' This Civil Revision No.2 of 1984, filed by Khuda-e-Rehm son of Mulla Dadak, is directed against the judgment and decree dated 26-5-1983, passed by Kazi Zhob Sheerani which decree has also been upheld by Majlis-e-Shoora Quetta Division and the suit filed by Hazrat Noor respondent a brother of the petitioner has been decreed and the house in possession of the petitioner has been ordered to be given to the plaintiff/respondent.
2. The litigation between these brothers has a long drawn history. A suit for possession was filed by the plaintiff/respondent in respect of a house bearing No.110-E situated in Bazar Zhob and it was alleged that the house was constructed on a plot obtained on Bhoom Bara by the plaintiff from the Municipal Committee Zhob but the Patta was in the name of his father Mulla Dadak. It was further alleged that on or about 5-6-1968, by an agreement executed by Mulla Dadak this house came to the lot of the respondent Hazrat Noor. The petitioner however, was permitted to reside in the same without any rent. But it was on the definite promise held by the petitioner to the plaintiff/respondent that the house would be vacated whenever it is so desired. Since the family of petitioner by nature is quarrelsome it was not possible for the respondent to carry on and on account of personal requirement respondent needed the accommodation. The petitioner was asked to vacate the same but he had failed to vacate the house, hence this suit.
3. The petitioner in his written statement filed on 26-3-1968, raised a preliminary objection that the suit was under valued and on account of valuation of the subject-matter of the suit the Court had no juris diction. On merit the claim of the respondent was denied and it was pleaded that no partition was ever agreed by him nor any document was executed with his consent. The petitioner being an heir of deceased Mulla Dadak is in occupation of the house is in his own right and no document, even if there is any, can affect his right. He has been in posession of this house since the lifetime of his father. It was further contended by the petitioner that he was not a tenant in the house, hence could not be evicted therefrom.
4. The learned Civil Judge Loralai, however, passed a decree on 30-5-1979, in favour of the respondent but on appeal the learned Additional District Judge, Quetta before whom the appeal came for decision, set aside the judgment and decree of the Civil Judge being without jurisdiction as in view of Baluchistan Civil Dispute (Shariat Application) Regulation, 1976, all the civil disputes in the tribal areas of Baluchistan are to be adjudicated in accordance with Muslim (Shariat) Law and by the Qazi. The suit was accordingly referred to Kazi Loralai.
5. The learned Qazi Loralai without framing any issue and without properly recording the evidence decreed the suit on 17-2-1980, against which a time-barred appeal was filed before the Majlis-e- Shoora but due to the difference of opinion between the members of Majlis-e-Shoora the judgment of the learned Qazi was sustained in view of section 5 of the above-said Regulation but on appeal made to the High Court the judgment and decree passed by Qazi was set aside and the case was remanded to Qazi for deciding the case "strictly in accordance with law" as the material provisions of the Code of Civil Procedure were not adhered to by the Qazi and the learned counsel appearing for the present respondents had candidly conceded that neither the issues were framed nor the evidence was recorded by Qazi according to law. This judgment was passed on 16th March, 1982. The learned Qazi Loralai on receipt of the file summoned the parties to attend the Court on 26-5-1982 and according to learned Qazi the following issues were framed in the presence of the parties.
(i) Whether the father of the parties (Mule Dadak) in his lifetime had distributed the property through an agreement, dated 5-6-1961 between his sons?
(ii) Whether the plaintiff is entitled to the possession of the House No.110/E which is in possession of the defendant?
6. The respondent examined 4 witnesses namely Mohibullah son of Fazal-Ullah, Malik Sheikh Ghulam Murtaza, Malik Haji Jan Mohammad, Mulla Hameedullah and the respondent himself appeared as his own witness. The learned Qazi in his judgment dated 21-6-1982, passed in favour of the respondent has observed that the petitioner has in fact bycotted the proceedings and did not cross-examine the witnesses produced and examined on behalf of respondent nor chose to lead any evidence in rebuttal. The petitioner again filed an appeal on 1-12-1983, before the Majlis- e-Shoora, Quetta Division and it was urged that the entire proceedings were taken by the Qazi behind the back of the petitioner. But this contention was not accepted by the Majlis-e-Shoora and the learned members relied upon an endorsement of the Assistant Commissioner that service of the summon on the petitioner was duly affected. Acordingly this appeal was dismissed. Against the order dated 22-12-1983, this revision petition has been filed.
