Mst. BAKHT BIBI Versus MUHAMMAD ASLAM KHAN

SHAMS MEHMOOD MIRZA, J.--- This revision petition is directed against concurrent findings of facts recorded by both the courts below whereby the suit filed by the petitioner-plaintiff was dismissed.

2. Brief facts as emerging from the record are that the petitioner-plaintiff was married to respondent-defendant No.1 who at the time of the marriage gifted to her land measuring 103 Kanal 10 Marlas in lieu of dower. Mutation No.328 was accordingly sanctioned on 12.02.1993 in respect of the aforementioned land. The said land originally belonged to respondent-defendant No.2, father of respondent-defendant No.1, who gifted the same to respondent-defendant No.1 through mutation No.326 dated 10.02.1993. Mutation Nos.326 and 328 were subsequently got cancelled by respondent-defendant No.1 on 26.02.1998 which prompted the petitioner-plaintiff to file an application before the General Assistant Revenue, Lodhran and Deputy Commissioner, Lodhran against the illegal cancellation of mutation No.328. The said officers after holding inquiry found the cancellation of the said mutations to be against law and ordered proceedings against concerned Tehsildar and Patwari. In addition thereto, the petitioner-plaintiff also filed an appeal before the A.C./Collector against the cancellation of mutations Nos.326 and 328, proceedings whereof were stayed on the account of pendency of the suit filed by the petitioner-plaintiff.

3. The suit was contested by the respondents-defendants by filing the written statement whereafter the following issues were framed.

1. Whether the plaintiff is owner of the suit land and defendants have no concern with it and entries in revenue record are liable to correction? OPP

2. Whether the suit land is situated in Tehsil Kahror Pacca? Hence, this court has got no jurisdiction? OPD

3. Whether the defendants had neither given any land in dower nor agreed to give, whatever that dower was, same was paid? OPD

4. Whether the plaintiff has got no cause of action? OPD

5. Whether the plaintiff had earlier filed a suit on the ground of dower regarding, same land which was withdrawn on 05.04.2000? Hence, this suit is not maintainable? OPD

6. Whether the suit is liable to be dismissed due to mis-joinder of the parties? OPD

7. Relief.

The petitioner-plaintiff produced three witnesses including her attorney holder as PW-1 and produced in evidence documents, Exh.P-1 to Exh.P-13. Similarly the respondents-defendants appeared as DW-1 and DW-2 respectively but did not produce any documentary evidence.

4. After recording the evidence of the parties, the trial court dismissed the suit vide judgment and decree dated 25.01.2003 and the appeal filed by the petitioner-plaintiff against the decree of the trial court was also dismissed on 24.04.2004. It appears from the judgments impugned herein that both the courts below treated issue No.1 as the pivotal issue and decided the same against the petitioner-plaintiff and consequently dismissed her suit/appeal.

5. While deciding issue No.1, the trial court came to the conclusion that respondent-defendant No.1 was not the owner of the land in dispute at the time of his marriage with the petitioner-plaintiff and as such he was not competent to make the gift of the same in her favour. It was further held by trial court that mutations Nos.326 and 328 were merely entered in the revenue record but were not sanctioned till their cancellation. It was further observed by the trial court that the witnesses to the mutation as also the revenue staff who sanctioned the same were not produced in evidence to prove the same. In regard to issue No.2, it was held that the trial court had the jurisdiction to adjudicate upon the suit. Issue No.3 was decided in favour of respondents-defendants in view of the findings on issue No.1. The trial court found in favour of the petitioner-plaintiff in respect of issue No.4 by holding that the petitioner-plaintiff had the cause of action against the respondents-defendants. Issue No.5 was decided against the respondents-defendants as this issue was not pressed by their counsel. Similarly issue No.6 was also decided against the respondents-defendants. The lower appellate court while dismissing the appeal also came to the conclusion that the petitioner-plaintiff had failed to bring on record any evidence demonstrating that the suit land was given to her in lieu of dower.

6. Learned counsel for the petitioner-plaintiff vehemently argued that the gift of the land in dispute in favour of respondent-defendant No.1 from his father through mutation No.326 and the subsequently gift in favour of said land by respondent-defendant No.1 in favour of petitioner-plaintiff through mutation No.328 was duly proved by the petitioner-plaintiff as is apparent from the documentary evidence available on the record. Learned counsel for the respondents-defendants, on the other hand, supported the judgments passed by the courts below.

7. The rival contentions of the parties have been heard and record perused with the able assistance of the learned counsel for the parties.

