NASEER-UD-DIN vs GHAIRAT KHAN Ss — 2024 CLC 2070 PESHAWAR-HIGH-COURT

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NASEER-UD-DIN VS GHAIRAT KHAN Ss. 42 & 55---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for declaration and permanent injunction---Property deed---Proof---Two marginal witnesses of deed not produced---Effect---Plaintiff filed a suit for declaration and permanent injunction pleading that he was ancestral owner in possession of the suit property and the defendants had no right whatsoever to interfere in the same or claim their title over it---Defendants contested the suit by filing written statement---Trial Court dismissed the suit and appeal also failed---Validity---Record showed that plaintiff claimed that he was the ancestral owner in possession of the subject property comprising of Shamilat and in that regard, he relied upon two deeds---As such, he was duty bound to prove execution of those two documents through cogent, reliable and confidence inspiring evidence as under Art. 17 read with Art. 79 of the Qanun-e-Shahadat, 1984, whenever a document is reduced into writing, then in order to use it in evidence, the beneficiary has to produce at least two marginal witnesses---As the plaintiff, predecessor in title of the petitioners, had not been able to produce marginal witnesses of the two deeds, therefore, the same could not be termed as proved documents---So far as contention of predecessor in title of the petitioners that the subject property, being Shamilat, was part of his cultivable property was concerned, his own evidence did not support his contention as he, in his examination-in-chief, had taken a new plea by stating that the subject property was his ancestral property, which had been given to his father by his grandfather vide a deed and thereafter, it came to his share through partition vide partition deed---Such fact had never been asserted by predecessor in title of the petitioners in his plaint, therefore, no issue was framed in that regard---Plaintiff disclosed such fact for the first time while appearing in Court as witness, as such, under the law the statement made by him in the Court could not be considered at all---Plaintiff had to bring on record sufficient evidence to knock out the defendants as every civil case is to be decided on the principle of preponderance of evidence, which was lacking in the subject case---Though the documents relied upon by predecessor in title of the petitioners was of thirty years old but presumption as to its genuineness could not be drawn as the same had not been produced from proper custody rather produced by predecessor in title of the petitioner himself, despite being not proved, as he had also not produced its marginal witnesses---Trial Court coupled with the appellate Court had arrived at the just conclusion of the matter in issue, as such, the impugned concurrent findings of the Courts below did not need any interference---Revision petition was accordingly dismissed.

NASEER-UD-DIN vs GHAIRAT KHAN Ss — 2024 CLC 2070 PESHAWAR-HIGH-COURT

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