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Civil Appeal No. 33 of 1986, decided on 8th March, 1986.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 18‑12‑1978 in Civil Revision No. 138 of 1978).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 11‑‑Settlement Scheme No. VII‑‑Leave to appeal granted to examine whether judgment of District Judge, reversing judgment of Trial Court to the effect that the appellant was owner of suit property, was not based on misreading and ignoring vital evidence with regard to identity and transfer of property.

‑‑‑Ss. 10 & 11‑‑Settlement Scheme No. VII‑‑Civil Procedure Code (V of 1908), Ss. 100 & 115‑‑Appellant claiming that house in dispute was transferred to him under Settlement Laws but respondent contesting suit of appellant with plea that house was transferred to him under Settlement Scheme No. VII‑‑Both parties leading evidence‑‑Trial Court decreeing suit in favour of appellant with finding that suit property was in reality transferred to appellant and not to respondent‑‑On appeal by respondent District Judge set aside Trial Court judgment and decree holding that suit property was transferred to respondent‑‑Appellants revision before High Court failed‑‑Record showing that serious allegations of forgery of Settlement record were made in case and for that reason appellant made an application to District Judge for additional evidence by summoning original record of allotment of house in dispute‑‑Application of appellant rejected by District Judge although no adequate judgment could be delivered in case without examining original record‑‑Instances of doubtful character like change of entries in document of transfer with regard to number of house, with different writing, change in date in document apparent on record‑‑Appellant brought on record a document which showed that the properties were already transferred in favour of respondent‑‑Question, whether in presence of such evidence respondents claim for suit property was justified, not examined by District Judge of High Court‑‑Appellant contending that District Judge while discussing evidence of appellant took note of only two witnesses while in fact more witnesses were examined by appellant‑‑Such particular part of evidence had neither been referred either in appellate or in revisional order‑‑A material irregularity, held, committed by Courts below by ignoring vital piece of evidence‑‑Case remanded to District Judge for fresh hearing and decision‑‑Application for summoning additional evidence of appellant was also allowed.

A. R. Shaukat, Senior Advocate Supreme Court with Mr. Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Rana Muhammad Bashir Khan, Advocate Supreme Court with Tanveer Ahmad, Advocate‑on‑Record for Respon8ent.

Date of hearing: 8th March, 1986.

This appeal through leave of the Court is directed against judgment dated 18‑2‑1978 of the Lahore High Court; whereby the appellants Civil Revision arising out of disposal of a suit regarding an evacuee property, was dismissed.

2. The dispute related to the disposal of an evacuee house purported to have belonged to one Jatha Ram. The appellant claimed it to be No. 70 and allotted and transferred to him under the Settlement Law. But after

sometime, and before the filing

of the suit, respondent Zilladar trespassed into it which led to the appellant filing a suit for possession of the suit house. The respondent contested the suit with the plea that in reality the suit‑house was transferred to him under Settlement Scheme No. VII on 26‑12‑1968. The pleadings of the parties led to the framing of issues, one of which is important for the time being, namely, "whether the plaintiff is the owner of the suit‑property O.P.P.", Both the parties led evidence documentary as also oral, as result of which the suit was decreed in favour of the plaintiff with the finding that the suit house was in reality transferred to the appellant and not to the respondent. On appeal by the respondent Zilladar learned Additional District Judge set aside the trial Court decree and judgment and held that the suit house was transferred to the respondent.

3. The appellants revision before the High Court having failed, leave to appeal was granted to examine whether the judgment of reversal by the Additional District Judge was not based on misreading an ignoring vital evidence with regard to the identity and transfer of the suit‑house.

4. We have heard the learned counsel for both the sides. It is to be pointed out straightaway that serious allegations of forgery of settlement record were made in this case and for that reason the appellant had made an application to the learned Additional District Judge for additional evidence by summoning the original record of the allotment of houses No. 70 and 83 As would be presently shown no adequate judgment could have been delivered without the examination of the original record, therefore, the appellants application in this behalf was wrongly rejected. This has led to miscarriage of justice. To demonstrate that the original record was needed to be examined, only three instances of doubtful character of the record would be enough to cite here for the purpose of the present discussion.

5. One, the transfer to the respondent dated 26‑12‑1968 purporting to be of House No. 70, according to a document produced by respondent himself seems to be the transfer order relating to House No. 83. The word and figures on the said document read as follows: house no 70/83.

6. The ink and probably also the pen used for writing the figure 70 and unscored 83 seem to different from that used for the scored figure 83. Although this point was raised before the High Court but enough importance was not attached to it notwithstanding the fact that the scored out entry is not initialled. Even if it be assumed for the sake of argument that the initialling was not necessary, the entries in the document with regard to the number of the house and the others, for example, the date 29‑12‑1968 are so different in writing that the scoring out of figure 83 should not have been ignored very lightly. A material irregularity has thus been committed by both the learned two Courts below.

7. Two, Exh.P.4 is the document relating to the transfer of House No. 70 to the appellant. The figure 70 as house number and the other writing are in the same hand and with the same ink. There is no doubt about it. Thus, as compared to the respondent's documents the petitioners document of transfer prima facie appears to be more authentic. This document has been relegated to a secondary position because the date purported to have been written on it namely 29‑12‑1968 is subsequent to the date of the alleged transfer in favour of respondent namely, 26‑12‑1968. But a careful scrutiny of the figure 12 in the date 29‑12‑1968 in the appellant's document clearly reveals a forgery of converting figure "10" into "12" by extending down below the "0" of "10" and conveniently making it into "2". The ink for this extension is different and so is the overwriting on the "0" of "10". Prima facie it appears that the original order leaving aside the date of the P.T.D. and subsequent documents was passed in favour of the appellant on 29‑10‑1968 which by the aforesaid process appears to have been made into 29‑12‑1968. For this reason also the summoning of the original record was necessary. The Additional District Judge and the High Court ignored this aspect of the case and committed material irregularity.

8. Three, there is a document in the record produced by the appellant marked Exh.P.7 which shows that two properties namely Nos. 411 and 550 were transferred to the respondent. The question whether the presence of this evidence would not reflect on his claim with regard to the transfer of the third property also namely, the suit‑house. This aspect also has been ignored by the learned two Courts below and a material irregularity has been admitted.

9. Lastly, learned counsel for the appellant contended that the learned Additional District Judge while discussing the evidence of the, appellant took note of only two witnesses while in fact more witnesses were examined by the plaintiff. This particular part of the evidence has neither been referred in the appellate nor in the revisional judgment. Thus, a material irregularity has been committed by ignoring vital piece of evidence.

10. After hearing the learned counsel for both the sides at some length, we are of the view that for all the above reasons and in particular for the unjustified refusal of the learned Additional District Judge to summon the additional evidence as also for the High Court to have ignored vital points which amounted to material irregularities, this appeal is allowed and the case is remanded to the learned District Judge for fresh hearing and decision of the appeal.

11. The application for additional evidence of the appellant is also allowed with the result that the said learned court shall summon additional evidence which might be produced by the parties and/or might be considered necessary by the Court itself. There shall be no order as to costs.

M.Y.H. Appeal allowed.

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