Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as R.A (SHC). In this matter between R.A (Civil Revision) 6/2024 (S.B.) Akber thru his LRs and Muhammad Ashraf & another Sindh High Court, Circuit Court, Mirpur Khas, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

COURT: Sindh High Court CASE NO: CITATION: PARTIES: ORDER DATE: BENCH: A.F.R: ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS.

Civil Revision Application No.S-06 of 2024

Applicant : Akbar son of Ghulam Fareed alias Fareed Ahmed through his attorney Iqbal Ahmed son of Ghulam Fareed alias Fareed Ahmed. Through Mr. Farhan Ahmed Bozdar , Advocate.

Respondent No.1: Muhammad Ashraf son of Ghulam Muhammad. Through Mr. Imdadullah Hingoro, Advocate.

Official Respondents: Through Mr. Harish Chander , A .A.G (called absent).

Date of hearing : 20.07.2026. Date of Order : 31.07.2026. O R D E R KHALID HUSSAIN SHAHANI, J. — Applicant Akbar has invoked the revisional jurisdiction of this court, assailing the judgment and decree dated 23.12.2023 passed by the learned Additional District Judge, Khipro, in Civil App eal No.13 of 2023, whereby the appeal preferred by the applicant was dismissed and the judgment and decree dated 28.04.2023 rendered by the learned Senior Civil Judge, Khipro, in F.C. Suit No.45 of 2022 were affirmed. By the said judgment, the learned trial Court decreed the suit instituted by respondent No.1 for specific performance of contract together with consequential possession, subject to payment and verification of the balance sale consideration, while declining the claims for mesne profits and damages. 2. The facts giving rise to the present proceedings, briefly stated, are that respondent No.1 (hereinafter referred to as "the plaintiff") instituted a suit alleging that the applicant (hereinafter referred to as "defendant No.1") had agreed to sell agricultural land measuring (2-38) acres, comprising Survey No.4/1, situated in Deh Sigh, Taluka Khipro, District Sanghar, for a total sale consideration of Rs.958,750. According

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to the plaint, the agreement was reduced into writing through a registered ag reement to sell bearing Registration No.848 dated 24.12.2019. It was further pleaded that, at the time of execution of the agreement, the plaintiff paid Rs.315,000 as earnest money, whereas the remaining consideration of Rs.643,750 was agreed to be paid on 30.03.2020, simultaneously with the execution and registration of the sale deed and delivery of vacant possession of the suit property. 3. It was the further case of the plaintiff that, upon the arrival of the stipulated date, he repeatedly approached d efendant No.1, expressed his readiness and willingness to perform his part of the contract, and requested him to receive the balance consideration, execute the registered sale deed and deliver possession of the suit property. These requests, however, were allegedly evaded and ultimately refused by defendant No.1. Consequently, the plaintiff caused a legal notice dated 09.01.2021 to be served upon defendant No.1, calling upon him to honour his contractual obligations. The plaintiff further pleaded that, in order to demonstrate his continued readiness and financial capacity, he procured Banker’s Cheque/Pay Order No.23800454 dated 24.05.2022 for Rs.643,750 in the name of defendant No.1, which was subsequently produced before the learned trial Court. 4. The su it was contested by defendant No.1 through his special attorney and real brother, Iqbal Ahmed, who filed a written statement denying the plaintiff's claim in its entirety. The defence taken was one of absolute denial. It was specifically pleaded that no ag reement whatsoever had been executed between the parties, no sale consideration or advance amount had ever been received by defendant No.1, and that the document relied upon by the plaintiff was forged, fabricated and devoid of legal effect. It was further alleged that the suit had been instituted with the mala fide object of unlawfully depriving defendant No.1 of his property by relying upon a false and fabricated document.

