MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, petitioners have challenged the judgment and decree of the learned Additional District Judge-III, Mardan dated 07.01.2025, whereby the appeal filed by the present petitioners / defendants was dismissed and thereby maintained the judgment and decree of the learned Civil Judge-VII, Mardan dated 17.10.2019, who vide the same had decreed the suit of respondents / plaintiffs.
2. Precisely, the facts leading to the filing of this petition are that respondents / plaintiffs, Ajab Khan and 25 others, brought a suit against the present petitioners / defendants for redemption of the suit property alongwith for issuance of mandatory and perpetual injunction on the ground that the said property was mortgaged by the predecessor-in-interest of the respondents / plaintiffs to the predecessor-in-interest of the petitioners / defendants vide mortgage mutation No. 258 attested on 05.06.1896 for a period of 100 years as against mortgage money of Rs. 97/- which mortgage period has already been expired on 04.06.1996, therefore, respondents / plaintiffs are entitled to redeem the suit property from the petitioners / defendants on payment of the mortgage money, however, when the petitioners / defendants were asked time and again to redeem the suit property, but they refused which necessitated the filing of the suit. The petitioners then defendants were summoned, out of them some of the defendants i.e. defendant No.27 personally appeared as well as on behalf of defendants No.28 to 36 and submitted their cognovit, whereas some of the other defendants submitted their joint written statement, wherein they denied the stance of the respondents / plaintiffs and claimed to be the owner of the suit property. Keeping in view the controversies between the parties, the learned trial court framed as many as eight (08) issues and the parties were asked to produce their respective evidence which they have accordingly produced and thereafter the learned trial court vide one of the impugned judgment and decree dated 17.10.2019 decreed the suit of the respondents / plaintiffs. Petitioners then defendants felt themselves aggrieved of the aforesaid judgment and decree preferred an appeal to the Court of learned Additional District Judge-III, Mardan, however, their appeal was also dismissed vide second impugned judgment and decree dated 07.01.2025, hence the instant petition.
3. Arguments of learned counsel for the petitioners were heard in considerable detail and appended record perused with his able assistance.
4. It is the case of respondents / plaintiffs that the suit property had been mortgaged by their predecessor-in-interest to the predecessor-in-interest of the petitioners / defendants for a period of 100 years as against mortgage consideration amount of Rs. 97/- and in this regard, they have relied on a mortgage mutation No. 258 attested on 05.06.1896, whereas the stance of the petitioners I defendants was twofold firstly that they are owners of the suit property on the basis of purchase as it has wrongly been mentioned as mortgage mutation rather it was a sale mutation and secondly that even if it is considered to be a. mortgage mutation then its period was not for 100 years rather it was for a period of 160 years which is to be expired on 04.06.2056, therefore, in the given facts and circumstances, now this court would proceed to analyze and evaluate the available evidence produced by the parties to determine that stance / plea of which party has been established and proved on record.
5. As far as the case of respondents / plaintiffs is concerned, it was their case from the very inception that their predecessor namely, Luqman son of Mir Alam had mortgaged the suit property in favour of Mehmood son of Gulai (who was the predecessor-in-interest of the petitioners / defendants) through a mortgage mutation No. 258 attested on 05.06.1896 which mutation is duly incorporated in the revenue record and which is still exists even after more than 100 years. Similarly, they have also produced PWs including the revenue officials in support of their stance and whose evidence goes a long way in line with the case of respondents 1 plaintiffs. Out of the aforesaid witnesses so produced by the respondents / plaintiffs, one ADK, Mardan namely, Haji Sultan Bahadar was examined as PW-2, who has produced the mortgage mutation which was also exhibited as Ex.PW 2/5 and who has categorically stated that the period of mortgage as mentioned in the said mutation is 100 years, therefore, respondents / plaintiffs have proved all those facts which they have pleaded in their plaint.
