PLD 2022 SC 353..............
As to proof of a fact, clause (4) of Article 2 of the Qanun-eShahadat, 1984 provides:
“(4) 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 conceptual analysis of this clause shows that in order to prove a fact asserted by a party, it does not require a perfect proof of facts, as it is very rare to have an absolute certainty on facts. This provision sets the standard of a ‘prudent man’ for determining the probative effect of evidence under the ‘circumstances of the particular case’. The judicial consensus that has evolved over time is that the standard of ‘preponderance of probability’ is applicable in civil cases, the standard of ‘proof beyond reasonable doubt’ in criminal cases, and the in-between standard of ‘clear and convincing proof’ in civil cases involving allegations of a criminal nature.3 All these three standards are, in fact, three different degrees of probability, which cannot be expressed in mathematical terms, and are to be evaluated ‘under the circumstances of the particular case’, as provided in clause (4) of Article 2 of the Qanun-eShahadat, 1984.
Jurisdiction of revisional court – interference of the concurrent findings of facts.
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The trial and appellate courts had rightly found the preponderance of probability in favour of the appellants in accepting their assertion of their relationship with Nasir-ud-din, whereas the revisional court appears to have exceeded its jurisdiction by setting aside their findings. We note that the concurrent findings on the crucial issue of relationship recorded by the two courts was set aside by re-appraising the evidence, without pointing out, what material evidence was misread or non-read by the courts below or how their appraisal of evidence was perverse or absurd. Needless to mention that a revisional court cannot upset a finding of fact of the court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional court cannot substitute the finding of the court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the court(s) below.
Application of limitation to inheritance cases .
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The “fraud” envisaged in this provision of the law only relates to concealing, not creating, the right to sue and thus, affects only the limitation period and has nothing to do with the cause of action and the relief prayed.7 It is also needless to mention that, a plaintiff who wants to avail the benefit of section 18 of the Limitation Act, must assert the commission of such fraud by the defendant in the plaint, and should also give the particulars thereof, and the date of knowledge as required under Rule 4 of Order VI of the CPC, and then prove the same through positive evidence.
The umbrella concession qua the commencement of period of limitation, under section 18 of the Limitation Act, has an express exception, that is, when the disputed property is purchased by a third person in good faith and for valuable consideration (bone fide purchaser), the benefit of section 18 to the owner would then not be available against such third person.
A suit for declaration of any right as to any property is filed under section 42 of the Specific Relief Act 1877 (“Specific Relief Act”). Therefore, to ascertain when the right to sue accrues to a legal heir to seek a declaration of his ownership right over the property inherited by him and of his such right not to be affected by the further transfer of such property.
It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right.
What “actions” can be termed as an “actual denial of right”, and what a mere “apprehended or threatened denial of right”, in the context of adverse entries recorded in the revenue record, is a question that requires consideration. Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere “apprehended or threatened denial” of right, and not an “actual denial” of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration. The situation is, however, different in a case where the person in possession (actual or constructive) of the land regarding which the wrong entry is made, is ousted from such possession, besides a wrong entry in the revenue record. In such a case, the act of ousting him from the actual or constructive possession of the land, constitutes an “actual denial” of his rights, and does not remain a mere “apprehended or threatened denial”. Therefore, in such a case, if the person injuriously affected by such an act of “actual denial” of his rights does not challenge the same within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.
In an inheritance case, like the present one, a wrong mutation in the revenue record, as to inheritance rights does not affect the proprietary rights of a legal heir in the property, as the devolution of the ownership of the property on legal heirs takes place under the Islamic law, through inheritance immediately, without any formality including sanction of inheritance mutation. Therefore, a wrong mutation is a mere “apprehended or threatened denial” of right, not necessitating for the person aggrieved thereby to institute the suit. The position is, however, different when the co-sharer in possession of the joint property, on the basis of a wrong inheritance mutation, sells the joint property, or any part thereof exceeding his share, claiming him to be the exclusive owner thereof and transfers possession of the sold land to a third person, the purchaser. In such a circumstance, the co-sharer by his said act “actually denies” the rights of the other co-sharer, who is only in constructive possession of the same, and ousts him from such constructive possession also by transferring the possession of the sold land to a third person, the purchaser. In such circumstances, the right to sue accrues to the aggrieved co-sharer from the date of such sale, and transfer of actual possession of the sold land to the third person, the purchaser.
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