' RAJA MUHRMMAD KHURSHID KHAN, C. J.-This appeal, by leave, seeks to discredit the finding recorded by a learned Single Judge of the High Court on 17th of June, 1981, whereby the judgment and decree of the learned Sub-Judge, Dhirkot (Poonch District), passed on 15-1-1978 and affirmed on first appeal by the learned Additional District Judge, Poonch, on 20-12-1979, were recalled and it was observed that the will executed by one Muhammad Afzal Khan (deceased) in favour of Sher Afzal Khan, respondent herein, had no element of forgery and, therefore, it creates a valid title for Sher Afzal Khan in the suit land.
2. The dispute has arisen in the following way: The Mutation No, 561/894/188, dated 6-11-1971 of the land in suit, attested on the basis of a will executed by one Muhammad Afzal Khan deceased, in favour of Sher Afzal Khan, his son-in-law, respondent herein, in the Court of Sub-Judge, Dhirkot, was required by way of a regular suit to be avoided by Muhammad Zaman (the real brother of Muhammad Alia% the appellant herein, inter alia, on the ground that the document, being a forged and fabricated one, creates no title for Sher Afzal Khan in the suit land. The learned Sub-Judge, Dhirkot, as well as the Additional District Judge, Poonch, on first appeal, found in favour of Muhammad Zaman, plaintiff-appellant, and passed a declaratory decree of avoidance of the will coupled with possession of the suit land.
3. This concurrently concluded finding of fact was however, on second appeal by Sher Afzal Khan, respondent, discharged by a learned Single Judge in the High Court vide his order, dated 17th of June, 1981, resulting in the dismissal of the suit of the appellant. The learned Judge found that the findings of the subordinate Courts suffer from non-reading and misreading of the evidence and need to be recalled. Hence this appeal to call up and quash the said judgment of the High Court.
4. Kh. Muhammad Sseed, the learned counsel for the appellant, during the course of his arguments, seriously criticised the finding of the High Court, inter alia, on the grounds-
(i) that the trial Court as well as the first appellate Court, after critical survey of the evidence of Jahandad Khan, Muhammad Suleman Khan (attesting witnesses), Raja Muhammad Afzal Khan (the scribe of the will) and Mohammad Afzal Khan, Tehsildar (who attested the mutation), (all' these witnesses were examined by the respondent) recorded well-reasoned out judgments that the will did not stand proved but the learned Judge in the High Court erroneously held that the findings suffer from misreading and non-reading of evidence; and
(ii) that the finding of the trial Court, affirmed by the Additional District Judge on first appeal, being the finding of fact, could not legally be assailed in second appeal unless the finding did not stand vitiated for misreading or non-reading of the evidence or the finding was shown to be perverse (which is not the case here).
5. To counter Kh. Saeed, -311. Abdul Aziz, the learned counsel for the respondents, maintained :-
(i) that it was the appellant who was to prove that the will was a forged document and as he only examined such witnesses who deposed that they were ignorant of the execution of the will and this being no legal proof of forgery the High Court's approach is legal and correct to non-suit the appellant. In his view the evidence of Jahandad Khan and Muhammad Suleman Khan, witnesses examined by the respondent-defendant, who disown the execution of will, would not help the appellant; and
(ii) that the mere fact that both the attesting witnesses, namely, Jahandad Khan and Muhammad Suleman Khan, disowned the execution of the will and the scribe, Raja Muhammad Afzal Khan (Petition-Writer) also did not provide legal proof of the execution of the will, would not render the document as a nugatory because the will, under section 71 of the Evidence Act, stands proved by the evidence of Muhammad. Afzal Khan, Tehsildar, who attested the mutation in the name of Sher.Afzal Khan on the basis of this will.
6. We have given our considered thought to the arguments advanced at tube bar. We cannot, however, subscribe to the submissions of Sh. Abdul Aiiz that burden-of proof in this case and specially at the appellate stage has any significant importance. It is settled proposition of law that the question of onus loses all imporance when the relevant evidence has been adduced and placed on the record. The question of burden becomes material only when the Court finds that the evidence is so evenly balanced that it can come to no definite conclusion. In such event the rule is that the party on whom the onus lay fails, applies. Where the evidence has been led
(11) 1974 SCMR-341 [More in italics] by both the sides and considered (as is done in this case) the question of onus loses all importance. Therefore, where the whole of evidence is before the Court and one does not feel any difficulty in arriving at a conclusion it becomes unnecessary to enter upon the discussion.
