1. ' RAJA MUHAMMAD KHURSHID KHAN, J.-This appeal seeks to impeach the decision of a learned Single Judge of the High Cout sitting in Chamber dated 18th July, 1973. The appeal commonly known as Letters Patent appeal was pending before a Division Bench of the High Court which at the inception of the Supreme Court, stood transferred to this Court.
2. ' To have correct approach to the controversial questions, the relevant facts in brief may be stated.
3. ' Ibrahim appellant and Atta Muhammad respondent are real brothers while Muhammad Sharif respondent is their cousin. Ibrahim through a declaratory suit in the Court of first instance, claimed to be the proprietor of land in his possession measuring four kanals, eight marlas comprising Survey No, 2071 situate in village Herdochi, Tehsil and District Mirpur, on the basis of private partition said to have been effected between the co-sharers- the parties in the suit. Atta Muhammad respondent, the real brother of the appellant, in written statement admitted the plaintiff's claim.
4. However, Muhammad Sharif respondent resisted the suit to say that the land is still jointly owned by the co-sharers.
5. ' The learned Sub-Judge, Mirpur vide his judgment and decree dated 24th April, 1970 decreed the suit in favour of appellant-plaintiff which finding was also maintained by the District Judge, Mirpur, on appeal by respondent Muhammad Sharif vide judgment and decree passed on 15th October, 1972. On second appeal, the learned Chief Justice of the High Court, however, vide its judgment dated 18th July, 1973 allowed the appeal and reversed the judgment of both the Courts below resulting in the dismissal of the appellant-plaintiff's suit.
6. ' The main question which arises for determination in this appeal depends upon its answer as to whether the land in suit fell in possession of the appellant on the basis of private partition and if so, whether it bestows any title to the appellant.
7. ' The learned counsel for the parties were heard and we have ourselves also looked into the record.
8. After having given our considered thought we have reached the conclusion that the land in suit for the reasons to follow is proved to have fallen in possession of the appellant on the basis of private partition.
9. To catch the point, a distinction has to be drawn about the proof) in civil and criminal cases. It is correct that 'in general' the rules of evidence of civil and criminal cases are the same but some provisions in the Evidence Act are peculiar to criminal and others peculiar to civil cases. Whereas in a civil case a mere preponderance of probability is a sufficient basis of decision, in a criminal case persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court beyond all reasonable doubt and this rule as a prudence has in fact attained the force of law founded on public policy.
10. ' The question as to when burden of proof may be deemed to have been discharged by the party on whom the onus lies and what will be its legal position when evidence is available of both the parties remained under much discussion during the arguments. It has been contended by the learned counsel for the respondents that a party, on whom onus lies, must prove the case and it matters not even if the evidence of the opponents toes his case. As against this, the learned counsel for the appellant maintained that if both the parties produce evidence for and against an issue, the case is to be decided on the overall appreciation of the evidence and burden of proof loses its importance.
11. ' In view of the arguments advanced at the bar, we would like to determine firstly as how burden of proof is discharged and what will be its position when evidence is produced by both the parties.
12. It is now practically settled in law that the question of onus of proof loses its importance when relevant evidence has been adduced and placed on the record. This question becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion. In such an event, the rule is that the party on whom the onus lay must fail. But where evidence has been led by both sides and considered, the question of onus loses its importance.
13. Here in the case before us, the whole of the evidence is before the Court and we feel no difficulty to arrive at a conclusion and the doctrine of `onus probandi' in such a situation loses all its importance. In this case, the entire evidence was led before the trial Court and safe decision was possible with reference to such evidence. The question of onus of proof will, therefore, lose much of its importance. This dictum was also affirmed by the Supreme Court of Pakistan in case entitled 'Muhammad Bashir v. Mst. Rehmat Bibi' (1) wherein it is observed : "The question of onus has no important bearing on the case because both the parties have led evidence in support of their case. In this circumstance, the learned Courts below were perfectly justified in holding that the question of onus has lost importance."
14. ' Our view is also affirmed in 1974 SC MR 341 wherein it is stated that : "It is now well-settled that where evidence has been led by both sides and considered, the question of onus loses its importance. Where the whole of the evidence is before the Court and it has no difficulty in arriving at a conclusion, it becomes unnecessary to enter upon a discussion of the question of onus."
15. ' In view of this state of law, we now proceed to determine the issue.
16. ' The plaintiff-appellant in support of his claim of private partition exhibited in evidence the following documents :
(a) Exh. P.A., the copy of khasra girdawari pertaining to the years 1962-69.
(b) Exh. P.E., the copy of record of right pertaining to the year 1965-66 ; and
(c) the copy of record-of-rights pertaining to the years 1957-58 marked as Exh. P. C.
17. The entries of copy of khasra girdawari, Exh. P. A. Show that the land in dispute under survey No, 2971 though entered to be owned jointly by the appellant and the respondents, remained under cultivating possession of Ibrahim appellant exclusively right from Kharif 1962 to Kharif 1969. The entries in khasra girdawari of course do not carry C. Presumption of truth but they certainly contain evidence to show as to who was in possession of the land.
