SAMIULLAH vs REHMATULLAH Ss — 2022 MLD 681 PESHAWAR-HIGH-COURT

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SAMIULLAH VS REHMATULLAH Ss.12 & 37---Qanun-e-Shahadat (10 of 1984), Art. 59---Alternative remedy---Suit for specific performance---Agreement to sell---Proof---Respondent alleged to have paid Rs.3,00,000/- as earnest money and agreed to pay rest of the amount on attestation of mutation---Allegedly it was settled that in case of failure on part of petitioner/defendant, he would pay an amount of Rs.6,00,000/- to respondent; whereas in case of failure on part of respondent, he would pay Rs.3,00,000/- to petitioner---Respondent No.1 had allegedly refused to transfer property and receive remaining amount---Respondent prayed for recovery of Rs.3,40,000/- in the alternate---Mother of petitioner/defendant No.2 submitted application under O.VII, R.11 of Civil Procedure Code, 1908 which was allowed on ground that she was the owner of property but neither she had entered into any agreement with plaintiff nor she had given any power of attorney to her son/petitioner---Suit was concurrently decreed to the extent of alternate prayer---Validity---Respondent had produced scribe who deposed in cross-examination that no sale consideration had been paid in his presence---Respondent appeared as witness and deposed in cross-examination that amount was paid at time of scribing of agreement---Marginal witness deposed that respondent had paid amount in his presence in his baithak and thereafter they proceeded to the petition writer for scribing of deed---Civil suits had to be decided on basis of preponderance of evidence and respondent was required to prove his case through cogent, coherent, reliable and convincing evidence---Neither the payment of sale consideration was proved nor witnesses were consistent---No denial of the fact that petitioner was neither owner of property nor he was legally appointed special attorney of his mother/defendant---Defendant (mother) was struck off from the panel of defendants but such order of Court was not assailed by respondent---Person could not transfer title better than his own---Respondent stressed for allowing his application for examination of thumb impression of petitioner---Opinion of expert was the weakest type of evidence which could only be considered as corroborative piece of evidence---Statements of witnesses were not in line with each other, hence respondent could not be held entitled for an alternate decree---Revision petition was allowed and suit was dismissed accordingly. Head Notes

SAMIULLAH vs REHMATULLAH Ss — 2022 MLD 681 PESHAWAR-HIGH-COURT

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