' RAJA MUHAMMAD KHURSHID KHAN, C. J.-This appeal by leave is meant to impugn the judgment and decree passed by a learned single Judge of the High Court, in chamber on 17-7-1979. By this judgment the learned Judge in accepting the second appeal, moved by Muhammad Yasin, respondent (plaintiff) herein, discharged the concurrently concluded findings of fact recorded by the learned trial Judge and affirmed, on first appeal, by the learned District Judge, Mirpur. The finding was to the effect that the declaratory suit, for a permanent injunction, of Muhammad Yasin (plaintiff) for want of his possession over the suit land was incompetent. Both the Courts found that the possession lay with Mst. Kubra Begum, appellant (defendant in the original suit).
2. The controversy has arisen in the following way. Muhammad Yasin, respondent, in the trial Court sued Kubra Begum, appellant, for permanent injunction in restraining the appellant not to interfere with his possession over the suit land. The land measures 5 kanals 5 marlas and 6 sarsais and is situate in the area of Dhoke Panjeri, District Mirpur.
The appellant (defendant) controverted the claim and averred that on the basis of a pre-emption decree, she entered into possession of 3/4th of the suit land and, therefore, the suit of Muhammad Yasin for want of possession must fail. According to her, the respondent was neither the owner of the land nor retained its possession. The land, it may be stated, was purchased by Muhammad Yasin, respondent, from one Barkat Ali. The appellant Kubra Begum and one Anayat Begum pre- empted the sale successfully. Pre-emption decree was allowed to the appellant to the extent of 3/4th share while Mst. Anayat Begum was allowed 1/4th share of the land sold. Since Mst. Anayat Begum failed to deposit the decretal amount within the allowed period, her suit was dismissed to the extent of her share.
3. The trial Judge, Bhimber, for want of possession of Muhammad Yasin held the suit as incompetent and dismissed the same. This finding was unsuccessfully challenged in first appeal before the District Judge, Mirpur. It needs to be mentioned that the District Judge, during the pendency of the appeal, also appointed a Commissioner to look into the factum of possession over the suit land. The Commissioner, an Advocate, submitted the report that the land was in possession of the appellant. But this report was no evidence as it has not been proved by examining the Commissioner. The report, therefore, stands excluded from consideration.
4. In support of the appeal Qazi Abdul Ghafoor, the learned counsel for the appellant, has advanced two-fold arguments. In the first instance he contended that the High Court has erred in upsetting the well-considered finding of subordinate Courts regarding the factum of possession.
The findings, he submitted, suffers not from any defect necessitating interference at the stage of second appeal in the High Court. Secondly, he submitted, that even otherwise any defect short of illegality and perversity (which is not the case here) would not justify interference in second appeal. As against this . Ch. Muhammad Bashir, the learned counsel appearing in opposition, contended that the approach to the case made by the subordinate Courts was defective inasmuch as the appellant Mst. Kubra Begum failed to establish that she in execution of the pre- emption decree or otherwise had acquired the possession of the suit land. In his view failure of Mst.
Kubra Begum (appellant) to prove the mode of her acquiring possession proves the possession of the respondent (plaintiff).
5. After looking into the evidence of the parties and adjudging the arguments advanced we are of the view that this appeal, for the reasons to follow must succeed.
6. Firstly, let us determine as to what do we mean by burden of proof.
Burden of proof at times is misunderstood and is confused with the burden of adducing evidence which is described as "shifting". The burden of proof on the pleadings never shifts, it always remains constant. To attain clarity it would be profitable to refer to sections 101 and 102 of the Evidence Act, which primarily deal with burden of proof.
Section 101 states :- "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
' When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 102 reads :- "The burden of proof in a suit for proceeding lies on that person who would fail if no evidence at all were given on either side."
The reading of these provisions would show that the initial burden of proving a prima facie case is always on the plaintiff ; when he gives evident to support a prima facie case, the onus then only shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff.
