2026 PLP 492 (MLD)

Amjad Ali Bohio, J.

This Second Appeal, filed under Section 100 of the C.P.C., challenges the judgment dated 30.07.2011 and decree dated 02.08.2011, passed by the learned Additional District Judge, Mithi, in Civil Appeal No. 23/2011 (Ghulam Muhammad v. Khamiso and others) and Civil Appeal No. 27/2011 (Punhoon and another v. Ghulam Muhammad and others). Through the impugned judgment and decree, appellate court has upheld the consolidated judgment dated 18.03.2011 and decree dated 28.03.2011, passed in F.C. Suit No. 124/2009 and F.C. Suit No. 185/2009.

2. Brief facts of appellants' case as per the plaint filed are that he filed the suit related to agricultural land situated in Makan Basarnion, Deh Khudi, Tapa Hirar, Taluka Chachro, District Tharparkar bearing Survey Numbers: 28 (20 acres), 32 (30 acres), 33 (30 acres), 41 (30 acres), 82 (20 acres), 83 (10 acres), 84 (30 acres), 86 (20 acres), 90 (30 acres), 91 (20 acres), 99 (10 acres), 101 (5 acres), 105 (30 acres), and 106 (20 acres), totaling 325 acres and Begoti Numbers: 17 (20 acres), 19 (20 acres), 20 (10 acres), 59 (10 acres), 126 (20 acres), 128 (20 acres), 151 (20 acres), 152 (20 acres), 153 (20 acres), 164 (10 acres), 171 (20 acres), and 173 (20 acres), totaling 535 acres situated in Makan Basarnion, Deh Khudi, Tapa Hirar, Taluka Chachro, District Tharparkar. Out of the above land, suit land being the subject matter of the case was a 24-paisa share belonging to respondents Nos. 1 and 2.

3. The appellant being plaintiff (hereinafter be referred as the appellant ) in F.C Suit No. 124/2009 stated that the respondent No. 1 claimed himself to be the owner of suit land and wanted to sell the suit land. He showed him the mutation entry in respect to the suit land which was entered in his favour. The appellant, having believed that the respondent No. 1 was the owner of the suit land, purchased the same from him in the names of his son Punhoon, and cousin Sirajuddin, the respondents Nos. 6 and

7. The respondent No. 1 received the sale consideration of Rs. 3,47,000-00 from the appellant, and executed registered sale deed No. 16 dated 06.01.2006 in favour of respondent No. 6 and 7/Defendants Nos. 6 & 7 in F.C Suit Nos. 124/2009 (hereinafter referred as "respondents Nos. 6 and 7") through the appellant, and also handed over possession of the suit land to the appellant. The appellant was Benamidee, and the beneficial owner of the suit land whereas the respondent Nos. 6 and 7 are Benamidar. The case of appellant is that before he would have entered the names in the Revenue record, the respondents Nos. 3 and 4 being co-owners in the land, launched litigation by filing Civil suits against the appellant, his cousin Punhoon, the respondent No. 6, and respondents Nos, 1 and 2, and others. The respondents Nos. 3 and 4 filed F.C Suit No. 8/2006 but it was withdrawn, then F.C Suit No. 24/2006 was filed but it was also withdrawn on 29.10.2008. The respondents Nos. 3 and 4 then filed F.C Suit No. 102/2008 but it was also withdrawn 15.07.2009. The appellant has been contesting the above suit, and during such course, it transpired that the respondent No. 1 was not the exclusive owner of 24 paisa share but he was owner of 12 paisa share of land but he got the mutation effected in his favour of the share of 12 paisa belonging to his brother, the respondent No. 2 showing the respondent No. 2 to be dead. On gaining such knowledge that the respondent No. 1 has committed fraud, the appellant asked the respondent No. 1 that either he should return the sale price of 12 paisa share of the land of respondent No. 2 or to ask the respondent No. 2 to execute registered sale deed in favour of appellant in respect of his share of 12 paisa. Good sense prevailed upon the respondents Nos. 1 and 2 and consequently, they made statements dated 12.05.2003 and 25.04.2006 respectively in F.C Suit No. 24/2006 whereby the respondent No. 1 admitted to have sold his share to the appellant while the respondent No. 2 having admitted that he had received the sale price, agreed to sell his share to the appellant but due to pendency of the suit, registered sale deed could not be executed by the respondent No. 2 in favour of appellant. Ultimately, suit No. 24/2006 was dismissed as withdraw by order dated 29.10.2008. Before the registered sale deed in respect of share of respondent No. 2 could have been executed, the respondents Nos. 3 and 4 again filed F.C Suit No. 102/2008 against the appellant, and respondents Nos. 1 and 2 and others. The respondents No. 2 in the proceedings of this suit, made statement dated 05.12.2008 declining the claim of appellant. Such statement of respondent No. 2 reflected that he was not inclined to execute the registered sale deed in favour of appellant, and the respondents No. 1 and 2 are bent upon not to sell the suit land to respondents No. 3 to 5, and extending threats to oust the appellant from the suit land, consequently the appellant filed F.C Suit No. 124/2009 against the respondents. Appellant further stated that the respondent No. 1 had already sold his share of 12 paisa through the registered sale deed referred to above, therefore, he is no more owner of his share in the land, and he cannot resell his share to any one including the respondents Nos. 3 to