6. It is also part of the record that not only respondents t plaintiffs have proved their case through their positive evidence as per the required standard of proof but even the witnesses produced by the petitioners then defendants have also admitted the stance of the respondents / plaintiffs and out of them the statement of DW-2 namely, Muhammad Yousaf would be relevant where he, in his the examination-in-chief, has admitted that earlier the suit property was given by the predecessor-in-interest of the respondents / plaintiffs to their predecessor on mortgage and at that time, it was an uneven and Banjar Qadeem land, therefore, the aforesaid clean breast admission by nobody else but by the petitioner / defendant namely, Muhammad Yousaf also shows that the stance of the: respondents / plaintiffs, is true and correct.
7. Since respondents were plaintiffs before the learned trial court, therefore, as per mandate of Article 117 of The Qanun-e-Shahadat Order, 1984 (hereinafter to be referred as "The Oder of 1984") when they have approached to the court of law to get a favourable decree from it then they were required to prove all those facts which they have pleaded in their plaint. Article 117 of The Oder of 1984 being relevant is reproduced below:-
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 aforesaid Article of The Oder of 1984 declares that any person who desires a Court to issue a judgment in his favour has to prove all those facts which he/they has/have pleaded in his/their plaint, and thus, the evidence of the instant case would reveal that the respondents / plaintiffs have proved the existence of all those facts on which they have based their plaint through cogent and confidence inspiring evidence, whereas petitioners/ defendants have failed to prove their case. In a case[1] it was held by Hon'ble Apex Court that according to the Article 117 of the Qanun- e-Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, 'depending on the existence of facts which he asserts, he must prove that those facts exist and burden of proof lies on him. The terminology and term of phrase "burden of proof' entails the burden of substantiating a case. The meaning of "onus probandi" is that if no evidence is produced by the party on whom the burden is cast, then such issue must be found against him. Where the evidence of plaintiff was self-contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff. It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant. The lawsuits are determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharged the onus of proof which can be scrutinized as a whole together with the contradictions, discrepancies or dearth of proof. It is the burdensome duty of the Court to detach the truth from the falsehood and endeavor should be made in terms of the well-known metaphor, "separate the grain from the chaff" which connotes and obligates the Court to scrutinize and evaluate the evidence recorded in the lis judiciously and cautiously in order to stand apart the falsehood from the truth and judge the quality and not the quantity of evidence Similarly, in another case[2] the Lahore High Court has held that it is settled proposition of law that a party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary.
8. As far as the case of petitioners / defendants is concerned, they have either taken mutually destructive pleas in their written statement and they have also failed to prove those facts which they have pleaded in their written statement. It would not be out of place to mention here that it is the case of respondents / plaintiffs that the suit mortgage mutation No. 258 attested on 05.06.1896 was not a mortgage mutation rather it was a sale mutation and then they have also; taken another plea in the same written statement that if the said mutation was at all a mortgage mutation then the period of mortgage was not 100 years rather it was 160 years and as under the settled jurisprudence if a party takes two pleas at a time and both of them are not mutually reconcilable then he / they would lose a right to get a favourable order from a court of law.
9. It is also relevant to mention here that though the petitioners / defendants have taken the plea that the period of mortgage was 160 years, however, in support of the same, they have not produced an iota of evidence and thus a documentary evidence in the shape of mortgage mutation No. 258 attested on 05.06.1896 has been controverted through an oral assertion and as it is settled law that whenever oral evidence is pitched up against documentary evidence, then it is the latter which has to be prevailed. In a case[3] the Hon'ble Apex Court has held that we have heard the learned counsel for the parties and have gone through the pleadings, evidence particularly produced by the respondent himself. There is nothing to discuss that oral evidence could not be given preference over documentary evidence. Similar view was also reiterated by the Sindh High Court in its judgment rendered in the case[4] by holding that it is settled law that documentary evidence prevails over the oral evidence and if documentary evidence is recorded by a public officer in discharge of official duty it would be preferable to an oral statement of a witness, and thus, in view of the above discussion oral evidence of petitioners/plaintiffs could not be given any preference over the documentary evidence which are in favour of respondents/defendants.