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5. Upon the pleadings of the parties, the learned trial Court framed issues encompassing the maintainability of the suit, the execution and genuineness of the registered agreement to sell, the allegation of forgery, the plaintiff's continuous readiness and willingness to perform his contractual obligations, his entitlement to mesne pro fits and damages, and the ultimate relief claimed. In support of his case, the plaintiff examined the Supervising Tapedar, an official from the office of the Sub-Registrar, himself, both attesting (marginal) witnesses to the agreement, the scribe who prepa red the instrument, and the concerned bank manager. In rebuttal, defendant No.1 examined his special attorney, Iqbal Ahmed, and one Niaz Muhammad. 6. Upon an appraisal of the oral and documentary evidence, the learned trial Court concluded that the execu tion of the agreement to sell, the receipt of the advance sale consideration, and the plaintiff's readiness and willingness to perform his part of the contract had been satisfactorily established. The suit was, accordingly, decreed to the extent of specifi c performance of the agreement and consequential delivery of possession, while the claims for mesne profits and damages were declined. The learned first appellate Court, upon an independent reappraisal of the entire record, concurred with the findings reco rded by the trial Court. It particularly noticed the material inconsistencies between the defence pleaded in the written statement and the testimony subsequently rendered by the special attorney of defendant No.1, and, finding no infirmity in the conclusio ns reached by the trial Court, dismissed the appeal. 7. Learned counsel appearing for the applicant has assailed the concurrent judgments primarily on the grounds that both the Courts below misread and failed to consider material evidence, thereby rendering findings which are legally unsustainable. It has been contended that the plaintiff failed to establish his continuous readiness and willingness to perform the contract, as required by law, inasmuch as the balance sale consideration admittedly became pa yable on 30.03.2020, whereas the banker’s cheque/pay order was procured only

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on 24.05.2022. It has further been argued that the plaintiff, during cross-examination, admitted that he had produced no independent evidence regarding payment of the advance cons ideration and had not approached any competent authority for about one year following the alleged refusal by defendant No.1 to perform the agreement. 8. Learned counsel has further submitted that the testimony of the attesting witnesses was not worthy of implicit reliance, as they were closely associated with the plaintiff and, therefore, interested witnesses. It has also been argued that material contradictions existed in the plaintiff's evidence with respect to the amount and mode of payment, the time o f arrival at Khipro, the duration of the parties' stay at the offices of the scribe and the Sub -Registrar, and the manner in which the transaction was allegedly concluded. It has additionally been contended that the statements of certain official witnesses , as well as that of the scribe, were recorded without oath and without affording an opportunity for cross -examination, and, therefore, such material was legally inadmissible and could not have been relied upon by the Courts below. 9. Learned counsel for the applicant has further contended that the Courts below failed to give due consideration to the defence that a private faisla had allegedly taken place before Syed Abdullah Shah, during which the plaintiff purportedly declined to pay the balance sale consideration and it was consequently resolved that the advance amount of Rs.315,000 would be refunded to him. In support of this contention, reliance has been placed upon the testimonies of Iqbal Ahmed and Niaz Muhammad. It has also been argued that the lea rned first appellate Court erred in rejecting the application filed under Order VI Rule 17, C.P.C., whereby the applicant sought amendment of the written statement during the pendency of the appeal so as to plead, inter alia, the execution of the agreement to sell, the plaintiff's alleged default in performing his contractual obligations, and the intention of defendant No.1 to refund the advance consideration.

