MUHAMMAD ISMAIL Versus SHAHNAWAZ
This revision application is directed against the judgment and decree of learned Additional District Judge, Dadu in Civil Appeal No. 15 of 1978, whereby the judgment and decree of Civil Judge Mehar, dismissing Suit No.66 of 1974 filed by Shah Nawaz and others was set aside and the suit was decreed.
2. The relevant facts are that the respondents Shah Nawaz and his brother Abdul Hayee Had filed suit claiming a declaration and permanent injunction against Mohammad Ismail, who is now represented by his L.Rs. that he was not real son of Allah Warayo and for injunction to restrain him from interfering with the possession of agricultural land in possession of the plaintiffs as the sons of Sulleman s/o Allah Warayo inherited from Allah Warayo. The applicant had filed their written statement claiming, that he was the son of Allah Warayo and he had received the possession of the land in respect of which the injunction was sought by the respondents. It was asserted by the applicant that he was in exclusive possession of the land. The Civil Judge framed the issues out of which the following 4 are relevant:
"(1) Whether defendant Ismail is real son of deceased Allah Warayo or he is step‑son of Allah Warayo?
(2) Whether the plaintiffs received possession of the suit Nos. as owners and defendants are trying to dispossess the plaintiffs?
(3) Whether defendant Ismail is hari of portion of S‑No. 720 only and has no right or interest in suit S‑Nos.?
(4) Whether deceased Haji executed a will in favour of his wife Mst. Shah Khatoon and nephew plaintiff Shah Nawaz. If so what is its effect?"
The parties led their evidence. After hearing the argument, the Civil Judge dismissed the suit of respondent Shah Nawaz and his brother.
3. In the appeal filed by the respondents Nos. 1 and 2, the learned A.D.J. passed the impugned judgment. He decided issue NO‑1 only and did not decide the other issues.
4. Mr. Ahmed Khan Barakzai submitted that the learned A.D.J. has reached incorrect conclusion on issue No.l because in the first instance he has left out main documents from consideration and then again he has incorrectly rejected the document exhibit 185 on irrelevant consideration which was an official document and should have been considered. He further submitted that if the learned Judge would have applied his mind to other issues as well, he would have reached correct conclusion. It was also urged that there was not enough material before the learned A.D.J. to come to the conclusion that Ex.45 really bore the signature of Allah Warayo.
5. Mr. Mohammad Ali Shaikh on the other hand submitted that the most important issue in this suit has been decided by the learned A.D.J. and, therefore, the judgment and decree is correct. He submitted that parentage of Ismail was the real controversy between the parties and the decision on that issue had resolved all the controversy between the parties.
Mr. Mohammad Ali also contended that the decision of the A . D . J was correct.
6. In order to appreciate the contentions of the parties, it is to be noted that the case of the plaintiffs' had been sought to be proved by the evidence of Shah Nawaz, Hussain Bux and Pir Bux apart from the documents which will be noted later. The Civil Judge had found that Hussain Bux had not supported the plaintiffs and he had made adverse criticism of the statement of Pir Bux and did not treat him to be a proper witness and the plaintiff had produced a book (Ex.59) to show that Allah Warayo in that book had not mentioned any thing about Ismail. This book had received adverse criticism from the Civil Judge. Documents Ex.137 and 146 produced by the plaintiffs were described by the Civil Judge as simple copies and inadmissible in evidence. Moreover, overwriting were found by the Civil Judge in Ex.144 and 145. The Civil Judge had found writing in different ink, which was treated to be an unnecessary addition. The plaintiff was dubbed by the Civil Judge as an untrue witness.
7. The applicant examined himself and he was supported by Dost Mohammad. He had produced certain documents, namely, Ex.168, notice from Mukhtiarkar addressed to Ismail son of Allah Warayo and an order of D.C. Dadu (Ex.185), where the name of Ismail was shown as son of Allah Warayo in an appeal filed by Mohammad Sulaman son of Allah Warayo. The said order was of 8‑9‑1970. He also produced electoral roll in 1970 where he was shown as son of Allah Warayo and also produced his identity card. Apart from the order of mutation made in his favour. The Civil Judge had believed the applicant and his documents.
8. I find from the judgment of the learned A.D.J. that he has relied upon Ex.59, 60,135, 145 produced by the plaintiffs respondents and come to the conclusion that there was overwhelming evidence in writing of late Allah Warayo in support of the plaintiff. Allah Warayo had not mentioned Ismail as his son in Ex.59 and in that book no entry is found about Ismail or his birth. He compared the alleged signature of Allah Warayo on Exh.135 and 145 and did not find any difference. In respect of the case of the applicant he only considered the documents Ex.185 and came to the conclusion that these documents were produced late inspite of being in possession of the party and in this respect accepted suggestion of the other side that Suleman had actually filed appeal against his brother Hai while Ismail was not a party to the same and that Ismail had got his name subsequently added. He, therefore, opined that Ex.185 could not wash of old documents. He also noted that Ismail had not been able to produce any writing of Allah Warayo. He also relied upon evidence of D.W. Abdul Razzaq, who had stated that Mst. Hawa had first married with Kamil and gave birth to two children and after the death of Kamil she married with Allah Warayo and that Ismail was one of the children brought by Mst. Hawa with her.
9. Contention of Mr. A. K. Barakzai that the A.D.J. had left out certain important documents is correct. Exh.168 was a notice sent by Mukhtiarkar in 1970 to Ismail. Since it was an official document, therefore, it needed consideration. Similarly, the electoral roll of 1970 Exh.170 produced by the applicant also deserved to be considered. The land assessment receipts in the name of Ismail and a writing of Abdul Hai in letter Exh.150 also deserved consideration as they were relevant documents. The extract from the record of rights also deserved to be considered.
10. However, what is more important is that, I find that the learned A.D.J. has brushed aside Exh.185 on mere presumption and suggestion in cross‑examination, which had been denied. The Exh.185 was a certified copy of the order of D.C. Dadu passed in 1970 and the same was supported by Exh.168 in respect of the parties and, therefore, the suggestion of the other side that the applicant had manipulated to get his name added in the said proceedings of appeal filed by Suleman was to say the least not substantiated on record. If the plaintiffs wanted to displace effect of Exh.185 then they should have produced the entire record of those proceedings wherefrom it could have been ascertained whether there was any manipulation made by the appellant and when was that made, but without the record and proceedings the officially certified true copy of the order produced by the applicant (Exh.185) should have been taken into consideration and its effect determined. This document was ignored on irrelevant consideration. If deceased Suleman had shown the applicant to be the son of Allah Warayo in appeal filed in 1970 then it was an important and relevant document.
11. Moreover, I find that the comparison of signature of late Allah Warayo on Exh.145, which is a letter allegedly written by late Allah Warayo to D.M., has been rather cursorily compared by the A.D.J. with other documents, namely, Exh.59, 60 and 135 without pointing out the points of similarity between the writing or the signature V am, therefore, of the view that the learned A.D.J. has failed to consider the relevant documents on record, and incorrectly brushed aside Exh.185 and have not noted the points of similarity in Exh.145 with overwriting and, therefore, his judgment is vitiated. Moreover, it would have been appropriate and consistent with the practice, if the learned A.D.J. could also decide the other issues which have A been raised by the parties and which could also throw some light in respect of the relationship of the applicant with Allah warayo. For the above reasons, I had allowed this revision application on 23‑9‑1987 and remanded the same back to the appellate Court to decide the appeal of the respondents afresh after notice to the applicants and respondents with a direction that at least the documents noted by the trial Court should be taken into consideration in decision.
H. B.T./M‑364/K Case remanded.