5. The respondent No. 2 in the proceedings of the Suit No. 24/2006 by submitting statement dated 25.04.2006 in the Court has admitted to have sold his share in the land to appellant, and received the sale consideration, therefore, he is under obligation to perform his part of contract by executing the registered sale deed but as stated above he was not inclined to do so as he has declared so by making statement dated 5.12.2008 in Suit No. 102/2008 and instead both the respondents Nos. 1 and 2 are making negotiations to resell the suit land as such appellant approached the Mukhtiarkar Revenue for effecting mutation in the Revenue record on the basis of registered sale deed and above statement of respondent No. 2 but he declined, hence appellant filed suit for following relief. a. "Declaration that the defendant No. 1 having sold his share of 12 paisa through registered sale deed No. 16 dated 6.1.2006, is no more owner of the suit land, therefore, he cannot resell, alienate, mortgage or dispose of the same in any manner. b. Declaration that the plaintiff Ghulam Muhammad is real owner of the land and the defendants Nos. 6 and 7 were only benamidar and has therefore no right or title in the suit land as purchased through registered sale deed No. 16 dated 6.1.2006, and the name of plaintiff is liable to be entered in the revenue record. c. Direct the defendant No. 2 to execute the registered sale deed in favour of plaintiff in respect to his share in the suit land, and in case of his failure, the Nazir of the Court to perform the act on behalf of defendant No. 2. d. Permanent injunction be issued against the defendants Nos. 1 to 5 restraining them from dealing with the suit land through any mode of partition or transfer or interfering in the peaceful possession of the plaintiff over the suit land, personally or through any other person, agent or agency whatsoever, and against defendants Nos. 8 to 12 restraining them from lending support to defendants Nos. 1 to 5 in selling the suit land or partitioning the same, personally or through any sub ordinate. e. Award costs of the suit to the plaintiff. f. Grant any other relief to the plaintiff may be found entitled under facts and circumstances of the case."

4. The respondents Nos. 1 to 5 (being defendants Nos. 1 to 5 in the above suit) filed their joint statement wherein they have denied the assertions of appellant and stated that the appellant made fraud with respondents Nos. 1 and

2. The respondent No. 1 neither himself claimed ownership of 24 paisa share of suit land nor, executed registered sale deed in respect of land to the extent of 12 paisa share of respondent No. 2 in favour of respondents Nos. 6 and 7, and the suit land is still under the possession of respondents Nos. 1 to 5, and appellant made false mutation entry with collusion of respondent No. 8 without consent of respondents Nos. 1 to 5 only usurp the suit land of respondents Nos. 1 and 2 but same was cancelled by the respondent Nos. 11 on 19.1.2016. It was further averred in the written statement that respondents Nos. 3 to 5 got knowledge of such type of fraud, therefore, they launched proceedings against the appellant, and respondents Nos. 6 and

7. They alleged in their written statement that respondents Nos. 1 and 2 were wrongfully confined in the house of appellant at least three years and during this time, the appellant committed fraud with respondents Nos. 1 and

