' RAJA MUHAMMAD KHURSHID KHAN, J.-In a declaratory suit filed by Fazal Ellahi, respondent, in the Court of Sub-Judge, Mirpur three issues, namely:-
(1) Whether Abdul Latif, appellant/defendant was or was not within his rights to have three windows, said to be adversely affecting the privacy of the inmates of the house of Fazal Ellahi opened towards the northern side of his newly-built house;
(2) Whether `parnallas' of the newly-constructed house were illegally allowed to fall on the northern side which means in the courtyard of Fazal Ellahi's house; and
(3) Whether the land shown in the sketch map attached with the plaint is in possession and owned by the plaintiff and the defendant was trying to construct his house without having any right on the area shown as I and had constructed a supporting wall on a place shown as were involved. Fazal Fllahi plaintiff/respondent was to prove all the issues.
2. The learned Sub-Judge, Mirpur, found all the issues against Fazal Ellahi resulting in the dismissal of his suit. This finding in the first appeal before the District Judge, Mirpur, was also maintained vide judgment and, decree dated 24-3-1977. However, in second appeal, brought by Fazal Ellahi, a learned Single Judge of the High Court partially accepting the appeal passed a decree for permanent injunction in respect of `Parnallas' in accordance with the claim of Fazal Ellahi vide judgment and decree passed on 17th of October, 1977. The finding on other issues however remained unaltered.
3. Two petitions for leave to appeal, one by Fazal Ellahi, plaintiff/ respondent herein and second by Abdul Latif defendant/appellant herein were moved in this Court. Fazal Ellahi felt aggrieved on finding of all the Courts below on Issues Nos. 1 and 3; while Abdul Latif was dissatisfied by the finding of the High Court on Issue No,
2. The petition for leave to appeal, moved by Fazal Ellahi, was disallowed with the observation:- "The Supreme Court on a question of fact adjudicated concurrently can interfere only when the decision is erroneous or based on no evidence at all or upon any manifest misreading or misconception of evidence which could not honestly have been arrived at after giving due consideration to the facts and circumstances of the case. In order to justify the grant of leave, at least some serious question of law must prima facie be made out or some case of grave miscarriage of justice established either by reasons of the fact that finding ought to be impugned could not have been arrived at by any reasonable person. In the instant case, as stated earlier, the result ensued after due appreciation of the evidence and no question of law is involved."
4. The petition brought by Abdul Latif was however, allowed to consider whether the High Court was competent to reappraise the evidence and have its independent view in disregard of the well- considered judgments of the Courts below.
5. It is a cardinal principle of civil law that a question of fact concurrently decided cannot be disturbed in second appeal unless the finding arrived at by the Courts below is erroneous or based on no evidence or there appears misreading or non-reading of evidence. Examining the case with this state of law it would be useful to know as to how approach to the controversy was made by the learned Single Judge in the High Court and 'whether such approach in second appeal is permissible. The following observations, relevant to the issue, would manifest the method and way of approach to the issue made by the learned Judge:- "(a) In the absence of any map drawn by a Revenue Officer and proved in the Court, it is not possible to say as to what is the exact area of the village site, what are the respective shares of the parties and consequently whether there has been or there has not been any encroachment by the defendant."
"(h) P. W. 1 has said that previously the defendant had left two feet wide area on the North, that water of the 'parnallas' fell on that piece of land and then moved through the land of the witness. P.
W. 2 has also made a somewhat similar statement towards the close and of his cross- examination. The evidence of P. W. 1 is enhanced by the fact that he has admitted a right of easement of the defendant over his own land; therefore, the mere fact that he is the father-in-law of the plaintiff does not disentitle him to credit."
6. We have given or considered thought to the controversial issue. After looking into the record and the method and manner of approach to the issue made by the High Court, with due deference to the learned Judge, we have come to the conclusion that finding even in view of his own observations cannot be sustained for the reasons detailed below:--
(a) When the learned Judge himself opines, as is evident from the observations made under sub- para. (a) of para. 5 of this report, that in the absence of any map drawn by a Revenue Officer it is difficult to locate the exact area of the village site and for that reason it cannot be said as to whether there has been or has not been any encroachment by the defendant; how a decree for stopping the 4parnallas' in the absence of acquisition of right of easement, which issue is not even pleaded by the plaintiff, can be passed.
(h) Even if it is assumed as observed by the learned Judge in sub-para. (a) of para. 5 of this order that two feet wide area on the North, where the water of the 'parnallas' used to fall, was previously left by the defendant/appellant, no decree can be passed for stopping the `parnallas' unless and until it is not proved (such proof is lacking in this case) that the plaintiff had title in the land under two feet and it was illegally taken possession of by the defendant.
(c) The learned Single Judge surprisingly had decided the cause on consideration of an issue which was not even pleaded by the plaintiff (respondent). The question of having taken possession of two feet space by the defendant had not been taken by the plaintiff in his plaint.
(d) The burden of proving a prima facie case under section 102, Evidence Act is always on the plaintiff. When he gives evidence, which supports It's case prima facie, the onus shifts to the defendant to adduce evidence to meet the case, if made out by the plaintiff. The burden of proof in this case regarding the issue that `parnallas' of the house of appellant/defendant fall on the land of respondent/plaintiff lay on the plaintiff and since he failed to prove so he stands non-suited. Any weakness in proof of an issue, it is well-recognised principle of law, in the pleading of defendant or in his evidence in this behalf, which issue otherwise remains unproved cannot strengthen or improve the case of the plaintiff.
(e) No Revenue record has been examined in support of the plaintiff's case. The evidence also lacks proof that such record was not available. It was therefore, all the more essential for him to put himself into witness-box in support of his case. But he has failed to appear as his own witness. His failure to do so would raise adverse inference against him.
