' RAJA MOHAMMAD KHURSHID KHAN, J.-This appeal by leave calls in question the judgment passed by a learned Single Judge of the High Court in second appeal on 10-11-1975. The only point involved is whether sufficient grounds existed with the learned Judge in the High Court to upset the concurrent findings of fact passed in favour of the appellant/ plaintiff by the subordinate Courts (Court of Original Civil Jurisdiction and First Appellate Court) to the effect that the appellant had title in the land which was purchased by him in Dogra Regime from one Mir Mohammad.
2. The case of the appellant is that the land measuring 125 kanals was purchased by him from one Mir Mohammad before the war of liberation. The major portion of this land, it is said, falls on the other side of the cease fire line and only the land in suit measuring 17 kanals 4 marlas happens to fall with in arrear of village Mathi Dhara Kotli District (Azad Kahmir) which originally formed part of Tehsil Rajpuri (Occupied Kashmir). On the basis of title derived from this sale deed, Salah Mohammad, appellant, sued respondent, Hassan Mohammad for possession of the suit land. It may be stated that the revenue record was admittedly destroyed during the war of liberation and the suit land carries a fictitious Survey No, 22/2. Nevertheless the identity of the land is not contested and is admitted by the parties to be the same as is entered in sketch (Exh. P. A.) prepared by the Patwari. According to the plaintiff the defendent-respondent, took possession of the land as his tenant but he later on in collusion with the Patwari of the village, manipulated wrong entries to be made in the K hasra- Girdawari to show the land to be under the ownership of the State and also got himself wrongly entered therein as to be in cultivating possession of the land by breaking the same.
3. The defendant-respondent, in the written statement, did not specifically controvert the plaintiff but only contented to say that he had made improvement, to the tune of Rs, 3,000 on the suit land. He, as the Khasra Girdawari shows, did not aver that the land was broken by him or it belongs to the State.
4. The learned Sub-Judge, Kotli, vide his judgment dated 23-4-1974, passed a decree for possession in favour of the appellant. An appeal taken to District Judge, Mirpur, also failed vide judgment dated 12-8-1974. A learned Single Judge of the High Court, on second appeal, however, was led to disturb the concurrent findings of the subordinate Courts. The reasons stated by the learned Single Judge for interfering with these findings will be apparent from the following passages in his judgment:- "(i) That it was simply held that the plaintiff produced witnesses so and so who stated that the land in dispute was purchased by the plaintiff from Mir Mohammad and there was no rebuttal to their evidence and as such the suit is decreed. There was no criticism on the evidence at all. Wali Dad and Faiz Talib were the two real brothers who are very closely related to the plaintiff Their evidence could not be independent. They were very much interested.
(ii) That it was the allegation of the plaintiff that the land in dispute was collusively shown in the ownership of the State in Khasra Girdawari prepared by the Patwari. A copy of Khasra Girdawari was filed with the plaint the entries of which were testified by Zahoor Hussain Shah Patwari led by the defendant. He stated the circumstances under which Khasra Girdawari was prepared but no discussion was made in respect of the statements of the Pawari (Munshi Noon Mohammad, one of the Patwarks led by the plaintiff) in order to reject the entries.
(iii) That a critical examination of these two interested witnesses reveals that. Saleh Mohammad had never been in possession of the land in suit and the defendant was never a tenant-at-will of the plaintiff. According to these witnesses, prior to the possession of Hassan Mohammad the land in dispute lay idle after the commencement of War of Liberation as people including the plaintiff had to flee from the area.
(iv) That it is in evidence that the plaintiff is living in the very village where he has constructed a house of his own on an evacuee piece of land for being a refugee. If this piece of land had ever belonged to him, he could have constructed a house of his own over it for his habitation. But no such effort is there on his part. Hassan Mohammad appellant constructed three houses over the land in dispute but was not stopped by the plaintiff to do so.