2. They alleged in their written statement that the respondent Nos. 1 was completely blind from both eyes since last five years, and the appellant is alleged to have taken benefit of this blindness got death certificate of respondent No. 2 and on 17.12.2005 made false foti khatabadal in respect of 12 paisa share of respondent No. 2 in favour of respondent No. 1 and then got the sale deed registered in his favour. They alleged in their written statement that their statements in favour of appellant in different suits were under the pressure of appellant. They alleged in their written statement that statement dated 25.12.2008 of respondent No. 2 in the suit is original and willful because at that time they had been rescued from the custody of appellant. In their statement, the respondents Nos. 1 to 5 contended that the appellant has no right, title on the suit land and prayed for dismissal of the suit. The respondents Nos. 6 to 7 filed their written statement wherein they have admitted that the suit land was purchased by the appellant from his own funds in their (respondents Nos. 6 and 7) names and he is holding over possession of the suit land. They claimed that the suit land had been sold out by the respondents Nos. 1 and 2 to them. The respondents Nos. 6 and 7 extended their no objection if the suit is decreed in favour of appellant. The respondents No 8 to 13 did not contest the above suit and chosen to remain absent, and they were declared exparte.

5. The respondent No. 1 Dilawar then filed F.C Suit No. 185/2009 wherein he has stated that the suit land belong to him, and his brother Khamiso, and alleged that the appellant being criminal type of person had confined him in his house from 2005 to 2008, and taking benefit of his old age and blindness of his brother Khamiso, the appellant had allegedly committed fraud with them, and got bogus sale deed registered in the names of his son and cousin (respondents Nos. 6 to 7). He alleged that the appellant obtained death certificate of respondent No. 1, showing him as dead, VES and then got the fotikhata badal falsely in the name of his brother Khamiso. Other legal heirs approached to respondent No. 11 who directed the respondent No. 8 for holding of enquiry. The respondent No 8 made report that respondent No. 1 Dilawar was alive, consequently, the mutation entries were cancelled. He further alleged in the plaint that his legal heirs filed F.C Suit No. 24/2006 and admitted recording of his statement of his brother Khamiso, agreeing to sell the suit land to appellant under his pressure because they were wrongfully confined by the appellant. Respondent No. 1 in his plain alleged that they have no knowledge about sale deed and when they got rid of the appellant in December, 2008, he came to know through his legal heirs that the appellant had got the sale deed executed and registered on 6.1.2006 in the name of his son and cousin, hence the respondent No. 1 filed the above suit and prayed for following relief. a. "To declare the plaintiff and his brother Khamiso are legal and lawful owner of the suit land which was ancestral property of plaintiff and his brother Khamiso and to declare that the defendant No. 1 in respect of registered sale deed No. 16 without consent of plaintiff and his brother Khamiso in favour of defendants Nos. 2 and 3 is illegal, unlawful, and registered sale deed No. 16 and only for usurp the suit land of plaintiff. b. To cancel the registered sale deed No. 16 dated 6.1.2006 in the favour of defendants Nos. 2 and 3 as the same made fraudulently and malafide intention. c. To grant permanent injunction against the defendants Nos. 1 to 3 restraining and prohibiting them for interfering into the peaceful possession of suit of plaintiff and further not to sell other third party during pendency of suit through their agents, servant, men, subordinate or in any manner till the decision of the suit. d. To grant permanent injunction against the defendant Nos. 4 to 5 restraining him for change khata in respect of suit land in favour of defendants Nos. 2 and 3 on the basis of false registered No. 16 till the decision of suit." e. Costs of the suit be borne by the defendants. f. Any other relief which this Honourable Court deem fit and proper in favour of plaintiffs.

7. The above suit filed by respondent No. 2 Dilawar was contested by the appellant, and he filed his written statement while the respondents Nos. 6 and 7 being defendants Nos. 2 and 3 in the F.C Suit No. 185/2009 also filed their written statement wherein they have narrated the same facts as stated in plaint of their F.C Suit No. 124/2009.

