SHAFIUR RAHMAN, J.---Leave to appeal was granted to the plaintiff/pre-emptor to examine ---
(i) Whether in spite of their being relatives of the vendors, the evidence led by them at the trial was inadmissible in evidence in view of section 50 of the Evidence Act?
(ii) Whether notification issued by the Board of Revenue under section 8(2) of the Pre-emption Act on 15-9-1965 would take away the right of pre--emption relating to a sale effected on 9-1-1964?
2. The factual background of the appeal is that on 9-1-1964, the two brothers Fazle Ali Khan and Abdul Aziz Khan sold equity of redemption of land measuring 52 kanals 4 marlas in village Kotla Qasim Khan, Tehsil Kharian, District Gujrat. The ostensible price was Rs. 12,350. The vendees were Muhammad Aslam and Muhammad Alain (respondents). The pre-emption suit was instituted on 7-1-1965. The preferential right of pre-emption was claimed on the ground that the plaintiff was the son of vendor Fazle Ali Khan and nephew of vendor Abdul Aziz Khan. The plaintiff sought to pre- empt the sale on payment of Rs. 5,000 only, which was said to be the real price inclusive of the mortgage charge. The suit was contested. The superior right of the plaintiff was denied. The sale price of Rs.12,350 was affirmed. Waiver of the right of pre-emption was claimed. The following issues were framed on the pleadings of the parties:--- "(i) Did the plaintiff enjoy a superior right of pre-emption against the defendants ? OP.
(ii) Did the defendants pay Rs.12,350 to the vendors or was this sum fixed in good faith as the price for the suit land ? OD.
(iii) What is the market value of the suit land ? OP.
(iv) Was the plaintiff estopped from pre-empting this sale ? OD.
(v) What was the mortgage money in respect of previous mortgages ? O. Parties. .
(vi) What was the proper value of for purpose of court-fee ? O. Parties.
(vii) Relief."
3. The plaintiff produced three witnesses. Sardar Khan (PW-1) is the Lambardar, related to plaintiff.
Ahmed Khan (PW-2) claimed to be the first cousin of the vendor Fazle Ali. Mehr Din (PW-3) is the attorney of the plaintiff, also related to him. He also stated about the relationship of the plaintiff with the vendor. The defendants/respondents also produced three witnesses. Abdur Rehman (DW- 1) stated about the presence of plaintiff at the time of transaction. So did Sardar Khan (DW-2) and Muhammad Aslam (Vendee/DW-3). None of them denied the relationship claimed by the plaintiff with the vendors.
4. The trial Court decided the question of relationship against the plaintiff on the ground that the best evidence, documentary evidence in the form of Revenue Record, birth and death registers entries was not produced and the oral evidence was not inspiring. Waiver of the right by the plaintiff by participation in the transaction was held established. So was the price paid that is Rs.12,350. The suit of the plaintiff was dismissed on 23-9-1965.
5. The first appellate Court reversed the finding on superiority of pre--emption right by observing as hereunder:---- 'The appellant's paternity was not denied in the written statement nor Muhammad Adam vendee who appeared as a witness in the case, raised the question. He did not venture to 'deny the appellant's paternity. Rather when touching the question of estoppel raised in the suit by the respondents, he mentioned the presence of Abdul Aziz and Zaka Ullah and then tried to minimise the effect of his statement by referring to Zaka Ullah as a person by the name of Zaka Ullah."
The price of Rs.12,350 was also held not proved. So also the waiver of the right of pre-emption.
Hence, the appeal was accepted, the' matter remanded for determination of the market value alone.
