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Second Appeal No. 184 of 1965, decided on 30th April 1971.

Evidence Act (I of 1872), S. 33‑Witnesses admittedly alive Statements made by such witnesses, in another judicial proceedings, not admissible‑Record of one proceeding‑Cannot be treated as part of record of another proceeding‑Practice of calling for record of a case and treating same as part of another case‑ Objectionable and unwarranted.

The record of one proceeding, is not to be treated as a part of the record of another proceeding. The record of each proceed. ing should be self‑contained and complete. The practice of calling the records of other proceedings and treating them as a part of the record of another c,se is objectionable from more points of view than one. Firstly, there is no warrant for so using the record under the Evidence Act and, secondly, the record of a case in which another record is used remains incomplete and creates difficulties for future references.

A hayat Ali for Appellant. .. . .',* :,R,',..

A. A. Fazeel for Respondent No. 1.

Kadir Hussain Saeed for S. M. Raza for Respondent No. 2.

Sher Ali for Respondent No. 3.

Date of hearing: 30th April 1971.

QADEERUDDIN AntAD, C. J.‑This second appeal is directed against the judgment of the first appellate Court, dated the 24th of April 1965, by which he dismissed the first appeal of present appellant.

2. The facts which form the background as stated by counsel for the appellant are that Sagho Pali died on the 3rd of Dec.‑mber 1920 and left about 1635 acres of agricultural land, situated in Tharparkar District. He was a Hanafi Sunni Muslim; therefore, his inheritance is governtd by that law. He left a widow by the name of Pathan. There is no dispute about her right of inheritance and her share in the property left by her husband. Besides her, there was Madad Ali who claimed to be a cousin of Sagho Pali but his right was disputed by Muhammad Akib who also claimed to be a distant cousin of Sagho Pali; therefore, Madad Ali filed a suit for declaration that he was an heir of Sagho Pali and entitled to get a share from the property left by him. He impleaded as defendants the widow of Sagho Pali and Muhammad Akib. Counsel says that before written‑statements were submitted, the management of the estate of Muhammad Akib was taken over by the Manager of Encumbered Estates who was impleaded as a defendant. He submitted a written‑statement on behalf of Muhammad Akib on the 23rd of August 1953. The widow of Sagho Pali, Mst. Pathan, also filed a short written statement and supported the claim of Madad All.

3. The trial Court framed nine issues on the 19th of August 1954, none of which is material at present except issue No. 1, which is as follows

"(1) Who are the heirs of deceased Sagho Pali " Counsel for the appellant says that Madad Ali produced 26 witnesses whereas Muhammad Akib producdd 10 witnesses. No documentary evidence was produced because the contest between the parties was about the relationship of Madad Ali and Muhammad Akib to deceased Sagho Pali and the decision of the case depended on oral evidence of their rela tionship to the deceased. The trial Court came to the conclusion that Muhammad Akib was not related to the deceased and was a complete stranger. The Court, therefore, decreed the suit in favour of Madad Ali on the 10th of December 1958. Muhammad Akib went in appeal against that decision and his First Appeal was dismissed on the 24th of April 1965. Now he has come in Second Appeal to this Court."

4. We inquired at the outset from counsel for the appellant as to what legal question was involved in this case which could be agitated in a Second Appeal. Counsel replied that

the evidence which was produced on behalf of Madad All consisted of a large number of witnesses but mere number did not make the evidence weighty; therefore, the trial Court should have given more weight to the evidence which was produced on behalf of the present appellant as a defendant. We inquired from counsel as to what was the evidence which the appellant bad produced to which he replied that it was reliable evidence inasmuch as the elders of the Pali Tribe had given their statements. On further inquiry we, however, dis covered that they did not appear as witnesses in this case. According to counsel for the appellant, the dispute had first begun when mutation proceedings were taken. According to counsel, Muhammad Akib had applied for the entry of his name in the Revenue Record as an heir of Sagho Pali, and in support of that application had examined the elders of his tribe who had also, according to counsel, prepared a family tree. That evidence, according to counsel, was accepted by the Revenue Offcer who ordered the property to be partitioned amongst two heirs only. Four annas were given to the widow and twelve annas were given to Muhammad Akib. Madad Ali went in appeal against that decision to the Assistant Commis sioner v ho accepted the appeal to the extent that he considered Madad Ali and Muhammad Akib to be equally related to the deceased; therefore, he decided that four annas should go to the widow, six annas to Madad Ali and six annas to Muhammad Akib. It was to challenge that decision that Madad Ali filed the suit from which this appeal has arisen. Counsel for the appellant says that the elders were not examined as witnesses in this suit and although they were alive they were not examined as witnesses in the suit nor were even certified copies of their statements produced. All that was done was to summon the record of the revenue proceedings and references were made to the statements of the witnesses who had appeared in the revenue proceedings.

5. We may mention here that the above procedure is unwarranted by law. To begin with we should point out that the record of one proceeding is not to be treated as a part of the record of another proceeding. The record of each proceeding should be self‑contained and complete. The practice of calling the records of other proceedings and Veating them as a part of the record of another case is objectionable from more points A of view than one. Firstly, there is no warrant for so using th

record under the Evidence Act and, secondly, the record of a case in which another record is used remains incomplete and creates diffculties for future references. In this case the omission to call witnesses who were admittedly alive made the secondary evidence inadmissibe. We explained this to counsel for the appellant and he said in reply that there was nothing else in support of the appellant. This means that the evidence which was produced by Madad Ali has practically gone uncontradicted.

6. In conclusion we dismiss this appeal with costs.

g. s. A. Appeal dismissed.

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