# سپریم کورٹ کا اہم فیصلہ: انتقال کے خلاف زبانی دعویٰ اور پنچایت نامہ کب قابلِ قبول ہوگا؟
Must read judgement.
2026 SCMR 1905
[Supreme Court of Pakistan]
Present: Shahid Bilal Hassan and Shakeel Ahmad, JJ ANWAR ALI SHAH and others ---Appellants
Versus
SADIQ ALI SHAH and others-Respondents
C.A. No. 1410 of 2019 and C.M.A. No. 7122 of 2019, decided on 1st April, 2026.
(Against the judgment dated 22.05.2019 passed in C.R. No. 1273-D of 2015 by Lahore High Court, Multan Bench, Multan -Application for impleadment).
Specific Relief Act (1 of 1877)---
Ss. 42 & 54--Civil Procedure Code (V of 1908), S. 115-Suit for declaration and injunction-Mutation-Failure to challenge-Effect-Concurrent findings of fact by two Courts--Interference by High Court in revisional jurisdiction---Permissibility---New plea---Raising for first time before Supreme Court--Permissibility-adgment passed by High Court setting aside concurrent findings of fact by Trial Court and Lower Appellate Court whereby suit filed by them was decreed---Validity-Case of appellants/plaintiffs was confined to an alleged oral family arrangement/trust obligation-No party could be permitted to set up a new case for the first time before Supreme Court, particularly one requiring factual inquiry-Evidence beyond pleadings was of no legal consequence, and no finding could be founded on a case never pleaded-Appellants/plaintiffs had neither pleaded such contention nor pressed the same before the the same before the Courts below, the therefore, it could not be entertained at a belated stage---Such plea, being an afterthought and outside the pleadings, deserved outright rejection---Mutation in question stood sanctioned whereby the suit property was transferred in the names of predecessor-in-interest of respondents/defendants---Appellants/plaintiffs did not challenge the existence of mutation in question, rather, their entire case was founded upon the plea that transfer, though ostensible, was subject to an oral undertaking and trust obligation to reconvey the property in their favour at a later stage---Such plea, by its very nature, sought to displace admitted documentary evidence through oral assertions-Mere oral assertion was not sufficient to rebut documentary evidence-Once mutation in in question stood admitted and formed part of official revenue record, burden squarely rested upon appellants/plaintiffs to produce cogent, trustworthy and legally admissible evidence showing that the transaction was not an outright transfer but merely an arrangement of AMANAT-No such independent documentary material was produced and the plea rested only on oral testimony, which was inherently insufficient to dislodge documentary title-Trial Court and Lower Appellate Court had concurrently decreed the suit, however, concurrent findings did not enjoy immunity where they were founded upon misapplication of settled principles of evidence or reliance upon inadmissible material---Documentary title was displaced solely on the basis of oral assertions and an unproved instrument---Interference by the High Court in revisional jurisdiction could not be termed unwarranted.... High Court correctly observed that appellants/plaintiffs failed to substantiate the alleged trust arrangement, failed to prove the Panchayat Nama in accordance with law, and failed to rebut admitted documentary evidence-Conclusions so recorded by High Court were in consonance with the law laid down by Supreme Court---Supreme Court declined to interfere in the judgment passed by High Court as there was no illegality, perversity or misreading of evidence-Appeal was dismissed. eme Court-Permissibility-Appellants/plaintiffs were aggrieved of judg judgment passed by High
Ahmed Ali Talpur v. Sub-Registrar Latifabad, Hyderabad and others PLD 2025 SC 302; Jan Muhammad and others v. Mst. Sakina Bibi and others PLD 2017 SC 158; Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Hail Muhammad PLD 1976 SC 469; Abdul Ghani and others Mst. Yasmeen Khan and others 2011 SCMR 837; Akhtar Hussain Zaidi Muhammad Yaqinuddin 1988 SCMR 753; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Nazim-Ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24: Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 and Habib Khan and others v. Mst. Bakhtmina and others 2004 SCMR 1668 rel
Muhammad Shahzad Shaukat and Shehzada Mazhar, Advocates Supreme Court for Appellants.