7. Our consideration, therefore, is that the doctrine 'onus probandi', "the person on whom onus lies", applies to a situation in which the mind of the Judge determining an issue is left in a doubt as to a point and there is little to choose between the evidence of either side; in that event only that side must fail on whom the onus has been .Placed. But where both the parties have adduced evidence on an issue in support of their respective allegations the question of onus becomes immaterial as the conclusion to be reached does not then depend on the question of onus but depends on the evidence produced by the parties. Precisely, the strict meaning of the term `onus probandi' is this that if no evidence is led by the party on whom the burden is placed, the issue must be found against him. The question of onus thus, as the determining factor of the whole case, can only arise if the Court finds that the evidence is so evenly balanced that the Court can come to no conclusion. But if the Court, after weighing the evidence, can arrive at a determinate conclusion, the onus has nothing to do and need not be further considered. Thus, where in a controversy relevant facts are before the Court (as the case is before us) and all that remains for decision is as to what inference should be drawn from them, the question of onus of proof is not very much pertinent. The above analysis of the controversy stands fully supported in Al. R. Seturatnam Aiyar and others v. Venkatachela Goundan and others (I) ; Nihal Chand and others v. Gurditta Mall and others (2) ; Sime, Darby & Co. Ltd. v. Official Assignee of Lee Pang Seng (31 Nihal Chand and others v. Narain Das (4) ; Mt. Chunna Kunwar v. Lala Mukat Behari Lal and others (5) ; Nand Kishwcir Bux Roy v. Gopal Bux Rai and others (6); Harmes and another v. Hinkson (7) ; Jagmohan Lakhmichand and others v. Ranchoddas and others (8); Durga Prasad and another v. Ghanshiam Das and others (9); Mst. Qaisar Khatoon and others v. Maulvi Abdul Khaliq and another (10) and Mst. Khatun v.
Malta and others (11).
' In M. R. Seturatnam Aiyar and others v. Venkatachela Goundan and others it has been observed :- "The controversy had passed this stage at which discussion as to the burden of proof was pertinent the relevant facts were before the. Court, and all that remained for decision was . What inference should be drawn from them."
(Underlining* is ours)
' In Nihal Chand and others v, Gurditta. Mall and others, it has been held :- "The question of onus of proof arises where there is a question of fact to be determined and there is no evidence one way or the other which {{FOOT NOTE}}
(I) AIR 1920 P C 67 (3) AIR 1928 P C 77 (5) AIR 1934 All. 117 (7) AIR 1946 P C 156 (9) AIR 1948 P C 210
(2) AIR 1923 Lah. 641 (4) AIR 1934 Lah. 949 (6) AIR 1940 P C 93 (8) AIR 1946 Nag. 84 (10) PLD 1971 SC 334 {{FOOT NOTE}} will enable the Court to come to a conclusion. Where evidence is adduced by both the parties, then the question of the burden of proof becomes immaterial and the Court has to determine on the evidence before it.', (Underlining* is ours)
' In Sime, Darby & Co. Ltd. v. Official Assignee of the Estate of Lee Pang Seng, it has been observed :- "A word or two must be said on the onus of proof. In their Lordships' opinion, the onus is on the assignee-he has to show that the case is within the statute. A good deal was said in arguments as to the shifting of the onus at particular points in the development of the case, but when all the circumstances have been ascertained so far as the parties have thought fit to ascertain them, discussion on this point becomes immaterial and the decision must be come to on the whole of the circumstances so ascertained, and the question of onus only becomes important if the circumstances are so ambiguous that a satisfactory conclusion is impossible without resort to it." - (Underlining is ours)
' In Nihal Chand and others v. Narain Das, it was observed "Before coming to the facts of the case 1 will deal with an objection which was taken by Mr. Mukand Lal Puri on behalf of the appellant-defendants regarding the onus of the first issue. Such an objection has also been made in the trial Court and overruled. In my judgment the matter is not a fundamental importance as both sides produced a considerable volume of evidence, both oral and documentary, and the decision of this issue must finally be determined by the facts proved on evidence rather than by any initial presumption that may exist in favour of one party or the other."
(Underlining* is ours)
' In Mt. Chunna Kunwar v. Lala Mukat Behari Lal and others, it has been held :- " Where both parties have adduced evidence, the question of onus loses all importance and the Court should record a definite finding as to whether the defendant is the nearer heir. The question may assume some importuner where the Court has to reject the evidence adduced on either side as absolutely untrustworthy. "
(Underlining* is ours)
' In Nand Kish war Bux Ray v. Gopal Bux Rai and others, it has been observed:- "As the learned Chief Justice observed, the question of onus of proof was of no great importance, because both sides had entered into evidence."
