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Writ Petition No. 1471-R of 1976, decided on 9th December, 1985.

---S. 13--Documents--Evidentiary value--Evidentiary value of a document, is altogether different from its admissibility and it was always for Court to determine as to what weight was to be attached to a particular document brought on record.

---S. 23(1)--Succession to property--Documents--Evidentiary value- Documents produced by petitioners in proof as legal heirs of deceased property-holder were copies of public record having been duly exhibited by Deputy Settlement Commissioner under his signatures--Such documents not adverted to, alluded to or discussed by Deputy Settlement Commissioner in disposing of controversy before him through impugned order--Failure of Authority to consider such documents, held, rendered order liable to be set aside--Order declared to have been passed without lawful authority and case remanded for disposal afresh in accordance with law on basis of evidence produced by parties.

Muhammad Aslam v. Khurshid Begum P L D 1972 Lah. 603 ref.

---S. 23(1)(c)--Succession Act (XXXIX of 1925), S. 370--Succession to property--Settlement Authorities having exclusive jurisdiction to appoint legal representatives of a deceased transferee, pendency of proceedings in civil Court concerning grant of succession certificate would have no nexus with succession to property in dispute before Settlement Authorities.

Ch. Muhammad Farooq for Petitioners.

Jawad S. Khawaja for Respondents Nos. 1 to 4.

Mian Saeedur Rehman Farrukh for Respondent No.5.

Date of hearing: 9th December, 1985.

The property bearing No.3 Garden Town, Lahore, was provisionally transferred to Col. Sardar Hamid Hassan Khan. After his death, respondents Nos. 1 to 5 moved the Deputy Settlement Commissioner, to be brought on the record, as legal representatives of the deceased. In pursuance of a public-notice, issued by the Deputy Settlement Commissioner, the petitioners moved an application before him contesting the respondents' claim of being sole heirs of the deceased. The petitioners pleaded that they were born out of the deceased's wedlock with Mst. Mushtari Begum, who was his second wife. This assertion was, however, refuted by the respondents. After hearing both the parties, the learned Deputy Settlement Commissioner, by his order, dated 3-7-1976 impugned through this writ petition, rejected the petitioner's application. The operative part of his order is as under:-

" ..After hearing both the parties, giving full opportunity to implead their case and also going through the written arguments, statements of the petitioners witnesses (mentioned before), other documents brought on the record and the facts discussed above, I am of the view that the objector Muhammad Afzal Khan and others have failed to prove their case even after having been given much opportunity and time to prove and establish their contention, as contained in their petition, dated 8-6-1974. As such the petition, dated 8-6-1974 is, therefore, rejected. Thus the result will be that the petition dated 14-5-1974 of Mst. Tayyaba Khanum is disposed of by declaring herself and others as the legal heirs/successors-in-interest of the deceased Col. Sardar Hamad Hassan Khan, transferee of property and ...."

2. It is argued on behalf of the petitioners that they produced before the Deputy Settlement Commissioner, in evidence the documents Annexures B/1 to B/21, which are certified copies of the public-record, but these were not discussed and even not adverted to by him in impugned order. It has been thus, argued that the impugned order having been passed in complete disregard of the material on the record, is liable to be removed through judicial review.

3. The case of the respondents, is, that the Deputy Settlement Commissioner was quasi-judicial tribunal; it was obligatory for the petitioners to have proved the documents in question formally in accordance with the provisions of the Evidence Act and also offer themselves for cross-examination by the respondents. But neither the documents were tendered in evidence in accordance with law nor despite several opportunities having been granted to them, petitioner No.l made himself available for cross-examination. The learned counsel for the respondents heavily relied upon Muhammad Aslam v. Khurshid Begum P L D 1972 Lah. 603 to urge that stray documents placed by the petitioners in the Deputy Settlement Commissioner's file did not qualify to be read in evidence. The other ground urged by him to assail the maintainability of the writ petition, was, that proceedings for grant of succession certificate, are pending and the parties, are arrayed against each other in those proceedings, before the civil Court.

4. It was lastly argued that before the Deputy Settlement Commissioner, the petitioners themselves insisted upon complete compliance of the provisions of the Evidence Act. It being so, the learned counsel went on to contend, that the petitioners were precluded by their own conduct from pressing before this Court that the documents which otherwise were not proved, according to law, should have been read in evidence.

5. I find little merit in the objections raised on behalf of the respondents. The documents comprising Annexures B/1 to B/21 to the writ petition, bear the Deputy Settlement Commissioner's endorsement and have been duly exhibited under his signatures, dated 13-3-1976. The Deputy Settlement Commissioner's file further indicates that on the said date, he recorded the petitioners' evidence. The documents in question are the copies of the public record and having been exhibited by the Deputy Settlement Commissioner himself, these shall have to be considered as part of the record, before him. Even in the written arguments filed by the petitioners, before the Tribunal below, these documents were relied upon by them. The evidentiary value of a document is altogether different from its admissibility and it is always for' the Court to determine as to what weight is to be attached to a particular document brought on the record.

6. It is evident from the impugned order, that these documents were not at all alluded to by the Deputy Settlement Commissioner in disposing of the controversy before him, through the impugned order. Since the documents form part of the record, it was obligatory for him to have adverted to them and discussed the same. his failure to consider these documents renders his order liable to be set aside. In case petitioner No.l avoided cross-examination, the Deputy Settlement Commissioner could have made his own evaluation of the petitioner oral evidence. The impugned order is silent, in this respect as well.

7. The argument that the Deputy Settlement Commissioner was bound to follow the provisions of the Evidence Act, is open to serious doubts. However, this point does not call for adjudication in this case; the reason being, that the documents in question have already been formally exhibited by the Deputy Settlement Commissioner and thus, could legitimately be read in evidence. The issue falling for consideration in the precedent relied upon by the learned counsel, was, as to whether or not the Rent Controller could set aside an ex-parte order. This judgment does not advance the respondents' cause in any manner. Likewise, the objection rested on the doctrine of estoppel, has no merit.

8. As regards the pendency of the proceedings concerning the grant of succession-certificate, these would have no nexus with the succession to the property in dispute. Further under clause (e) of C subsection (1) of section 23 of the Displaced Persons (Compensation and Rehabilitation) Act the Settlement authorites have the exclusive jurisdiction to appoint the legal representatives of the deceased transferee.

9. It may be observed that during the hearing of this case, a controversy arose as to how the documents bearing the Deputy Settlement Commissioner's signatures fell into the petitioners hand, for onward annexation thereof to the writ petition. The explanation given by their learned counsel, in this behalf is that after announcement of the impugned order, on their request, the documents were returned to them and they placed photostat copies thereof on the Settlement file. (Such copies are available on the Deputy Settlement Commissioner's file). The correctness of this stand however is contested by the learned counsel for the respondents.

10. For the foregoing reasons, this writ petition is accepted and the impugned order declared to have been passed without lawful authority and as of no legal effect. The case is remanded to the learned Member, Board of Revenue (Settlement Wing-Revenue) for its entrustment to some officer notified under section 2(2) of Act XIV of 1975. The applications of both the parties shall be treated as pending and disposed of afresh in accordance with law, on the basis of the evidence already produced by them. The documents Annexures B/1 to B/21, shall be returned to the petitioners to enable them to produce the same before the Notified Officer. The respondents shall also be at liberty to raise any objection against such production within the limits of law. The copies of the documents passed on to the petitioners shall be retained on this file.

The parties are left to bear their own costs.

M . Y . H Petition accepted

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