(v) That to establish the claim, the plaintiff ought to have produced the best evidence who could be the owners of adjoining land but no one out of them was produced by him.
' Therefore, no reliance can be placed on the interested evidence of Wall Dad and Faiz Talib P. Ws. In absence of corroborative evidence."
5. It would, thus, appear that what the learned Judge in the High Court intended to say was that the Courts below fell in error to accept the evidence in proof of the claim of the appellant and that this fact provides sufficient ground for upsetting the finding of fact concurrently arrived at by the subordinate Courts.
6. We are unable to agree with this view. Our reasons are : -
(a) A finding of fact, it is now settled law, cannot be disturbed in second appeal unless it can be shown that the evidence was misread or the finding is based on surmises and conjectures. Erroneous finding of fact, however inexcusable it may be, cannot be disturbed in second appeal unless there is some 'defect in the procedure' causing error in the decision of the case on the merits Mr. Justice Munir with whom we concur on the point in Nadir Shah v. La! Shah (1) after referring to the leading authorities of the Privy Council on this subject came to the conclusion that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits.
' The same view was reiterated by Mr. Justice Munir in Abdul Majid and others v. Khalil Ahmed (2) wherein it was held :- "That a fallacy in appraising the evidence as to a fact unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal."
' It may be stated that it is not even suggested by the learned counsel for the respondent and we have also not been able to notice any error in the procedure provided by law'. No rule or law prescribing the manner in which evidence in civil cases had to be judged, seems to have been contravened by the Court of first appeal which is the final Judge of facts. It seems that the learned Judge in the High Court did not approve the method of appreciation of the evidence made by the subordinate Courts. But this hardly provides a ground for disturbing a finding of fact.
(b) It admits of no exception that when evidence had received due and full consideration by the subordinate Courts (as is done in this case) on a fact, the finding cannot be disturbed by the High Court on the ground that the inference drawn by the Courts did not fairly arise out of the evidence. If the High Court for that reason disturbs the concurrent findings it assumes jurisdiction not vested in it under section 100, C. P. C. {{FOOT NOTE}}
(1) PLD 1954 Lah. 447 (2) PLD 1955 FC 38 {{FOOT NOTE}}
(c) The reading of the judgment of the High Court makes us to believe that the circumstances highlighted by the High Court to disturb the finding of fact are matters of inferences to be drawn from .The evidence duly considered by the District Judge. Drawing such inferences from the evidence are not permissible in second appeal. Our view finds full support in Pathana v. Mst. Wasai and another (1). In that case Mr. Justice S. A.
Rehman dealing with the point, came to the conclusion that :- "All these circumstances were matters of inference from the evidence, which was duly considered by the District Judge and furnished no ground for interference in second appeal."
(d) It is not permissible in second appeal to disturb concurrent finding of fact simply because some other view point, on the evidence produced, could also be taken. In this case it seems that the learned Judge preferred g his view point to that of the subordinate Courts which is not permissible. Reference may be made to Muhammad Shaft and another v. Sher Ali (2). It is observed in that case that: "It is thus quite clear that the High Court in second appeal has applied its mind to the facts of the present case and has come to the conclusion that since there was concurrent findings of fact simply because some other viewpoints could also be taken is no ground to interfere with the order of the Courts below. This view is in accordance with the decision of the Federal Court in the case of Abdul Majid and others v. Khalil Ahmed PLD 1955 FC 38. We have also examined the evidence in this case and it is quite clear that the finding of the Courts below is based on the evidence led on behalf of the parties. We, therefore, find no force in the petition which is dismissed."
7. Let us now see whether any valid ground existed to disturb the concurrent finding of fact. We have examined the evidence in this case. The matter after appreciation of the evidence, was concluded by the findings of fact by the subordinate Courts to the effect that the appellant had purchased the land from one Mir Mohammad in Dogra Regime. The reading of the evidence shows that the finding of Courts below is based on fair appreciation of the evidence led on behalf of the appellant. Two witnesses, Wali Dad and Faiz Talib, in addition to the statement of the plaintiff himself as his own witness, have been examined in support of his claim. No witness is coming forth to rebut the appellant/plaintiff. No doubt some omissions and contradictions occur in their statements but for that reason it cannot be said that the finding is perverse.
