SALMA BIBI vs Rana SAGHEER HUSSAIN Ss — 2022 PLD 589 LAHORE-HIGH-COURT-LAHORE

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SALMA BIBI VS Rana SAGHEER HUSSAIN Ss. 100 & 103---Second appeal---Power of High Court to determine issues of fact---Scope---High Court normally does not interfere in second appeal under S. 100 of C.P.C., unless the decision of courts below is contrary to law or is based on failure to determine material issue of law---However, once the High Court entertains a second appeal, it can determine an issue of fact provided the conditions mentioned in S. 103, C.P.C. are fulfilled as the concurrent findings of facts recorded by the courts below cannot become sacrosanct. art. 79---Proof of execution of document required by law to be attested---Scope---Deposition of a scribe cannot be equated with deposition of an attesting witness and equating the testimony of a scribe with that of an attesting witness would defeat the letter and spirit of the art. 79 of the Qanun-e-Shahadat, 1984. Ss. 9, 54 & 55---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit by person dispossessed of immovable property---Perpetual injunction when granted---Mandatory injunction---Proof of execution of document required by law to be attested---Secundum allegata et probata---Consensus ad idem---Scope---Plaintiff filed suit for possession, permanent and mandatory injunction against the defendants claiming therein that he had purchased the disputed plot from the predecessor of defendants but the defendants took over illegal possession of the plot---Trial Court and Appellate Court concurrently decreed the suit---Validity---Plaintiff had failed to plead about the existence or execution of the alleged sale deed in his plaint---Plaintiff could not establish consensus ad idem having failed to prove the execution of first and second page because these pages were not signed by the parties---Neither the name nor signature of second marginal witness was available on the disputed sale deed---Plaintiff had produced his brother while portraying him as scribe of sale deed but the deposition of a scribe could not be equated with deposition of an attesting witness---Courts below had fell in error by not properly appreciating the questions of facts and law and ignored the material piece of evidence on record while passing the impugned judgments and decrees---Impugned judgments were set aside and the second appeal was allowed, in circumstances. S. 12---Cases in which specific performance enforceable---Each page to be signed---Scope---If the document is written on more than one page, then the parties must sign or put their thumb impressions on each page of document. arts. 117 & 118---Burden of proof---Scope---Initial burden of proof is on the plaintiff to substantiate his claim by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness and the weakness in the defense evidence, if any, would not relieve a plaintiff from discharging the above burden of proof.

SALMA BIBI vs Rana SAGHEER HUSSAIN Ss — 2022 PLD 589 LAHORE-HIGH-COURT-LAHORE

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