6. A second appeal was filed in the High Court. What happened thereafter and before the decision of the second appeal is described as hereunder in the impugned judgment of the High Court:- "Alongwith this appeal, an application for staying the proceedings in the lower Court was filed, but the same was not fixed for hearing as the appeal was returned with the objection that the fresh documents should either be removed or an application under Order XLI rule 27, C.P.C. Duly supported by an affidavit be filed. The appeal, it appears, was refiled en 26-5-1966. The appeal, as office stamp indicates, was fixed for hearing on 27-5-1966 but for some reason the appeal was not laid before the Court eon the said date. Another office stamp bearing signature of Deputy Registrar dated 31-5-1966 shows that the appeal was fixed for 11-7-1966 (actual) in motion and the record was also directed to be called for the said date. In the meanwhile, on 25-6-1966, another application was filed by the appellants seeking permission to file on record two certificates issued by the Commissioner Mangla Dam Affairs, Mirpur declaring the appellant to be the person affected by the construction of Mangla Dam Reservoir on account of acquisition of land for the purposes of Mangla Dam Reservoir. These certificates were sought to be brought on record so as to press into service notification dated 15th September, 1965, of the Board of Revenue West Pakistan published in the Gazette of West Pakistan dated September 24, 1965. A copy of this notification was earlier attached with the memo of appeal. This notification reads as under:- "In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 (Punjab Act I of 1913), the Board of Revenue, West Pakistan, is pleased to declare that for three years from the date of publication of this notification, no right of pre-emption shall exist with respect to the sale of agricultural land not exceeding 50 acres in a canal irrigated area or 100 acres in non-irrigated area and other immovable property not exceeding the market value of Rs. 10,000 (Rupees ten thousand only), in favour of a person displaced from the Azad Kashmir who is affected by the construction of Mangla Dam and certified to be so affected by the Commissioner, Mangla Dam Affairs Azad Kashmir:"
The appeal was laid before a learned Judge of this Court, it appears, for the first time on 16-2-1967, and the same was admitted and status quo was ordered to be maintained. In the admission order the certificates and the aforesaid notification were duly noted. It is pertinent to state here that in the meanwhile the trial Court vide judgment dated 13-ti-1966 decided issue. No.3 holding that the market value was not less than Rs. 13,000, but as the case of the defendant (present appellants) was that they had paid only a sum of Rs. 12,350, the same was held to be the market value of the land in dispute. The; respondent, it was stated before me, deposited the amount on 6-7-1966 and obtained possession of the land in dispute in the year 1967, as the execution proceedings after satisfaction of the decree were consigned to record vide order dated 6-10-1967 of the Executing Court."
7. In this background of facts and events, the Regular Second Appeal was disposed of by the High Court on 14-2-1984 by the impugned judgment. The evidence of three witnesses was excluded under section 50 of the Evidence Act in the following words:--- "In the instant case also, Sardar Khan son of Fateh Ali (P.W.1) claimed that he was a Lambardar and was related through Baradri to the vendors. From this what could be inferred is that he had the special means of knowledge. He, however; failed to give evidence of the conduct on which his opinion about the relationship was based. Similarly, Mehar Din (P.W.3) came into contact with the vendors only about a year or so prior to 30-6-1965 i.e. The date of recording of his statement. On the basis of that relationship he asserted that the plaintiff was the son of Fazal Ali. Nothing was stated by him with reference to the conduct on the basis of which he deposed about the relationship. It may be noted that it is the opinion expressed by conduct which is relevant under section 50 of the Evidence Act. Moreover it cannot be said that Mehar Din or Sardar Khan P.Ws.
Were deposing about contemporary events of which they had direct knowledge. Mehar Din P.W.
Knew the parties only for the last about one year and the statement of Ahmad Khan P.W. Fails to inspire confidence. He in the examination-in-chief failed to give any pedigree table of the vendors.
Learned trial Court which had recorded his evidence thought it fit not to act upon his testimony. In these circumstances, the learned Appellate Court was not at all justified in reversing the finding of the learned trial Court recorded on issue No.1. I am, therefore, of the considered view that on the basis of the evidence on record, the plaintiff utterly failed to establish the relationship.
Consequently, the finding on this issue of the learned lower appellate Court is set aside and that of the trial Court is restored."
While concluding the judgment, the learned Judge in the High Court also observed as hereunder:-- -- "I am of the view that had this appeal not concluded on the finding returned by me on issue No.1, I would have allowed the amendment and remitted the case for proof of the certificates available on the record and for evidence in rebuttal, if any."