(Underlining* (Underlining* is ours)
' In Hartne,s and another v. Hinkson, it was held at page 163 :- " it is always well to remember, when the familiar metaphor of 'the burden of proof' is employed, precisely what it means. 'The strict meaning of the term onus probandi', said Parke, B., in the case already cited, 'is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him.'
"Onus as a determining factor of the whole case can only arise it the tribunal finds the evidence pros and cons so evenly balanced that it ran come to no (Wore in italics) 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."
(Underlining* is ours)
' In Jagniohan Lakhmichand and others v. Ranchoddas and others it was held- "When the entire evidence is before the Court the discussion as to the onus of proof is purely academical. Onus however is a determinant factorwhen there is no evidence or the evidence is so evenly balanced that the Court can come to no definite conclusion. "
(Underlining* is ours)
' In Durga Prasad and another v. Ghanshiam Das and others it was held at page 213 :- "A's a determining factor of the whole case that question only arises if the Court finds the evidence so evenly balanced that it can come to no definite conclusion."
(Underlining* is ours)
' In Mst. Qaisar Khatoon and 12 others v. Maul vi Abdul Khaliq and another it was observed at page 343 :- "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao AIR 1950 P C 25). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion--(vide PLD 1984 P C 178). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here, for the evidence is, by no means, evenly balanced."
' In Mst. Khatun v. Malta and S rilters it has been held :- "It is now well-settled that where evidence has been led by both sides and considered, the question of onus loses its importance. Where the whole of the evidence is before the Court and it has no difficulty in arriving at a conclusion, it becomes unnecessary to enter upon 'a discussion of the question of onus."
8. It would thus appear that it is now settled proposition of law that where evidence has been adduced by both the parties and the Court can come to a determinate conclusion the burden of proof loses all importance and the evidence on the whole is to be scrutinized. Ills observation meets the first objection of Sb. Abdul Aziz listed above.
9. Even otherwise, we are of the considered view that the onus has been wrongly placed on the appellant to prove that the document (will) is a forged one. The respondent claims to have acquired title to the suit land on the basis of a will which fact, in the suit, was repudiated by the appellant claiming that the will was togged one and, therefore, it the respondent who was to prove that the will was executed by Muhammad Afzal Khan. The law is that those who rely on the will must show that the will was duly executed. Ordinarily, if there is no suggestion to the contrary any man who is shown to have executed a will, will be presumed to have done so, but the moment the execution is called in question the onus *(Here in italics) lies on those propounding the will to affirm positively the execution of the Will. Therefore, the burden here should have been on the respondent to prove that the document (will) has been executed and it was not for the appellant to prove in negative that it had not been executed or it is a forged or fabricated one. However, as said earlier, the question of burden of proof .Is not important here because all the relevant evidence on the issue is available on the record it matters little as to which party has adduced the evidence.
10. In the present case two attesting witnesses,, namely, Jahandad Khan and Muhammad Suleman Khan, examined by the respondent, categorically denied to have signed the document. Similarly, Raja Muhammad Afzal Khan, Petition Writer (the scribe), also in his statement says that he cannot say whether Muhammad Afzal, executant, was in fact the person who executed the document. Now only remains the evidence of the scribe and Muhammad Afzal Khan, Tehsildar. The scribe can never be considered to be an attesting) witness. w 11.Under section 69 of the Evidence Act, which reads :- "If a document is required by law to be attested, it shall not be used as evidence until one attesting wirness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in aczordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied." in a case of will under the proviso where the execution of a will is denied specifically (as is done in the present case), the person relying on the document has to prove that it stands really. Executed. The denial of the attesting witness about the execution of the will is fatal for the party. The position of the Sub-Registrar, under law, is analogous to the position of the scribe; the only difference being that the latter comes in at the instance of a party or both the parties whereas the former comes in under the authority of a statute. A scribe, though he has in fact witnessed the execution of a document, cannot be treated as an attesting witness, unless he has signed as such. It is difficult to comprehend as to how the Sub-Registrar can be treated as an attesting witness, when he does not sign the document as a witness.And he comes in only when the execution of the document is over. In any case a Sub-Registrar cannot be treated as an attesting witness unless he signs the endorsement in the presence of the executant.
