' I propose to dispose of the petition for leave to appeal (No, 11/MR of 1982), and also Miscellaneous Application (No, 5/MR of 1982), by this single order.
2. Land in suit measuring 3 kanals and 12 marlas comprising seventeen field numbers which all fall under Khata No, 437, Khewat No, 98, situate in the area of village Khanpur, Tehsil Mirpur, by way of a registered sale-deed dated 4-10-1972, was transferred in favour of Jalal Din, petitioner (defendant).
The sale-deed was sought to be pre-empted by Muhammad Aslam and Jewan, respondents herein, claiming that being joint owners in the `Khatas' and `Khewat' they had a right of pre- emption superior to that possessed by the vendee.
3. The copy of the sale-deed, accompanying the plaint, reveals that the copying agency omitted to enter one field number, i. e., 1773. At the stage of arguments the respondents (plaintiffs), it appears, became conscious of this omission and moved an application for amendment to allow them to enter the omitted survey number in the plaint. The trial Court allowed the amendment and proceeded to decide the suit in passing a decree in favour of the respondents, on merits, on 30-4- 1977. The petitioner went up in first appeal before the District Judge, Mirpur, but without any success. The appeal was disallowed by the District Judge on 8-4-1981. The second appeal moved by him in the High Court also ended in rejection on 12-12-1981. The petitioner has moved the petition for leave to appeal to assail the said judgment of the High Court.
4. Leave was sought on various grounds but during the course of arguments the sole point which had been seriously pressed before me is that under Order VI, rule 17 of the Code of Civil Procedure, after the amendment of the plaint, it was imperative for the Court to provide the petitioner (vendee) an opportunity to file the additional written statement. The general scheme of the Code and the policy underlying the law of pleadings, it was contended, suggest that the new written statement cnn raise any new ground of defence and is not necessarily to be confined and restricted to the amended portion of the plaint. Elaborating his point of view the learned counsel maintained that if the petitioner would have had an opportunity to file the additional written statement he would have raised the vital plea that the suit was liable to be defeated by virtue of two Notifications (No, 1-150/PS/76 dated 5th January, 1976, and No, 2901-3050/SL/76 dated 27th June, 1976). These notifications, he submitted, during the progress of the suit in the trial Court, had taken away the right of pre-emption in relation to the land sold from village Khanpur (as the case is before me) which falls within the municipal limits of Mirpur District.
5. After giving my considered thought I find little substance in the arguments advanced by the learned counsel for the following reasons:
(a) Regarding amendment in the pleadings, it is well settled that when the Court thinks that any reply to the amended plaint is necessary only then calls upon the defendant to submit his additional written statement and not otherwise. But if the amendment of the plaint (as this case appears to be) is purely of a formal character the written statement may not be required at all as in such like cases there is nothing substantial to be replied.
(b) I have gone through the plaint as well as the copy of the sale-deed, filed with the plaint, and find that the `Khata' and `Khewat' numbers, under which the land falls, were correctly reflected in the plaint alongwith the actual acreage of the land sold. No doubt Survey No, 1773 was omitted to be entered in the plaint but this failure never occurred due to any fault on the part of the respondents. They filed the suit in terms of the copy of the sale-deed provided to them. I fail to understand as to how they can be held responsible for this omission and penalized for the fault of the copying agency. The learned trial Judge had, therefore, correctly exercised his discretion in allowing the formal amendment.
(c) Apart from the above, in my opinion, the present case, strictly speaking, is not a case of amendment of the plaint. It is, in effect, a case of correction of error of formal nature. Pre-emptors (respondents) were supplied with a copy of the sale-deed which omitted to enter one of the survey numbers i. e.
1773. They, in terms of the copy, entered in the plaint the entire land and no part of it was left out. It is thus manifest that the case did not suffer from any intentional omission on the part of respondents (plaintiffs). I am, therefore, of the view that since the pre-emptors sued to pre-erupt the entire land, their application for amendment was only meant to correct the error by adding a survey number. The learned trial Judge should have himself corrected such an error under section 153 of the Code of Civil Procedure.