As the case continues to develop the onus may shift back again to the plaintiff. It is, however, not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. However, when after the entire evidence has come on record and the Court feels that it cannot make up its mind as to which of the versions is true, the burden of proof attains importance and the Court will dismiss the suit and hold that the party on whom the burden lies has not discharged the burden but when it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background and the accepted settled principle is that 'onus is always on a person who asserts a proposition or fact which is not self-evident. To assert that a man, who is alive, was born requires no proof. The onus, is not on the person making the assertion because it is self-evident that he had been born. But to assert that he was born on a certain date, if the date is material, requires proof the onus is on the person making the assertion. Now, in conducting any inquiry the determining tribunal, be he a judge or the jury, will often find that the onus I sometimes on the side of one contending party, sometimes on the side of the other, or as it is often expressed that in certain circumstances the onus shifts. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence 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.'
7. In the case before us relying on the above statement of law since the plaintiff claimed permanent injunction on the basis of possession the onus to prove his possession lay on him and if he fails to do so he must be non-suited. This of course is subject to the fact that if evidence of both sides is on the record, the Court should evaluate the evidence as a whole to decide the issue and if the evidence of the parties on the whole does not prove the issue, the party who was required to prove the issue must fail. In Mst. Sardar Bibi v. Muhammad Bakhsh and others (1) Mr. Justice Kaikaus dealing with the point observed :- "There is no doubt that when a plaintiff comes to a 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 to burden of proof. When the Court presumes the existence of a 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 nonexistence. It may be observed that, although presumptions relating to documents find place in Chapter V which deals with documentary evidence, section 114 which deals with presumptions of tact occurs in the chapter relating to burden of proof."
' Similarly, in Muhammad Sidik and others v. Ghulam Hyder and others (2) proposition of law to the effect that party not discharging burden of proof cannot be benefited due to the weaknesses in the pleadings of the other party is owned. In this case it has been observed by Mr. Justice Wahiduddin, Judge (as he then was) :- "But since the burden of proof that the property in dispute was joint between Saban and Muhammad Wari was on the appellant, any weakness in the respondents, pleadings in this behalf, cannot strengthen or improve their case."
8. This now brings us to determine whether this settled principle has been followed in this case. The learned' Single Judge of the High Court felt advised to vacate the finding of the subordinate Courts, inter alia, on the following grounds (a)that Mst. Kubra Begum appellant failed to show as to how she acquired the possession of the suit land ; and (b)that the possession of Barkat Ali, who sold this land to Muhammad Yasin, is recorded in Khasra Girdawari, therefore, Muhammad Yasin, respondent, would be presumed to be in possession of the land.
9. The reasoning advanced_by the High Court to disturb the finding of the subordinate Courts does not seem to be sound. Muhammad Yasin, {FOONOTE}}
(1) PLD 1954 Lab. 480 (2) PLD 1961 Kar. 511 ' respondent (plaintiff) in this case, sued for a permanent injunction in restraining Mst. Kubra Begum not to interfere with his possession over the suit land. His possession was denied by Mst.
Kubra Begum in her written statement. It was, therefore, imperative for Muhammad Yasin to prove his possession.
10. In support of his. Claim Muhammad Yasin, respondent, only came into the witness-box. In the first instance his solitary statement may not be considered as sufficient in proof of his possession but apart from this it is significant that in his statement even he does not own his case. He does not state that he was in possession of the suit land. Naturally such a statement of the respondent is fatal to his suit. The failure of Mst. Kubra Begum (appellant) to show as to how the decree of pre- emption was executed and how she got the possession would not strengthen the case of Muhammad Yasin and we are of the view that this aspect of the case is not relevant to the controversy and is beyond the scope of the issue.
11. Mst. Kubra Begum's possession otherwise also stands proved. The evidence of Fazal-ur-Rehman, Muhammad Sharif and Ghulam Rasool, Patwari (all these witnesses are examined by the appellant), is one on the point that the land after the decree in favour of Mst. Kubra Begum went in her possession How she got the possession-is beyond the issue? The statements of Fazal-ur- Rehman and Muhammad Sharif ring true and we have nothing to disbelieve them and nothing substantial even has been said by the learned Judge of the High Court regarding their truthfulness.