8. In essence both the courts below treated issue No.1 as the pivotal issue and decided the same against the petitioner-plaintiff. This Court therefore, only has to see whether issue No.1 was rightly decided against the petitioner-plaintiff or not. The trial court non-suited the petitioner-plaintiff mainly on the ground that respondent defendant No.1 was not the owner of the land in dispute at the time of his marriage with the petitioner-plaintiff. Support for this premise was sought from the statement of PW-2 who stated that respondent-defendant No.1 was not the owner of the land in dispute at the time of the marriage and also from the fact that no evidence was produced to show that the land in question was indeed gifted to the petitioner-plaintiff in lieu of dower at the time of the marriage. The trial court also came to the conclusion that mutation in question was not sanctioned.

9. It is apparent from the record that the witnesses produced by the petitioner-plaintiff made definitive statements in evidence deposing that the land in question was alienated in favour of the petitioner-plaintiff by respondent-defendant No.1, her husband, in lieu of dower. The Nikah was admittedly "Sharaee" and thus the requisite Form was not filled and it was not registered. In support of her stance, the petitioner-plaintiff produced in evidence Roznamcha Waqiati as well as mutation Nos.326 and 328. The inquiry reports of General Assistant Revenue, Lodhran and Deputy Commissioner, Lodhran were also produced in evidence demonstrating that the said mutations were wrongly cancelled by the concerned Tehsildar and Halqa Patwari. The fact that land was given to the petitioner-plaintiff in lieu of dower and sanctioning of mutations was of course denied by the respondents-defendants on the ground that they were the result of fraud and forgery. The burden of proof in civil cases is usually decided on the basis of balance of probabilities. Qanun-e-Shahadat, 1984 has provided the standard of proof in the definitions of "Proved", "Disproved" and "Not Proved", which are stated below.

"Proved"- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

"Disproved"- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."

"Not proved"- A fact is said not to be proved when it is neither proved nor disproved."

The above definitions offer the guidelines which the courts must consider to ascertain whether a fact has been proved on the basis of the record. The Court of Appeal of Singapore in Loo Chay Sit v. Estate of Loo Chay Loo (2010) 1 SLR 286 while interpreting section 3 of the Singapore Evidence Act (pari materia to section 2 of the Qanun-e-Shahadat, 1984) held as under:--

In so far as the statutory definitions in section 3 of the Evidence Act are concerned, we would also add the following observations. First, where the party asserting a particular fact has discharged his burden of proof on a balance of probabilities (in civil suits) to allow the court to make the finding that a particular fact exists, that fact is 'proved'. Secondly, where the party seeking to challenge a particular fact sought to be proved by the opposing party adduces sufficient evidence to allow the court to make the finding that the fact does not exist, the said fact is 'disproved'. Now, it is equally possible that the party seeking to the challenge the particular fact, sought to be proved by the opposing party has proved a fact mutually exclusive from the fact sought to be proved by the opposing party. In this case, the fact sought to be proved by the opposing party has also been disproved. In other words, the party adduces sufficient evidence for the court to make a finding the Fact X exists and since Fact X and the fact sought to be proved by the opposing party, Fact Y, are mutually exclusive, Fact Y has been disproved.

Thirdly, a finding that a particular fact is 'not proved' is not the same as a finding that the fact is 'disproved'. The finding that a particular fact has been 'disproved' is an affirmative finding as to the non-existence of that fact. Likewise, the finding that the fact has been 'proved' is an affirmative finding as to the existence of the fact. It follows that the finding that the fact is 'not proved' means that no affirmative pronouncement as such is made by the court as the either its existence or non-existence....

In a case where a fact is said to be 'not proved', the court is unable to say precisely how the matter stands because of a lingering doubt as to the existence and non-existence of the fact; put simply the court is unable to decide one way or the other. The court thus refrains from making an affirmative pronouncement as to the existence or non-existence of the fact.

10. The definition of "proved" in Qanun-e-Shahadat, 1984 stipulates that the court must consider the matters before it. The expression matters being a term wider than "evidence", the court has to necessarily go through the entire record before it including the pleadings and the demeanour of the witnesses before arriving at its conclusions. After considering the matters before it, the court may (a) either believe that the fact exists or (b) consider its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. It appears that there are two standards of proof to be found in the definition of "proved" which would satisfy the court of the existence of the fact upon consideration of the matters before it; one is the belief of the court and the other is the standard of a prudent man which can be adopted to consider the existence of the fact so probable as to proceed on the supposition that it exists. The definition of the expression "proved", it would appear, controls the standard of proof for both the civil and criminal trials. It is also apparent that the first standard of satisfaction of the court contained in the expression "proved" would operate in a situation where the court itself believes that one of the parties has convincingly proved that the fact in issue it is required to prove exists and the second standard would operate where the evidence led by both the sides is so evenly balanced that the court has to enter into the realm of supposition and probability by adopting the standard of prudent man to consider the existence of the fact.