(d) It is significant that the petitioner has failed to raise this point before any of the subordinate Courts. It has been raised before this Court for the first time. This cannot be permitted. The petitioner, it is conceded by Ch. Muhammad Taj, the learned Advocate, was well aware of the fact even before the trial Court that the land sold falls within the Municipal Committee of the Mirpur Town and as such not pre-emptible.
(e) Even otherwise, the question whether the suit land falls within the Municipal Committee is a question of fact and requires proof. The Supreme Court is not a full-fledged Court of appeal and as such this Court would ordinarily be very cold to reopen a case on factual aspect which has never been agitated before any of the subordinate Courts. In these circumstances, the point, argued merits no consideration. The equity is also in favour of the respondents (plaintiffs) because in the case of the nature where the application for amendment is made in good faith and cause of omission stands supported by unimpeachable document (here in this case the copy of the sale- deed proves the bona fide of the respondents), an amendment to correct any such unintentional omission should be allowed. Mst. Fatima v. Sardara (1) supports me. It has been observed in this case:- "The only formal defect which according to learned counsel for the respondent existed in the suit is that some of the Khasra numbers mentioned in the plaint are incorrect. This defect was of a very formal nature which did not have any effect on the suit at all. The Khata numbers had been correctly stated in the plaint and a jamabandi of the land in suit had been filed alongwith the plaint. The gift
(1) PLD 1956 Lab. 474 ' deed itself had also been filed. There could, therefore, be absolutely no doubt as to the identity of the land in suit even if an application was made to the Court at the end of proceedings for allowing a correction of the clerical mistake, there would be no objection to the Court allowing an amendment there and to adduce any fresh evidence. In the circumstances of this case, there was no need of any further adjournment. (Underlining* is mine).
' Same view prevailed in Bahadur Shah and others v. Sharaf and others (1), wherein it has been observed:- "I have gone through the copy of the plaint as well as the sale-deed which is on the record and found that discription of the land was not only given according to number of Khatas and Khasras but the area of the land was also given. The numbers of the Khatas and area in the two documents coincided with one another and only a slight error or omission is in respect of Khasra numbers The learned trial Court, has, therefore, acted illegally and with material irregularity in the exercise of its jurisdiction by refusing to allow the amendment which was only a formal one."
6. Arguments in the petition for leave to appeal were concluded on 18-4-1982 and the judgment was kept reserved. But on the same day Ch. Muhammad Taj, the learned counsel for the petitioner, probably realising the weakness of his case, moved an application for amendment of the written statement. He seeks the amendment in the written statement to allow him to enter the following:- "That the land in dispute is situate in the Municipality Area, Mirpur, therefore, the pre-emption suit is not maintainable against the petitioner-defendant."
7. I have beard the learned counsel for the parties regarding the amendment. The powers of the Courts to allow amendment of pleading are given under Order VI, rule 17 of the Code of Civil Procedure limitations are placed on the powers of a Court to allow amendment of the pleadings of any party, but it is well settled that the Court will not allow an amendment in a plaint or a written statement if the amendment would change the whole complexion of the case. In the present case the suit was instituted on 26-11-1972 and decided on 30-4..1977. It would appear that during the pendency of the suit in the trial Coda the notifications, allegedly taking away the right of pre- emption, mentioned above were issued. It may be stated here that even after the notifications, for well over six years, at no time the vendee, who was defendant in the suit, did make any attempt to get the,, order for amendment of his written statement with the object of showing that the land in suit was situated within the municipal area of Mirpur and, therefore, this sale could not be challenged by a suit of pre-emption because such sales have been exempted from pre-emption by the aforementioned notifications issued under the relevant provisions of the Azad Jammu & Kashmir Right of Prior Purchase Act. If a party has not been vigilant enough the Court will not come to its help. As already observed whether the land is situated in the municipal area of Mirpur is a question of fact and if the vendee was not vigilant to amend the written statement raising the plea that the
(1) PLD 1973 Lah. 513 *[Here in italics] ' framed the issue in terms of the averment and placed the burden of proof on the plaintiff. The plaintiff failed to lead evidence ; consequently his suit was dismissed for want of proof. He, however, succeeded in second appeal, where the High Court allowed him to give evidence in support of his claim.