18. ' The document, Exh. P.E. Also enters Ibrahim appellant-plaintiff to be in cultivating possession of the land during the year 1965-66. This entry in the record-of-rights carries presumption of its being genuine. Next is the copy of Jamabandi, Exh. P.C. Pertaining to the year 1957-58. In this document too, which carries presumption of truth Ibrahim appellant is entered to be in cultivation possession of the land in suit.
19. ' As against this, respondent Muhammad Sharif relied firstly on Exh. P.D.A., a copy of `Mist-e-Haqqiat' for the years 1959-60. The reading of this document does not support the respondent rather it supports the appellant-plaintiff in so far as it enters him to be in cultivating possession of the suit land. Next is document, Exh. P.D.B. This shows that the compensation money of land comprising Survey (1) 1970 SC MR 478 ' Nos. 2061 and 2082 though jointly owned by the appellant and respondents, on the basis of an award drawn in the name of Atta Muhammad respondent exclusively, was only required to be paid to Atta Muhammad respondent.
20. ' It is thus manifest that the documentary evidence tendered by the parties is one on the point that the land in suit was in exclusive possession of the appellant-plaintiff right from the year 1962. It also supports the appellant that the remaining land jointly owned by the appellant and the respondents stands entered in the revenue record as separately possessed by the parties. This fact lends, indirectly, considerable support to the appellant's claim of private partition. We are mindful that possession on a piece of land jointly owned ipso facto does not prove private partition unless it is not proved that the possession was based on such partition.
21. ' To resolve the point, therefore, we have to go to the oral evidence. The reading of the evidence on the whole does not depict a happy situation on the issue. However, its critical scrutiny makes the issue fairly clear to say that the appellant-plaintiff entered upon the suit land on the basis of private partition.
22. ' The plaintiff-appellant has in addition to his own statement as a witness, examined Suleman and Muhammad Najeeb as his witnesses. Muhammad Suleman is a Lumberdar. He states that from the year 1961, the parties pay him land revenue separately and the land in suit is in possession of the appellant-plaintiff. He further says that in the event the land would have been joint, anyone of the co-sharers could pay the land revenue. Muhammad Najeeb only says that the land is in possession of the appellant from the last 10/12 years. Both these witnesses do not have a personal knowledge about the partition but the statement of Muhammad Suleman, when he says that he received land revenue separately from the appellant and the respondents gives strength to the appellant's claim that in all probability the land fell to his share under a private partition, otherwise receipt of land revenue from the joint owners separately may not have been effected.
23. ' The plaintiff-appellant states that the land in suit came under his possession through a private partition but in cross-examination, he says that he was also in receipt of the compensation of the land which was in exclusive possession of Muhammad Sharif and Atta Muhammad in equal shares.
24. The learned counsel for respondent Muhammad Sharif endeavored to make much capital out of this to contend that the plaintiff- appellant himself knocks out the bottom of the case of private partition to say that he also shared the compensation amount of the land which was exclusively under the possession of Muhammad Sharif and Atta Muhammad, respondents. We are not impressed with this argument. The award was drawn in the name of Atta Muhammad alone and this fact provides an inference that at the time the award was drawn, the authorities concerned were led to believe that the land under award stood privately partitioned and Atta Muhammad retained the possession on that score. If it would have been otherwise, how could the award be drawn in the name of Atta Muhammad alone.
25. ' There is still another important aspect of the case which is to be taken notice of. The evidence in the case, leaves an impression that the land most probably was still owned jointly at the time and award was drawn and stood partitioned later on. On this score, the statement of Muhammad Sharif respondent recorded on 23rd April, 1970 is all enlightening. He tells that the plaintiff-appellant retains the possession of the suit land as a co-sharer since 4/5 years. He elucidates his stand in cross-examination when he states that the parties have separate land according to their respective shares though there is no partition by metes and bounds and they have separated the shares since 4/5 years. His statement supports the appellant about the private partition with the only difference that the appellant claims the private partition from his forefathers while Muhammad Sharif respondent brings it down to 4/5 years. But this fact in no way affects adversely the substance of the appellant's case of private partition. In this case the peculiarity is that the claim of the appellant is practically admitted by respondent Muhammad Sharif.
26. With due respect to the learned Single Judge of the High Court we are of the view that the learned Judge fell in error to ignore the statement of respondent in support of appellant's claim for no solid reasons. The learned Single Judge dealing with his statement referred to PLD 1959 Kar. 408 that a separate possession of one co-sharer cannot be taken to be a partition entitling a co-sharer to hold the share, allotted to him according to the private arrangement to hold it in severalty. That case is distinguishable. In so far as in that case dispute about the joint possession of the house and not land was involved. Besides, contrary to the facts of this case the recital in the documents only showed that the parties for convenience sake were in possession of the separate portions of the property and for that reason it was very rightly held by Waheeduddin, J. That it cannot be taken to be a partition by metes and bounds. In this case, the appellant claims to be in possession of the land in suit on the basis of private partition to the complete exclusion of respondent-co-proprietors and no case of separate possession for convenience sake is made out.