11. In Muhammad Luqman v. The State PLD 1969 Lahore 275, the task that a court has to undertake while applying the standards of proof in a given case was explained on the following terms:--

Reference at this stage can be usefully made to the terms "evidence" "proved" and "disproved" as given in the Evidence Act, 1872. In spite of the juggleries that our witnesses may perform, the ultimate responsibility to come to the necessary findings of fact rests with the Court and when the case is not tried with the help of jurors, this responsibility is undivided and complete. The term "evidence" is defined in the Evidence Act to include oral and documentary evidence and out of the two categories more weight is attached to the documentary evidence for the unfortunate reason that men may perjure but documents may not. The definitions of the words "proved" and "disproved" however do not make the findings of the Court dependent upon "evidence" alone. The authors of the Evidence Act in their wisdom did not mention the term "evidence" while defining the words "proved" and "disproved" and according to the definition of the term "proved", a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". The definition of the word "disproved" proceeds on similar lines. The Court is therefore not bound to look for its findings on the "evidence" alone as defined in the Evidence Act, but has to see to the high probabilities regarding the existence or non-existence of a fact after considering "the matters before the Court". The Court may be impressed by the demeanour of a particular witness more than by his words and in the circumstances like those of the present case, may consider the oral evidence in the light of the heavy pressure under which the witnesses in the case are placed.

12. The ratio of the above judgment shows that the balance of probability standard means that the satisfaction of the court that an event has occurred is dependent upon whether the court considers, on the basis of evidence, that occurrence of the event was more likely than not. While ascertaining the probabilities, the more serious the allegation is ordinarily the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. In re H (Minors) [1996] AC 563, Lord Nicholls explained that it was a flexible test:--

Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

13. The proper approach for an assessment on a balance of probabilities has also been appropriately set out by O'Halloran J.A. in Faryna v. Chorny, [1951] B.C.J. No. 128 on the following terms:--

9. If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding, and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919) 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

10. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

11. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of the credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [emphasis added]

14. Similarly, Lord Denning in Bater v. Bater [1950] All ER 458 considered the expression "beyond reasonable doubt" and the different levels of satisfaction insisted by the courts for the proof of facts under various circumstances. It will be appropriate to extract below the relevant portion of the judgment not only for the purpose of proper understanding of the test but also because it illustrates a logical test for the degree of probability which a reasonable and just man would require to come to a definitive conclusion that a fact exists and furnishes still yet the clearer answer as to why two different standards for proof have evolved in civil and criminal cases:--

It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter. I do not think the matter can be better put than SIR WILLIAM SCOTT put it in Loveden v. Loveden (3) (2 Hag. Con.3):

"The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion......"

The degree of probability which a reasonable and just man would require to come to a conclusion - and likewise the degree of doubt which would prevent him from coming to it -depends on the conclusion to which he is required to come. It would depend on whether it was a criminal case or a civil case, what the charge was, and what the consequences might be and if he was left in real and substantial doubt on the particular matter, he would hold the charge not to be established. He would not be satisfied about it.

What is a real and substantial doubt? It is only another way of say thing a reasonable doubt, and a "reasonable doubt" is simply that degree of doubt which would prevent a reasonable and just man from coming to a conclusion. So the phrase "reasonable doubt" gets one no further. It does not say that the degree of probability must be as high as ninety-nine per cent, or as low as fifty-one per cent.

The degree required must depend on the mind of the reasonable and just man who is considering the particular subject matter. In some cases fifty-one per cent, would be enough, but not in others. When this is realised, the phrase "reasonable doubt" can be used just as aptly in a civil case or a divorce case as in a criminal case, and indeed, it was so used by Bucknill L.J., in Davis v. Davis (2) and Gower v. Gower (1). The only difference is that, because of our high regard for the liberty of the individual, a doubt may be regarded as reasonable in the criminal courts which would not be so in the civil courts.

15. In a family case Re B [2008] UKHL 35, Lord Hoffman explained the standard of proof by using a mathematical analogy:--

If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.