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10. Conversely, learned counsel appearing for respondent No.1 has supported the concurrent judgm ents, contending that the execution of the registered agreement to sell stood established through cogent oral and documentary evidence, including the original registered instrument, the testimony of both attesting witnesses, and the official record produce d from the office of the Sub -Registrar. It has been submitted that the defence adopted by defendant No.1 was inherently self-destructive and mutually irreconcilable. While the written statement contained a categorical denial of the very existence of the agreement and receipt of any consideration, the testimony of the special attorney unequivocally acknowledged both the transaction and the receipt of Rs.315,000, and the subsequently proposed amendment to the written statement proceeded further by expressly a dmitting the agreement itself while seeking to attribute default to the plaintiff and asserting an intention to refund the advance. According to learned counsel, such inconsistent and shifting stands wholly undermine the credibility of the defence and lend substantial support to the plaintiff's case. 11. I have carefully considered the submissions advanced by the learned counsel for the parties and have examined the record with their able assistance. The revisional jurisdiction of this Court under section 115, C.P.C. is supervisory in nature and is circumscribed by well-settled limitations. This Court does not sit as a Court of second appeal, much less as a third Court of facts, and cannot undertake a fresh appraisal of the evidence merely because another view of the matter may also be possible. Interference with concurrent findings of fact is warranted only where such findings are shown to be perverse, arbitrary, unsupported by any evidence, or founded upon a material misreading or non -reading of the evide nce on record, or where the subordinate Courts have exercised a jurisdiction not vested in them by law, have failed to exercise jurisdiction so vested, or have acted in the exercise of their jurisdiction illegally or with material irregularity.

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None of these contingencies is to be lightly inferred, and the burden to establish their existence squarely rests upon the applicant. 12. Before adverting to the merits of the controversy, it is necessary to clarify that the instrument forming the basis of the suit has, at certain places in the issues and the judgments of the Courts below, been erroneously described as a "registered sale deed." The record, however, leaves no room for doubt that the document is, in fact, a registered agreement to sell. This inadverte nt misdescription is one of nomenclature rather than substance and has not occasioned any miscarriage of justice. The pleadings, the evidence adduced by the parties, the issues framed, and the relief sought and granted uniformly relate to the enforcement o f an agreement to sell and the consequential execution of a future conveyance. At no stage did either of the Courts below proceed on the erroneous premise that title had already passed to the plaintiff by virtue of the agreement itself. The impugned judgments, when read as a whole, unmistakably demonstrate a correct appreciation of the true nature and legal effect of the instrument. 13. It is equally well settled that registration of a document, though a relevant and significant circumstance, is not by itself conclusive proof of its due execution, nor does it, in the case of an agreement to sell, operate to transfer title in the property. The fact of registration must, therefore, be evaluated in conjunction with the entirety of the evidence on record. In t he present case, the concurrent finding regarding the execution of the agreement does not rest upon registration alone. The plaintiff produced the original registered agreement before the trial Court, and both of its attesting witnesses, namely Ali Ghulam and Abdul Razzaque, entered the witness box. Each witness identified the original instrument, acknowledged his respective signatures or thumb impressions thereon, and unequivocally deposed regarding the execution of the agreement by the parties, its attest ation, and its subsequent presentation before the scribe and the Sub -Registrar for registration. Their testimony furnished direct and substantive evidence

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of execution, while the official act of registration afforded further corroboration. 14. The eviden ce of the attesting witnesses is both material and consistent on the essential particulars of the transaction. Ali Ghulam categorically deposed that the agreement to sell was executed by the parties in his presence at the office of the scribe and was there after presented before the Sub -Registrar, where it was duly registered. Abdul Razzaque likewise testified that the parties personally appeared before the registering authority, the contents of the agreement were read over and explained to them, and, upon a dmitting the correctness thereof, the parties and the attesting witnesses signed or affixed their thumb impressions in the presence of the registering authority. He further affirmed that defendant No.1 expressly acknowledged having received Rs.315,000 as a dvance sale consideration at the time of the transaction. These material assertions remained consistent on the core elements of the transaction and substantially reinforce the plaintiff's case regarding the due execution of the agreement and payment of the earnest money. 15. Of even greater significance are the admissions emerging from the defence evidence itself, which substantially fortify the plaintiff's case. Iqbal Ahmed, the special attorney and real brother of defendant No.1, unequivocally deposed t hat a transaction concerning the suit property had in fact taken place between the plaintiff and his brother, Akbar (defendant No.1). He further admitted that Rs.315,000 had been received by defendant No.1 towards the sale consideration and stated that, pu rsuant to an alleged private faisla, defendant No.1 had subsequently offered to refund the said amount. More importantly, he acknowledged that an agreement between the plaintiff and defendant No.1 had already been executed prior to the alleged settlement. These admissions, emanating from the defendant's own constituted attorney, constitute substantive evidence against the defence and materially corroborate the plaintiff's version regarding the execution of the agreement and receipt of the advance consideration.