3. On remand of the case, the plaintiff moved the trial Court for reframing of the issue and to place the burden of proof on the defendants. His prayer was disallowed. He went in revision to the High Court. The learned Chief Justice of the High Court felt advised to accept his contention.
Consequently ; issue was reframed and the burden of proof was placed on the defendants to prove the execution of Mukhtarnama.
4. The first objection raised by the learned counsel for the appellant pertains to the expression of opinion relating to the dispute between the parties. To understand the grievance it would be useful to reproduce the relevant portion of the judgment which reads as under :- "Prima facie, the circumstances that are intriguing and have heavily weighed in my mind is that the disputed Mukhtarnama was not executed in Sanghar where the executant, admittedly, resided and worked for a livelihood nor at Mirpur where the property is situate ; the person who purports to have identified him, is also neither a resident of Sanghar nor of Mirpur but one Mr. Zainul Abdin, Advocate Karachi. The Mukhtarnama also does not give his correct address-either of Sanghar or of Mirpur but a fictitious one from Karachi proper."
5. The learned Chief Justice, it appears, was pursuaded to hold that in view of the attending circumstances reflected in the aforementioned paragraph, the burden of proof was to be placed on the defendant who alleged execution of the Mukhtarnama. Various factors lending support to his view, were narrated in the impugned report in order to suggest that initial presumption, raised in favour of the beneficiary, was rebutable. The learned Chief Justice instead of confining to the question of burden of proof went ahead and entered into uncalled for open discussion ; touching upon the merits of the real dispute. It goes to the credit of Raja Muhammad Siddique Khan, the learned counsel for the respondent that he frankly conceded that expression of opinion on the main dispute was uncalled for to resolve the controversy.
6. The observation in our view too was premature as the evidence of the parties was yet to be given. Defendant-appellants in these circumstances are well justified in apprehending the likelihood of prejudice caused to their case. This being so ; we uphold the objection and expunge the above-mentioned portion of the impugned judgment.
7. The next objection relates to the question of placing the burden of proof. Agha Ashiq Hussain, the learned counsel for the appellants, contended that the burden of proof is to be placed on the plaintiff, who attacks the execution. He argued that in order to prove forgery it is incumbent upon the plaintiff to prove the negative fact by positive evidence; as in case no evidence is given at all by either party, it is the plaintiff who would fail. To support him he cited Lachmi Narain v. Mst. Nazeer Fatima (I), Bal Kishen and others v. Ram Charan and another (2), U Aung Ya v. Ma E Mal (3), Omanhene Kwamin Bassayin v. Omanhene Bendentu 11 (4), Dalchand Mulchand and others v.
(1) AIR 1926 Oudh 501 (2) AIR 1929 P C 296
(3) AIR. 1932 Rang. 24 (4) AIR 1937 P C 274 ' Hasabi w/o Ali Razakhan and others (1), M. Krishnaswami Naidu v. Secretary of State (represented by Collector of Tanjore) and others (2), Srundaban Chandra Dhir Narendra v. The State of Orissa in the Revenue Department and athers (3), and Mst. Sardar Bibi v. Muhammad Bakhsh and others (4).
8. Raja Muhammad Siddique Khan, in reply, argued that in a case where execution is denied and forgery is alleged the burden of proof is placed on the person who alleged execution. In support of his contention he referred us to Mst. Sardar Bibi v. Muhammad Bakhsh and others, Arsala Khan v.
Ghulam Mohy-ud-Din (5), Abdul Karim v. Sattar Muhammad (unreported case, decided by the High Court of Azad J & K on 15-2-1971) and Saleh Muhammad Khan v. Hassan Muhammad Khan (6).
9. We first proceed to examine the respective case-law relied upon by the learned counsel for the parties. In Lachmi Narain v. Mst. Nazeer Fatima the dispute related to transaction of transfer of property. It was alleged that nature of the transaction was fraudulent. In light of the facts of that case it was held as under :- "The burden of proving the fraudulent nature of a transaction lies ordinarily on the persons who seeks to impeach it."
