1997 PLP 1768 (CLC)

‑‑‑‑ Concurrent findings, setting aside of‑‑‑Findings recorded concurrently should not be lightly interf.‑red with, unless same were either perverse, or there was any tion‑reading or misreading of evidence or substantial injustice had been done to the party. Ch. Muhammad Riaz Alam, Advocate for Appellant Muhammad Yunus Arvi, Advocate for Respondents. Date of hearing: 23rd December, 1996 MUHAMMAD YUNUS SURAKHVI, .I.‑‑‑This appeal has been directed against the judgment and decree of the High Court dated 30‑5‑1996, whereby the appeal filed by the plaintiffs‑respondents, was accepted and the judgments and decrees of the Courts below were set aside.

2. The facts leading up .to the present controversy are that a suit for declaration and perpetual injunction was filed by the plaintiffs‑respondents in the Court of Sub‑Judge, Mirpur, on 18‑3‑1991 claiming therein that the plaintiffs respondents were the only legal heirs of Ghulam Ahmad, deceased, as such entitled to get the estate left by him. According to the plaintiffs, Mutation No.218 which was also attested to the extent of defendant‑appellant was illegal, ineffective and inoperative as against their rights. The suit was resisted by the defendant‑appellant. Neessary, issues arising out of the pleading of the parties were framed. The plaintiffs, in support of their case, examined Ghulam Rasool and Fazal Karim as their, witnesses. Muhammad Akbar, one of the plaintiffs, also appeared as his own witness. The defendant‑appellant, however, did not produce any evidence in rebuttal. The learned trial Judge, after conclusion of the suit, dismissed the same and the appeal, filed before the District Judge also failed. The second appeal filed by the plintiffs‑respondents, herein before the High Court, as said earlier, was accepted vide the impugned order dated 30‑5‑1996, which is the subject of present appeal.

3. Arguing the case on behalf of the appellant, it is vehemently contended by Mr. Muhammad Riaz Alain, the learned counsel, that the impugned judgment recorded by the High Court is liable to be set aside on the simple ground that the concurrent findings of facts by the trial Court and the first Appellate Court have been set aside by the High Court without any justifiable reason. It has been strenuously contended by the learned counsel for the appellant that onus of proof of Issue No. l was on the plaintiffs and they were required to prove that the plaintiffs were the only heirs of Ghulam Ahmad, deceased, but they failed to discharge the burden placed on them. It has been further contended by the learned counsel for the appellant that in case issue No. l had been proved by the plaintifs‑respondents, it was only then that the appellant‑defendant was required to prove Issue No.2 but the High Court failed to appreciate this simple proposition.

4. Controverting the arguments raised by the learned counsel for the appellant, Mr. Muhammad Yunus Arvi, the learned counsel for the respondents, strongly defended the order recorded by the High Court. The learned counsel has contended that the trial Court as well as the first Appellate Court misread and misconstrued the evidence brought on the record by the plaintiffs respondents. According to the learned counsel the defendant‑appellant did not rebut the evidence produced by the plaintiffs‑respondents in any way, as such, the plaintiffs sufficiently discharged the burden placed on them. Thus, the judgment recorded by the High Court was open to no exception, submitted the learned counsel.

5. We have given our due consideration to the points canvassed by the learned counsel for the parties and perused the record made available with care. At the very outset, it may be stated that Mutation No.218 pertaining to the estate left by Ghulam Ahmad, deceased, was attested both in favour of the plaintiffs and defendant, Mst. Fazal Noor Begum. This mutation was challenged by the plaintiffs‑respondents on the ground that Mst. Fazal Noor Begum, defendant appellant, was not the dauZhter of Ghulam Ahmad, deceased, and as such, not entitled to inherit the estate left by the deceased. It was not specifically averred in the plaint as to how Mst. Fazal Noor Begum, tlae defendant, was not entitled to inherit the estate of her father, nor it wA pleaded that she was born interwards when her mother, Mst. Nek Bibi, had already been divorced by Ghulam Ahmad, deceased, and she contracted second marriage. We have critically examined the evidence produced by the plaintiffs‑respondents. In the evidence produced by the plaintiffs‑respondents, an attempt has been made to develop a case that Mst. Nek Bibi, the mother of Mst. Fazal Noor Begum, defendant‑appellant, was divorced by Ghulam Ahmad, deceased, and she was born later on when Mst. Nek Bibi contracted second marriage. The evidence of both Ghulam Rasool and Fazal Karim, the witnesses produced by the plaintiffs, appears to be hearsay as none of them knows regarding the factum of Mst. Nek Bibi's marriage with Ghulam Ahmad, deceased, and later on her dercee as alleged. Another significant aspect of the case is that both the aforesaid witnesses have categorically stated in their evidence that they knew nothing as to whether Mst. Fazal 'Moor Begum is the daughter of Ghulam Ahmad, deceased, or not. Fazal Karim, the witness, has even deposed to the extent that he did not know the name of the father of Mst. Fazal Noor Begum. Not to speak of the aforesaid witnesses produced by the plaintiffs‑respondents even one of the plaintiffs, Muhammad Akbar, has deposed in his evidence in unequivocal terms that he did not know as to whether Mst. Fazal Noor Begum is the daughter of Ghulam Ahmad or not. The relevant portions of the witnesses produced by the plaintiffs have been narrated just to show that their evidence is either totally hearsay or they do not even know as to who was the father of Mst. Fazal Noor. In such a state of affairs when the claim of the plaintiffs‑respondents was definite that she was not daughter of Ghulam Ahmad, they miserably failed to discharge the burden of issue placed on them.

6. The trial Court as well as the first Appellate Court concurrently reached the conclusion that the plaintiffs could not prove their claim as alleged in the suit. In order to exclude a legal heir from inheritance of a particular person, a very strong and convincing evidence is required to discharge the burden but the plaintiffs‑respondents miserably failed to prove their case. It is a cardinal principle of law that a plaintiff, in order to succeed, must prove his own case and stand on his own legs, rather to take advantage of the weaknesses of the case of the defendant or his adversary.

7. It may also be pointed out that in order to deprive a daughter to inherit the estate of her father, it was enjoined upon the plaintiffs‑respondents to prove on the basis of special knowledge that the defendant was not the daughter of Ghularn Ahmad, deceased, but as stated earlier, the witnesses produced by the: plaintiffs and even one of the plaintiffs himself do not even claim or have the special knowledge of the relationship of the defendant with the deceased, as such, their evidence was rightly disbelieved by the trial Court as well as first Appellate Court and the findings thus recorded concurrently could have been set aside provided the same were either perverse or there would have been any non reading or misreading of evidence or a substantial injustice had been caused to the plaintiffs but the same being not the case the concurrent findings should not have been lightly interfered with. For the reasons stated above, we accept the appeal and set aside the impugned judgment and decree recorded by the High Court and restore the judgments and decrees of the trial.Court and the first Appellate Court with no, order as to the costs. C.M.S./196/SC(AJ&K) Appeal accepted.