MULAKH BAN Versus GHAR BAN

ORDER

1. SALAHUDDIN AHMED, J.‑ The petitioner arises of a suit by respondent Mst. Gohar Bano against t he petitioners for possession, of 1/16th share of the property left by Nawab Khan, claimed to be the plaintiff's husband. The petitioners arc tire widow and children of the porosities, and they resisted the claim of‑the plaintiff on the ground that she had been divorced by Nawab. The trial Court wrongly put the onus upon the plaintiff to prove that she was a widow of Nawab Khan, and ultimately dismissed the suit.

2. The plaintiff respondent appealed and the learned District Judge allowed the appeal and reversed the finding of the trial Court. It was bold that the marriage of the plaintiff with the said Nawab Khan having been admitted it was for the defendants who set up the plea of divorce to prove it. There was no document in support of the alleged divorce. The learned District Judge upon a scrutiny of the evidence preferred to accept the evidence of the plaintiff, lie was perfectly entitled to do so.

3. The petitioners' revision before the High Court was dismissed.

4. It has been contended on behalf of the petitioners that this was a case of oral evidence versus oral evidence and, therefore, the learned District Judge should riot have interfered with the appraisement of evidence made by the trial Court. In support of this contention the case of W. C. Macdonald v. Fred Latimer ( A I R 1929 P C 11 ) has been cited.

5. Furthermore that the reasons given by the learned District Judge for preferring the evidence adduced on behalf of the plaintiff are not good.

6. There is no substance in either contentions.

7. At regards the first contention it was fully within the jurisdiction of the' final Court of facts to make its own appraisement of the evidence. The case cited in support. of the contention has no application to the facts of the present case for the trial Court having wrongly placed the onus upon the plaintiff; its approach to the case became vitiated, and this affected his appraisement of the evidence. Besides there did exist sufficient balance of improbability to displace the trial Court's finding as to the truth of the oral evidence accepted by it. In the case under report it has been held that where there is a direct conflict of oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace trial Judge's finding as to truth of oral evidence, the appellate Court should, not interfere with the findings of the trial Judge on the question of fact.

8. Once the question of onus had been correctly determined it was not difficult for the learned District Judge to make a correct appreciation of the evidence, and to accept the evidence led on behalf of the plaintiff in preference to drat led on behalf of the defendants. This was sufficient reason for the preference made by the learned District Judge.

9. The petition is, accordingly, dismissed.

10. Petition dismissed.