12.It is significant that a witness who identifies the executant before the Sub-Registrar (which is even doubtful in this case) cannot be treated as an attesting witness if he., does not sign the endorse neat before the Sub-Registrar in presence of the executant. Mt. Chandrani Kuar v. Sal Sheo Nath and others Neelima Basu v. Jaharlal Sarkar (2) and Timmavva Dundappa .Budihal v.
Channava Appaya Kanasgeri (3), may be quoted in support of the above observations. {{FOOT NOTE}}
(1) A 1 R 1931 Oudh 146 (2) AIR 1934 Cal. 772
(3) AIR 1948 Bom. 322 {{FOOT NOTE}} ' In Mt, Chandrant Kuar v. Luta Sheo Nath k, and others it has been, held :--
44. That the signatures of the Sub-Registrar or the identifying witness on the registration endorsement could not constitute them as attesting witnesses so as to satisfy the requirements of section 59. They were never asked by the lady to attest the instrument and neither the lady nor they had any intention that they would sign the endorsement as attesting witness."
' In Neelima Basu v. Jaharlal Sarkar it was observed :- "Endorsement by a Sub-Registrar on a deed is by itself no proof of his signing it in the presence of the executant since fie is not bound to sign before the executant under Registration Act. Therefore, in the absence of other evidence to prove that the Sub-Registrar affixed his signature to the registration endorsement on a document in the presence of the executant he cannot be said to be a valid attesting witness within the meaning of section 3, T. P. Act."
' In Tinimavfa Dundappa Budihal v. Channava Appaya Kanasgeri it has been observed it has been held by this Court that in order that a signature of a person may be treated as that of an attesting witness it must be shown that that person signed the document intending to act as an attesting witness, and this view was, as I have already mentioned, indirectly accepted by the Privy Council in the case in 26 Bom. L R 373. That being so, we think that the view accepted by Blackwell, J. Is right. It must therefore be held that the signature made by the Sub-Registrar while he made the endorsement on the document admitting it to registration and the signatures of the identifying witnesses made by them when they identified the executant before the Sub-Registrar cannot be regarded as the signatures of attesting witnesses."
13. Genetally it is understood that to put a party of proof the execution of a document should be denied by the person who executed the document which in fact is wrong interpretation of law. The last sentence in the proviso of section' 68, Evidence Act, contemplates a specific denial G by the, opposite-party against whom the document is sought to be proved irrespective of the fact that he is or is not the executant of the document. Mt. Chandra Kali v. Bhabhuti Prasad (1), owns this view. It has been held in that case :- "The argument advanced in the trial Court by the plaintiff was that as the person who executed the mortgage deed had not come forward to deny it, it was not necessary to call any attesting witness, The Munsif did not accept this argument, holding that the last sentence in the proviso contemplates a specific denial by the party against whom the document is sought to be used and not only by the executant."
14. Therefore if the attestation is expressly denied the party relying! On the document must, under section 68, Evidence Act, call an attesting if witness. It may be pointed out that section 71 of the Evidence Act, to which we are referred to by the learned counsel for the respondents,' {{FOOT NOTE}}
(1) A R 1943 Oudh 416 {{FOOT NOTE}} is one of the exceptions to the rule relating to proof of documents required by law to be attested, which is laid down in section 68, Evidence Act. That section requires that execution of a d comment compulsorily attestable must be proved at least by one attesting witness if he is alive and subject to the processes of the Court. This is a stringent rule an cannot be dispensed with except under circumstances provided for in the Act itself. One of such exceptional circumstances is to be found in section 71, Evidence Act, which lays down that if the attesting "witness, who is called, denies execution or refuses to prove the document or turns hostile the execution may be proved by other evidence. The contention that under the section other evidence may be let in only to prove execution but not to prove attestation, in our opinion, is manifestly untenable. The same meaning must be given to the word "execution" in section 71 as is allowed uncle section 6l, Evidence Act. It has been held in several cases .That in the case of a document which is not valid without attention, execution not only means signing by the executant but it means and includes attestation as well which is the last of the series of acts necessary to give completeness and formal validity to the deed. In this view it would be necessary to call an attesting witness under .Section 68 to prove attestation as well and if such a witness turns hostile or refuses to prove execution or attestation other witnesses may be called for the same purpose (for execution and . Attestation). Therefore, under section 71 of the Evidence Act both the facts of execution and attestation are to be proved by any method not recognized under section 68 of the Evidence Act. Denial of execution includes denial of attestation. Where execution is denied (as is done here) not only the execution. But also attestation must be proved by calling an attesting witness. The denial in question relates to the document (will) and is unqualified. It leaves no doubt that the execution of the will was denied by the person against whom it was sought to be used." It was not necessary for the appellant to deny the attestation of the will also. Denial' of the execution also includes the denial of attestation.