7. It has been contended by the learned counsel for the petitioner that even if the service affected on his client is held to be proper, even then there was no legal evidence which could be acted upon. The leaned Qazi has completely misread the evidence, and has based his decision on inadmissible evidence. Thus, the decree passed against his client is not sustainable in law. The respondent has appeared in person before me, who has filed a written reply drafted by a petition- writer, which has been read before me and duly considered. The most significant aspect of the case is that it was the case of the petitioner that he has been in possession during the lifetime of his father and the alleged partition deed was neither signed by him nor it was ever agreed to and even if any document has been procured it can neither be used nor affects his rights. In view of this stand taken by the defendant/ petitioner it was the obligation of the learned Qazi to have framed the issues keeping in view the pleadings. The fundamental question in the instant case is whether the plaintiff had proved the document and thereafter whether the defendant was bound by it or it affects his rights. No document, original or certified copy was tendered by the plaintiff/respondent before the learned Qazi. The evidence of P.W.I Mohibullah son of Fazullah, a petition-writer who wrote the document and P.W.4 Mulla Hameedullah son of Faiz Muhammad Qureshi, who have deposed about the contents of a document which was neither shown to them in Court nor exhibited through any witness is inadmissible in view of he provisions of section 91 of the Evidence Act and no evidence could be allowed to be brought on record except the document itself.
The law on this point is clear. The oral evidence cannot be substituted for the writing nor the contents of a document proved by oral evidence. The document which formed the real foundation of the claim of the plaintiff has not been proved before the Qazi as required under section 64 of the Evidence Act. The same criticism applied to the other witnesses produced by the plaintiff. The entire evidence of the plaintiff is thus liable to be ignored being inadmissible in law. It can, therefore, be safely, concluded that the plaintiff/respondent has failed to establish his case as set up in the plaint and the material particulars constituting the cause of action have not been proved and the entire evidence led by the plaintiff is liable to be ignored being inadmissible in law.
8. I would like to emphasis that Courts must keep the line clear between legal proof and moral conviction. Once the evidence comes before the Court and does not stand the test of legal scrutiny that evidence does not constitute the legal proof, then the dividing line vanishes, legal proof is neither more nor less than what has been indicated in the Evidence Act. It is the duty of the Court in each case to concentrate its attention the relevant and admissible evidence and to decide whether or not a particular fact has been proved from the evidence adduced in the case.
' It was incumbent on the Courts below to determine the nature of the document being relied by the plaintiff for his claim. It is contended by the plaintiff that the distribution of the property amongst the heirs of Mulla Dadak was an agreement (As is shown in the title of the deed by the word "Iqrarnama"). Yet none of the person being affected thereby were present even neither they were party to the execution thereof, their acceptance to the arrangement is also not indicated.
' The plaintiff has not furnished any proof on record that he had constructed the house in suit, or that the Patta of the land over which the house was built was a "Benami". The allegation contained in the plaint that the house in question was given without any rent to the defendant/petitioner or he had ever agreed to vacate the house is also not established. It can, therefore, be safely said that the plaintiff/ respondent has failed to prove his case. The document being relied by the plaintiff having not been tendered in evidence nor proved in accordance with law the entire evidence, led by him was inadmissible in law and here has been misconstruction of oral evidence. The decision is thus based on inadmissible evidence. The judgment of the Qazi and the Majlis-e-Shoora cannot be sustained in law and the exercise of High Court's revision jurisdiction is called for.
' For the above reasons there is no option but to set aside the judgments and decrees passed by Qazi, Zhob and Majlis-e-Shoora dated 21-6-1983 and 22-12-1983, respectively. Accordingly the petition is accepted and the suit of the plaintiff/respondents stands dismissed. Since the parties are related to each other they would bear their own costs.