SHAHID KHAN, J. Naseer-ud-Din, predecessor in title of the petitioners, has called in question the judgment and decree of the learned Additional District Judge. Dir Upper, dated 17.02.2010, whereby, his appeal was dismissed, and consequently, the judgment and decree, dated 21.08.2008. of the learned Civil Judge, Dir Upper, in respect of the subject property, detailed in the head-note of the plaint, was maintained.
2. It is pertinent to mention here that during pendency of the subject Revision Petition, petitioner, Naseer-ud-Din, has died, as such, his legal heirs have been impleaded as petitioners in the array of the petition.
3. In essence, Naseer-ud-Din, plaintiff/predecessor in title of the petitioners, approached the learned trial Court through a lis for declaration coupled with permanent injunction to the effect that he is ancestral owner in possession of the subject property, detailed in the head-note of the plaint, comprising of Shamilat and that the defendants have no right whatsoever to interfere in the same or claim their title over it. He has also prayed for recovery of Rs. 20,000/- as damages with respect to cutting of plants in the subject property.
4. The subject claim of the plaintiff was contested by the respondents/defendants by filing their written statement. After recording evidence, far and against followed by hearing of learned counsel for the parties, the claim of the plaintiff was dismissed vide judgment and decree dated 21.08.2008 followed by the judgment and decree of the learned appellate Court dated 17.02.2010, hence, the subject Revision Petition.
5. Arguments of learned counsel for the parties have been heard and the record scanned with their valuable assistance.
6. It is floating fact on surface of the record that Naseer-ud-Din, predecessor in title of the petitioners, claimed that he in the ancestral owner in possession of the subject property comprising of Shamilat and in this regard, he relied upon two deeds, Ex PW 1/2 and Ex PW 1/3. As such, he was duty bound to prove execution of these two documents through cogent, reliable and confidence inspiring evidence as it is well-settled that under Article 17 read with 79 of the Qanun-e- Shahadat Order, 1984, whenever a document is reduced into writing, then in order to use it in evidence, the beneficiary has to produce at least its two marginal witnesses. As the plaintiff, predecessor in title of the petitioners, has not been able to produce marginal witnesses of these two deeds, therefore, the same could not be termed as proved documents. Reliance is placed on the case of Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others reported as 2016 SCMR 986, wherein the Hon'ble apex Court has held: "The said document simply states that the said properties have been given by the deceased to his three sons. The said document was purportedly signed by the deceased in the presence of Laiber Khan, Muhammad Ameen Khan and Haji Kimyagar, however, only Laiber Khan was produced as a witness. Consequently, this document too fails to meet the test prescribed in Article 79 of the Qanun-e-Shahadat Order, 1984 and remained unproved."
7. So far as contention of predecessor in title of the petitioner that the subject property, being Shamilat, is part of his cultivable property is concerned, his own evidence did not support his contention as he, in his examination-in-chief, has taken a new plea by stating that the subject property is his ancestral property, which has been given to his father, Shahbaz Khan, by his grandfather vide deed Ex PW 1/2 and thereafter, it came to his share through partition vide partition deed Ex PW 1/3. This fact has never been asserted by predecessor in title of the petitioners in his plaint, therefore, no issue was framed in this regard. It was disclosed by him for the first time while appearing in Court as PW-1, as such, under the law the statement made by him in the Court could not be considered at all. Reliance is placed on the case of Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-Operative Bank Ltd., Jaranwala and others reported as 1968 SCMR 804, wherein the Hon'ble Apex Court has held that: "To base the suit in the alternative, on his alleged acknowledgment of liability, would be to allow the plaintiff-Bank to improve its case, without having specifically pleaded in that sense or to have got an issue framed on the point. No evidence should have been allowed to be adduced on facts, which had not been raised in the pleadings or incorporated in the issues framed."
Similarly, in the case of Pakistan v. Abdul Ghani reported as PLD 1964 Supreme Court 68, it was observed: "It was not part of the plaint and was never adopted by the plaintiff formally as a ground of attack upon the order of dismissal. The discussion of this point contained in the judgments of the Courts below, in so far as it favours the claim of the plaintiff, is therefore outside the case set up by the plaintiff himself, and cannot be allowed."
8. It is well settled law that it is the plaintiff who has to prove his case and he has to bring on record sufficient evidence to knock out the defendants as every civil case is to be decided on the principle of preponderance of evidence, which is lacking in the subject case. Reliance is placed on the judgment reported as 2017 CLC 1184, wherein it was held: "It is also now settled principle of law that in civil matters, unlike criminal cases, standard of proof is quite different and the Court can record findings on the basis of preponderance of probability drawn from appreciation of whole evidence."
9. In the subject case, predecessor in title of the petitioners has desired the Court for passing the judgment and decree in his favour, as such, he was bound under the law to prove all the plea(s) taken by him in his plaint as per Article 117 of the Qanun-e-Shahadat Order, 1984. The aforesaid Article, being relevant for the present controversy, is reproduced as under: "117. Burden of proof.- (1) Whoever desires any Court to give judgment as to any legal right of liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
The reproduced Article provides that any person, who desires a Court to issue a judgment in his favour, has to prove all those facts which he has pleaded in his plaint, however, the evidence so furnished by predecessor in title of the petitioners in support thereof is not sufficient to grant the desire judgment and decree in his favour.
10. It is hard fact that though the documents relied upon by predecessor in title of the petitioners is of thirty years old but presumption as to its genuineness could not be drawn as the same have not been produced from proper custody rather produced by predecessor in title of the petitioner himself, despite being not proved, as he has also D not produced its marginal witnesses.
11. To conclude, it is observed that the learned trial Court coupled with the learned appellate Court, in view of proper appraisal of the facts and circumstances and the evidence so recorded, have arrived at the just conclusion of the matter in issue, as such, the impugned concurrent findings of the learned Courts below do not need any interference. Reliance is placed on the case of Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, wherein the Hon'ble apex Court has held: "Section 115, C.P.C. empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C."
Similarly, in the case of Salamat Ali and others v. Muhammad Din and others reported as PLD 2022 Supreme Court 353, it was observed: "A revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence.
The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below."
In PARA-6 of the judgment rendered in the case of Muhammad Sarwar and others v. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, it was also held that: "It is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C.. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court Is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law."
In Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2002 SCMR 933, the Hon'ble apex Court has held that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. Relevant findings of the august Court are reproduced as under: "The High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of Law or fact which do not in any way affect the jurisdiction of the court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, hut interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisionsl jurisdiction must not be mixed up or bewildered.''
12. For what has been discussed above, the subject Revision Petition is devoid of any merit, which is hereby dismissed.