7. The trial Court by order dated 26.11.2010 consolidated the above suits and Suit No. 124/2009 was treated as leading suit, and framed the following consolidated issues. ISSUES

1. Whether suits ae not maintainable under any law?

2. Whether plaintiff in leading F.C Suit No. 124/2009 had purchased the suit land from defendant No. 1 through registered sale deed No. 16 dated 6.1.2006 in the name of defendants Nos. 6 and 7, therefore said defendants were only Benamidar and they are liable to transfer the suit land in the name of plaintiff of leading suit?

3. Whether defendant No. 1 Khamiso was blind at the time of execution of registered sale deed?

4. Whether defendant No. 2 in F.C Suit No. 124/2009 (plaintiff in F.C Suit No. 185/2009) is legally bound to execute the registered sale deed in favour of plaintiff of leading suit to the extent of his 12 paisa share in the suit land as per statement dated 25.4.2006 made by him in F.C Suit No. 24/2006?

5. Whether plaintiff in F.C Suit No. 185/2009 and his brother Khamiso were in wrongful confinement of plaintiff in F.C Suit No. 124/2009, hence their statements dated 23.04.2006 and 12.05.2006 made in F.C Suit No. 24/2006 were not voluntarily?

6. Whether plaintiff in F.C Suit No. 185/2009 and his brother Khamiso are legal and lawful owners of Suit land being their ancestral property?

7. Whether registered sale deed No. 16 dated 6.1.2006 in the names of Punhoon and Sirajuddin is illegal, unlawful and liable to be cancelled?

8. Whether plaintiff in leading F.C Suit No. 124/2009 obtained false and illegal death certificate of plaintiff in F.C Suit No. 185/2009 from Union Council Hiral?

9. Which of plaintiff is in possession of suit land?

10. Which of the plaintiff is entitled for relief claimed?

11. What should the decree be?

8. Appellant Ghulam Muhammad (PW-1) examined himself at Ex.52, Punhoon (PW-2) at Ex.53, Muhammad Bux (PW-3) at Ex.54, Mehran (PW-4) at Ex.55, Inspector Registration Office, Hyderabad Muhammad Hassan (PW-5) at Ex.63, Jamil (PW-6) at Ex.64 and close the side of appellant vide Ex.65. Respondents Nos. 1 to 5 examined their attorney Jalal (DW-1) at Ex.66, Zuber (DW-2) at Ex.67 and close their side of evidence vide Ex.68. Both parties have produced several documents during their evidence.

9. The learned Senior Civil Judge after hearing the parties and appraising evidence brought on record dismissed F.C Suit No. 124/2009 and decreed the F.C Suit No. 185/2009. Against such decisions Civil Appeal No. 23/2011 preferred by the appellant and Civil Appeal No. 24/2011 preferred by the respondents Nos. 06 and 07 were also dismissed vide consolidated Judgment dated 30.07.2011 hence, appellant filed the instant appeal.

10. The learned counsel for the appellant submits that the impugned Judgment and Decrees are based on surmises and conjectures, contrary to the principles of law, equity and good conscience. He contends that the appellate Court, as well as the trial Court, failed to properly consider the documentary evidence, produced by the appellant, it is further argued that the original registered sale deed was corroborated by the executant as he failed to deny his thumb impression over it, yet their evidence was disregarded by the lower Courts. The appellant also examined the official witness from the registration officer who also testified the register sale deed in Ex.52-A being executant in accordance with provisions of law. In light of foregoing, the counsel prayed for setting aside the Judgments and decrees.

11. Conversely, the learned counsel for respondents Nos. 2(a),4,6 and 7(a), along with learned A.A.G., supported findings of appellate Court, asserting that same are based on sound and valid reasoning. They contended that the appellate Court correctly observed that the statement of respondent No. 2 was recorded on 25.04.2006 admitting therein that he wanted to sell out the suit land to the appellant and he already received the sale consideration but due to pendency of Suit No. 24/2006 clearance certificate was not issued and after disposal of said suit, he will execute the sale deed whereas, the registered sale deed was already executed on 06.01.2006. The lower Courts have rightly held the order of cancellation of clearance certificate passed by the District Officer (Revenue) Tharparkar being valid. The lower Court rightly held about the statement of respondent No. 2 being obtained fraudulently, for which, the appellant failed to rebut the above facts during his evidence. The trial Court considering the respondents No. 1 being illiterate and the appellant failed to prove the execution of sale deed by putting thumb impression by an illiterate person, as no evidence led by the appellant as to whether he understood the contents of the document before his thumb impression was obtained and document itself is silent as to who identified the respondent No. 1 before the Sub-Registrar. This omission, they argued, created doubts regarding the execution of alleged sale deed by the respondent No.