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16. The aforesaid admissions stand in stark and irreconcilable conflict with the categorical defence set forth in the written statement, wherein the execution of the agreement, receipt of any consideration, and the very existence of the transaction were emphatically denied. The inconsistency is neither trivial nor capable of reconciliation; rather, it strikes at the very foundation of the defence. Equally significant is the fact that defendant No.1 himself abstained from entering the witness box. He neither denied the execution of the agreement in his own testimony, nor explained the circumstances surrounding its registration, nor sought to repudiate or clarify the admissions made by his duly constituted attorney. No explanation whatsoever has been offered for his failure to appear as a witness. In these circumstances, the Courts below were fully justified in drawing an adverse inference against defendant No.1 and in preferring the original registered instrument, the direct testimony of the attesting w itnesses, and the admissions contained in the defence evidence over the bare and unsubstantiated denials embodied in the pleadings. 17. The testimony of Niaz Muhammad does not advance the defence either. On the contrary, it further exposes the inconsiste ncy and lack of coherence in the defence case. During his examination -in- chief, he advanced an inherently contradictory version by asserting that the agreement had been executed between himself and the plaintiff and that the payments had been made to him. He also gave varying figures with regard to the balance sale consideration, thereby rendering his own testimony uncertain on material particulars. However, during cross -examination, he unequivocally admitted that the agreement had in fact been entered into between the plaintiff and defendant No.1 by mutual consent and that the plaintiff had paid Rs.315,000 to defendant No.1 as advance sale consideration. He further conceded that he was not an attesting witness to the registered agreement and had not witness ed its execution. His testimony, therefore, not only fails to substantiate the defence but, in material respects, lends support to the plaintiff's case.

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18. The plea that the agreement was forged or fabricated is wholly devoid of evidentiary support. No handwriting or fingerprint expert was examined; no comparison of the disputed signatures or thumb impressions was sought; no complaint alleging impersonation or fraudulent registration was shown to have been lodged before any competent authority; no offici al from the office of the Sub -Registrar was produced to dispute the personal appearance of the executant; nor was any other affirmative evidence adduced to establish the alleged forgery. It is a settled principle of law that an allegation of forgery, being of a serious nature, cannot be sustained merely on the strength of a bare denial in the pleadings or suggestions put during cross - examination. The plaintiff discharged the burden initially resting upon him by producing the original registered agreement an d examining the attesting witnesses who proved its execution in accordance with law. The admissions subsequently emerging from the defence evidence furnished additional and compelling corroboration, leaving no lawful basis to disbelieve the genuineness of the instrument. 19. The contention that the testimony of the plaintiff's attesting witnesses ought to be discarded merely because of their acquaintance or association with the plaintiff is equally devoid of merit. Ali Ghulam candidly acknowledged that he knew the plaintiff and resided upon his land, while Abdul Razzaque stated that he was employed as a munshi by a cousin of the plaintiff. Such circumstances were fairly disclosed before the Court and bear upon the weight to be attached to their testimony rather than their competency to testify. It is a matter of common experience, particularly in transactions relating to agricultural property in rural areas, that attesting witnesses are ordinarily chosen from among persons known to the parties and available at the relevant time. Mere familiarity or social association does not, by itself, render a witness interested, partisan, or unworthy of belief. What is of greater significance is whether the testimony withstands judicial scrutiny. In the present case, bot h witnesses remained consistent on the material particulars relating to the identity of the parties, the execution and

