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| Specific performance after the death of seller. |
⚖️ معاہدۂ بیع ثابت کرنے کے لیے دونوں گواہوں کی شہادت لازمی — لاہور ہائی کورٹ کا اہم فیصلہ
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📖 مختصر پس منظر
⚖️ عدالت کے اہم قانونی نکات
⚖️ فیصلہ
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Must read judgement.
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
C.R. No.562-D of 2015
Hanifan Bibi and others
v.
Muhammad Tayyab
J U D G M E N T
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.
- 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 suitproperty 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
C.R. No.562-D of 2015
-2-
predecessor but later refused to do so, as such, the suit was
filed to enforce the agreement to sell through indulgence of
court.
- 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.
-
Heard.
-
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
C.R. No.562-D of 2015
-3-
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.
- 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 suitproperty as Ex.D-1.
- Perusal of contents of plaint does not show as to whether
the transaction was settled before the execution of agreement
C.R. No.562-D of 2015
-4-
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/-.
- 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.
- 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
C.R. No.562-D of 2015
-5-
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.
- 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
C.R. No.562-D of 2015
-6-
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-eShahadat 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.
- 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.
C.R. No.562-D of 2015
-7-
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
- 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.
- 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
- and Allah Rakha through L.Rs. v. Nasir Khan and 4
others (2007 CLC 154). As regards the alleged admission by
C.R. No.562-D of 2015
-8-
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 codefendants 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.
- 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
C.R. No.562-D of 2015
-9-
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.
- 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