(f) The case of Fazal Ellahi, plaintiff/respondent, pure and simple, is that the `parnallas' which had their fall in his verandah were newly-constructed on the northern side of the house and previously there were no such `parnallas'. He thus had to prove-
(i) that parnallas were newly constructed; and (ii) that they had their fall in his verandah?
' On these points the Sub-Judge as well as the ,First Appellate Court found that the old house had `parnallas' which had their fall on the site, where the new 'parnallas' now fall. The finding was being supported even by Karam Ellahi, W. 1, who states: {{URDU TEXT}}
(g) Whether `parnallas' fall on the northern side in the verandah of the house of the plaintiff/respondent undoubtedly is a question of fact. Both the trial and lower Appellate Courts, taking the whole evidence into consideration and discussing it in detail, came to the conclusion that the plaintiff had no cause of action as he has failed to prove that `parnallas' fall in the verandah of his house. Such finding of fact, unless it is not shown that it suffers from misreading, non-reading of the evidence or some vital procedural defect, cannot be disturbed in second appeal. The mere fact that the learned Single Judge thought that the inference drawn from the evidence did not fairly arise hardly provides a valid ground for interference.
(h) The High Court seems to have been influenced by the solitary unsupported statement of Karam Ellahi, P. W. 1, to the effect that two feet of land, where the 'parnallas' used to fall earlier before construction of new house, was left by the defendant/appellant which later on was taken possession of by him. But reading of his statement viz-a-viz the statement of Abdul Rehman, P. \V.
2, shows that this witness stands contradicted on this point by Abdul Rehman, P. W.
2. Karam Ellahi, P. W. 1, says that the defendant has taken possession of two feet of space where the 'parnallas' used to fall earlier. But Abdul Rehman, P. W. 2, contradicts him on this point when he states that there was no vacant space on that side (northern side) of the old house. Obviously, P.
W. 1 is contradicted by P. W.
2. If there was no vacant space as deposed by Abdul Rehman, P. W. 2, on the northern side then the question of taking possession of the vacant space by the defendant does not arise at all and it would be unsafe to believe P. W. I. Apart from it, as both the witnesses contradict each other on a vital point (P. W. I says that two feet of space was taken possession of by the defendant while P. W.
2 says that there was no vacant space at all none of them as such can inspire confidence to be believed.
7. As said earlier the scope to interfere with the concurrent finding of fact in the High Court in second appeal is very narrow and limited. On the point in Abdullah v. Muhammad Ali (1), it is held that:-- "The judgment of the first appellate Court, however, shows that the evidence of those witnesses on whom the learned Single Judge relied had received due and full consideration. It seems that the learned Single Judge interfered with the findings of the First Appellate Court because he thought that the inference drawn by that Court did not fairly arise from the evidence. Hence, the contention that what the learned Single Judge did in this case is what expressly forbidden by section 100 of the Code of Civil Procedure, does not appear to be without substance."
' Identical view was taken in Sikandar v. Sultan Muhammad (2), wherein it was held that:- "Where both the trial Court and the Court of first appeal had come to a concurrent finding relying on the oral evidence, the Commissioner's report and the documentary evidence, that the passage to the house of the pre-emptor led through the courtyard of the house of the respondent. It was held that this was a finding of fact arrived at on a proper consideration of the evidence and it could not be interfered with in second appeal by the High Court."
8. The law thus now is practically settled the concurrent finding passed by the Courts below based on the proper consideration of oral evident B (which in or view is done in this case) cannot be vacated in second appeal, even if, the High Court thinks that the inference drawn does not fairly aril from the evidence.
9. Fazal Ellahi P. W. I was disbelieved by the Sub-Judge for the cogent reason that he was being contradicted by Abdul Rehman, P. W. 2 and not because as held by the High Court that he was related to the plaintiff. The High Court it seems was erroneously labouring under the impression that his statement was excluded by the subordinate Courts because he was the relative of the plaintiff; but the judgments of the subordinate Courts {{FOOT NOTE}}
(1) 1968 SCM R 711 (2)PLD 1974 SCII {{FOOT NOTE}} ' speak otherwise. For this solitary reason the judgment of the High Court cannot be sustained.
Moreover his statement is self-contradictory.
10. It has been argued by Ch. Lal Hussain, the learned counsel for the respondent, that the finding of the High Court should remain intact because-
(i) under law a Court seized of a case is competent to pass any decree which the circumstances justify; and the circumstances of this case in his view warranted decree passed by the High Court; and
(ii) the evidence had not been properly appreciated by the subordinate Courts which fact justified the interference by the High Court% In or estimation these arguments have no substance. No doubt Court can pass any decree which the circumstances in a given case permit; C but such decree must flow from pleadings and evidence of the parties. A finding on a point (as is done by the High Court in the case before us) which is even alien to the claim put forth by the plaintiff and on whit there is no issue; and parties have not been afforded any opportunity to adduce evidence on that, we are afraid, cannot be allowed to stand. So far non-reading or misreading of the evidence is concerned the learned counsel was unable to point out any such defect.
' In view of overall analysis of the evidence and the judgment of the High Court nude above, or conclusions are:
(i) that the `parnallas' fall on the same side where they use to fall before the construction of the new house. The plaintiff, therefore, cannot entertain a valid grievance;
(ii) that there is no-evidence to show that the site where rainy water fall is or was under the ownership and possession of the plaintiff/ respondent and that being the case he has no cause of action to institute the suit.
' For the foregoing reasons, we would accept this appeal with costs, discharge the finding of the learned Judge of the High Court dated 19-10-1977 and restore the judgment and decree passed by the District Judge, Mirpur, dated 24-3-1977.