Mughees Aslam Malik, Advocate Supreme Court for Respondents.
Date of hearing: 1st April, 2026.
JUDGMENT
SHAHID BILAL HASSAN, J.--The present appeal arises out of a suit for declaration and permanent injunction instituted by the present appellants on 13.06.2007 concerning agricultural land measuring 121 Kanals 5 Marlas, situated in Chak No. 93/12-1, Tehsil Chichawatni, District Sahiwal ("the suit property"), originally owned by Mst. Zainab Bibi widow of Abdul Rahim. It is the case of the appellants that Mst. Zainab
Bibi, through mutation No.593 dated 31.10.1984, transferred one half share measuring 60 Kanals 12 Marlas in favour of Khan Zaman, and the remaining half share in favour of Faiz Ahmad (Respondent No.3). According to the appellants, at the time of the said transfers, Mst. Zainab Bibi bound down Khan Zaman to further transfer his share to her brother Channan Shah, while Faiz Ahmad was similarly bound to transfer his share in favour of the present appellants, being the descendants/legal representatives claiming through the family of Mst. Zainab Bibi. The appellants pleaded that the transfers were made merely as an arrangement of confidence and not as absolute beneficial transfers.
It was further pleaded that Khan Zaman honoured the commitment and transferred his share to the legal heirs of Channan Shah. However, Faiz Ahmad, instead of transferring the property in favour of the appellants, transferred the land through gift mutation No.3066 dated 05.08.2006 in favour of his son Gulzar Ahmad, who thereafter dealt with the property adversely to the appellants claim.
The appellants further asserted that upon the dispute arising, a Panchayat was convened in the presence of respectable persons of the locality, whereupon a Panchayat Nama was reduced into writing, allegedly acknowledging the appellants' entitlement and recording that that the suit property would be be restored/transferred in their favour. It It was pleaded that despite such settlement, the respondents subsequently resiled from the undertaking and refused to honour the decision of the Panchayat. Consequently, the appellants instituted the suit seeking declaration of their rights in the suit property, cancellation of subsequent transfers, and permanent injunction.
The suit was contested by the defendants/respondents, who denied the alleged trust arrangement as well as the Panchayat settlement, and maintained that the transfer in favour of Faiz Ahmad was a valid transaction for consideration and that subsequent mutations were lawful and effective.
The learned trial Court decreed the suit in favour of the present appellants. The first appellate Court maintained the decree. However, in Civil Revision, the learned High Court reversed the concurrent findings of the Courts below, held that the appellants had failed to prove the alleged arrangement and Panchayat Nama through reliable and admissible evidence, and consequently dismissed the suit. Aggrieved thereof, the present appeal has been filed before this Court.
