' DR. GHOUS MUHAMMAD, J.---The instant High Court Appeal was heard on 23rd April, 1996 when, for reasons to be recorded later, on the same was dismissed in limine. Hereafter are the said reasons.
2. The appellants through this appeal have impugned the judgment and decree of the learned Single Judge (i,e, Rana Bhagwan Das, J.) dated 18-10-1995, whereby he dismissed Suit No,101 of 1985 instituted by the appellants for declaration, injunction and damages.
3. The facts relevant for disposal of the present appeal are that the appellants are co-owners of plot and building thereon bearing No,PR-2/3/2, Preddy Street, Saddar, Karachi, measuring 2,045 square yards, whereas the respondent is the owner of a Flat No,G-2 on the ground floor of premises adjoining that of the appellant's, while bearing No,PR-2/3/1, measuring 453 square yards with both covered and open spaces.
4. The appellants-plaintiffs have alleged the following in relation to the respondent-defendant:--
(i) In February, 1979 the respondent/defandant trespassed appellant's premises including a small wall of 84 feet built exclusively on their own land in view whereof a Suit No,509 of 1975 was instituted wherein an order was passed to maintain status quo;
(ii) on 18th December, 1984 the defendant/respondent trespassed appellant's land and commenced construction of a wall thereon while raising a portion of the said wall illegally and attempting to open four doors in the said wall and threatening to use the appellant's land as a lane;
(iii) on 11th January, 1985 the respondent forcibly entered into appellant's land and raised a wall thereon while opening four doors therein and attempting to use the same as access from the respondent's flat into appellant's land without any lawful or legal right;
(iv) aggrieved against the above the appellants filed Suit No,101/1985 for declaration that the wall in issue was raised by the respondent on appellant's land without any right or interest while praying for declaration that they have the sole and exclusive right to raise the wall in any manner they like.
Mental torture and loss of prestige were also pleaded while a multiple prayer for permanent mandatory injunction was also made for a possible future trespass by the respondent or his agents including, opening of any door or window towards the appellants' land. A prayer to seek a mandatory order against the respondent to remove the illegally constructed wall including doors and windows was also made and liquidated damages were also claimed;
(v) it had been alleged by the appellants that the front open area in the respondent's land measures 113 square yards;
(vi) it appears that after institution of the suit a further factual allegation by the appellants was brought on record to the effect that in April, 1989 the respondent/defendant illegally obstructed the raising of wall by the former on their own land while in this respect the appellant No,1 reported the matter to the police resulting in proceedings under section 107/117 of the Criminal Procedure Code;
5. The respondent contested the suit in issue, while denying the allegations levelled by the appellants and putting up, inter alia, the following defence:---
(i) the wall in issue was constructed by the respondent on his own piece of land;
(ii) the open space in front of the respondent's plot was 40' x 40' i,e, 178 square yards as alleged by the appellants;
(iii) the boundary wall as stated in (i) above was essentially a Purdah wall with doors opening into respondent's own land, while the said wall was in consonance with the site plan approved by the Karachi Building Control Authority (hereinafter "K.B.C.A.") constructed with the compulsory open space of 7-1/2 feet.
6. Nine issues were settled out of the pleadings of the parties, while during the course of final arguments the first four.Issues were dropped as not pressed and the learned Single Judge thereafter only gave his findings on the remaining issues. The said remaining issues are as follows:- -- "(5) Whether the defendant on 11-1-1985 forcibly entered into the land of the plaintiffs and raised the wall on their land and trying to use the same as access from his flat to the plaintiff's land?
(6) Whether the said wall is located on the land exclusively belonging to the plaintiffs and the defendant has no right, interest or claim either on the said land or the wall?
(7) Whether the defendant reconstructed his Purdah wall on his own land and opened doors therein as in the amended written statement?
(8) To what relief the plaintiff is entitled?
(9) What should the decree be?"
7. From the side of the plaintiff a number of witnesses were examined, while the two material ones were the appellant No,1 i,e, P.W.1 and architect Tameezul Haq P.W.2. The appellant No,1 deposed the facts alleged by him in his pleadings, while the testimony of architect Tameezul Haq was shattered in the cross-examination as he could not bring home the appellants' case. The architect Tameezul Haq furnished a site plan marked as Exhibit 5/7 allegedly detailing the area encroached by the respondent, while in cross-examination he conceded that the said plan was prepared by his assistant whose name he could not recall and stating that during his visit to the site he only prepared a rough sketch which was not available with him anymore. Tameezul Haq admitted that Exhibit 5/7, the site plan prepared by him, although revealed the total area of the respondent's plot, the same did not show the measurement of the passages touching adjoining plots. He also admitted that he had not earlier seen the site plan issued by the Settlement Department, while after the said site plan of the Settlement Department was confronted to him (marked Exhibit 5/6), he conceded that the demarcation line shown therein was straight. He also stated that in the site plan prepared by him i,e, Exhibit 5/7, he had failed to draw any demarcation line while stating that the thick lines on Exhibit 5/7 were essentially the demarcation lines.
