: 19.01.2026

Petitioner (by): Mr. Ghulam Muhammad Faleh, Advocate Respondents (by): Mr. Faisal Khan, Advocate

JUDGMENT

SYED ARSHAD ALI, J.- This Civil Revision, preferred under Section 115 of the Code of Civil Procedure, 1908 (“CPC”), is directed against the concurrent findings recorded by both the learned courts below. The petitioner, Ayaz-ul-Haq, is aggrieved by the dismissal of his suit, wherein he sought a decree for declaration and specific performance based on the agreement to sell dated 16.01.2003. (“agreement to sell”).

2.The factual backdrop is that the plaintiff filed a suit on 03.10.2006 for declaration and specific performance. He claimed to have purchased the suit property (02 Kanals at Madina Colony, Badrashi, Nowshera Cantt) from Defendant No. 1 via an Agreement to Sell for a consideration of Rs. 400,000/-. The plaintiff further claimed that Defendant No. 1, the admitted owner, delivered possession of the property to him under the said agreement.

3.The cause of action arose when Defendant No. 1 initiated steps to sell the property to Defendant No. 2. Subsequently, during the pendency of the suit, Defendant No. 1 transferred the property to Defendant No. 2 through Mutation No. 3063 dated 10.11.2006. The defendants filed a joint written statement, vehemently denying the execution of the alleged Agreement to Sell.

4.The learned trial court, out of the divergent pleadings, framed the followings issues and directed the parties to produce their evidence:

1.Whether plaintiff has got a cause of action?

2.Whether defendant No.1 is possessed the disputed property according to stamp paper bearing No.95 dated 16.01.2003 at Rs.400,000/- and stamp paper is bogus and fraudulent?

3.Whether defendant No.1 is sold owner according to mutation No.3063 dated

4.Whether stamp paper is registered document in accordance with law?

5.Whether plaintiff is estopped to sue for his own conduct?

6.Whether suit of plaintiff is incompetent in its present form?

7.Whether plaintiff had made any improvement at Rs.200,000/- on the disputed property?

8.Whether plaintiff properly affixed the Court fee?

9.Whether plaintiff has made nay entry in the amended palint and is liable to be dismissed?

10.Whether suit of plaintiff is liable to be dismissed due to non-joinder of necessary parties?

11.Whether plaintiff is entitled to the decree for declaration in the heading of plaint as prayed for?

12.Whether plaintiff is entitled to the decree for specific relief in the heading of plaint as prayed for?

13.Whether plaintiff is entitled to the decree for permanent injunction in the heading of plaint as prayed for?

5.To substantiate his claim, the plaintiff produced Muhammad Arif (PW-1), AOK, Tehsil Office, Nowshera, who placed the relevant revenue record on file. Dost Muhammad (PW-2), the scribe of the instrument, testified that he had scribed the Agreement to Sell and produced the relevant register containing the entry thereof. During cross-examination, he conceded that the sale consideration was not exchanged in his presence; however, he maintained that at the time of execution, Defendant No. 1 had acknowledged receipt of the consideration. Ghulam Hussain (PW-4), a marginal witness to the deed, deposed that he is closely related to Defendant No. 1 (who is the father-in-law of his daughter) and that he affixed his signature at the latter’s behest. In his cross-examination, he also admitted that the passing of consideration was not witnessed by him. Iftikhar Ahmad (PW-6), son of the scribe, affirmed the execution of the deed but stated that the payment to Defendant No. 1 did not take place in his presence. The plaintiff appeared as his own witness (PW-1), and subsequently as APW-1 following the remand, to corroborate the contents of the Agreement to Sell.

Conversely, neither of the defendants entered the witness box; instead, they produced their attorney, Zahid- ul-Haq (DW-2). While he denied the execution of the Agreement in his examination-in-chief, he admitted

during cross-examination that the plaintiff holds possession of the suit property, stating:

ہتع "دمیعےنارایضدتموعہیںیماچردویاریوریغ میریکےہ۔احالہکندمیعاچردویاریریمعت رکراہاھتہک دماعہیلعےندعاتلوکدروخاتسیکاوردبوراندقمہموپسیلاجرکریغاقونینریمعتاتدنبرکدی۔دمیع ٹف اویچن دویار ریمعت یک وج وپسیل ےن دنب رک2 ٹف یبمل اور50 ےن ارایض دتموعہی ںیم دبوران دقمہم "دی۔

6.Both the learned courts below concurred that the suit was instituted within the prescribed period of limitation and that possession of the subject property rested with the plaintiff. They further held that the execution of the “Agreement to Sell” stood proved. However, the plaintiff’s suit for specific performance was dismissed on the sole ground that he failed to affirmatively establish the passing of the sale consideration.

7.In my considered view, the findings of the learned courts below are legally unsustainable. It is settled law that once the execution of a document is proved in accordance with the law, a presumption of truth attaches to its contents, including the recital of consideration, applying the maxim acta probant sese ipsa (documents speak for themselves). The rationale behind this presumption is rooted in public policy and the sanctity of commerce: written instruments inherently command a higher degree of credibility than oral testimony. To allow oral assertions to easily displace written obligations would introduce uncertainty and instability into legal

rights. Consequently, the general rule remains that documentary evidence prevails over oral evidence.1

8.Furthermore, it is also settled that when an unregistered deed is followed by possession, preference can be given to such unregistered deed over a registered deed.2 While the presumption attached to the document was rebuttable, the onus to rebut it lay heavily on the defendants. In the instant case, Defendant No. 1 offered only evasive denials in the written statement and, significantly, failed to enter the witness box to face the test of cross-examination. Bald allegations that a deed is fictitious, unsupported by the executor’s own testimony, are insufficient to disprove the contents of a document already proved by marginal witnesses. Mere evasively assertions that the deed is factitious are insufficient to disprove execution and contents of the document.3 Therefore, the findings of the courts below on Issues No. 2 and 3 are not tenable.

9.Resultantly, this petition is allowed, the impugned judgments/decree dated 27.11.2020 & 27.07.2022 of learned courts below are set aside, and the suit of the plaintiff for specific performance of the agreement to sell is hereby decreed.

10.Regarding the omission in the suit, where the khasra number was incorrectly written as 183 instead of 1715/1716, this constitutes a clerical mistake. The deed and the revenue record produced by AOK clearly establish that defendant No.1 was the owner of the

1.Muhammad Mumtaz Shah (Deceased) through LRs. and others vs. Ghulam Hussain Shah (Deceased) through LRs. and others (2023 SCMR 1155) and Muhammad Khan deceased through L.Rs. vs. Muhammad Akram (2025 CLC 228).

2.Rehmat Wali Khan and another vs. Ghulam Muhammad and others (PLD 2023 SC

3.Sajjad Ahmad Khan vs. Muhammad Saleem Alvi and others (2021 SCMR 415)

property in khasra No.1715 and 1716. Such clerical mistake cannot defeat the suit of the plaintiff, particularly when the execution of the agreement to sell, followed by delivery of possession, has otherwise been duly proved.4 Sd/---

JUDGE

Date of hearing and announcement of judgment ............ 19.01.2026 Date of preparation and signing of Judgment ................28.01.2026

S.B Hon’ble Mr. Justice Syed Arshad Ali

Mahmood Shah, SSS

4.Ghulam Nabi vs. Nazir Ahmad (1985 SCMR 824)