AKBAR SHAH vs AYUB KHAN Ss — 2025 CLC 1537 PESHAWAR-HIGH-COURT

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AKBAR SHAH VS AYUB KHAN Ss. 65 & 90---Qanun-e-Shahadat (10 of 1984), Arts. 76, 77, 100 & 114---Specific Relief Act (I of 1872), Ss. 42 & 54---Suit for declaration with perpetual injunction---Oral gift and execution of deed---Essential ingredient of gift---Proof---Absence of details of oral gift---Effect---Presumption attached to thirty years old documents---Scope---Non-production of original deed and witnesses thereof---Suit instituted by the respondents was decreed and the appeal preferred by the petitioners was dismissed---Validity---Thirty years old document when relied upon by the petitioners/defendants and refuted by the respondents/plaintiffs then petitioners were required to prove not only execution of the deed but the basic essential ingredients of gift along with the details of alienation of the property---Neither any documentary nor any oral evidence was available that when and at which particular place, the declaration of the gift i.e., offer and acceptance, was taken place or erstwhile predecessor had divested himself from the possession of the property, had been proved by the petitioners---Mere age of the document as of thirty years old was not sufficient to hold that it was executed and was deemed to be proved---Petitioners had alleged the alienation in two series and they were required to prove it but not even an iota of evidence was available to substantiate their contention except the production of documents which too had not been produced in original before the court---Law had provided a remedy for proving a document through secondary evidence which was an exception to general rule and only meant for the purpose to cater a genuine need and hardship, which could not be allowed in routine or without complying with the requirements mentioned under S. 65 of the Evidence Act of 1872 (Act) or Arts. 76 and 77 of Qanun-e-Shahadat, 1984 (Order)---Mere production of deed before the court especially when the validity thereof was questioned by the respondents, the benefit of S. 90 of the Act or that of Art.100 of the Order could not be extended in favor of the petitioners---Civil Revision was dismissed in limine, in circumstances. Citation Name: 2025 CLC 1537 PESHAWAR-HIGH-COURTBookmark this Case AKBAR SHAH VS AYUB KHAN O. VI, R. 1---Pleadings---Scope---Mere pleadings unless corroborated by qualitative evidence could not be based for the decision of the lis nor the evidence without pleadings could provide any benefit---Mere pleadings of a party cannot be treated as substitute for proof---No litigant can be allowed to build and prove his case beyond the scope of his pleadings. Citation Name: 2025 CLC 1537 PESHAWAR-HIGH-COURTBookmark this Case AKBAR SHAH VS AYUB KHAN art. 114---Principle of estoppel---Scope---Principle of estoppel is used as a shield and not as a sword. Citation Name: 2025 CLC 1537 PESHAWAR-HIGH-COURTBookmark this Case AKBAR SHAH VS AYUB KHAN S. 11, Explanation IV---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration with perpetual injunction---Maintainability---Constructive res judicata, principle of---Scope---Plea taken by the petitioners that in view of dismissal of an earlier suit as withdraw, in which the respondents/plaintiffs were parties, the latter suit was not maintainable---Validity---Although petitioners were the defendants in the earlier suit but neither the suit was in respect of the legacy claimed in the second suit, nor they had ever appeared before the court---Neither rights of the petitioners were in question nor they were resisting the earlier suit, thus, neither the controversy of the respondents in their suit was the subject matter of the earlier suit, nor it was resolved in any manner, thus, neither the estoppel could be alleged against the respondents nor res judicata could be pressed into service but since the petitioners being defendants in earlier suit had taken a clear stance but failed in proving the same, thus, the matter was properly adjudicated upon by the court of competent jurisdiction against them and their cross objections in view of the dismissal of the suit as withdrawn had become infructuous, which, they could not allege in the latter suit of the respondents as there was no decree and that too in respect of the document/deed alleged by the petitioners---Civil Revision was dismissed in limine, in circumstances.

AKBAR SHAH vs AYUB KHAN Ss — 2025 CLC 1537 PESHAWAR-HIGH-COURT

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