2022 SCMR 399......................
As per Article 117 of the Qanun-e-Shahadat 1984, the burden of proof lies on a person, who desires a Court to give judgment, as to a legal right or liability dependent on the existence of facts, which he asserts; while under Article 118 (supra), burden of proof in any suit or proceeding lies on a person, who would fail, if no evidence at all were given on either side. Hence, when a plaintiff comes to a Court, and seeks relief on the basis of certain facts, asserted by him in his plaint, the burden of proving those facts is on him; for the relief prayed for cannot be granted, unless the Court holds the existence of those facts proved. However, there is an exception to this general rule. When the law allows for certain presumptions of facts, provided under Qanun-e-Shahadat 1984, then under clause 7 of Article 2 of the Qanun-e-Shahadat 1984, “the Court may presume such fact as proved, unless, and until it is disproved, or may call for proof of it”. Thus, when a party on whom the burden lies under Articles 117 or 118 of the Qanun-e-Shahadat 1984, asserts such fact and the court presumes the same as proved, then it would be for the other party to disprove that fact. Articles 117 and 118 of the Qanun-eShahadat 1984 are, therefore, to be read subject to such presumptions. The presumptions of facts, which are rebuttable, are thus part of the rules of evidence regulating the burden of proof.
The judicial determination of whether the said presumption of faith of a party, holds or positively stands rebutted, would be adjudged on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person, and thus, to pass any finding thereon, the Courts are to consider the surrounding circumstances; way of life, parental faith and faith of other close relatives.
In civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of probability of evidence produced by the parties. And the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.
Period of limitation in filing a suit for declaration.
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A wrong entry as to one’s inheritance rights in the revenue record (i.e., inheritance mutation) is not, as held by this Court in the case of Ghulam Ali,to be taken as an ouster of a co-heir from the coownership of the joint property. Indeed, the devolution of the ownership of the property on the legal heirs takes place, under the Islamic law, through inheritance immediately, and that too without intervention of anyone. Therefore, treating a wrong inheritance mutation, as an ouster of a co-sharer from the co-ownership of the joint property, and treating the six-year limitation period under Article 120 of the Limitation Act, 1908 to
start from the date of sanction of the inheritance mutation, as done by the revisional court, is not legally correct.
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