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Civil Appeal No. 38 of 1959, decided on 24th March 1960.

(On appeal from the judgment and decree of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 9th June 1959, in Civil Appeal No. 87/44 of 1953, Miscellaneous Application No. 31/58.)

(a) Leave to appeal to Supreme Court-Ground on which leave granted found to 6e not tenable at hearing-Appeal dismissed Constitution of Pakistan (1956), Art. 160-North-West Frontier Province Courts Regulation (I of 1931), S. 31 concedes much wider appellate powers to High Court than S. 100, Civil Procedure Code (V of 1908).

(b) Genealogical table-Certified copy-Variation-Note in genealogical table not appearing in certified copy-Note, held to be an interpolation in circumstances of case.

Iftikharul Haq Khan, Advocate Supreme Court, instructed by Naziruddin, Attorney for Appellants.

A. R. Shaikh, Advocate Supreme Court, instructed by Amjad Hussain, Attorney for Respondents.

Date of hearing: 8th March 1960.

.-This is an appeal, by special leave of this Court, in a civil matter from a judgment and decree made by the High Court of West Pakistan, Peshawar-Bench, in a "further appeal" from the judgment and decree of the Additional Judge, Peshawar. The plaintiffs in the original suit are the appellants before us.

The ground taken in the petition for special leave to appeal, on which leave was granted by this Court was as follows:---

"That the High Court erred in upsetting the well considered judgment of the first appellate Court. It was a finding of fact and could not be assailed in second appeal."

The leave was obtained on a misunderstanding, as it was not a second appeal under section 100 of the Civil Procedure Code but a "further appeal" under section 31 of the North-West Frontier Province Courts Regulation (I of 1931), under which the appellate powers of the High Court are much wider and are not limited as under section 100 of the Civil Procedure Code, section 31 of the Regulation runs as follows :-----

"(1) A further appeal shall lie to the Court of the Judicial Commissioner in any of the following cases from an appellate decree of a District Court on any ground which would be a good ground of appeal if the decree had been passed in an original suit, namely :----

(a) in small cause or unclaused suit,

(i) if the value of the suit is one thousand rupees or upwards, or the decree involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses otherwise than as to costs the decree of the Court below, or

(ii) if the value of the suit is two thousand five hundred rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting, pro perty of like value ;

(b) in a land suit,

(i) if the value of the suit is two hundred and fifty rupees or upwards, or the decree involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses otherwise than as to costs the decree of the Court below, or

(ii) if the value of the suit is one thousand rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting, property of like value.

(2) The provisions of Order XLI of the Code of Civil Proce dure, 1908, other than Rule 35 of the said Order, shall apply as far as may be to further appeals under this section and to the execution of decrees passed on such appeals."

The High Court of West Pakistan is the successor Court to the Judicial Commissioner's Court. The powers of the High Court to hear appeals from District Court under this section extend to "any ground which would be a good ground of appeal if the decree had been passed in an original suit", and the present case comes under clause (b) (i) of this section. The only grounds, on which leave was granted and which has been repeated before us, is not, therefore, tenable. On the merits also the High Court had good grounds for reversing the findings of the Additional Judge.

The appeal, relates to the inheritance of landed property measuring 49 kanals and 9 marlas in village Adina in the District of Mardan left by one Shahdad son of Khairullah, who died issue less in 1946. On 17th September, 1946 the lands were mutated in favour of the predecessors of the respondents by the' revenue authorities, as the original defendants were held to be cousins of Shahdad on the father's side in the sixth degree. The appellants claiming to be nearer cousins of Shahdad preferred an appeal to the Collector, Mardan, against the mutation which was dismissed. They then instituted a suit for declaration that they were the owners of the property left by Shahdad, and not the respondents. The plaintiffs in support of their claim relied on the genealogical table of the Adina village of Tal Musa Kliel prepared in the settle ment operations of 1870, which showed Musa Khan as the ancestor, whose son Sota had two sons Kamraan and Paigham. Khairullah was the grandson of Paigham whose son was Shahdad deceased, the last owner of the property in suit. Kamraan had a son Shahadat, with whom the pedigree ends. Below the name of Shahadat in the certified copy of the record filed with the plaint by the appellants there was no note showing transfer of the land by Shahadat himself or his descendants,. The plaintiffs also relied on a separate pedigree table of a different village Tal Sabit Khel also prepared in the settlement of the same year 1870 in which the first name as owner of the property in that village is shown as Shahamat, who left a son Jangi, who left two sons Fateh and Bajang, and the plaintiffs claimed that Bajang had two sons Gharib and Faqir, who were the fathers of the plaintiffs-appellants. The decisions of the whole case depended on the simple issue whether this Shahamat claimed to be their ancestor by the plaintiffs was the same as Shahadat son of Kamraan shown in the genealogical table filed with the plaint. The Subordinate Judge, First Class, Mardan, who originally tried the suit, held that Shahamat, .the great grand-father of the plaintiffs, was not the same person as Shahadat, who was the descendant of Sota, and in this view dismissed the suit.