10. It would also be relevant to mention here that though petitioners / defendants have also agitated the plea that the respondents / plaintiffs were not the legal heirs of Luqman, however, they have not substantiated the said plea on any premises and as against this; the respondents / plaintiffs through PW-1 namely, Gulab Khan, Patwari Halqa has exhibited the pedigree table of the respondents / defendants as Ex.PW 1/7, which shows that the respondents / plaintiffs are the legal heirs of the said Luqman and thus in view of the above, petitioners / defendants have not able to prove all those facts which they have pleaded in their written statement. It may be noted that any person who wishes the Court to believe the existence of a particular fact then such person is bound to prove the same. The aforesaid burden on such person is enrooted in Article 119 of The Oder of 1984, which is reproduced below:- "119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to C. A must prove the admission.
(b) B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it."
The aforesaid provision unmistakably cast duty on the petitioners/defendants to prove all those facts which they have taken/agitated in their written statement, but they could not prove the same through any positive and legally admissible evidence. In a case[5] it was held by the Apex Court that as per Article 119 of The Qanun-e-Shahadat Order, burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided bylaw that proof of that fact lies on another person.
11. During the course of arguments, learned counsel for the petitioners also made much emphasis that in case of grant of desired decree to the respondents / plaintiffs, the petitioners / defendants were entitled for the cost of improvement made over the mortgage property and in this regard he made reference to para-6 of the legal objection of his written statement, however, when petitioner / defendant namely, Muhammad Yousaf appeared in the Court as DW-2, he has not even uttered a single word in his examination-in-chief qua the detail of the improvement or the cost of improvement. It is also an admitted position that there is no agreement or contract between the parties with respect to the payment of cost of improvement by the respondents / plaintiffs being mortgagor to the petitioners / defendants being their mortgagee. It is also spelling out from the written statement of the petitioners / defendants that they on one hand have asserted themselves to be the owner of the suit property and in case they could not prove themselves to be the owner then in case of relationship of mortgagor and mortgagee then the period of mortgage was 160 years instead of 100 years, therefore, in the given facts and circumstances, the plea of the learned counsel for the petitioners for the payment of cost of improvement is an afterthought and as such could not be appreciated at this revisional stage.
12. Even on the legal premises, the plea of the petitioners / defendants for payment of the cost of improvement of the mortgage property could not be appreciated and in this regard reference can be made to Chapter-IV of The Transfer of Property Act, 1882 containing Section 58 to Section 104 which defines "Mortgage", "Mortgagor", "Mortgagee", Mortgage-money" and "Mortgage-deed".
Similarly, it also stipulates different kinds of mortgage which includes Simple mortgage, Mortgage by conditional sale, usufructuary mortgage, English mortgage, Mortgage by deposit of title-deed and Anomalous mortgage. These provisions also stipulate the rights of the mortgagor and mortgagee, however, out of them for the purpose of payment of cost of improvement of the mortgage property, Section 63-A of the ibid Act being relevant is reproduced below: 63-A. Improvement to mortgaged property. -(1) Where mortgaged property in possession of the mortgagee has during the continuance of the mortgage, been improved the mortgagor, upon redemption, shall in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), liable to pay the cost thereof.
(2) Where any such improvement was effected at the cost of the mortgagee was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made mortgagor in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of .a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent, per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.
A plain reading of the aforesaid provision of law would show that where mortgaged property has been improved by the mortgagee during the period of his possession then the mortgagor, upon redemption, shall be entitled to the improvement; and the mortgagor shall not be liable to pay the cost thereof, however, there is certain exceptions to the aforesaid rule which has been stipulated in subsection (2) of the ibid section of law to the effect that the mortgagor would be liable to pay the cost of improvement to the mortgagee in case such improvement was necessary to preserve the property from destruction or if it was necessary to prevent the security from becoming insufficient, or if such improvement was made in compliance with the lawful order of any public authority, however, as stated hereinabove, that the case of the petitioners / defendants does not fall with any of the aforesaid category to declare them as entitled for the cost of improvement. The object underlying Section 63-A of The Transfer of Property Act, 1882 is to prevent the mortgagee from improving the property in such a way so as to make it impossible for the mortgagor with his means to redeem the property. It also takes into account the improvements necessary for preservation of the property, the cost of which is the liability of the mortgagor, and the mortgagor is liable to pay costs thereof to the mortgagee. It also lays down a check on the mortgagee that he while making improvements has to act with bonafide as where the mortgagee, in making improvement, is not acting with bonafide, then he would not be entitled to claim its cost, even though, the mortgagee might have spent on improvements of the mortgage property. In a case[6] it has been observed by the Court that the last point urged by the learned Advocate for the appellant is that the mortgagee would not be entitled to the cost for improvements. Section 63-A of the Transfer of Property Act provides that the mortgagor is liable to pay the cost of the improvements, only if (1) they are necessary to preserve the property from destruction or deterioration or (2) necessary to prevent the security from becoming inadequate or (3) done under the orders of a Public authority. If the improvements fulfil any of these tests, the mortgagee would be entitled to the cost as an addition to the principal money secured by the mortgage. It appears the improvements do not satisfy any of the tests already stated. So the mortgagee would not be entitled to, the cost of the improvements.