8. The respondent, in his evidence, inter alia, denied the allegations levelled against him and stated that it was the appellants who had been trespassing his land in view whereof he had lodged a complaint with the Preedy Street Police Station resulting in proceedings by.S.D.M. Under section 107/117, Criminal Procedure Code.
9. The learned Single Judge while dismissing the suit of the appellants had moreso been persuaded by the fact that the burden of proof to establish trespass squarely rested upon the appellants which they had failed to discharge. The learned Single Judge in this regard observed:-- - "13. On scrutiny of the evidence on record, 1 find that the plaintiffs could not establish unauthorised trespass on their land and by use of force construction of a wall on a piece of their laud as against the defendant. There is mere oral word of the plaintiff which cannot be accepted on the face of it and in the absence of any definite evidence demarcating the area of the plaintiff's property and exact location of the disputed wall it is not possible to hold that the defendant committed trespass on the land of the plaintiffs or raised a wall thereon without any lawful authority."
10. The reasoning employed and the conclusion arrived at by the learned Single Judge, while deciding the issues framed against the appellants, are quite unexceptionable. It is a settled and fundamental principle of the law of evidence now codified in Article 117 of the Qanun-e-Shahadat, 1984 that whosoever alleges existence of a particular fact must prove the same. No doubt that this principle now exists in the form of statute law in our jurisprudence but the said principle has also been favourably commented upon at common law by Viscount Maugham in Joseph Constantine Steamship Line v. Imperial Smelting Corporation Ltd. (1942) AC 154 at page 174, as he observed that, it (the said principle) is "an ancient rule founded on consideration of good sense and it should not be departed from without strong reasons". This aspect refers to the concept of burden of proof.
There is little doubt that the onus/burden of proof had rested upon the appellants as they had filed the suit in issue and were alleging trespass and other irregularities on the part of the respondent.
The question now is whether they were able to discharge the said burden of proof placed upon them. In other words whether they were able to meet the standard of proof placed upon them. The term "standard of proof" has been defined as follows:--- "The term ' standard of proof' refers to the extent or degree to which the burden of proof must be discharged. It is the measurement of the degree of certainty or probability which the evidence must generate in the mind of the tribunal of fact; the standard to which the tribunal of fact must be convinced by the evidence before the party bearing the burden of proof becomes entitled to succeed in the case, or to have a favourable finding of fact on some issue which he has set out to prove. It is a measurement therefore of the quality and cogency required of evidence tendered with a view to discharging the burden of proof. The standard of proof demanded sometimes varies according to the nature of the issue to be proved, but the fundamental divergence is that between criminal and civil cases." (See Murphy, "A practical approach to Evidence" 3rd Edition, at page 94).
It is also settled that the standard of proof generally required in criminal cases is beyond all reasonable doubt while in civil casts it is the proof on balance of probabilities (See Murphy cited above at pp. 95 and 99), From the evidence brought forth by the appellants it appears that the burden was not discharged even on balance of probabilities. The version of the appellant No,1 was rebutted by the respondent while testimony of the architect i,e, appellants' witness, did not in any manner forward the case of the appellants. From the appreciation of the evidence it is quite clear that the appellants have not been able to establish that the wall in issue was built on their own land. This was the very basic issue which remained unproved even on the balance of probabilities as the very line of demarcation between the two tenements in issue could not be established or proved by the appellants. We accordingly hold that the appellants had failed to discharge the burden placed upon them by not adducing the necessary quality of evidence requisite to meet the standard of proof on balance of probabilities.
11. There is another aspect of the case which warrants discussion. Mustafa Ali Khan, a settlement inspection (P.W.3) was also examined who produced a photo copy of the site plan alongwith an endorsement on its reverse side. The site plan produced by the settlement inspector conformed with the site plan furnished by the respondent. This by itself tendered support to the defence of the respondent. The endorsement on the back of the site plan produced by the settlement inspector was dated 21-9-1976 and was signed by the Deputy Settlement Commissioner-I, Karachi which confirmed that the front open space of the respondent's land measured 178 square yards. The learned counsel for the appellants/plaintiffs challenged only this endorsement (and not the site plan) on the ground that the Settlement.Department was not a competent authority to have certified the factum of the measurement of the front open space. The learned Single Judge while dealing with this objection of the appellant's learned counsel placed reliance upon a judgment in C.P. No, S-15/1982, dated 19-5-1985 wherein it was held that a subsequent endorsement on the site plan by the settlement authority was nothing more than a clarification of the open and covered.