1. Furthermore, the appellant deposed that the consideration amount of Rs. 3,47,000/- was paid to respondent No. 1 at the time of execution of registered sale deed in presence of Jamil whereas, PW Jamil during his evidence deposed that he had no knowledge about the registered sale deed whereas, Inspector of Registration Officer, PW Muhammad Hassan deposed that the consideration amount of Rs. 3,47,000/- was not paid in his presence. Thus, the findings of the trial Court as well as appellate Court are well-reasoned, sound based upon the evidence produced by the parties which do not warrant any interference. Consequently, the instant appeal is liable to be dismissed.

12. I have heard the arguments, advanced by the learned counsel for the appellant, the respondents Nos. 1 to 5 and the learned A.A.G. I have also carefully gone through record keeping in view the scope of second appeal with their assistance.

13. The record indicates that the appellant claimed to have purchase the suit land in the sum of Rs. 3,47,000/- which he paid to respondent No. 1 at the time of execution of registered sale deed (Ex.52-A) in presence of the only attesting witness Jamil. The appellant deposed that he paid the sale consideration amount of Rs. 3,47,000/- to respondent No. 1 at the time of executing the registered sale deed (Ex.52-A) in the presence of Jamil (attesting witness), Punhoon, and Surhi (the mother of Sirajuddin). To substantiate the payment of the consideration amount, the appellant examined the sole attesting witness, Jamil, as well as PW Punhoon and Inspector Sub-Registrar Muhammad Hassan. According to PW Punhoon, the sale consideration of Rs. 3,47,000/- was paid to respondent No. 1 in the presence of the Sub-Registrar at his office. However, it is noteworthy that while the appellant claimed the amount was paid outside the Sub-Registrar's office at the time of executing the sale deed, the Sub-Registrar's testimony contradicted this assertion. The Sub-Registrar categorically stated that the consideration amount was not paid in his presence. In the absence of conclusive proof that the sale consideration was received by the vendor, the transaction does not constitute a valid sale in the eyes of the law, as established in Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519). Accordingly, the findings of the lower appellate courts were correct in declaring the registered sale deed illegal and void due to the failure to prove its execution. As per settled case law, the inability to establish the mode of payment renders the sale deed legally doubtful. Furthermore, PW Punhoon, being the real son of the appellant and not an attesting witness of the registered sale deed (Ex.52-A), cannot be considered as reliable or witness worthy of credence to prove a disputed fact being attesting witness under the law.

14. In the case of Aurangzaib through L.Rs. and others v. Muhammad Jaffar and another (2007 SCMR 236), the Honourable Supreme Court held that it is a settled principle of law that in transactions of sale and gift, the burden of proof lies heavily upon the beneficiary. The beneficiary must establish the transaction through cogent evidence, satisfying the judicial conscience of the Court. A similar view was reiterated by the Honourable Supreme Court in Rab Nawaz and others v. Ghulam Rasul (2014 SCMR 1181), Wali Muhammad Khan and another v. Mst. Amina and others (2018 SCMR 2080), and Mst. Kalsoom Begum v. Peran Ditta and others (2022 SCMR 1352). Furthermore, Article 79 of the Qanun-e-Shahadat Order, 1984 stipulates that if a document is required by law to be attested, it cannot be used as evidence unless at least two attesting witnesses are called to prove its execution provided that both are alive, subject to the process of the Court, and capable of giving evidence. Thus, under Article 79, a document can only be admissible as evidence when its execution has been proved by two attesting witnesses. The text of Article 79 of the Qanun-e-Shahadat Order, 1984 is as follows: "

79. Proof of execution of document required by law to be attested.__If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that, it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied"

