2022 S C M R 55
MUSHTAQ UL AARIFIN and others
versus
MUMTAZ MUHAMMAD and others
(a) Specific Relief Act (I of 1877)---
----Ss. 9, 42 & 54---Suit for declaration, permanent injunction and possession---Rival claimants to ownership of property---Plaintiffs/ respondents claimed that suit property was owned by their grandfather, therefore they were entitled to their share in the same, whereas the defendants claimed that suit property was gifted to them by a tribe in respect of their religious service---Held, that it was always the prime responsibility of the plaintiff to discharge initial burden of proof with regard to his/her claim as per the plaint---Perusal of the record of present case revealed that the statement of the attorney for the plaintiffs and their witnesses did not confirm the contents of the plaint--- Plaintiffs were claiming to be the grandchildren of the purported owner of the property but undisputedly, the immediate legal heirs of their grandfather did not claim their right of inheritance in respect of suit property in their life time---No documentary or oral evidence had been produced to prove the ownership of the plaintiffs' grandfather with regard to the property in question---Alleged pedigree table produced and relied upon by the plaintiffs was not an evidence to establish right of ownership---To the contrary, the defendants claimed that the property in question had been gifted to them by the inhabitants of a tribe in lieu of religious services rendered by them---Such fact had been admitted by the witnesses of the plaintiffs and such contention was further supported from the statements of witnesses produced by the defendants---By comparing the statements of witnesses produced by the parties, the quality of the evidence produced by the defendants was much higher than the evidence of the plaintiffs---Under such circumstances, the defendants had been able to substantiate their stance which they had taken in their written statement---Appeal was allowed and suit filed by plaintiffs was dismissed.
(b) Administration of justice---
----Plaintiffs cannot get benefit from the weaknesses of the defendants alone, rather they have to prove their case on their own strength.
(c) Civil Procedure Code (V of 1908)---
----S. 96 & O. XLI, R. 31---Appeals from original decrees---Powers of Appellate Court---Scope---Failing to challenge the decision of Trial Court upon issue of law before the Appellate Court through cross objection---Effect---Section 96 of the C.P.C. assigned power to the superior court for judging soundness of the decision of the court subordinate to it---While exercising such power, the Appellate Court ought to call for the original record of the Trial Court for reconsideration---After entertaining the appeal, the Appellate Court was required to frame points for determination on the basis of the record of the trial Court to consider and rehear the controversy afresh, both as regards to facts and law, as provided by R. 31 of O. XLI of the C.P.C.---Besides, the issue of law was a substantial issue which was required to be considered by the trial Court as well as the Appellate Court---Failing to challenge the decision of Trial Court upon issue of law before the Appellate Forum through cross objection did not preclude a party to argue the matter to such extent before the Appellate Court nor the Appellate Court lost its jurisdiction, to decide the question of law accordingly---Thus, in the sense, an appeal was a continuation of the original proceedings, that was why, the Appellate Court may uphold, modify or substitute its own judgment for that of the subordinate court; it may also pass an order in favour of a party, not appealing or failing to file cross objections, to secure the ends of justice.
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