' In Bal Kishen and others v. Ram Charan and another a broad principle relating to burden of proof was enunciated. The observation is reproduced as under :- "In a suit attacking transfers of property the burden is on the plaintiff of establishing the attacks."
10. In U Aung Ya v. Ma E Mai, the mortgagor, who executed the mortgage-deed, claimed that he was of unsound mind and also that he had lucid intervals. In defence it was pleaded that at the time of the execution of deed the mortgagor was of sound mind. In view of the facts of that case it was laid down :- "In a suit on a mortgage the mortgagor pleaded that he was of unsound mind at the time the mortgage-deed was executed. It was found that he was of unsound mind and also that he had lucid intervals. Mortgagee contended that it was for the mortgagor to prove that he was of unsound mind at the time of execution of the deed while the mortgagor contended that it was for the mortgagee to prove that he was temporarily of sound mind at the time the document was executed. The evidence showed that the chief characteristic of his madness was his unreasonable hatred of strangers. It was also shown that he executed the registered deed and behaved quite normally when he was taken to the Sub-Registrar.
Held : that no general rule could be laid down as to where burden of proof lay and that the mortgagor was of sound mind at the time of execution."
(1) AIR 1938 Nag. 152 (2) AIR 1943 Mad. 15
(3) AIR 1953 Orissa 121 (4) PLD 1954 Lah. 480
(5) PLD 1966 Azad J 8r, K 47 (6) 1981 CLC 353
11. In Omanhene Kwamin Bassayin v. Omanhene Bendentu II, a dispute arose between the parties about the boundary of their estates. Prior to the dispute a document, purporting to be an agreement ; containing a clause of arbitration, was executed. In consequence of the agreement an award was made which settled the boundary of the disputed property. Defendant admitted his signature on the document but claimed that the document written in English, was not explained to him. On this view of the controversy, relating to burden of proof, the proposition was resolved as under :- "Where a person not knowing English has affixed his mark to a document written in English language, the onus to prove that the document was properly explained and interpreted to the person affixing his mark so as to make him understand its true import is on the party relying on the document."
12. `Dalchand Mukhand and others v. Hasanbi w/o All Razakhan and others' is a case where execution of a mortgage-deed and a sale-deed purporting to have been executed by the father of the defendants in favour of their mother were subject of dispute. Defendants denied the execution of the deed on which a dispute arose about the burden of proof. It was held as follows :- "The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known then the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from S. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them : that is not the common course of human conduct, nor yet the common course of their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus'the burden shifts on him."
13. In M. Krishanswa mi Naidu v. Secretary of State represented by Collector of Tanjore and others two cross-suits, relating to property of one Viralimalai Sadsiva Swamigal, who died without leaving any heirs, were instituted in the Court, one by the Secretary of State for India on the ground of escheat and the other by the opposite-party, who claimed the property under the title of gift ; made by the last owner. Defendants claimed adverse possession of the property. The main controversy was as to whether the last owner died without leaving any heir. The proposition relating to placing of the burden of proof was settled as under :- "If a party wishes the Court to believe in the non-existence of certain facts and the existence of the rights asserted by him depends on the non-existence of such facts, it is as much his duty to establish those negative facts as it would be of proving positive facts, if his rights were to depend on their existence. The distinctions between the denial of an affirmative allegation and the assertion of a negative fact and between the proof of the existence or non-existence of a fact and disproof of its existence or non-existence are obvious and should not be lost sight of. The degree of proof in regard to affirmative and negative facts must be, in the nature of things, different although in either case the Court has "after considering the matters before it," to make up its mind whether it does or does not believe in the existence or non-existence of a fact which has to be established or considers its existence or nonexistence "so probable that a prudent man ought, under the circumstances of the particular case, to act under the supposition that it exists" or does not exist.
When an affirmative fact is to be established, direct evidence to prove that fact can be adduced and the Court has to make up its mind as to its credibility and sufficiency ; but when a negative fact has to be proved, a plaintiff can be expected to do nothing more than to substantiate his allegations prima facie."
