Citation Name: 2024 CLC 75 QUETTA-HIGH-COURT-BALOCHISTANBookmark this Case NAIMATULLAH vs MIR JAMAL Ss

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Citation Name: 2024 CLC 75 QUETTA-HIGH-COURT-BALOCHISTANBookmark this Case NAIMATULLAH VS MIR JAMAL Ss.39, 42 & 54---Suit for declaration, cancellation of mutation and contract, permanent injunction and correction of entry in revenue record---Sale agreement---Proof---Predecessor of respondents filed a suit for declaration, cancellation of mutation and contract, permanent injunction, correction of entries in revenue record against the petitioners with the averments that the predecessor of the petitioner was owner of suit property and she sold out her land to the respondents in exchange of a price of Rs.100,000/- vide contract dated 09.07.2002---After the death of said vendor, her elder son/petitioner executed a confirmation deed dated 06.01.2011 whereby, he on his behalf and while acting as attorney of the remaining petitioners Nos. 12 to 15 acknowledged the contract---Respondents made an application for entering mutation entry of the suit land in their names---Said application was contested by petitioners Nos. 1 to 10 by claiming that they were the owners of the suit land on the basis of mutation---Respondents were advised to approach a Civil Court---Thus, the respondents filed a suit and prayed relief regarding declaration of their purchase of the suit land, cancellation of mutation entries and instruments, correction of revenue record in their names and perpetual injunction---Trial Court dismissed the suit, however, on appeal by the respondents, the suit was decreed by the Appellate Court---Validity---Contract, relied by the respondents, was in respect of the suit land which was recorded in the name of the petitioners Nos. 1 to 10 in the revenue record---Petitioner No. 11 was the executant of the contract---Said petitioner along with petitioners Nos. 12 to 15 were proceeded against ex-prate and the respondents had sought cancellation of the mutations of the petitioners Nos. 1 to 10 on the basis of the said contract, therefore they should have proved execution of the contract through two marginal witnesses in accordance with Art. 79 of the Qanun-e-Shahadat, 1984---Respondents merely examined the scribe and one marginal (attesting) witness of the contract of sale---In such a case, the scribe could not be considered as marginal witness as he had not stated in his examination in chief that the parties executed (put signatures) on the contract of sale in his presence---Scribe merely recognized his handwriting and signature on the contract---Hence, the scribe had not qualified the test of an attesting witness---Sole marginal witness of the contract of sale had not stated in his examination in chief that the parties executed the contract in his presence---Another witness was scribe of the confirmation deed, but he had not stated that the same was executed by petitioner No. 11 before him---Same was the position of the marginal witness of that instrument---Respondents had failed to prove execution of the contract through two marginal (attesting) witnesses, therefore, the contract executed in continuance thereof was of no legal effect---Hence, the respondents had failed to prove execution of the contract, therefore, the Appellate Court had committed material illegality by decreeing the suit on the basis of unproved documents---Revision was allowed by setting aside the judgment and decree passed by the appellate Court while restoring the judgment and decree passed by the Trial Court.

Citation Name: 2024 CLC 75 QUETTA-HIGH-COURT-BALOCHISTANBookmark this Case NAIMATULLAH vs MIR JAMAL Ss — 2024 CLC 75 QUETTA-HIGH-COURT-BALOCHISTAN

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