' This revision petition impugns two concurrent findings of the Courts below. The first finding is given through the judgment and decree passed by the Trial Court, dated 2-3-1993 and this was upheld by the Court of Mr. Farman Ali, learned Additional District Judge, Toba Tek Singh vide his judgment and decree, dated 5-1-1995.
2. This was a declaratory suit where possession was sought as a consequential relief.
3. Stating briefly, the controversy pertains to inheritance Mutation No,62 which was sanctioned on 2741-1953 in favour of the present petitioners who claimed themselves as legal heirs of Barkat Ali and, thus, entitled to inherit the land which was allotted to Barkat Ali in Square No,3, Killa No,13/2 and 14 min comprising 8 Kanals and 15 Marlas in Chak No,362/GB, Tehsil Gojra, District Toba Tek Singh. The plaintiff explained his entitlement by stating in the plaint that his father Umra son of Malang who was a refugee from Hoshiarpur, Mauza Mattiwala, had a claim in respect of land in lieu of his property which he left behind that his brother and the plaintiff himself were also owners of another piece of land at Mauza Pandori Mattiwala, Tehsil and District Hoshiarpur. That his father submitted his claim in respect of an area in Chak No,254/RB, Tehsil and District Faisalabad and land was confirmed in his name. That his brother and he himself submitted a claim for Chak No,13/GB in Tehsil and District Faisalabad. Whereas the claim of his brother was confirmed and he was allotted land in lieu thereof. But as land was not available his claim was transferred from the said Chak.
4. That the father of the plaintiff died in 1960 and he and his brother were allotted that land and were living there.
5. That the defendants were descendants of Nihal son of Roda resident of Mauza Mattiwala in Tehsil and District Hoshiarpur, who had a son by the name of Barkat All as well. But the said Barkat died before partition. The present respondents Nos.1,to 4 are the legal heirs of said Barkat Ali. That a brother of the said Barkat All named Nabi Bakhsh was still alive
6. That against the claim of said Nihal the predecessor-in-interest of the respondent's land in Khata No,271 and Inheritance Mutation No,60 of 27-11-1953 were sanctioned in the name of said Nabi Bakhsh. Copy of the mutation was attached. It was said that besides this land allotted to the uncle of the respondent, Nabi Bakhsh, there was no other land made available to them.
7. That as his claims had been transferred, he remained in search of those claims. That he learnt about his allotment in Tehsil Gojra of the land in dispute and also the fact that some units were still used against his claim.
8. That taking benefit of the absence of the plaintiff and knowing him because of the background in India, the respondents misrepresented to the authorities about the death of Barkat All and using the akin name of their grandfather got Mutation No,60 of 27-11-1953 attested in their favour through fraud, misrepresentation, although he was alive. They also claimed themselves to be in adverse possession.
9. On the basis of the controversy between the parties, the learned trial Court framed 11 issues including one of relief. Issue No,9 was the main issue and related to the effect whether the plaintiff was entitled to the declaration sought for.
10. The respondent produced verbal evidence to the effect that Barkat Ali was alive and established his relationship with Malang, his grandfather as well as established relationship with his father.
They also stated that Barkat Ali, the predecessor-in-interest of the defendants had left no land in India while the plaintiffs were owners of the land in India and they came to support of the plaintiff in view of his theory of fraud. These witnesses were cross-examined but nothing material favoring the defendants could be brought on the file. The learned trial Court was of the view that the two witnesses Rehmat AH (P.W.2) and Maqbool Ahmed (P.W.4) were independent witnesses. He also went on to say that the documents Exh.P1 to Exh.P10 produced by the plaintiff of which Exh.P4 is the copy of the RL-H and Exh.P7, Exh.P9 and Exh.P10 were copies 1/4, f the pedigree-table and in harmony with the statement of the plaintiff/respondent.
11. The defendants also produced their evidence, both verbal and documentary.
12. The trial Court placed reliance on the documents of the plaintiff and went on to say that Barkat Ali plaintiff and Barkat Ali, the predecessor-in-interest of the defendants were two different personalities. One was Barkat All son of Umra plaintiff and the other was Barkat All son of Nihal and decided the issue in favour of the plaintiff and after deciding the other issues mostly against the defendants he decreed the suit.
13. The matter then came up before Mr. Farman Ali, learned Additional District Judge, Toba Tek Singh. He affirmed the judgment. And decree of the learned trial Court vide his judgment and decree, dated 5-1-1995.