15.It may be stated here that when a document is registered under) section 74 of the Registration Act, the finding of the Registrar as to its execution is not a judicial finding and the execution, if denied in the civil Court, must be proved. A person relying on a document, is bound to prove its execution. The fact that it is registered makes no difference. It is true that no document is registered unless the Registrar is satisfied on such enquiry as the Registration Act authorises that it was executed by the alleged executant. But he is not a Court and has no judicial functiott. The object of his enquiry is to enable him to do his departmental duty, and the opinion formed in such an enquiry, though good for his departmental purpose, has no value in a judicial enquiry as evidence of its execution. If any authority is needed Muhammad Cherag v. Dullay Khan (1), may quoted in support of this proposition.
16. As stated earlier the proviso to section 68, Evidence Act, is not applicable to wills and when the execution of the will is denied, it is the duty of the party propounding the will to call at least one attesting witness. Although in order to prove due execution of an instrument requiring attestation, it is sufficient to call one of the attesting witnesses. Yet in th case of a will it is desirable that all the witnesses capable of being cane should be examined to remove all suspicions of fraud. The mere fact that 01C of the attesting witnesses to a will is not called, however, would no {{FOOT NOTE}}
(1) PLD 1954 Dacca 134 {{FOOT NOTE}} invalidate the will provided there were two attesting witnesses as required by law.
17. Let us say once again that section 71 of the Evidence Act, to which reference has been made by Sh. Abdul Aziz, is hardly attracted in the present case. No doubt; the testimony of an attesting witness is not at the mercy of the attesting witnesses and the mere fact that attesting witnesses to a document have repudiated their signatures does not invalidate the document if it otherwise stands proved by evidence of a reliable character that they have given false testimony. If the attesting witnesses have turned hostile the respondent (defendant) was certainly competent to give evidence to prove attestation by others. The Legislature, it seems, has not left the fate of attested documents completely at the mercy of the attesting witnesses. If the witnesses turn hostile the plaintiff is not helpless and he is entitled to adduce other evidence as laid down in section 71. This other evidence, in our opinion, would include his own evidence as well. But such evidence must prove execution as well as attestation by two witnesses.
18. Therefore, the proposition is well-settled that when the evidence of attesting witnesses is vague, doubtful or even conflicting, upon some material point the Court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with. In other words, the Court may, on consideration of other evidence and the circumstances of the case, come to the conclusion that the document stands proved. The provisions of section 71 are attracted when the attesting witnesses have been called (as is done in the present case and examined), an he have denied the execution or stated that they do not recollect the execution of the document. When section 71 becomes applicable any other evidence to prove the execution of the document may be given, for instance, the writer of the document comes within the scope of this section. But here the writer has disowned the document. It is significant that here none of the evidence fulfils the conditions laid down under section 71 of the evidence Act. The will was executed on 28-12-1965. It was registered on 13.1-1966 and the mutation was attested on 6-11-1971, five years after the registration of the document and that too in the `Ilacia' of the Tehsildar. These all factors coupled with the fact that the attesting. Witnesses denied the execution of the document go to prove that the document was never executed by the executant. Even otherwise in some cases it has been held that where it is proved by the evidence of attesting witnesses that the deed was not. Properly attested, the evidence of other witnesses, which shows that the deed was properly attested, should not be considered sufficient. The word "execution" in section 71 not only means the signing of the executant but it means and includes the attestation as well.
19., It is significant that the mother-in-law of the respondent, namely, Mst. Arsha Begum, from whom the will is alleged to have been received by the respondent, has not been examined as a witness. She was the only important witness to dispel the . Suspicious circumstances accompanying the execution of the document. Non-production of this important witness raises adverse inference against the respondent.
20. Let us now determine as to whether the learned Judge in the High Court was justified to vacate the concurrently concluded finding of fact that the document was not executed by the executant.