The mere entry of Barkat Ali vendor in the revenue record to show his possession (which is nobody's case) would not discredit the witnesses and on the basis of this entry it cannot be presumed (as said by the learned Judge in the High Court) that the possession at the time of the institution of the suit lay with Muhammad Yasin.
12. The learned counsel in support of his case has also cited Anaitullah Khan and 2 others v.
Sarfaraz Khan and 16 others (1). In this case it has been held that when a rival party himself proves the case of the opposite party, how can it be said that the case is not proved simply for the reason that the person who was required to prove the case was unable to produce the evidence which in fact was already placed on the record by the contesting party. We have no quarrel with the proposition of law enunciated in this case but in the instant case neither Mst. Kubra Begum nor her witnesses prove the case of Muhammad Yasin, plaintiff.
13. 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 and 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. Lal Shah (2) 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. {FOONOTE}}
(I) PLD 1979 SC (A J K) 53 (2) PLD 1954 Lab, 447
14. The same view was reiterated by Mr. Justice Munir in Abdul Majid and others v. Khalil Ahmed (1) 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 been held to be an error of law justifying interference in second appeal."
15. 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.
D If the High Court for that reason disturbs the concurrent findings, it assumes jurisdiction not vested in it under section 100, C. P. C. In second appeal it is not possible to disturb concurrent findings of fact simply because some other view point, on the evidence produced, could also be taken. Reference may be made to Muhammad Shafi and another v. Sher All (.). 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 view points 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. Kahlil 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."
16. The learned Judge in the High Court, it seems, has undertaken the job of appreciating the evidence afresh although there was no error in the method adopted by the Subordinate Courts in appreciating the evidence. We have time and again emphasised that the appreciation of the evidence with regard to its credibility or its adequacy is the function of the subordinate Courts. The High Court normally refrained from reappraising the evident unless there is transgression of any legal provision or any principle in assault of law. In the instant case the evidence have been critically examined in accordance with the settled principle of appreciation of evidence.
17. 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.
' In view of the above, the judgment of the High Court cannot be sustained. We, therefore, accept this appeal, set aside the judgment and decree of the High Court and restore the judgment and decree of the District Judge. No order as to costs. {FOONOTE}}
(I) PLD 1955 FC 38 (2) 1970 SCM R 510 Appeal accepted.
P L 111983 SC (A J & K) 63 Before Abdul Majeed Mallick, J Maulvi ABDUL SABOOR-Petitioner versus. SAID MIR AND 9 OTHERS-Respondents.
Civil Petition for Leave to Appeal No, 12 of 1982, decided on 19th January, 1983.
(On appeal from the judgment of the High Court, dated 14-3-1982, in Civil Appeal No, 16 of 1981).
(a) Transfer of Property Act (IV of 1882)- -- SS. 58(c) & 60-Right of redemption-Repugnancy in law of condition on-Land mortgaged with condition of failure to pay mortgage money within five years of transaction to operate as 'Bey' il vefa' -Mortgage not redeemed within five years-Construction of deed as whole leading to inference of deed being mortgage-Held, condition imposed void as clog on redemption. [pp. 63, 641A & C Majelle Hidaya ; Abdul Rahint v. Abdul Malak and others PLD 1971 Azad J & K 1 and Sideman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others P L 1971 Lah. 77 ref.
(b) Civil Procedure Code (V of 19013)- -- - 0. VI, r. 7-New case in Supreme, Court-Petitioners claiming altogether new plea in Supreme Court i. e., transaction in question out and out sale and not mortgage-Case set up by petitioner inconsistent with case initially set up--Held, it amounts to total departure from actual case and once parties' claims, settled in pleadings and issues, parties not allowed to introduce and set up new case at appellate stage without amendment of pleadings. [p. 64]13 B. A. Farooqi, Advocate for Petitioner.