14. The present was a case of impersonation and alienation of valuable rights. The case was proved on the testimony of witnesses other than Barkat Ali, the plaintiff himself, who is living and should have come in the witness-box to state on oath that he was the real Barkat All on whose claim the property under reference had been allotted. He was also in a position to give the background of Barkat Ali, the ancestor of the petitioners who, according to him, was a fictitious personality. The circumstances of this case required such a testimony and the presence of Barkat Ali in the Court would have spoken for him-- Res ipsa loquitor.
15. Of course, there are concurrent findings of the Courts below on facts and this Court is conscious of the limitation imposed by section 115 of the Civil Procedure Code and the limited scope of the revision petition. This is, anyhow, a Court of error and administration of justice is its main aim and purpose. It has to, therefore, see whether the Courts below had committed a material irregularity on the basis of what has been produced and also whether there was any factum missing under the circumstances of a case, which called for verification before judgment. And whether the Courts decided a matter on the basis of preponderance of probability.
16. In the alternate, the Courts could have called him as a Court witness for satisfying their own conscience about this fact. The Courts in Pakistan are both Courts of law and equity and although it is an adversorial system yet it has many peculiarities other than the systems based on the Anglo-Saxon/common law traditions. We also have Islamic Jurisprudence which is being actively followed. Rather, Islamic Jurisprudence overwhelms the other as this is an Islamic State. Therefore, our is not a strict adversorial system. It is based on Arial. The Courts are. Therefore, to ensure Adal, If it calls for a role on their part they should not hesitate pedorming it for digging out the truth which otherwise was being kept obscure.
17. The Civil Procedure Code Is primarily a procedural law although it has substantive provisions.
The law of procedure is the branch of law which governs the process of litigation. The rest is substantive which relates not to the process of litigation but to its purpose. Thus, right of appeal, a right to appeal or lead evidence etc. Are substantive rights.
18. The Courts are required to look at the provisions of Civil Procedure Code as enabling and intending to secure the ends of justice and not to defeat those ends because of any notion about the formalities the code prescribe. Parties are required to use those formalities and if no vested right of anyone is disturbed the Courts are not to hesitate in performing an active and positive role in a lis actuated with the desire for digging out the truth. The provisions of the Civil Procedure are not to be regarded as a trap for the litigants, as if a game was being played in which the consequences were related only to the respective moves of the participants and playing the game was its own end. The Code aims at a fair trial on merits of the conflicting claims of the parties and all moves with their own fixed consequences are subservient to that purpose. As a matter of fact, when a litigation is taken to a Court it is placed in a geometrical formation of a triangle where the parties and the Court forms a triangle. The endeavour of the latter is to ensure the resolution of the matter based on law and facts. This resolution of a dispute is given the formal name of "judgment".
The Civil Procedure Code through its various provisions including the residuary powers given under section 151 of the C.P.C., read with other provisions are instruments in the hands of the Courts for digging out the truth and nothing should stop them from using these instruments when a need arises.
19, The present was one occasion in which the Courts below should have asked for the production of a man who was claiming to have been impersonated. This would have simplified the whole litigation. The failure on the part of the Court below in procuring the presence of the plaintiff reflects inaptitude.
20. As the presence of the plaintiff to be identified as the real Barkat Ali was essential having not appeared in the Court he was giving way to a presumption against himself which, however, was not made use of by the Courts below. One may refer here to the case of Fazal Dad and others v.
Jehandad and others (1991 CLC 1783) which says: "Walayat Khan, appellant was arrayed in the line of defendants. He failed to appear as his witness in support of the contention he has pleaded in the written statement. Under law, a presumption can be taken against him to the effect as he was unable to support his stand, for that reason he thought it better not to appear in the witness-box. Minor discrepancies appearing in the statements of the witnesses is not sufficient to discredit the credibility of the evidence."
Therefore, where a person has raised a point before a Court and his testimony is important for the resolution of that point, he has no option but to appear and expose himself as a witness. Failing which he invites a presumption against himself which has to be seriously taken.
21. When this Court questioned as to why Barkat Ali did not appear it was said that he was infirm in health. In case Barkat Ali could not appear in the Court his testimony could have been recorded through a local commissioner in the presence of parties.
22. I am, therefore, setting aside the judgment and decree only to the extent of the First Appellate Court and remanding the case there where the appeal shall be deemed to be pending. The learned First Appellate Court shall examine the said Barkat Ali as a Court witness and who shall also be cross-examined. In case the statement of Barkat Ali is in harmony with the evidence already on the file then the case of the present respondents shall be deemed to have been proved, and in that case the judgment and decree of the Trial Court shall not be disturbed. Otherwise, a fresh judgment will be recorded.
23. The case is consequently remanded to the learned District Judge, Toba Tek Singh who shall entrust it to an Additional District Judge for giving effect to the observations contained hereinabove. The revision petition is, thus, accepted with no order as to costs.