16. Having laid down extensively the tests expounded in various judgments about the degree of probabilities, it would be appropriate to look at the crucial evidence brought on the record by the petitioner-plaintiff. Both the courts below narrowly focused on the lack of evidence on the issue of transfer of land in lieu of dower instead of looking at the totality of evidence available on the record. The most curial fact in the case was the inquiry proceedings that were conducted by Deputy Commissioner and General Assistant Commissioner on the complaint filed by the petitioner-plaintiff. These proceedings were specifically pleaded in paragraph No.4 of the plaint but no specific denial thereof was made in the corresponding paragraph of the written statement. It is settled position of law that a fact stated in the plaint if not traversed in the written statement is deemed to be admitted. The inquiry reports were also brought on the record by the witnesses of the petitioner-plaintiff as Exh.P-10 without any objection from the other side.

The General Assistant Revenue in his report dated 04.11.1998 (Exh.P-10) stated as follows:--

Similarly the Deputy Commissioner in his report dated 23.11.1998 (Exh.P-11) held as follows.

I have perused the mutations Nos.326 and 328. Muhammad Nawaz Patwari Halqa Musharf Wahin recorded note with red ink on the mutation that the agreement has since been rescinded, therefore, the mutation may be cancelled. Mr. Farrakh Raza, Tehsildar then after recording the statement of Muhammad Ramzan that he has not alienated the land, cancelled the mutation on 26.02.1998. This mutation remained with Mr. Farrakh Raza till 19.09.1998 when the same was deposited in the office of Kanungo, Tehsil Kahror Pakka. The mutation was cancelled in the absence of applicant Mr. Bakht Bibi. She was deprived of her right without hearing. This is against the norms of justice. She is directed to file an appeal before the Assistant Commissioner, Kahror Pakka. The period, between obtaining the copy of mutation i.e. 10.10.98 todate is condoned. The application of Mst. Bakht Bibi is disposed of accordingly.

Mr. Farrakh Raza, Tehsildar Kahror Pakka is guilty of re-recording the statement of Muhammad Ramzan transferrer presence of his first statement available at mutation No.326. Muhammad Ramzan Patwari, Halqa Musharaf Wahin was also recorded the wrong note of cancellation of agreement on the mutation and thus paved the way for Tehsildar for cancellation of the mutation. Tehsildar should have at least heard the applicant before passing the rejection order of mutation Nos.326 & 328. Further he kept the "Part Sarkar" with him unauthorizedly for a period of seven months only to deprive of the applicant to file an appeal before the competent authority. This action on the part of Mr. Farrakh Raza, Tehsildar and Muhammad Nawaz Patwari, Halqa Musharaf Wahin, Tehsil Kahror Pakka, deprived Mst: Bakht Bibi of 103-Kanals & 10-Marlas land situated in village Musharaf Wahin. This act on the part of Mr. Farrakh Raza Tehsildar and Muhammad Nawaz Patwari amount to corruption and misconduct and is liable to be proceeded against under Punjab Civil Servants (E&D) Rules, 1975. The Commissioner, Multan Division, Multan is requested to move the case to Govt: of the Punjab, Board of Revenue, Lahore for initiating regular inquiry under E&D Rules, 1975 against Mr. Farrakh Raza Tehsildar and Muhammad Nawaz Patwari, Halqa Musharaf Wahin, Tehsil Kahror Pakka.

G.A.R. to put up draft letter for Commission in the light of my observations at para-4.

17. The above mentioned reports, Exh.P-10 and Exh.P-11, were produced in evidence without any objection from the respondents-defendants and, as stated earlier, these reports were also not denied in the written statement. The contents of these reports demonstrate that the mutations No.326 and 328 were duly sanctioned and that they were cancelled without any notice to the petitioner-plaintiff. It is also apparent that both the General Assistant Revenue and Deputy Commissioner recommended action against the delinquent Halqa Patwari and Tehsildar for having cancelled the mutations.

18. It is also an admitted position that the mutations were cancelled on the application filed by respondent-defendant No.1, who, it may be stated, claimed not to be the owner of the property in question. However, surprisingly no effort was made by the respondents-defendants to produce evidence supporting their stance that the mutations were fraudulently sanctioned or to produce the record for cancellation of Mutation Nos.326 and 328. Mutation No.326, as stated earlier, reflected transfer of land through gift to respondent-defendant No.1 from respondent-defendant No.2. It is, however, apparent that respondent-defendant No.2, who was the original owner of the land in question, did not make any application for cancellation of mutation No.326. This lends credence to the allegation that both the mutations were unlawfully cancelled, at the back of the petitioner-plaintiff and were, therefore, void.