8. The arguments were orally heard and concluded on 19-1-1991 but as preparation was not found satisfactory and the oral arguments complete, covering all aspects of the case, the learned counsel for the parties were asked to supplement their oral submissions by written briefs on certain aspects of the case namely;----
(i) the degree of proof required in civil cases;
(ii) the importance of onus and the discharge of a;
(iii) the rule of best evidence as applied to civil cases; and
(iv) the nature of evidence admissible on the question of relationship in view of section 50 of the Evidence Act.
9. In response, very informative and exhaustive written briefs have been received for assistance of the Court.
On the first legal question, reference has been made to Woodroff and Amir Ali on `Law of Evidence'
(14th Edition -1979) page 190, where the following observations have been made:--- "But with regard to tithe proof required in Civil and Criminal proceedings there is this difference: that in the former a mere preponderance of probability is sufficient; and the benefit of every reasonable doubt need not necessarily go to the defendant but in the latter (owing to the serious consequences of an erroneous condemnation both to the accused and society) the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal, as reasonable men beyond all reasonable doubt."
In Bhaironprasad and others v. Mahant Laxmi Narayan Das and another (AIR 1924 Nagpur 385), a portion from `Best on Evidence,' 11th Edition, page 34, cited in Queen v. Madhub Chander Giri (1873)
21 W.R. Cr.13 was reproduced as hereunder:-- "The circumstances of each case must determine whether a prudent man ought to act upon the supposition that the facts exist from which a liability is to be inferred. What circumstances will constitute proof can never be the subject of a general definition. But one thing is clear that in Civil cases what is required or considered sufficient is preponderance of probability, while, in Criminal cases, owing to the serious consequences of an erroneous condemnation both to the accused and the society, the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt. Parket, B. In R. v. Sterne cited in `Best on Evidence', 11th Edition, page 34. In the Queen v. Madhub Chander Giri ((1873) 21 W.R.Cr.13) we find the following observations:---- "In ordinary Civil cases, a Judge of fact must find for the party in whose favour there is a preponderance of proof, although the evidence be not entirely free from doubt. In Criminal cases, no weight of preponderant evidence is sufficient, short of that which excludes all reasonable doubt.
The party accused is entitled to the benefit of the legal presumption in favour of innocence, and in doubtful cases that may suffice to turn the scale in his favour:"
In Muhammad Ibrahim v. Muhammad Sharif and 7 others (1980 CLC 296) the same subject has been dealt with as hereunder:--- "It is correct that `in general' the rules of evidence of civil and criminal cases are the same but some provisions in the Evidence Act are peculiar to criminal and others peculiar to civil cases.
Whereas in a civil case a mere preponderance of probability is a sufficient basis of decision, in a criminal case persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court beyond all reasonable doubt and this rule as a matter of prudence has in fact attained the force of law founded on public policy."
10. On the second question there is abundant authority that where evidence has been led by both the parties, the question of onus of proof is immaterial. It becomes important where no evidence is led or the evidence on both the sides is evenly balanced. In this context, the cases which have been referred to are the following:----
(i) Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (Both represented by heirs) (PLD 1971 SC 334);
(ii) Muhammad Bashir v. Mst. Rehmat Bibi and 5 others (1970 SCMR 478);
(iii) Manaka and others v. Madharao and others (AIR 1950 Privy Council 25);
(iv) Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others (AIR 1960 SC 100); and a number of others of various High Courts which need not be mentioned as it would amount to a mere repetition.
11. As regards the third question i.e., the rule of best evidence attracted and applied to the civil proceedings, M. Monir's commentary on section 91 of the Evidence Act contains an elucidation of it in the following words:--- "This section is an illustration of what in English law is known as "the best evidence rule", which requires that the best evidence of which the case in its nature is susceptible should always be presented. This rule does not demand that the greatest amount of evidence which can possibly be given of any fact should be offered; it is designed to prevent the introduction of such evidence as, from the nature of the case, allows room for supposing that better evidence is in the possession of the party, and to prevent fraud. For, when better evidence than that which is offered is withheld, it is only fair to presume that the party has some sinister motive for not producing it, which would be frustrated if it were offered. It is a cardinal rule of evidence, not one of technicality but of substance, which it is dangerous to depart from that where written documents exist, they shall be produced as being the best evidence of their own contents."