Sh. Abdul Aziz, Advocate for Respondent No. 1.
' In this petition Moulvi Abdul Saboor seeks leave to challenge the order of the learned Single Judge of the High Court dated 14th of March, 1982, whereby his appeal against the judgments of the subordinate Courts was rejected.
2. Jan Muhammad, predecessor-in-interest of respondents Nos. 2 to 10, mortgaged the suit land for a sum of Rs, 200, through mortgage deed dated 7th Asuj, 2002 Bk., to plaintiff petitioner. The mortgage deed contained a condition that the mortgage money shalt be paid A within the period of five years and on failure of payment of mortgage money within the said period the transaction shall deem to operate as Befil vefte. The mortgage was not redeemed within the stipulated period.
However, the defendant-respondent alienated the suit land in favour of respondent No. 1, vide sale- deed dated 18th November, 1975. The plaintiff-petitioner brought a suit for declaration in the terms that on failure to satisfy the mortgage within stipulated period of five years the transaction of mortgage, in the light of the said condition, changed into a sale in favour of the mortgagee.
Consequently alienation made in favour of said Mir was ineffective and inoperative against the rights of ownership of plaintiff. The suit was instituted on 28th February, 1976, in the Court of Additional Sub-Judge, Muzaffarabad. Defendant-respondents resisted the suit and averred counterclaim to the suit land.
3. It was urged that presence of the words (I) PLD 1955 FC 38 (2) 1970 SCM R 510"Syr...Ls-AYc-i" suggest that the transaction was not a mortgage or mortgage with conditional sale, but out-and- out a sale. The Majelle and Hidaya were referred in support of the contention.
4. All the Courts below have construed that it is a case of mortgage with conditional sale and consequently following the principle "once a mortgage always a mortgage" dismissed the plaintiff's suit.
5. Section 58 (c) of the Transfer of Property Act deals with the class of mortgage with conditional sale. Section 60 of the Act provides protection to the right of redemption unless such right is extinguished by the act of the parties or by decree of a Court. The legal position precisely is that any condition imposed on the right of redemption is a clog on redemption and it is repugnant to law. It is for this reason that Courts have adhered to the principle of "once a mortgage always a mortgage". The learned Single Judge of the High Court has rightly followed the rule in this case.
6. To claim, at this stage, that the transaction in question was an out-and-out sale and not a mortgage is altogether a new plea. Not only that it is inconsistent to the case initially set up by the plaintiff, it amounts to a total departure from the actual case. Once the claims of the parties are settled in the pleadings and issues, in absence of amendment of such pleadings, parties are not allowed to introduce and set up a new case at appellate stage. The purpose of pleadings is to draw a line of specific and definite claims and controversies raised by the parties. It is a safe guard, so that parties are not taken by surprise. Therefore, leave cannot be granted to set up a totally new case.
7. I am fully satisfied that grant of leave in the case would not serve any purpose. Apart from the pleadings and evidence of the parties the deed in question, when construed as a whole, leads to an inference that it is a deed of mortgage. Presence of the recital(I) PLD 1955 FC 38 (2) 1970 SCM R 510 -L*4 Ion-, c$0;li I ).3 SP-11 r-kg.- 13.0.3 VI is obviously a condition imposed on the right of redemption. The words "VI ,-J" by themselves do not constitute a sale; as such a sale operates by virue of failure to redeem the mortgage within the stipulated period of five years. It is a clog ; as such void. It cannot be taken out of the purview of section 58 (c) of the Transfer of Property Act. An identical view was expressed in Abdul Rahim v. Abdul Malak and others (1) and Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others (2).
There is no persuading force in the points raised by the learned counsel for the-petitioner. The petition is, therefore, dismissed. {FOONOTE}}
(1) PLD 1971 Azad J & K 1 (2) PLD 1971 Lab. 77