MEHMOOD KHAN vs SARA AKHTAR Ss — 2024 SCMR 178 SUPREME-COURT

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MEHMOOD KHAN VS SARA AKHTAR Ss. 42 & 39---Qanun-e-Shahadat (10 of 1984), Arts. 115 & 129(g)---Suit for declaration and cancellation of sale mutations---Fraud---Sale of land---Proof and burden of proof---Petitioners claimed that the respondent-lady had allegedly sold the suit land to them---Respondent denied selling her land pursuant to the sale mutations or otherwise, and also denied receipt of sale consideration---Counsel for respondent contended that the burden to establish the sale lay upon the beneficiaries of the sale, i.e., the petitioners in terms of Article 115 of the Qanun-e-Shahadat, 1984; that respondent was not aware of the sale mutations and upon coming to learn of them filed the suit well within the period prescribed in the Limitation Act, 1908; that the respondent's lands were being looked after by her maternal uncle (petitioner No. 7), and as such she was in constructive possession thereof, which fact is further confirmed as she did not claim mesne profits in her suit; that only one of the beneficiaries of the purported sale came forward to testify, that is petitioner No. 2, who admittedly was a child at the time of the sale and as such could not have testified regarding facts thereof; that his father (petitioner No. 1) also testified but stated that the sale consideration was paid by his wife, who did not come forward to testify, and in not doing so an adverse presumption, in terms of Article 129(g) of the Qanun-e-Shahadat, 1984, would be drawn that if she had testified it would be that she had not paid the sale consideration---Validity---Contentions of the counsel representing the respondent were correct---Furthermore, burden to establish the sales and the sale mutations, lay upon the beneficiaries thereof, i.e. the petitioners, but they failed to discharge it, and when the same was not discharged it may be stated to constitute fraud---Petition for leave to appeal was dismissed and the revenue authorities of the area were directed to immediately ensure delivery of subject land's exclusive possession to the respondent, as she was deprived of her land.

MEHMOOD KHAN vs SARA AKHTAR Ss — 2024 SCMR 178 SUPREME-COURT

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