8. There is another important feature of the case. Even the respondent/ defendant did not enter into the witness- box the oppose the appellant. Adverse inference for his conclusion to examine himself as a witness and manifest the nature of his possession, will go against him. His was the best evidence about the nature of his possession on the suit. Sardar Gurbakhsh Singh v. Gurdial Singh and another (3) may be quoted with approval.
It is observed in that case :- "The true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions {{FOOT NOTE}}
(1) P D 1965 SC 134 (2) 1970 SCMR 510
(3) AIR 1927 P C 230 {{FOOT NOTE}} ' attaching to it. The story can then be subjected in all its particulars to cross-examination."
9. Let us see the case from another angle. It is time honoured principle that in cases of civil nature when a person alleges a fact to exist, it is he, who has to prove it affirmatively and if he successfully establishes a prima facie case, the burden of proof shifts to the other side. In the case at hand, the appellant has proved a prima facie case and it was for the respondent to disprove it. But he failed to produce any evidence to rebut the case of the appellant. It is significant to state here that the defendant in his written statement also does not own the entries made in the Khasra Girdawari. This fact goes to lend support to the claim of the appellant and destroy the evidentiary value of Khasra Girdawari.
10. Besides, the reasoning, to undo the finding concurrently arrived at by the subordinate Courts, advanced by the learned Single Judge in the High Court in fact amounts to appraisal of the evidence which otherwise is not permissible under section 100, C. P. C. The appraisal also is violative of the principles of appreciation of evidence in civil cases for the following reasons :-
(a) Wali Dad and Faiz Talib cannot be termed, as said by the learned Judge in the High to be interested witnesses. Interested witness means a witness who has motive to give a wrong statement. No such defect can be traced in their statements. Mere relationship with a party has also never been considered as a valid ground to discard evidence of such a witness if his evidence otherwise inspires confidence.
(b) The learned Single Judge in the High Court also seems to have been influenced by the fact that if the land belonged to the appellant, why it was lying vacant and why the appellant did not construct his house on this land and instead preferred to construct a house on an evacuee piece of land. We are not impressed with this reasoning. It is a common day experience that the people are generally hesitant to live near the cease-fire line for safety purpose, and for that reason the possibility of the land being left vacant, uncultivated and unconstructed, cannot be excluded. It seems that the appellant for safety purpose felt advised to build a house on evacuee land, which probably falls at a. Reasonable distance from the cease-fire line.
(c) Non-production of the people of the neighbourhood, if the case is otherwise proved, can hardly be considered sufficient to dislodge the plaintiff's case. In civil cases, when a prima facie case is made out by a party, the onus of proof, as said earlier, shifts to the other side. In the instant, case, the plaintiff proves a prima fade case, which remains un-rebutted by the other party. Zahoor Hussain Shah, Patwari, examined by the respondent-defendant, as said by the learned Sub-Judge, says nothing to rebut the claim of the appellant- plaintiff. His statement read as a whole leaves an impression that the entries in the Khasra Girdawari cannot be believed. These entries practically change every year and one knows not why. How any evidence worth the name, for or against the issue, can be located in such a document.
11. For the reasons stated above we are of the view that no circumstances were available with the learned Judge in the High Court to disturb the concurrent findings of fact arrived at by the subordinate Courts.
Therefore, we would allow this appeal and set aside the judgment and decree of the High Court dated 1-11- 1975 and restore the finding of the subordinate Courts. Before parting with the case we may say that the Government is not a necessary party because the evidence sufficiently proves that the land belongs to the appellant and the State has nothing to do with it.