fact recorded by the two Courts below while exercising limited revisional jurisdiction, without identifying any jurisdictional defect, 2. Learned counsel for the appellants contends that the learned High Court fell into grave error in upsetting concurrent findings of misreading, or non-reading of material I evidence warranting interference. He submits that the evidence on rec that the transfers made by Mst. Zainab Bibi in favour of Khan Zaman an record clearly established and Faiz Ahmad were never intended to confer absolute ownership, but were subject to a prior family arrangement/trust obligation, whereby Faiz Faiz Ahmad was merely a limited owner/custodian (amanatdar) holdir ding the property for the benefit of the present appe opellants and was bound to transfer the same in their favour on demand. He argues that Faiz Ahmad, therefore, had no lawful authority to treat the property as his own or to alienate it in favour of third parties. Learned counsel further submits that the subsequent conduct of the parties, particularly the transfer made by Khan Zaman in favour of the heirs of Channan Shah, strongly corroborates the original arrangement. He also contends that the Panchayat convened between the parties and the written Panchayat Nama constituted fürther acknowledgment of the appellants" entitlement, which was duly accepted by the trial Court and affirmed in appeal. According to learned counsel, the High Court justice. He accordingly prays that the impugned judgment of the High Court be set aside of the below be reassessed the entire evidence as a Court of appeal, ignored settled limits of revisional jurisdiction, and thereby caused miscarriage of 3. arrangement/ Conversely, trust obligation, learned counsel and Panchayat for the settlement respondents were supports neve lever proved the impugned through judgment cogent or legally and submits admissible that evidence. the alleged He argues family that mutation No.593 in favour of Khan Zaman and Ahmad was an revenue transaction for consideration, carrying presumption of truth unless rebutted through strong evidence, which the appellants failed to produce. He further submits that the so
called Panchayat Nama was neither proved in accordance with law nor supported by independent attesting witnesses, and could not
displace documentary title reflected in the revenue record. Learned counsel contends that both subordinate Courts misread the
evidence and decreed the suit on conjectural assertions, wherefore the High Court rightly corrected patent illegality in exercise of
revisional jurisdiction. He therefore prays that the present appeal, being without merit, be dismissed.
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We have heard the learned counsel for the parties at considerable length, examined the record with their able assistance.
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The questions that arise for determination by this Court are:
(i) Whether the present appellants succeeded in proving the alleged family arrangement/trust obligation said to have been undertaken by Faiz Ahmad at the time of entering and attestation of mutation No.593 dated 31.10.1984?
(ii) Whether the alleged Panchayat Nama was proved in accordance with law and could validly be relied upon to defeat the admitted documentary title reflected in the revenue record?
undertaken by Faiz Ahmad at the time of entering and attestation of mutation No.593 dated 31.10.19847
(ii) Whether the alleged Panchayat Nama was proved in accordance with law and could validly be relied upon to defeat the admitted documentary title reflected in the revenue record?
(iii) Whether oral assertions and uncorroborated testimony were sufficient to rebut admitted documentary evidence?
Before adverting to the merits, it may be observed that the contention now vehemently advanced by learned counsel for the appellants that Faiz Ahmad was merely a limited owner/custodian and not an absolute owner, does not emanate from the original pleadings. No such specific plea was taken in the plaint, nor was any issue framed or evidence led before the learned trial Court on such basis. The case pleaded by the appellants was confined to an alleged oral family arrangement/trust obligation. It is, by now, settled that no party can be permitted to set up a new case for the first time before this Court, particularly one requiring factual inquiry. Equally settled is the principle that evidence beyond pleadings is of no legal consequence, and no finding can be founded on a case never pleaded2. Since the said contention was was neither pleaded nor pressed before the Courts below, the same cannot be entertained at this belated stage. stage. This This plea plea therefore, therefore, be being an afterthought and outside the e pleadings, pleadings, dese deserves outright rejection.
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At the outset, it is not not disputed that mutation No.593 dated 31.10.1984 stood sanctioned in favour of Khan Zaman and Faiz Ahmad, whereby the suit property was transferred in their names. The appellants do not do not challenge the the existence of the mutation; rather, their entire case is founded upon the plea that the transfer, though ostensible, was subject to an oral undertaking and trust obligation to reconvey the property in their favour at a later stage. Such plea, by its very nature, seeks to displace admitted documentary evidence through oral assertions.
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The law on the point is settled beyond cavil. In Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837), this Court held in unequivocal terms that: "mere oral assertion is not sufficient to rebut documentary evidence." while placing reliance on Akhtar Hussain Zaidi v. Muhammad Yaqinuddin (1988 SCMR 753). Applying the above principle, once mutation No.593 stood admitted and formed part of official revenue record, the burden squarely rested upon the appellants to produce cogent, trustworthy and legally admissible evidence showing that the transaction was not an outright transfer but merely an arrangement of amanat. No such independent documentary material has been produced. The plea rests only on oral testimony, which is inherently insufficient to dislodge documentary title.