14. In Brundaban Chandra Dhir Narendra v. The State of Orissa in the Revenue Department and others the petitioner challenged the validity of a notification of the Government, whereby the petitioner was declared as a disqualified proprietor of the property and the property vested in the Court of Wards by virtue of the said notification. It was observed as under :- "The criterion that the burden to prove the absence of bona fides resting upon the person who challenges the same is not a burden requiring proof to the hilt but to render the same as reasonably probable is only for the purposes of finding whether or not there has been a valid exercised of the statutory power. If the Court is called upon to decide the positive existence of an impugned wrong motive, it must be proved to the positive satisfaction of the Court."
15. In Mst. Sardar Bibi v. Muhammad Bakhsh and others' a dispute arose for possession of land left by one Mst. Qayam Khatun. The collaterals of the father of the deceased claimed half of the property according to Sunni Law. Mst. Sardar Bibi, defendant-appellant, refused to accept the claim of the plaintiffs on the allegation that the deceased was a Shia and she, being a daughter, was entitled to whole of the land of the deceased, under Shia Law. One of the issues was to be whether Mst. Qayam Khatun was Shia? Onus of proof was placed upon Mst. Sardar Bibi, defendant.
In second appeal controversy relating to placing of burden of proof was raised. In was contended that the burden of proof ought to have been placed on plaintiff, particularly when mutation of the entire estate had already been sanctioned in favour of the defendant. The objection ultimately was overruled. The relevant observation is reproduced as under :- "When a plaintiff comes to Court and asks for a certain relief on the basis of certain facts, the onus of proof of those facts has to be on him, for the relief prayed for cannot be granted unless the Court is able to hold the existence of those facts proved. But the law makes provision for certain presumptions and any party on whom a burden is cast by sections 101 and 102 may shift the onus of proving any fact to the other party by showing that that fact should be presumed to exist.
Sections 101 and 102 are to be read as subject to these presumptions. Rules as to rebuttable presumptions are no more than rules as to burden of proof. When the Court presumes the existence of fact, the burden of proving its existence is on the party that asserts its non-existence.
Conversely, when the burden of proving a fact is on a particular party, the Court is presuming its non-existence."
16. In Arsala Khan v. Ghulam Mohy-ud- Din the plaintiff-appellant brought a suit for possession of a house in lieu of a registerered mortgage-deed. The defendant-respondent contested the suit and claimed that the deed was got executed fraudulently and without any consideration. The onus of proof was initially placed on the defendant to prove the deception and execution without consideration. The question relating to the burden of proof was raised in the second appeal. The learned Judge expressed the opinion as under :- "I think what the learned counsel was aiming at by referring to the above authority was that just as a plaintiff must establish allegations relied on by him and he cannot rely on the unreliability of the defendant's witnesses, similarly defendant in the present case should have relied on his own evidence to prove that the execution of the mortgage deed was without consideration and the weakness of the evidence of the plaintiff could not help his case. This appreciation of the above authority is far from correct because it apparently applies to that party only which asserts affirmatively. The defendant in this case is not asserting affirmatively but he and his witnesses are deposing to a contradictory negative proposition to the effect that no amount has been paid as a consideration for the mortgage deed, therefore, the authority in question cannot be treated as a precedent. Even if the defendant is unable to establish his assertion the plaintiff just the same would have to prove by satisfactory and reliable evidence that the consideration of Rs, 700 had, in fact, been paid. If he fails to do so and merely furnishes proof of the execution of the mortgage deed, it would not entitle him to a decree for possession."
17. In Saleh Muhammad Khan v. Hassan Muhammad Khan a general rule of evidence relating to burden of proof was enunciated as under :- "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."
18. The scrutiny of the above-referred authorities lead us to the following conclusions :-
(i) Where under the circumstances of a particular case, a presumption operates in favour of a party, the burden of proving otherwise is on the opponent. The rules of the burden of proof and as to presumptions are closely linked. When the Court presumes the existence of a fact, the burden of proving its non-existence is on the opponent. Likewise when the Court presumes the non-existence of a fact, the burden of proving the existence of that fact, lies on the party who asserts affirmatively ;
(ii) When a person alleges a fact to exist, it is he, who has to prove it affirmatively and if be successfully establishes a prima facie case, the burden of proof shifts to the other side
(iii) Where execution of a document is denied, the initial burden of proving execution is upon the person who alleges the execution ; and
(iv) Where a transaction of transfer of property is attacked, the burden is on the plaintiff to establish the attacks.