12. On the fourth question i.e., the nature of evidence admissible under section 50 of the Evidence Act, there are three cases from the Lahore High Court, Ghulam Muhammad and another v. Allah Yar and others (PLD 1965 Lahore 482), Haji Ilahi Bakhsh and others v. Mst. Nawab Bibi and others (PLD 1966 Lahore 664) and Saeed Ahmad v. Mahmood Ahmad (PLD 1968 Lahore 520) followed by Shah Nawaz and another v. Nawab Khan (PLD 1976 SC 767), Sitap and others v. Bijendra Narain Choudhary and others (AIR 1954 SC 601) Dolgobinda Paricha v. Nimai Charan Misra and others (AIR 1959 SC 914) and the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi (AIR 1960 SC 100). The upshot of these decisions is that an opinion expressing the relationship would be inadmissible but when it is relatable to the conduct, and coupled with the conduct, the opinion is admissible.
13. Applying the above principles to the case in hand, the trial Court and the High Court in accepting and enforcing the principle of `best evidence' assumed that the pedigree table, the matriculation certificate and the birth register were documents which could prove the controversy in issue, but they were mistaken in so assuming. The controversy in the suit was not whether Zakaullah was the son of Fazle Ali Khan. That fact was never disputed. The dispute was whether Zakaullah was the son of the same Fazle Ali Khan who was the vendor of the land sought to be pre- empted. Neither the matriculation certificate, nor the birth register, could have proved it. The pedigree table was out of question because during the lifetime of his father, without the attestation of the mutation of inheritance, the appellant could not have found a place in the pedigree table.
Hence, rule of `best evidence' was wrongly applied by both the Courts as there was no document in the background by reference to which the question in issue could be authoritatively or conclusively proved.
14. In the impugned judgment of the High Court it has been wrongly taken that the evidence given by the plaintiffs witnesses was hit by section 50 of the Evidence Act. Sardar Khan (PW-1) and Mehr Din (PW-3) both stated that the plaintiff and his father lived in the same house. Living in the same house is a conduct showing a degree of relationship about which these two witnesses have definitely stated. There is, therefore, no question of rejection of their evidence on the ground that it does not satisfy or come upto the requirement of section 50 of the Evidence Act. It is a different matter that that evidence though admissible is not found creditworthy. Admissibility and creditworthy of the evidence are two different matters and one should not be mixed up with the other.
15. Applying the rule of preponderance of evidence, we find that none of the witnesses of the respondents/vendees made even the slightest suggestion that the plaintiff was not the son of vendor. Statement made on oath had at least to be contradicted on oath so that the comparative credibility of the one over the other could be judged. On the contrary, as noted by the first appellate Court, there appears in the grounds that the plaintiff had waived his right on a suggestion that he had a right of pre-emption on account of such relationship as was claimed because no other ground had been advanced for claiming it. It is true that the plaintiff himself did not appear in the witness-box but his attorney did, and he could not be penalised for it as when he appeared to produce the documents all oral evidence had concluded and had been closed and at that stage he could not himself appear without the permission of the Court.
16. In view of the foregoing discussion, this appeal is accepted, the judgment of the High Court is set aside and that of the first appellate Court restored with all the consequences that ensued thereafter. As regards the prayer for the amendment of written statement, it is futile. The notification on which reliance is placed for amending the written statement itself mentions that the price was not to exceed Rs.10,000 in order to obtain the benefit of the exemption notification. In the case in hand, it was the respondents' case who are seeking amendment that Rs.12,350 was the price paid for the equity of redemption and it had been finally so held and the amount had also been deposited by the pre-emptor who had come in possession of the land in 1967 in execution of the decree. Hence, the notification is not attracted to the case in hand justifying any amendment in the written statement. No order is made as to costs.