' CH. MUHAMMAD IBRAHIM ZIA, J-The captioned appeal, with the leave of the Court is filed against the judgment dated 21.12.2004, whereby while accepting the appeal filed by the respondent, the judgment of the first Appellate Court is set aside, consequently the judgment of the Trial Court has been restored,
2. The precise summary of facts giving rise to this appeal is that Said Muhammad, predecessor of the respondents herein and others, brought a suit for declaration and cancellation of a will executed on 8.1.1986 by Abdullah in favour of appellant in the Court ,of Additional Sub-Judge Mirpur on 24.12.1987. It was averred that appellant prepared a fake, fictitious and concocted will on 8.1.1986 and on the basis of the same he is -attempting to take over the possession of the property as well as to incorporate entry in the revenue record, whereas, the so-called will is void, ineffective and inoperative on the rights of the plaintiff. The respondents filed written statement on 26.9.1988, wherein it was stated that plaintiff was present at the time of attestation of the mutation and admitted the same, therefore, is estopped from challenging the validity of the said document on the ground of acquiescence and estoppel. It was further alleged that the will was prepared in a legal fashion and the defendant-respondent is owner of 1/3 share the property left by Abdullah, deceased, accordingly. It is further averred that on the basis of will entries have been incorporated in the relevant revenue record. Moreover, he is in possession of the house and the property was transferred to him under the will.
3. The learned Trial Court framed issues in light of the respective pleadings of the parties on 3.12.1988. The parties were provided opportunity, to lead evidence in support of their respective claims and ultimately vide judgment dated 7.2.2002', the learned Civil Judge Mirpur decreed the suit. Feeling aggrieved from the afore-mentioned judgment and decree appellant herein went in appeal before the Additional District Judge Dudyal Camp Mirpur on 12.2.2002. The learned Additional District Judge through the judgment and decree dated 9.1.2004 reversed the findings of Civil Judge Mirpur and dismissed the suit of the respondents. Feeling aggrieved the respondents filed an appeal in the High Court, the learned High Court vide its judgment dated 21.12.2004 accepted the appeal, recalled the judgment passed by the Additional District Judge Mirpur dated 9.1.2004 and restored the decree of the Trial Court dated 7.2.2002, hence this appeal is brought before the Court.
4. Raja Hassan Akhtar, the learned counsel for the appellant, argued the case at some length. After discussion of facts of the case, he submitted that the respondents-plaintiffs have failed to produce any evidence in support of their claim rather the deposition of the plaintiff witnesses support the version of the appellant-defendant. He further submitted that the appellant-defendant has categorically proved that he is in possession of the property transferred to him under will and without prayer for possession the suit is not maintainable. He further submitted that the appellant- defendant also tendered the documentary evidence, i.e, a certified copy of the mutation attested on 20.4.1986 Ex. "DA", copy of Khasra Girdawari Ex. "DA". Moreover, two attesting witnesses; one Gul Bahar, the subscriber of the will) and the other Aurengzeb also appeared in the Court, who fully supported the version of the appellant-defendant and proved the execution of will. He further submitted that in civil cases unlike criminal cases, findings are recorded on the basis of preponderance of probability. The fact of execution of will has been admitted by the respondents- plaintiffs and they alleged that the document is forged and fraudulent. Thus, the burden of proof was upon them to prove that, the document (will) is not genuine. He further submitted that it has been proved that the original document was in possession of the Revenue authorities and for non- production of the same, the defendant-appellant-cannot be penalized under law. On failure of production of a document, presumption goes-in favour of execution of the will-deed thus the impugned judgment is not maintainable.
5. Conversely, Gh. Muhammad Riaz Alam, the learned counselor the respondents, , while controverting the arguments of the learned counsel for the appellant, forcefully defended the impugned judgment on the ground that the judgment is quite consistent with the principles of administration of justice and based on the principle of law enunciated by this Court in Muhammad Zaman's case (PLD 1984 (AJ&K) 138). It was the primary chitty of the defendant- appellant to produce the original document (will-deed), which has been withheld, despite availing uncountable opportunities therefore, presumption goes against him and the High Court has rightly passed the impugned judgment.