15. Contrary to the above provision, the registered sale deed (Ex.52-A) was attested by only one witness, PW Jamil, who denied having witnessed its execution. He also disclaimed his thumb impression on the document and stated that he had no knowledge of the registered sale deed. The appellant also examined Inspector Muhammad Hassan of the Registration Office, who testified that the parties appeared before him and affixed their signatures and thumb impressions. However, his testimony cannot serve as a substitute for that of an attesting witness. This discussion leads to the inescapable conclusion that the appellant neither established the sale transaction nor, proved the payment of the sale consideration, which was required to be substantiated through cogent, independent, and credible evidence. It is now a well-settled principle that mere registration of a deed is insufficient to prove its execution, authenticity, and genuineness; rather, its validity must be established through strong and convincing evidence, which is notably absent in the present case. Since respondent No. 1 has specifically denied the execution of the registered sale deed (Ex.52-A), mere attestation, execution, or even proof of due construction of the document is not sufficient for the beneficiary of the registered instrument. More importantly, the beneficiary must establish the fundamental basis of the transaction for which the document was executed. In this regard, reliance may be placed on the following judgments: Sh. Muhammad Sarif Uppal v. Sh. Akbar Hussain and others (PLD 1990 Lahore 229), Siraj Din v. Mst. Jameelan and another (PLD 1997 Lahore 633), Muhammad Tufail v. Abdul Aziz through legal heirs (PLD 1998 Lahore 137), Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245), Noor Begum v. Abdul Ghaffar (2003 YLR 1494) and Abdul Ghafoor and others v. Mukhtar Ahmed Khan and others (2006 SCMR 1144). The relevant part of the last judgment for ready reference is reproduced here:- "There is no cavil to the proposition that a presumption of truth is attached to registration of a document but if its contents are challenged then the onus shifts on the beneficiary to prove its contents. It was for the petitioners/defendants to prove that Gul Muhammad had validly gifted the suit property in terms of impugned gift-deed but neither any marginal witnesses of said gift-deed nor scribe and even the person who identified Gul Muhammad were produced. The petitioners/ defendants miserably failed to prove their case."

16. On the point that the testimony of the Inspector from the Sub-Registrar's office cannot serve as a substitute for that of an attesting witness, it is a well-established principle of the law of evidence that when a person has signed a document as an attesting witness, their testimony cannot be replaced by that of a scribe who has not signed the impugned document as an attesting witness. Reliance is placed on Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241), wherein the Honourable Supreme Court categorically held that a scribe cannot be regarded as an attesting witness. The relevant extract from the judgment is? "

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 document, which is either not attested 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 specific, inter alia, in Article 17 of the Order, 1989. (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 purpose 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.

9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witness; 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."

17. In light of the dictum laid down by the Hon'ble Apex Court, it is a settled principle that when two original attesting witnesses of a document are available, neither the scribe of the document nor any other witness can be treated as an attesting witness. However, in the present case, the document (Ex.52-A) was attested solely by PW-6 Jamil, in violation of Article 79 of the Qanun-e-Shahadat Order, 1984. Consequently, the execution of the impugned sale deed (Ex.52-A) is not proved, as it was not attested by at least two witnesses, as mandated by the said provision. Furthermore, the appellant and PW Punhoon, during their testimonies, failed to establish whether the contents of the sale deed (Ex.52-A) were read over to respondent No. 1, an illiterate individual and the alleged executant. This omission is critical, as it is essential to prove a document purportedly executed by an elderly illiterate person. The burden of proof, in cases where a document is allegedly executed by an illiterate person affecting their rights or interest in immovable property, lies upon the party asserting rights under the document. If the vendor is illiterate, it must be demonstrated that the document was read over to them. However, both the appellant and PW Punhoon failed to testify whether the thumb impressions were affixed in their presence and within their view. This failure implies that the attesting witnesses did not confirm the affixation of thumb impressions on the registered sale deed. As a result, the appellant has been unable to prove the authenticity of the document. It is a well-established legal principle that, to prove the execution of a document through attesting witnesses, the witnesses must unequivocally state that the executant's signature or thumb impression was made in their presence and within their view. This principle has been affirmed in various cases, including Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135).

