P L D 1966 Azad J & K 47 (PLP)

Arsala Khan appellant brought a suit for the possession of the house situate in village Hattian Deputta on the ground that it had been mortgaged with him by Ghulam Mohy‑ud‑Din respondent through a registered deed dated 19‑3‑1449, for a consideration of Rs. 700 and that the respondent at the time of the event had handed over the possession of the house to him and thereafter lived in it as his tenant. He further alleged that as the respondent had not paid the rent agreed to by him a decree for possession be granted to him. The respondent contested the suit on the ground that the appellant had fraudulently induced him to execute the mortgage deed in his favour and that the same was without any consideration. The amount of Rs. 700 mentioned in it as having been paid as he had never received consideration as alleged by the appellant. He controverted that the execution of such a deed did not legally bind him in any manner. It was also pleaded by him that he was not the tenant of the appellant and that he has beer, in possession of the house all along and never parted with it. On these pleadings the trial Judge framed the following issues:‑ (1) Had the plaintiff got executed the mortgage deed Exh. P. A. in his favour without consideration and by playing deception on the defendant by promising to get him married from some good family? O. P. D. (2) Relief? The trial Judge decided issue No. 1 against the defendant and decreed the suit of the plaintiff‑appellant holding that the defendant had knowingly executed the mortgage deed and that as a consequence of it the appellant was entitled to the possession of the house. No finding was, however, given on the question whether the defendant‑ respondent was living in the house as a tenant at the time of the suit. The learned District Judge did not agree with this finding of the trial Judge and has held that since the scribe and one of the marginal witnesses Faqir Ullah have denied the fact of payment of Rs. 700 to the defendant and also that the oral evidence produced to prove this payment by the plaintiff‑appellant was at variance with the pleadings and is further contradicted by the plaintiff himself the claim of the plaintiff could not be sustained. Mr. B. A. Farooqi, learned counsel for the appellant has argued that the burden of proof that the mortgage deed was without consideration was on the defendant‑respondent and as he has not been able to lead any satisfactory evidence in support of it he cannot be allowed to rely on the evidence adduced by the appellant in rebuttal. His contention really is that as the assertion of the defendant was not proved by his evidence the same cannot be said to have been established by showing that the witnesses who deposed for the plaintiff in rebuttal had stated certain things, which were not convincing. The learned Counsel has cited Anand v. Deputy Commissioner (A I R 1933 Oudh 242) and Dukha Lal v. Mst. Manabati (A I R 1936 Patna 243) in support of the proposition. I have perused both of these authorities and I do not see how they support the contention of the learned counsel. Anand v. Deputy Commissioner is 'a Division Bench appeal wherein it has been laid down that:‑

"Where a plaintiff comes to Court with certain allegations, it is for him to establish those facts and the affirmative proposition contended for by the plaintiff cannot be established by showing that the witnesses who deposed to contradictory negative proposition on behalf of the defendants are not reliable." I think what the learned counsel was aiming at by referring to the above authority was that just as a plaintiff must establish allegations relied on by him and he cannot rely on the unreliability of the defendant's witnesses, similarly defendant in the present case should have relied on his own evidence to prove that the execution of the mortgage deed was without consideration and the weakness of the evidence of the plaintiff could not help his case. This appreciation of the above authority is far from correct because it apparently applies to that party only which asserts affirmatively. The defendant in this case is not asserting affirmatively but he and his witnesses are deposing to a contradictory negative proposition to the effect that no amount has been paid as a consideration for the mortgage deed, therefore, the authority in question cannot be treated as a precedent. Even if the defendant is unable to establish his assertion the plaintiff just the same would have to prove by satisfactory and reliable evidence that the consideration of Rs. 700 had, in fact, been paid. If he fails to do so and merely furnishes proof of the execution of the mortgage deed, it would not entitle him to a decree for possession. The other ruling cited by him is Dukha Lal v. Mst. Manabati. This too is a Division Bench appeal wherein it has been laid down that:‑

"Section 102 (Evidence Act) means that when the burden of proof lies on a ‑party, that party must fail if he does not discharge the burden by giving evidence." This is, no doubt, a sound proposition and is the correct appreciation of section 102, Evidence Act but this is true only where there is no evidence on the issue or where the evidence produced by the parties is so evenly balanced that the Court cannot draw any definite conclusion from it. In that case the question of onus would certainly become very material and the party on which the onus lies would fail if it has not been discharged satisfactorily. But where both the parties have led evidence on the point at issue, the question of onus loses its importance and in that case the decision has to rest on the evidence adduced by the parties. The District Judge has correctly remarked that where all the relevant facts are before the Court the question of onus loses its importance and the Court has to decide the issue after taking into consideration the evidence led by both the parties. This view also finds support from the observations of their Lordships of the Judicial Committee in Robin v. National Trust Company Ltd. (1927 A C 515) which is referred to by a learned Single Judge of the Lahore High Court in Safia Begum v. Malkani (P L D 1965 Lah. 576) The relevant observations are:‑

"Onus is always on a person who asserts the proposition or a 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, and requires proof, the onus is on the person making the assertion. Now, in conducting any enquiry the determining tribunal, be it judge or jury, will find that the onus is 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 pro and con so evenly balanced that it can come to no sure 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." In this case both the parties have led their evidence in support and rebuttal of the issue framed and it was, therefore, not unfair for the District Judge to weigh the entire 'evidence brought on record and come to a determinate conclusion. The objection that the onus was on the defendant is thus rendered nugatory. As such I agree with the view of the learned District Judge that the decision in this case has to rest on the evidence of the parties on record and that the respondent is entitled to avail the evidence adduced by the respondent. The next point for determination is whether the finding of the learned District Judge about the payment of the consideration money is correct or not. This is a finding of fact which has been arrived at after a careful consideration of the evidence led by the defendant respondent and the, plaintiff‑appellant and there is no obvious reason for this Court to interfere with this finding particularly when the entire evidence relied on by the appellant for the payment of the amount in question consists of oral statements of some of the persons who are not entirely disinterested witnesses. It would appear from the record that Muhammad Ali and Akbar Ali who have deposed for the plaintiff are not only chance witnesses but also obtained credit from the plaintiff. It is also abundantly clear from their statements that the amounts of alleged loan which the defendant obtained from the plaintiff were paid to the former in the shape of cash. If that was so then the assertion of the plaintiff in his plaint and statement as a witness that the sum of Rs. 700 was comprised of the price of commodities supplied to the defendant by him falls to the ground. The learned District Judge in these circumstances has rightly inferred that the mortgage deed was executed without any consideration and I do not see how he could rely on the oral evidence of the plaintiff's witnesses which is replete with contradictions. It is well‑established law that only that oral evidence should be accepted which can inspire confidence. Mere fact that the oral evidence led by a party stands unrebutted is not sufficient for accepting the same to be true. In the present case the oral evidence led by the plaintiff to prove the consideration for the mortgage deed as already held consists of the statements of interested persons who have contradicted each other Such an oral evidence can under no circumstances inspire confidence and an inference adverse to the plaintiff has rightly been drawn by the District Judge from it. For the foregoing discussions I would up‑hold the judgment and decree of the first appellate Court, and dismiss the appeal with costs. S. A. H./S. Q. Appeal dismissed.