6. We have considered the respective arguments of the learned counsel for the parties and also gone through the record. As in the opinions, the Courts below regarding the question of facts are divergent, the Trial Court dismissed the suit while the first Appellate Court, after due appreciation of the evidence, decreed the suit whereas the learned High Court without due appreciation of evidence mainly on the strength of a case reported as PLD 1984 SC (AJ&K) 138, passed the impugned judgment. Therefore, we deem necessary to examine the whole evidence. The respondents-plaintiffs have produced Muhammad Nazeer and Abdul Ghani as witnesses. Their examination-in-Chief is very brief. They have only stated that Abdullah has died and his cousin Said Muhammad and Noor Hussain, the predecessors of the respondents-plaintiffs, have also died who were the heirs of Abdullah. Both the witnesses only stated only that Abdullah, has not executed any deed in-his life, whereas, both of them in the cross- examination admit that house of Abdullah is in possession of - the defendant, Manzoor. None of them has deposed month or date of death of Abdullah. Even Nazir witness stated that he cannot tell the period of death of Abdullah, however, he admitted that he participated in which was arranged by Manzoor, defendant. Whereas, none of them has uttered a single word regarding the deed of will whether it is genuine, forged or fake? One of the plaintiffs, Muhammad Azam, appeared as witness, he only stated that Abdullah had not executed any will. If the defendant has prepared any will, it is incorrect and fake. The mutation attested on the basis of will, is wrong. Mutation No: 322 to the extent of 1/3 share is wrong. He further stated that at the time of death of Abdullah, he was in England. Whereas, the appellant-defendant produced two attesting witnesses of the document; one is Gui Bahar, Petition Writer, who stated that he has written the deed of will on 8.1.1986 and the other attesting witness is Aurengzeb, who deposed that the will was got prepared by Abdullah, who was ill, called him for accompany to Mirpur for execution of the will! The will was written by Gul Bahar and witnessed by him and one Imtiaz Shah. Subsequently, the mutation was attested by one Farooq Baby (Revenue Officer), in his presence and in the presence of plaintiffs predecessors. Said Muhammad and Noor Hussain. He also tendered in evidence certified copy of mutation Ex. "DA". The documentary evidence, certified copy of the mutation No, 322 tendered in evidence, also contains detailed note of the Revenue Officer, wherein it has been stated that Abdullah, Executor had been died 3-4 months ago. Noor Hussain and Said Muhammad did riot agree for implementation of the will, hence due to their objection, the will as a whole cannot be implemented but-only to the extent of 1/3 share of the deceased mutation was sanctioned in favour of appellant whereas through the same the remaining 2/3 shares were mutated to Noor Hussain and Said Muhammad. In the document another note has also been incorporated by the Patwari that the application alongwith the will is attached. The- Patwari, witness- also appeared as witnesses and tendered in evidence the copy of Khasra Girdawari Ex. "DA", which also proved that the appellant- defendant is in possession of the land. Manzoor Ahmed also appeared as a witness. '
6. The perusal of the record reveals that the matter of production of original deed of Will remained under consideration of the Trial Court. On 7.1.1989, the plaintiff, drew the attention of the-Court that the original will-deed is in possession of the defendant, therefore, he should be ordered to produce the same. Whereas the defendant deposed before the Court that the original will-deed is attached with mutation No, 322 and is not in his possession. Thus, in this state 6f affairs, on the request of the plaintiff, the file pertaining to mutation No, 322 was sufnmoned from office of the Tehsildar settlement. On 3.7.1997, the Trial Court passed an order as under:-- ' The Trial Court proceeded to record evidence of the parties and finally decided the case. Thus, it is evident from the proceedings of the suit that notice was given-to the defendant for production of the document i.e, will-deed, but due to non-availability and out of possession, the same couldn't be produced by him. The plaintiffs-defendants also have not objected to the order of the Trial Court-dated 3.7.1997. In view of this state of affairs, what is the legal requirement under the Qanoon-e-Shahadat Order for proof of such fact. Under the provision of Clause (c) of Article 76 of Qanoon-e- Shahadat Order, 1984,- "when the original document has been destroyed or lost, or when, for any other reason not arising from the default or negligence of the party secondary evidence may be given to the existence, condition or contents of such document. Now question arises that what type of secondary evidence is required. Under the provision of Article 74 Qanoon- e-Shahadat Order, the secondary evidence includes the oral accounts of contents-of a. Document given by some person who has himself seen it. In this case, according to hereinabove stated facts and proceedings of the Court, the original document has not been, produced without any fault or negligence of the defendant, whereas the' two attesting witnesses, Gul Bahar and Aurengzeb, who have seen the document supported the version of the defendant, thus, in the light of the statutory provision, this secondary evidence was not only admissible but also has proved the fact of the execution of the document. This important and legal aspect of the case could not attract the attention of the learned High Court.
7. Another statutory provision, which comes the, defendant-appellant, is Article 99 of Qanoon-e Shahadat Order, which speaks that the Cotirt shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by Claw. Thus, in our view, the execution of the will has been proved. Another strong piece of evidence, which supports the version of the defendant is certified copy of the mutation, which has been tendered in evidence, without any objection. Under Article 90. Of the Qanoon-e-Shahadat Order, a certified copy shall be presumed to be genuine. Moreover, under the provision of Article 92 of Qanoon-e-Shahadat, the Court shall P presume the genuineness of every document purporting to be a documents directed by any law to be. Kept by any person, if such document is kept substantially in the form required by law and is produced 'from proper custody. The revenue documents including the mutation are prepared and kept by the, Revenue Officer under the provision pf law. Certified copy of such document produced has got presumption of genuineness.