13. It was also noted that though it is the case of petitioners / defendants that the subject mortgage mutation No. 258 attested on 05.06.1896 is a sale mutation, however, in a period spreading out for a period of more than a century years, they have not challenged the said entry in the revenue record, therefore, controverting the said entry at this belated stage and that too when they are defending the suit filed by the respondents I. plaintiffs, could not be appreciated in their favour.
14. It would also not be out of place to mention here that civil disputes / cases are to be decided on the basis of preponderance of evidence and thus if the aforesaid yardstick is applied to the present case then the same surely tilts in favour of the respondents / plaintiffs as against the petitioners / defendants on legal as well as factual premises as on one hand all the pleas of the petitioners have been proved as per the required standard of proof and on the other the petitioners / defendants have not been able to prove their stance rather they have admitted the stance of the respondents / defendants. In a case[7], the Hon'ble Apex Court has held that in civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of evidence produced by the parties. And the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the 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 conclusions arrived at by the courts below while exercising power under section 115, C.P.C. Similarly, in a case[8], it was also held that 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. Similar view also reiterated by the Hon'ble Apex Court in a case[9] where in para-6 it was 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. It was also held by the Hon'ble Apex Court in para-10 of the judgment rendered in a case[10] that in the case[11] this Court declared that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115 C.P.C. Between two possible interpretations, the one adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. In a case[12] it was also held by the Hon'ble Apex Court 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. 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, but interference for the mere fact that the appraisal of evidence may other, on the basis of evidence available on record of the case.
15. In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/defendants and in favour of the respondents/plaintiffs, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non-reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in its revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon'ble Apex Court in its recent judgment,
13. in which it was also held that 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 suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.
16. In view of the above discussion and exposition of law on the subject, this Revision Petition alongwith CM being bereft of any merit is hereby dismissed in limine.
1. Nisar Ali vs. Muhammad Asghar reported as 2022 SCMR 1054
2. Muhammad Latif vs. Bashir Ahmed and 7 others reported as 2004 CLC 1010
3. Shamshad vs. Arif Ashraf Khan & others reported as 2010 SCAM 473
4. Muhammad Rasheed vs Mst. Saeeda Bano & 04 others reported as 2014 CLC 990
5. Messrs Noorani TraveIs Karachi vs, Muhammad Hanif & others reported as 2008 SCMR 1395
6. State Bank of Pakistan .vs. Khaledar Ma and others reported as PLD 1963 Dacca 844)
7. Abdul Rehman & others vs. Mst. Allah Wasai & others (2022 SCMR 399)
8. Salamat Ali and others vs. Muhammad Din and others reported as PLD 2022 Supreme Court 353
9. Muhammad Sarwar and others vs. Hashmal Khan and others reported as PLO 2022 Supreme Court 13
10. Mst. Zarsheda vs. Nobat Khan reported as PLO 2022 Supreme Court 21
11. Shahbaz Gul and others v. Muhammad Younas Khan and others reported as 2020 SCMR 867
12. Khudadad vs. Syed Ghazanfar Ali Shah alias S. lnaam Hussain and others reported as 2022 SCAM 933
13. Nasir Ali vs. khihammad Asghar. (2022 SCMR 1054)