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The pivotal document of the appellants' case is the alleged Panchayat Nama, sought to be proved through the production of its scribe and selective oral testimony. Such mode of proof is legally deficient. In Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PL.D 2011 SC 241), this Court authoritatively held that:
"8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such y such document, is either not attested as mandated by the law and/or if req as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself. therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported. attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the e purpose purp urpose of of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
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Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witnesses: the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.
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It has been held in Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639):--
"Attesting witness was the one who had not only seen the document being executed by the executant but also signed same as a witness---Person who wrote or was 'scribe' of a document was as good a witness as any hody else, if he had had signed the document as a witness (Emphasis supplied) No legal inherent in competency existed in the writer of a document to be an attesting witness to it".
In N. Kamalam and another v. Ayyasamy and another (2001) 7 Supreme Court cases 503), it has been held:
"Evidence of scribe could not displace statutory requirement as he did not have necessary intent to attest."
In Badri Prasad and another v. Abdul Karim and others (1913 (19) IC 451, it is held:--
"The evidence of the scribe of a mortgage deed, who signed the deed in the usual way without any intention of attesting it as a witness, is not sufficient to prove the deed."
An attesting witness is a witness who has seen the deed executed and has signed it as a witness. (Emphasis supplied)."
To the same effect are the judgments reported as Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise: his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute.
Likewise, in Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), it was held that:
- Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid. In this case, the respondent had unequivocally denied the execution of the said agreement and it is on account of the above that issue No.11 was also framed requiring, the appellants to prove their agreement; the appellants never objected to the issue or sought to get it struck off; thus for all intents and purposes they accepted the responsibility of proving the same, despite the fact that according to their stance now the said agreement was admitted by the vendors in their written statement. However, the appellants for this purpose produced P.W.1 who is the scribe of the document, but admittedly is not the attesting witness and in number of judgments of this court it has been clearly held, that a scribe of an agreement to sell immovable property is not a substitute for an attesting witness, and does not legally qualify to be so, therefore, his evidence may have a supportive value, but is neither in line with the mandate of law nor does it meet the test of Article 79 ibid. The only attesting witness examined by the appellants is D.W.2, namely, Muhammad Hanif, whereas the other attesting witness, Aftab has not been examined, and no explanation has been given by the appellants for this vital omission which was essential for proving their agreement to sell. This is fatal to the case of the appellants as per the law laid down in Hafiz Tassadug Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241). The repeated argument to overcome this legal impediment is that the vendors have accepted and acknowledged the agreement to sell in the written statement; in this context the constant answer is that an admission of a codefendant is not binding upon the other co-defendant and as the respondent had denied the agreement to sell of the appellants and issue was also framed, therefore, the appellant were duty bound to prove the same in terms of the law enunciated in the judgment (supra) and Article 79 ibid.
Therefore, mere production of the deed writer/scribe of the Panchayat Nama did not, by itself, prove execution of the document. 9. The second fatal defect in the appellants' case pertains to non-compliance of the mandatory requirement relating to attesting witnesses. In Hafiz Tassaduq Hussain (supra), this Court held that: "in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence." It was further declared that the expression "shall not be used as evidence" contained in Article 79 manifests a complete prohibition, and "the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document." The same principle was reiterated in Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044),
by Article 79 itself not as a substitute.