Whereas, on the other hand, the respondents-plaintiffs have failed to rebut the contents of this documentary evidence nor have produced any convincing evidence in support of their version. It is now a settled principle of law that the required standard of proof in civil cases is quite different as compared g to that of criminal cases. .It is the consistent view of this Court that in the civil cases, the principle of law is to record findings in favour of the party, in whose favour the material brought on record creates preponderance of probability. This principle of law has been enunciated in the cases reported as PLD 1981 SC (AJ&K) 118, 1982 CLC 1309, 2610 SCR 231 and 2012 SCR 115. .The evidence of parties, when examined and analyzed in the light of principle of law laid down in the referred case, ' creates preponderance of probability in favour of defendant appellant.
8. The High Court has not discussed in detail the evidence of the parties, whereas, it was enjoined upon it to discuss the same because the divergent findings have been recorded by the Courts below. Without due and proper appreciation of evidence available on record, the conclusion drawn by the High Court, doesn't appear to be consistent with the principle of law and justice. Every case has its own legal and factual propositions and no case can be decided while ignoring such propositions merely on the basis of a principle laid down.In a case.In its peculiar facts. It appears that in this case the main reason of recording the; impugned judgment whereas in the light of distinguishable facts the same is not applicable in manner it has been applied. In Muhammad Zaman's case both the attesting witnesses denied the signing of the document. The petitioner writer also stated- that he cannot say that the executor was the same person or not? These peculiar facts have been discussed in para 10 of the judgment which speaks as following:- "10. In the present case two attesting witnesses, namely, Jahandad Khan and Muhammad Suleman Khan, examined by the respondent, categorically denied to have signed the document. Similarly, Raja Muhammad Afzal Khan, Petition Writer (the scribe), also in his. Statement says that he cannot say whether Muhammad Afzal, executant, was in fact the person who executed the document. Now only remains the evidence of the scribe and Muhammad Afzal Khan, Tehsildar. The scribe can never be considered to be an attesting witness...."
' Whereas in the same judgment this Court has enunciated the principle of law 'onus in paras 7 and 8, which reads as following:- "7. Our consideration, therefore, is that the doctrine 'onus proband "the person on whom onus lies", applies to a situation in which the mind of the Judge determining an issue is, left in a doubt as to a point and there is little to choose between the evidence of either side; in that event only that side must fail on whom the onus has been placed. But where both the parties have, adduced evidence on an issue in support of their respective allegations the question of onus becomes immaterial as the conclusion to be . Reached does not then depend on the question of .Onus but depends on the evidence produced by the parties. Precisely, the strict meaning of the term is that if no evidence is led by the party on whom the burden is placed, the issue must be found against him. The question of onus thus, as the determining factor of the whole case, can only arise if the Court finds that the evidence is so evenly balanced that the Court can come to no conclusion. But if the Court, after weighing the evidence, can arrive at a determinate conclusion, the onus has nothing to 'do and need not be further considered. Thus, where in a controversy relevant facts are before the Court (as the case is before us) and all that remains for decision is as to what inference should be drawn from them, the question of onus of proof is not very much pertinent. The above analysis of the controversy stands fully supported in M.R. Seturatnam Aiyar and others v. Venkatachela Goundan and others AIR 1920 PC 67, Nihal Chand and others v. Gurditta Mall and others AIR 1923 Lah.- 64\, Sime, Darby & Co Ltd. v. Official Assignee of Lee Pang Seng AIR 1928 VC ll Nihal Chand and others v.
Nardin Das AIR 1934 Lah. 949, Mt. Chunna Kunwar v. Lala Mukat Behari Lai and others AIR 1934 All. 117, Nand Kishwar Bux Roy v. Copal Bux Rai and others AIR 1940 93 Harmes dnd another v. Hinkson (7)
JagmoIian Lakhmichand and others v. RanchoddaS and others (8) Durga Prasad and another v.
Ghanshiam Das and others (9) Mst. Qaisar Khat'oon and others v. Maulvi Abdul Khaliq arid another
(10) and Mst. Khatum v. Malla and others (11). In M.R. Seturatnam Aiyar and others v. Venkatachela Goundoh and others it has been observed:-- "The controversy had passed this, stage at which discussion as to the burden of proof was pertinent the relevant facts were before the Court, and all that remained for decision was what inference should be drawn from them." In Nihal Chand and others v. Gurditta Mall and .Others, it has been held:- "The question of onus of proof arises where there is a question of fact to be determined and there is no evidence one way or other which Will enable the Court to come to a conclusion. Where evidence is adduced by both the parties, then the question of the burden of proof becomes immaterial and the Court has t 'determine on the evidence before it."