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attestation of the agreement, the payment of the advance consideration, and the subsequent registration of the instrument. Their evidence finds substantial corroboration from the original registered agreement itself as well as the admissions emerging from the defence evidence, and no cogent reason has been shown to discredit their testimony. 20. Likewise, the discrepancies highlighted by the learned counsel for the applicant concerning the precise time of departure, the mode of travel, the exact time of arrival of defendant No.1 at Khipro, and whether the parties remained for one hour or a longer period at the offices of the scribe and the Sub-Registrar relate only to collateral and peripheral matters. The evidence was recorded more than three years after the execution of the transaction, and it would be wholly unrealistic to expect every witness to reproduce with mathematical precision eac h incidental detail of events occurring several years earlier. Minor variations of this nature are, in fact, indicative of the natural fallibility of human memory rather than of deliberate falsehood. Such discrepancies do not detract from the intrinsic reliability of the witnesses where they remain consistent on the material and foundational aspects of the case, namely, the identity of the contracting parties, the description of the suit property, the agreed sale consideration, the execution of the agreemen t to sell, the payment of the advance consideration, and the personal appearance of the parties before the registering authority. These core facts have remained substantially unshaken throughout the evidence and are further reinforced by the documentary record. 21. It is true that, at one stage during his oral testimony, the plaintiff referred to the advance payment as Rs.300,000, whereas the registered agreement to sell and the overwhelming weight of the remaining evidence consistently record the amount as Rs.315,000. This isolated verbal inaccuracy, however, cannot be viewed in isolation or elevated to a contradiction of such magnitude as to undermine the plaintiff's case. The documentary evidence leaves no ambiguity whatsoever

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regarding the financial te rms of the transaction. The total agreed sale consideration was Rs.958,750, while the balance payable at the time of execution of the sale deed was Rs.643,750. Simple arithmetic necessarily establishes that the advance payment amounted to Rs.315,000. This figure is not only expressly recorded in the agreement itself but also stands affirmed by Abdul Razzaque, Iqbal Ahmed, and Niaz Muhammad in their respective testimonies. In these circumstances, the plaintiff's isolated oral misstatement is plainly an inadvertent lapse of memory and is wholly insufficient to displace the express written terms of the agreement or the consistent admissions emerging from the defence evidence. 22. It is indeed borne out from the record that the statements of the Supervising Ta pedar, the official from the office of the Sub -Registrar, the scribe, and the concerned bank manager were recorded without oath and without affording an opportunity for cross -examination. Such a procedure cannot be regarded as the ideal mode of recording evidence, and, as a general rule, findings of fact should rest upon evidence duly recorded in accordance with the prescribed procedure. It must, however, be borne in mind that these witnesses were summoned principally for the limited purpose of producing of ficial or institutional records maintained in the ordinary course of business or in discharge of statutory functions. Significantly, nothing has been brought on record to show that any contemporaneous objection was raised before the trial Court either to the production of those records or to their exhibition in evidence. In the absence of such objection, the procedural irregularity complained of cannot, by itself, be treated as fatal to the proceedings, particularly where the impugned findings do not substantially rest upon the narrative portions of those statements. 23. Even if, for the sake of argument, the narrative or explanatory portions of the statements made by the aforesaid witnesses are altogether excluded from consideration, the ultimate conclusi ons reached by the Courts below remain fully sustainable on the strength of the remaining admissible evidence. The execution of the agreement

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stands established through the sworn testimony of the plaintiff and the two attesting witnesses, duly corroborated by the original registered agreement itself. The admissions made by Iqbal Ahmed, the special attorney of defendant No.1, and by Niaz Muhammad furnish additional corroborative evidence of considerable probative value. Equally, the plea that the suit property belonged to Iqbal Ahmed rather than defendant No.1 finds no support from any documentary…

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