GHAZI KHAN vs MUHAMMAD YOUSAF S — 2023 CLC 2098 QUETTA-HIGH-COURT-BALOCHISTAN

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GHAZI KHAN VS MUHAMMAD YOUSAF S.54---Qanun-e-Shahadat (10 of 1984), Arts.17(2)(a), 79 & 129(g)---Registration Act (XVI of 1908), S. 17(1)(b)----Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of agreement and permanent injunction---Document (sale-agreement), execution of---Denial by the alleged executor---Burden of proof---Two marginal witnesses, non-production of---Sale-agreement, non- registration of---Suit filed by the plaintiff was dismissed by the Trial Court, which judgment was maintained by the Appellate Court---Claim of the petitioner / plaintiff was that he rented-out his allotted suit-shop to a defendant (possessor) who had connived with another defendant who (later) alleged himself as vendee by preparing forged document (Patta) allegedly issued by the concerned authority/defendant)---Contention of the respondents /defendants was that the plaintiff himself made application before the concerned authority (respondent) for the transfer of suit-shop in favour of alleged vendee (respondent), on which basis suit-shop was transferred vide document (i.e. Patta) duly issued by the concerned authority/respondent---Validity---Record revealed that the (private) respondents/ defendants through their common pleadings had not denied that shop was rented out to the possessor (respondent /defendant); and they had got exhibited the said document i.e. Patta ('document-in-question')---Burden of proof of the sale transaction vide document-in-question and transfer of shop on the application of the petitioner / plaintiff was on the respondent/vendee, who brought on record document-in-question through Notary Public---Document-in-question was though attested by two witnesses, however, respondent/vendee produced only one marginal witness---Document-in-question was a sale-agreement in respect of an immoveable property (shop) which was required to be attested by two witnesses under Art.17(2)(a) of Qanun-e-Shahadat, 1984 ('the Order 1984'); and such document must be proved by producing its two marginal witnesses under Art. 79 of the Order 1984---Second marginal witness of the document-in-question was withheld by the respondent/vendee without any legal reason---High Court could presume, under the provision of Art. 129(g) of the Order, 1984, that had the said witness been produced, he would have gone against him (respondent)---Respondent/vendee not only failed to prove execution of document-in-question but also failed to discharge the burden of proving that he had in fact purchased the shop from the petitioner---Document-in-question was a contract of sale which, according to S. 54 of the Transfer of Property Act, 1882, did not itself create any interest in or charge on an immoveable property unless the same was made a registered instrument under paragraph (2) of S. 54 of the Act, 1882 read with S.17(1)(b) of the Registration Act, 1908---High Court set-aside the decrees and judgments passed by both the Courts below and decreed the suit filed by the petitioner / plaintiff, declaring that agreement to sell asserted by the respondent/defendants was forged one---Revision was allowed, in circumstances.

GHAZI KHAN vs MUHAMMAD YOUSAF S — 2023 CLC 2098 QUETTA-HIGH-COURT-BALOCHISTAN

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