Law: Specific Relief Act, 1877

Section: 42,9

Law: Civil Procedure Code (V of 1908)

Section: 115

Law: Registration Act, 1908

Section: 17,49

Specific Relief Act, 1877 (I of 1877)----Ss. 42 , 9--Civil Procedure Code, 1908, S. 115--Suit for declaration and possession--Oral mortgage--Burden of proof--Witnesses of respondent were not able to prove place regarding execution of mortgage agreement--Wrongly shifting of burden of proof--Challenge to--Both parties are unanimously agreed to extent that possession of suit property is with petitioner--Alleged oral mortgage could not be termed as a valid mortgage and thus in given fact and circumstances of present case, respondent should have been treated petitioner as trespasser and thus should have been filed a suit for his eviction was bound under law to prove his case for which he was required to establish that in-fact suit property was mortgaged by him to petitioner--He has not been able to discharge his onus to prove that suit property was in possession of petitioner because of he being mortgagee--Witnesses of plaintiff have not been able to prove place where negotiation/execution of oral mortgage agreement has taken place--It is settled law that in case of oral agreement, cogent, trustworthy and convincing evidence is required to be produced--Suit property was not included in list of legacy, which fact prima facie supports stance of petitioner that as suit property was purchased by his predecessor-in¬interest--Both Courts below have wrongly shifted burden of proof to petitioner as it was for respondent to prove his stance first--Revision petition allowed. Registration Act, 1908 (IX of 1908)-- ----Ss. 17 , 49--Instrument of transfer-- Section 17 of Registration Act, any instrument of transfer which involves a consideration of one hundred rupees and above has to be registered or otherwise under Section 49 of said Act, same could neither create nor extinguish any right in favour of beneficiary. AIR 1917 LOW Bur 128 (FB), AIR 1925 Rang 230 (FB), AIR 1947 Bom 206, PLD 2013 Sindh 327 ref. Qanun-e-Shahadat Order, 1984 (10 of 1984)-- ----Art. 126--Burden of proof--A person who is challenging ownership of another person, who is in possession of anything, then burden of proof shift to that person who affirms that he is not owner. PLD 2021 SC 434 ref. Civil Procedure…

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