18. The appellant filed the present suit in 2009, after an unexplained delay of three years, seeking a declaration that respondents Nos. 6 and 7 are benamidars. If the appellant were indeed the real owner, as claimed, an ordinarily prudent person would not have remained silent for such a prolonged period. Had he been the rightful owner, he would have taken timely steps to establish and clarify his title. The concurrent findings of the two courts below, holding that Ex.52-A is an illegal and void document, do not suffer from any legal infirmity arising from misreading, misconstruction, or reliance on inadmissible evidence. Accordingly, the same are upheld.

19. The appellant further stated that due to the pendency of civil suits, the Mukhtiarkar did not record an entry in his favor in the record of rights. Additionally, respondent No. 1 fraudulently sold a 24-paisa share of the suit land, including a 12-paisa share belonging to respondent No. 2, Dilawar, by falsely declaring him deceased. Consequently, the burden lies upon the appellant to establish that he is an innocent purchaser. In support of his claim, the appellant produced statements dated 12.05.2006 (Ex.52-B) and 25.04.2006 (Ex.52-C) of respondents Nos. 1 and 2, respectively, which were submitted before the learned Senior Civil Judge, Mithi, in F.C. Suit No. 24/2006. In these statements, the respondents acknowledged having sold the suit land to the appellant but asserted that the clearance certificate had not been issued due to the pendency of the suit. They further stated that upon issuance of the clearance certificate, they would execute the sale deed dated 06.01.2006. It is remarkable that these statements were submitted by respondents Nos. 1 and 2 long after the execution of the sale deed dated 06.01.2006-despite the fact that, at that point, respondent No. 1 had yet to execute the sale deed. Therefore, when considering these statements, which were admittedly submitted in F.C. Suit No. 24/2006 after the date of the registered sale deed, along with the testimony of attesting witness Jamil, the appellant has failed to establish his status as an innocent purchaser. Reliance is placed on the case of Bahar Shah and others v. Manzoor Ahmed (2022 SCMR 284), wherein it was held as follows: "

10. Now we would like to pay attention to the niceties of a right to file Second Appeal provided under section 100 of C.P.C, which can be set into motion only when the decision is contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law. In the case of Madan Gopal vs. Maran Bepari (PLD 1969 SC 617), this Court held that if the finding of fact reached by the first Appellate Court is at variance with that of Trial Court, such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Appellate Court. In another case reported as Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1), this Court held that in case of inconsistency between the trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

11. The first Appellate Court thoroughly evaluated and mull over the evidence adduced by the parties and reached to a just and proper conclusion that the appellants failed to prove and justify their defence pleas and judgment of Trial Court was not based on correct exposition of law and facts, whereas the learned High Court in second appeal has also gauged and assessed the overall evidence perfectly and rightly maintained the judgment of first Appellate Court."

20. Admittedly, respondent No. 1, at the age of 68 years, allegedly executed the document as an illiterate person. However, no evidence has been brought on record to establish who identified him at the time of execution of the registered sale deed. Moreover, the appellant did not state in his testimony that he identified the executant during the execution of the document (Ex.52-A). Consequently, the identification of an elderly and illiterate person at the time of executing the registered sale deed remains unproven. Furthermore, the appellant, along with attesting witness Jamil and the witness from the office of the Registrar, failed to testify whether the contents of the registered sale deed (Ex.52-A) were read over to the elderly and illiterate executant. This omission is critical, as proving the execution of a document by an illiterate individual requires strict compliance with legal formalities. The evidence produced by the appellant was insufficient to discharge the burden of proof regarding the execution of the alleged sale deed in respect of the land in question. A document that is not duly proved is inadmissible in evidence unless strict proof is waived. In the present case, the appellant was obligated to prove the due execution of the sale deed in accordance with the law but failed to do so. Additionally, I have observed contradictions in the evidence presented by the appellant.

21. The Courts below have recorded concurrent findings of fact against the petitioner, which are not subject to interference by this Court unless grave injustice or material illegality is evident on the record. In the present case, no such infirmity has been established. Therefore, no interference is warranted with the concurrent findings of fact recorded by the courts below. The appellant has failed to demonstrate any illegality, irregularity, or misinterpretation of evidence by the lower courts.

22. For the foregoing reasons, this second appeal is dismissed, and the impugned judgments and decrees passed by the courts below are upheld. There is no order as to costs. These are the reasons of short order dated 06-02-2025. MH/G-21/Sindh Appeal dismissed.