27. ' The facts and circumstances as discussed in this case point strongly to the presence of a formal partition having taken place between the co-sharers, and our considered view is that the land in suit on the basis of private partition effected between the parties fell in possession of the appellant.
28. ' Let us now take up the second point as to whether the appellant on the basis of private partition is entitled to a declaratory decree of the ownership of the suit land.
29. The respondents have allowed the appellant by their declaration and act, to retain the possession on the basis of private partition. Under section 115 of Evidence Act they are now estopped to deny the effect of the family arrangement. Mr. Muhammad Munir, former Chief Justice of Pakistan, in his 'Principles and Digest of the Law of Evidence', Volume II, Edition 1974, at page 1296 says :-- "Family arrangements are arrangements between the members of a family for the preservation of its peace or property. The principles upon which such arrangements are enforced in England are stated in the case of Williams v. Williams. Such arrangements are constantly entered into in this country, and, where they have been acted upon and acquiesced in, the Court will not look so much to the adequacy of the consideration as to the motives and conduct of the parties. In a settlement of a doubtful right truth may be on either side, but the essential effect of the settlement is that further trouble or investigation is put an end to and a settlement is concluded to restore harmony.
30. The consideration for such a settlement is the mutual promise made, or forbearance shown, by one party to the other. In the absence of fraud or undue influence, it is not, therefore, open to either party to resile from it afterwards, and the settlement is binding not only on the parties but on their sons and descendants. A family settlement is binding, even though a limited owner is a party to it.
31. Where parties settle a family dispute amicably, take a share of the property, enter into possession, and subsequently sell or mortgage their items allotted to them, they are estopped from questioning the settlement."
32. Therefore, our view is that the private partition duly proved give title to the person in occupation of the land at least to the extent of his share in the over-all land of the co-sharers. Whether possession of the if land in excess of the share in the over-all land gives title to a person in occupation, is a question on which we refrain, to give any finding in this case and leave it open to be decided in some other case.
33. ' The land in suit measures 4 kanals and 8 marlas and is well within the over-all share of the appellant in whole of the land and this fact is admitted by the parties.
34. ' In PLD 1967 Lah. 402, it is laid down that existing possession counts much in partition cases and attaches considerable importance to it, At page 406, it is observed :- "Thus existing possession sometimes counts much in partition cases and due consideration has to be paid to it. Suppose a co. Sharer has taken into possession a part of the joint land in which he has got his share and begins to cultivate it, by clearing it, maturing it and improving its value even by digging a well. He cannot accept that at the time of the partition of that land this area should fall to the share of other co-sharers, and that he would have some other area out of the joint land. This is against reason too. The general principle, therefore, is that a co-sharer should be allowed to keep possession of the land improved by him unless it appears that land equal in original value cannot be awarded to another party from the rest of the joint holding. Otherwise, possession should be respected up to the extent of each shareholder's share in different classes of land as was laid down in Chandan Khan v. Fateh Muhammad and others."
35. ' In AIR 1927 P C 208 the question of private partition was in dispute. The judgment of the subordinate Judge in that ease holding the land to be privately partitioned was reversed by the High Court of Patna. The issue of private partition was held by the Subordinate Judge in favour of defendant entailing the dismissal of the plaintiff's suit. The Privy Council after discussing the facts of the case returned a finding that the defendant was in exclusive possession to the total exclusion of each co-proprietor as they separated in food and residence on the basis of private partition and for that reason entitled to retain the possession.
36. ' The facts of that case were to a great extent identical with the facts of the present case.
37. ' Similarly section 41 of the Transfer of Property Act which enacts :- "Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it, provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith." broadly in spirit given title to the person who occupies a land under a private partition and such person shall be considered to be the ostensible owner of the land in his possession.
38. ' Before parting with the case, there is another more important aspect which needs attention. The trial Court as well as the first appellate Court gave concurrent finding that the land stood partitioned and for that account fell in possession of the appellant. Could this concurrent finding of fact legally be disturbed in second appeal. The legal position in our view does not admit of any doubt that a concurrent finding of fact reached by the lower Courts cannot be disturbed by the High Court in second appeal even if it disagrees with the finding on its own view and even if Courts may appear to be grossly erroneous unless as laid down in subsection (c) of section 100, C.P.C., the error or defect discovered is of a substantial character occasioning an error or defect in the decision/ of the case upon its merits. A finding on a question of fact is only open to attack as erroneous if this is not supported in evidence but where there is evidence to consider the decision of the Courts it is final even though the Court might not on the materials have come to the same conclusion if it had the power to substitute its own judgment. In the instant case, the finding of the Court of first instance as well as the first appellate Court is based on convincing evidence and in our view, the High Court fell in error to disturb the concurrent finding of fact. To the same effect is PLD 1969 SC 617 and PLD 1957 SC (Ind.) 188.
39. ' In view of the above, the appeal is allowed, the judgment of the learned Single Judge in the High Court dated 18th July, 1973, is vacated and the judgment and decree of the learned District Judge is restored. No order as to costs.