Areas. This particular objection of the appellants was correctly dismissed by the learned Single Judge for the following reasons.- -
(i) the appellants did not challenge the endorsement on the site plan in the plaint, while we may further add that it is a settled proposition of law that parties cannot take a stance at variance with their pleadings. If there is any authority needed for the proposition it is Kamran Industries v.
Collector of Customs and others (PLD 1996 Karachi 68 at p. 96),
(ii) the Settlement Department had not been joined as party to the suit;
(iii) the official from the Settlement Department who produced documents was not questioned about this endorsement;
(iv) we may further add that even if the endorsement on the reverse side of the site plan challenged by the appellants was excluded as inadmissible evidence, that exclusion by itself would not be sufficient to establish the appellants' case. Even in that hypothetical event the claim of the appellants would still stand unsubstantiated i,e, the burden of proof placed upon the appellants would not still stand discharged.
12. In the memo. Of appeal the learned counsel has, Alter aim, also raised the objection that the learned Single Judge ha. Erred in not first deciding an interlocutory application moved by the appellants being C.M.A. No,7281 of 1988 under Order 18, rule 18 of the C.P.C. For appointment of a qualified architect as a Commissioner to inspect and ascertain as to in whose property the disputed wall is situated. This objection is untenable as there is nothing on record to establish that the appellants had specifically requested the learned Single Judge to dispose of the said interlocutory application before hearing the main case. Also the grounds of appeal do not in any manner suggest that this objection was pointed out to the learned Single Judge who consciously failed to pass an order on the interlocutory application under Order 18, Rule 18, C.P.C. In the absence of any such specific request by the appellants to the learned Single Judge it has to be presumed that once final arguments were addressed on the main case the pending interlocutory application was abandoned as not pressed.
13. Before finally parting, may we point out that Mr. Khalilur Rehman, the learned counsel for the appellants, has vehemently contended that the instant appeal is a first regular appeal in view whereof it ought not to be dismissed in limine. In this respect the learned counsel has placed reliance upon Abid Hussain v. Mst. Afsar Jehan Begum (PLD 1973 SC 1). This decision of the Hon'ble Supreme Court cited by Mr. Khalilur Rehman touched upon the provisions of Rule 1 of Chapter 3-B, Volume V of the High Court Rules and Orders (Lahore) read with Order 41, Rule 11 of the C.P.C. In that case it was held that while entertaining first regular appeals under the above-cited provisions of law a Single Judge ought not to dismiss an appeal in limine while the practice was to admit such appeals. We are of the view that this decision of the Hon'ble Supreme Court does not support the contention of Mr. Khalilur Rehman as in the present appeal we are exercising jurisdiction under section 3 of the Law Reforms Ordinance, 1972 as amended by section 15 of the Code of Civil Procedure (Amendment) Ordinance No,X of 1980, in a Division Bench whereas in Abid Hussain the findings of the Hon'ble Supreme Court are in relation to a Single Judge hearing a first regular appeal under Order 41, Rule 11 of the C.P.C. Read with Rule I of Chapter 3-B, Vol. V, H.C.R. And Orders (Lahore). The fact that under section 3(1) of the Law Reforms Ordinance, 1972 we have to exercise the jurisdiction as a Division Bench is clearly borne out from the language of the said section 3 which reads as follows:-- "3. Appeals to High Court in certain cases.--(1) An appeal shall lie to a Bench of two or more Judges of the High Court from a decree passed or final order made by a Single Judge of the Court in exercise of its original civil jurisdiction Interestingly, we have further been able to lay our hands on a decision of a Division Bench of this Court reported as London Assurance Co. Ltd. v. Aini Amin Nizami and 6 others (PLD 1982 Karachi 841), wherein it has been held that the decision of the Supreme Court in Abid Hussain v. Mst. Afsar Jehan Begum reported in PLD 1973 SC 1 only pertains to a first regular appeal under Order 41, Rule 11 of the C.P.C. And does not have any bearing in respect of an appeal under the provisions of section 3 of the Law Reforms Ordinance, 1972 (as amended). In this respect Z.C. Valliani J, as he then was, while writing for the Court, has observed that in a High Court Appeal under section 3 of the Law Reforms Ordinance, 1972 (as amended) there is no consistent practice of the Sindh High Court to admit all such appeals and not dismiss them in limine. We feel that after the decision of London Assurance there is no scope left for us to further look into, moot or follow the decision of the Supreme Court of Abid Hussain in relation to High Court Appeals under the Law Reforms Ordinance, 1972 (as amended). We feel that the decision of the Supreme Court in Abid Hussain has been correctly distinguished by the learned Judges in London Agsurance. We may further point out that even in Abid Hussain the Hon'ble Supreme Court had been swayed by the fact that on merits the appellants had a case as in the third last paragraph Hamoodur Rehman C.J., as he then was, observed:--- "On merits, therefore, this was not an appeal which would have been dismissed in limine."
14. There is thus no merit in the appeal which has correctly warranted dismissal in limine.