19. The petitioner-plaintiff also produced the Roznamcha Waqiati (Exh.P-6 and Exh.P-8) for two mutations No.326 and 328 which again shows that defendant No.2 firstly made a gift of his land in dispute to defendant No.1 who in turn made gift of the said land in favour of petitioner-plaintiff. The testimony of the witnesses produced by the petitioner-plaintiff remained consistent with regard to the gift of the land in dispute in favour of petitioner-plaintiff in lieu of dower. This fact was further substantiated by Roznamcha Waqiati and the subsequent sanctioning of the mutations, which provided internal evidence of the transaction of gift in favour of the petitioner-plaintiff. The case of the petitioner-plaintiff is further bolstered from the reports authored by Assistant General Revenue and Assistant Commissioner. Despite the fact that the mutations were cancelled at the application of respondent-defendant No.1, both the respondent-defendants denied that they were aware of the proceedings that had taken before Assistant General Revenue and Assistant Commissioner. Another factor that ought to be relevant for consideration is the offer made to both the respondents-defendants in cross-examination for sending their thumb impressions to handwriting expert, which offer both the respondents/defendants declined to accept.

20. Another crucial fact that was overlooked by both the courts below was that respondent-defendant No.2 through mutation No.327 (Exh.P-4) gifted land measuring 103 Kanal in favour of his other son namely Amir Khan on the same day when mutation No.326 (Exh.P-2) was sanctioned in favour of respondent-defendant. Although both the respondents-defendants denied that mutation No.327 was sanctioned but the said mutation was also brought on the record as Exh.P-4 and its Roznamcha Waqiati as Exh.P-7. Both the courts below failed to draw the logical inference from the evidence on the record particularly the Roznamcha Waqiati and the mutations pointing unequivocally to the fact that gift of the property in dispute was made in favour of the petitioner-plaintiff. Both the courts below, if I may say so, indulged in over-simplification by holding that defendant No.1 was not the owner of the property in dispute at the time of his marriage with petitioner-plaintiff. The record does not show the date of marriage between the petitioner-plaintiff and respondent defendant No.1 and none of the witnesses mentioned it in their statements and yet it was assumed by both the courts that on the day when the marriage took place, respondent-defendant No.1 was not the owner of the property in dispute. The dower can be fixed, enhanced or altered even after the marriage particularly when the Nikah was Sharee. The Roznamcha Waqiati as well as mutation No.328 clearly brings out the fact that respondent-defendant No.1 made the gift of the property in dispute in favour of petitioner-plaintiff in lieu of the dower. It is, therefore, apparent that marriage had already taken place. It is further clear that mutation No.328 was got cancelled by respondent No.1 in collusion with the revenue staff at the back of the petitioner-plaintiff. The totality of evidence and the whole range of circumstances which have to be weighed in the scale when deciding the balance of probabilities would certainly have led a prudent man to the conclusion in the present case that gift of the property in dispute in favour of the petitioner-plaintiff was indeed made by respondent-defendant No.1 as also the sanctioning of consequent mutation No.328 after their marriage. There was more than sufficient documentary evidence available on record to demonstrate that the petitioner-plaintiff was deprived of her property by design by the respondents-defendants in connivance with the revenue staff. It may also be pointed out that once the petitioner-plaintiff had produced the affirmative evidence in the shape of oral testimonies and the documentary evidence, the onus to proof shifted to the respondents-defendants. Having alleged fraud in sanctioning of the mutations in question, it was obligatory on the respondents-defendants to have led cogent and substantial evidence to demonstrate the same. It may, however, be pointed out that the respondents-defendants did not provide the particulars of fraud in their written statement in terms of Order VI, Rule 4, C.P.C. and, therefore, could not have led evidence in support of their allegation. However, as stated above, the respondents-defendants utterly failed to lead any evidence in respect of cancellation at their behest of the mutations by the revenue authorities. Scrutinized thus, the irresistible conclusion from the record would be that the respondents-defendants failed to discharge the onus of proof that shifted on them during the evidence and that the petitioner-plaintiff was able to prove the gift in her favour by respondent-defendant No.1 in lieu of dower.

21. In a judgment reported as Mst. Shumal Begum v. Gulzar Begum and 3 others 1994 SCMR 818 it was held as under:--

The revisional jurisdiction under section 115, C.P.C. exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity ..The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non-consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction.

22. The judgments rendered by both the courts below overlooked the crucial evidence and drew wrong inferences there-from and were rendered against the facts and ignorance of the law applicable thereto. The judgments so rendered suffered from legal infirmities as pointed out above and therefore, cannot be sustained.

23. In the circumstances, the judgments passed by both the learned courts below are set aside and consequently the suit filed by petitioner-plaintiff is decreed in her favour.

ZC/B-3/L Revision allowed.