19. The learned Chief Justice of the High Court examined the proposition in the light of the first aforesaid principle. He referred to various aspects of the controverted facts of the case and arrived at a conclusion that it was for the defendant-appellants to prove execution of Mukbtarnama. We would do no better than to revert to the relevant part of the judgment. It reads :- "Frankly, the problem is not free from difficulty ; one consequence of placing the onus of proof, in such cases as the instant one, on the plaintiff that worry's my mind is that regardless of what is ultimately found to be the truth, such a course would encourage the forging of title-deeds etc ; it would thus be putting premium on forgery. Thanks to the ingenuity of law, a forger can also start with a presumption of truth and honesty : But if burden of proof, in such cases, is placed on the beneficiary, it would, at the same time, encourage a deceitful executant of whom there is no dearth, to repudiate a solemnly executed document and start with a presumption of non- execution.'
' On comparison, however, it seems that the mischief resulting from presuming in favour of the owner of the property the prima fade executant of the documnet is lesser than by doing so in favour of the beneficiary. Execution of a document, where it is genuine, can be easily and convincingly proved, by proving his signatures, his appearance before the registering authority, by examining the scribe, the stamp-vendor and the marginal witnesses etc. Etc."
' It is impressed by the learned Judge that mischief resulting from presuming in favour of the executant is less than by doing so in favour of the party alleging execution. He justified his conclusion by counting various factors capable to prove positively than doing so in negative.
20. There is no second view on the proposition that where execution of a document is denied and forgery is alleged ; the burden of proof is placed on the party alleging the execution. In the instant case, plaintiff who is owner of the land in dispute, denied the execution and averred that the document was forged one. In addition to that, the attending facts, uncontroverted B between the parties, also raised initial presumption in favour of the plaintiff. This being the position ; we find no reason to disagree with the conclusion arrived at by the learned Chief Justice. The objection is, therefore, overruled.
21. Next it is contended that the plaintiff-respondent, at the time of the framing of issue, accepted the onus of proof. Once the onus of proof was accepted by the parties ; it could not be challenged later on. It is also contended that the plaintiff-respondent moved for change of onus of proof at a belated stage. Hence ; according to the learned counsel for the appellant, at this late stage the onus of proof could not be shifted. In support of his contention he cited Pokhar Das and another v.
Thakar Das and others (1), Bishambar Das and others v. Telu Ram and others (2), Australasia Bank Ltd. v. Muhammad Din (3) and Jamsher and others v. Abdul Jalil and others (4).
22. We have considered the last objection raised by the learned counsel for the appellant. It is admitted that the case was yet at the stage of evidence of the parties. The plaintiff-respondent moved the trial Court for reframing of issue and change of the onus of proof, before the evidence was
(1) AIR 1930 Lah. 213 (2) AIR 1934 Lah. 1019
(3) PLD 1963 Kar. 105 (4) PLD 1964 Pesh. 159 ' led. This being the position, it cannot he argued that plaintiff-respondent made an attempt for refraining of issue and placement of the burden of proof at a late stage. The dictum laid down in the authorities, referred to us by the learned counsel for the appellant, is not helpful to him in view of the facts of the present case. In all the authorities, cited by the learned counsel for the appellant, objection of onus of proof was raised at the appellate stage. It was in the light of specific circumstances of the cases that the learned Judges decided that an objection relating to onus of proof cannot be entertained at the appellate stage. There is no dispute with the proposition that the objection relating to onus of proof, ordinarily, be raised at the time of framing of issue. But at the same time when onus of proof is wrongly placed on a party ; that party cannot be deprived to object to the placement of the onus of proof, when evidence was yet to be led. That is undoubtedly an earlier stage. The importance of onus of proof remained till evidence was given.
' In view of the aforesaid observations the appeal is disallowed and parties are left to bear their own costs.