' In . Darby & Co. Ltd. v. Official Assignee of the Estate of Lee Pang it has been observed;-- "A word or two must be said on the onus of proof. In their Lordships' opinion, the onus is on the assignee-he has to show that the case is within the statute. A good deal was said in arguments as to the shifting of the onus at particular points in the development of the case, but when all the circumstances have been ascertained so far as the parties have thought fit to ascertain them, discussion on this point becomes immaterial and the decision must be come to on the whole of the circumstances so ascertained, and the question of onus only becomes important if the circumstances are so ambiguous that a satisfactory conclusion is impossible without resort to it. "
' In Nihal Chand and others v. Narain Das, it was observed:-- "Before coming to the facts of the case I will deal with an objection which was taken by Mr. Mukand Lai. Puri on behalf of the appellant-defendants regarding the onus of the first issue. Such an objection has also been made in the Trial Court and overruled. In my judgment the matter is not a fundamental importance as both sides produced a considerable volume of evidence, both oral and documentary, and the decision of this issue must finally be determined by the facts proved on evidence rather than by any initial presumption that may exist in favour of one party or the other."
' In Mt. Chunna Kunwar v. Lala Mukat Behari Lai and others, it has been held:-- " Where both parties have adduced evidence, the question of onus loses all importance and the Court should record a definite finding as to whether the defendant is the nearer heir. The question may assume some importance-where the Court has to reject the evidence adduced on either side, as absolutely untrustworthy."
' In Naiid Kishwar Bux Ray J. Gopal Bux Red and others, it has been observed:-- "As the learned Chief Justice observed, the question of onus of proof was of no great importance, because both sides had interact into evidence."
In Harmes and another v. Hinkson, it was held at page 163:-- "...... It is always will to remember,. When the familiar matephor of 'the burden of proof is employed, precisely vs hat it means. The strict meaning of the term 'onus probandT, said Parke, , in the case already cited, is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him "Onus as a determining factor of the whole case can only arise if the Tribunal finds the evidence pros and cons so evenly balanced that it can come to no such conclusion. -Then the onus will determine the matter. But if the Tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered."
In Jagmohan Lakhmuhand and others v. Ran Choddas and others, it was held:- "When the entire evidence is before the Court the discussion as to the onus of proof is purely academical. Onus however is a determinant factor when there is no evidence or the evidence is so evenly balanced that the Court can come to no definite conclusion."
' In Durga Prasad and another v. Ghanshiam Das and others it was held at page 213":-- "As a determining factor of the whole case that question only arises if the Court finds the evidence so evenly balanced that it can come to no definite conclusion."
' In Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another it was observed at page 343:- "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao AIR 1950 PC 25).
The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to. No definite conclusion-(vide PLD 1984 PC 178). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here, for the evidence is, by no means, evenly balanced. "
' In Mst. Khatun v. Malta and 5 others it has been held: "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."
8. It would thus appear that it is now settled proposition of law that where evidence has been adduced by both the parties and the Court can come to a determinate conclusion the burden of proof loses all importance and the evidence on the whole is to be scrutinized. This observation meets the first objection of Sh. Abdul Aziz listed above."
' In the same judgment the Court has also held that for proof of execution of will, at least one attesting witness be called to prove due execution of an instrument. The observation is in para 16, which reads as under:-- "16. As stated earlier the proviso to section 68, Evidence Act, is not applicable to wills and when the execution of the will is denied, it is the duty of the party propounding the will to call at least one attesting witness. Although in order to prove due execution of an instrument requiring attestation, it is sufficient to call one of the attesting witnesses. Yet in the case of a will it is desirable that all the witnesses capable of being called should be examined to remove all suspicions of fraud. The mere fact that one of the attesting witnesses to a will is not called, however, would not invalidate the will provided there were two attesting witnesses as required by law. "
' Thus, after analysis of the referred judgment, it can be safely said that due to distinguishable propositions of facts and law, on the strength of this report the evidence brought on record by the defendant-appellant, neither be neglected or brushed aside nor the suit of respondents can be decreed.
9. Thus in view of hereinabove discussed analysis, appreciation of evidence and law, we have reached to the conclusion that according to the prescribed standard of law, the execution of will stands proved, which is further supported from the fact that the defendant, beneficiary, of the will is also in possession of the house and property of the deceased, executor of the will. Therefore, we are unable to agree with the conclusion drawn by the High Court in the impugned judgment and are constrained to recall the same. Hence, while p accepting this appeal, the impugned judgment-is set aside. Consequently, the judgment passed by the Additional District Judge Dudyal dated 9.1.2004 stands restored. In the above- stated terms, this appeal is accepted. The parties have to bear their own cost/High Court Reversed.