Likewise, in Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), it was held that:
- Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order unequivocally denied the execution of the said agreement and it is on account of the above that issue No.11 was also framed requiring, the appellants to prove their agreement; the appellants never objected to the issue or sought to get it struck off; thus for all intents and purposes they accepted the responsibility of proving the same, despite the fact that according to their stance now the said agreement was admitted by the vendors in their written statement. However, the appellants for this purpose produced P.W.1 who is the scribe of the document, but admittedly is not the attesting witness and in number of judgments of this court it has been clearly held, that a scribe of an agreement to sell immovable property is not a substitute for an attesting witness, and does not legally qualify to be so, therefore, his evidence may have a supportive value, but is neither in line with the mandate of law nor does it meet the test of Article 79 ibid. The only attesting witness examined by the appellants is D.W.2, namely, Muhammad Hanif, whereas the other attesting witness, Aftab has not been examined, and no explanation has been given by the appellants for this vital omission which was essential for proving their agreement to sell. This is fatal to the case of the appellants as per the law laid down in Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD) 2011 SC 241). The repeated argument to overcome this legal impediment is that the vendors have accepted and acknowledged the agreement to sell in the written statement; in this context the constant answer is that an admission of a codefendant is not binding upon the other co-defendant and as the respondent had denied the agreement to sell of the appellants and issue was also framed, therefore, the appellant were duty bound to prove the same in terms of the law enunciated in the judgment (supra) and Article 79 ibid.
Therefore, mere production of the deed writer/scribe of the Panchayat Nama did not, by itself, prove execution of the document. 9. The second fatal defect in the appellants' case pertains to non-compliance of the mandatory requirement relating to attesting witnesses. In Hafiz Tassaduq Hussain (supra), this Court held that: "in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence." It was further declared that the expression "shall not be used as evidence" contained in Article 79 manifests a complete prohibition, and "the omission to cal call the requisite number of attesting z witne witnesses is fatal to the admissibility of the document." The same principle was reiterated in Farid Bakhsh v. Jind Wadda and others (2015 15 SCMR 1044) wherein it was held that "Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution." Admittedly, the alleged Panchayat Nama was not proved through the required number of attesting witnesses in the manner contemplated by law; hence, it could not be read in evidence. to
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Once the Panchayat Nama remained unproved in law, its evidentiary worth stood extinguished, and the surrounding circumstances further render it doubtful and unreliable. The appellants sought to use the said instrument to defeat admitted. documentary title reflected in sanctioned revenue mutation, yet failed to establish its lawful execution through evidence. In such circumstances, the document cannot be accorded sanctity and appears to be a subsequently procured paper, brought forth to create false foundation for the suit. As held in Hafiz Tassaduq Hussain (supra), the very object of attestation and strict proof is "to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence. Since the appellants failed to satisfy the safeguards prescribed by law, the alleged Panchayat Nama was rightly discarded as unproved, unreliable, and devoid of legal effect. 11. Thus, even if the scribe appeared, his testimony could not cure the fatal defect arising from non-proof of the document through attesting witnesses.
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We are also mindful that the trial Court and first appellate Court had concurrently decreed the suit. However, concurrent inadmissible findings do not enjoy immunity where they are founded upon misapplication of settled principles of evidence or reliance upon documentary title displaced solely of and unproved instrument, interference by the High Court in revisional jurisdiction cannot be termed unwarranted3.
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The learned High Court correctly noticed that the appellants had failed to substantiate the alleged, legally prove the Panchayat Nama, and failed to rebut admitted documentary evidence. The conclusions by the alleged trust arrangement, failed to
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For what has been discussed above, we find no illegality, perversity, or misreading of evidence in the impugned judgment maintained. There shall be no order as to costs. by this Court. Resultantly, this is dismissed. The judgment passed by the learned High CMA No.7122 of 2019
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Since the main case has been decided and no live issue remains, therefore, there is no need to proceed further with the petition in hand. The same is disposed of, accordingly.
MH/A-7/SC
Appeal dismissed.
1
Asted Arab-Registrar Latifubad Hyderabad and others - (PLD 2025 Super
2
another Muhammad Jamsil (decd) through 1. As and others (2025 and another" (1996 SCMR 336) and Major (Retd) Barkat Al and others v. Quim Dim and othece (2005 SCMR 562)