21. We have gone through the judgments recorded by the trial Court as well as the Additional District Judge. They have given very plausible reasons that the document does not stand proved to have been executed by the executant. None of the attesting witnesses owns the execution by the executant. The statement of Muhammad Afzal Khan, Tehsildar, who attested the mutation, has been fairly dealt with for his exclusion to be used as a piece of evidence in proof of the execution of the document. All it would show that the finding by the subordinate Courts has been recorded after due appreciation of the evidence. Where both the trial Court and the Lowe appellate Court had taken into consideration the whole of the evidence on file and had discussed it in detail, the finding of fact arrived at by them, even if erroneous, cannot be made the subject of second appeal. In the present case the decisions arrived at by both the lower Courts were neither contrary m to law nor the Courts had failed to -determine any material issue. There was no substantial error or defect in the procedure followed by them and other circumstances; the judgments and decrees were, therefore, not open to appeal under section 100 read with section 101 of the Code of Civil Procedure.
This view also prevailed in Mir Abdullah v. Muhammad All an otheis (1).
22. The High Court had no jurisdiction to entertain the second appeal even on the ground of erroneous finding of fact however gross and inexcusable the error may seem to be. Even a fallacy in apprising the evidence as to a fact (it is not the case here) unless it amounts to material mistaken assumption, is merely an error and such an error has never been held to be an error of N law justifying interference in second appeal. The High Court, in second appeal, has no jurisdiction to go into the question relating to the weight to be attached to a particular item of the evidence. In this view of the matte when both trial Court and the Court of first appeal had come to concurrent finding relying on the evidence of the alleged attesting witnesses and the scribe, who say that the will is a forged document, this finding of fact arrived at on a proper consideration of the evidence, could not be interfered with in second appeal. The elaborate judgment of the first appellate Court, however, shows that the evidence of Tehsildar, who attested the mutation, on whom the learned Judge relied, had received due and full consideration. It seems that the learned single Judge interfered with the finding of the first appellate Court because he thought that the inference drawn by that Court did not fairly arise from the evidence. We say so because we could not be referred to any misreading or non-reading of the evidence as held by the High Court. Therefore, the contention of Kh. Muhammad Saeed that what learned Judge did in this case is that which is expressly forbidden by 0 section 100 of the Code of Civil Procedure, does not appear to be without substance. It has wrongly been stated in the High Court's judgment that there is misreading and non-reading of the evidence. There is nothing on the file to support this conclusion and even Sh.
Abdul Aziz, the learned counsel for the respondents, was unable to refer to us to any such flaw.
23. We are alive to the fact that in second appeal if the High Court finds that the lower Court has omitted to consider certain items of evidence in determining the issue of fact (which is not the case here), it is the duty of the High Court under section 103 of the Code to determine that issue having regard to the evidence on record including the item of evidence omitted to be considered by the Court of first appeal but not otherwise. Meeran Bakhsh and another v. Shaukat Hussain alias Maqsood Hussain (2), Noor {{FOOT NOTE}}
(1) 1977 SCM R 280 (2) PLD 1981 SC (A J & 45 {{FOOT NOTE}} Akbar Khan v. Abdul Ali Khan and others (1) and Allah Ditta and others v. Walayat and others (2) own our view.
' In Meeran Bakhsh and another v. Shaukat Hussain-alias Mapood Hussain it has been held:- "The finding on a question of fact, as held in Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income-tax, Madras PLD 1957 SC (Ind.) 188, is open to attack as erroneous in law only, if it is not supported by any evidence or if it is unreasonable or perverse. But where there is evidence, as the case is before me, to consider the decision of the Tribunal, it is final even though the Court might not, on the materials, have come to the same conclusion if it had the power to substitute its own judgment."
' In Aroor Akbar.Khan v. Abdul Aziz Khan and others it was observed :- "It is well-recognized principle of law that concurrent finding of fact recorded by the Courts below, based on the appreciation of evidence, cannot be vacated in second appeal; and even if this Court would have come to a different conclusion, if fresh appraisal of evidence is made, this would not provide a valid ground for acceptance of a petition for leave to appeal."
' In Allah Ditta and 2 others v. Walayat and .17 others it is stated :- "Findings concurrently arrived at by the Courts below on point of facts and conclusions drawn from the evidence, no matter how erroneous those may be, no doubt could not be interfered with at the second appeal stage by the High Court, yet however, if based on misreading and non-reading of evidence would be subject to exception.. The High Court can and rather is duty bound to interfere in such an eventuality to redress a wrong."
' In view of the above we feel convinced that the learned Judge in the High Court had no jurisdiction in this case to discharge the concurrently concluded finding of fact that the will was executed and registered by the executant. In the result the appeal succeeds and the findings of the learned Sub- Judge and that of the Additional District Judge stand restored. {{FOOT NOTE}}
(1) PLD 1981 SC (A .1 & K) 115 (2) 1983 CLC 703 {{FOOT NOTE}}