The plaintiffs then appealed to the Additional Judge, Peshawar, who took additional evidence of one Hazrat Jamal, Naib Saddar Qanungo, and relied upon the genealogical table of 1870 of Mahal Adina in which below the name of Shahadat there appeared a note that his descendants sold the land to the descendants of Muqarrab son of Mohsan of Tal Sabit Khel and that his descendants were now in Tal Sabit Khel. In the record produced by him part of the name, which was evidently 'Shahadat, had been scratched out so that there was a hole in the paper. The witness assumed it to be Shahamat and he stated as follows:---

"The name of Shahamat has been interfered with by scratch ing. The scratch is obvious and has resulted in a hole in the paper. In Tal Sabit Khel 2 persons bear the name of Shahamat. One is the son of Jamal. His caste is noted (sic) but his caste is noted as Afghan Musa Khel."

The Additional Judge assumed that in the pedigree table of Tal Musa Khel produced with the plaint by the plaintiffs-appellants the Copying Department had omitted the note below the name of Shahamat (Shahadat) which must have existed in the original pedigree produced by the Naib Saddar Qanungo who was summoned as a Court witness. The Additional Judge relied on two facts viz. the note about the transfer of land below the name of Shahadat and the caste Musa Khel mentioned by the Qanungo in his evidence to identify Shahamat of Tal Sabit Khel, the ancestor of the respondents, with Shahadat son of Kamraan of Musa Knelt and having held that they were one and the same person reversed the judgment and decree of the trial Court. The Additional Judge relied on' a very slender thread without sufficient material, as the plaintiffs failed to prove the name of Shahamat's father by any documentary evidence or any other reliable evidence to establish his identity with Shahadat. There was no evidence to show when the said note was made in the record and no explanation as to why it was absent from the certified copy which was filed by the plaintiffs originally with their plaint. There was also no explanation as to why, if Shahadat's descendants sold their land in Musa Khel and acquired land in Sabit Khel, the name of Shahadat (as claimed by the plaintiffs) was mentioned in the genealogical table of Sabit Khel and not his descendants who actually acquired land there.

A further appeal was taken to the High Court. The High Court held that the note under the name of Shahadat to the effect that his descendants sold the land to the descendants of Muqarrab of Sabit Khel, which was not present in the original certified copy supplied to the plaintiffs and to which the defendants had taken no objection that the copy was incomplete, was a subsequent interpo lation. It held that the name of Shahadat in the pedigree table of 1870 had been tampered with later and also held that it must have been done after the case was decided by the trial Court and the note added later on. It further held that if Shahadat's descendants had sold away their property in Tal Musa Khel in favour of Muqarrab, it did not follow that the genealogical table of Shahadat should by reason of the fact be started in Tal Sabit Khel and that the plaintiffs failed to prove that the descendants of Shahadat after they sold away the property in Tal Musa Khel acquired any property in Tal Sabit Khel. It also held that it was for the plaintiffs to prove by positive evidence that Shahamat of Tal Sabit Khel was the same person as Shahadat of Tal Mura Khel, which they had failed to prove. The High Court had good grounds to set aside the judgment and decree of the lower Appellate Court and to restore those of the trial Court and it was within its competence to do so under section 31 of the North-West Frontier Province Courts Regulation (I of 1931). The appeal is, therefore, dismissed with costs.

A. H. Appeal dismissed.

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