' Late Riaz Ahmad son of Misbah-ul-Haq passed away issueless on 23-3-1980. The deceased, besides his other property, was owner of agricultural land situate in Chak No,219-R.B., Tehsil and District Faisalabad, as also in Mauza Khokhar, Tehsil and District Narowal. Mutations Nos. 2970 and 98 were sanctioned by the Revenue Officers of Faisalabad and Narowal respectively in favour of the petitioners and respondent No,1. The respondent No,1 filed two separate civil suits for declaration against the petitioners; one before the learned Civil Judge, Narowal and the other before the learned Civil Judge, Faisalabad, claiming therein that she was the owner of 18/504 share of the suit land and that the petitioners were neither collateral of the deceased nor entitled to inherit his share at all. It was further prayed that the mutations of inheritance and the orders passed on appeals thereagainst were illegal, void and imperative vis-a-vis the, rights of respondent No,1. The petitioners filed their written statements in both the civil suits. Issues were framed by the respective learned trial Courts of Narowal and Faisalabad, to determine the question whether the petitioners were not heirs of Riaz Ahmad deceased with onus of proof on the respondent No, 1 .
2. In the civil suit at Faisalabad, respondent No,1 despite getting a number of adjournments did not produce the evidence and her civil suit was dismissed in terms of Rule 3, Order XVII, C.P.C. Vide judgment and decree dated 26-6-1983 passed by the learned Civil Judge, Faisalabad.
3. On the other hand, the learned Civil Judge, Narowal, recorded the evidence of the parties and decreed the civil suit in favour of respondent No,1 vide judgment and decree dated 14-10-1984. The appeal of the petitioners thereagainst was dismissed by the learned Additional District Judge, Sialkot, by the impugned judgment and decree dated 5-3-1985. Hence, this revision petition.
4. The learned counsel for the petitioners argued that the learned Courts below had failed to consider the documentary evidence of the petitioners and the legal effect thereof particularly the judgment and decree Exs. D. 1 and D.2 passed by the learned Civil Judge, Faisalabad, whereby the suit filed by respondent No,1 was dismissed which operated as res judicata. The learned Civil Judge, Narowal, acted illegally and with material irregularity in treating the mutations Exhs. D.3 to D.6 as disputed ones. The learned Civil Judge, Narowal, proceeded to place reliance upon the testimony of the witnesses of the respondents in the absence of Satisfaction as to the necessary qualifications contemplated by section 50 of the Evidence Act, 1872 (Article 64 of the Qanun-e- Shahadat Order, 1984). The learned Additional District Judge, Sialkot, also fell into the legal error in relying on the testimony of Iftikhar Hussain P.W.1 and Allah Rakha P.W.2 in affirming the findings of the learned trial Court on Issue No,2 as to whether the petitioners were not heirs of Riaz Ahmad deceased. The learned Appellate Court had no legal basis to discard the petitioners' documentary evidence particularly Exh.D.6. The learned Additional District Judge also acted illegally in failing to consider the effect of the dismissal of the identical suit founded on the same cause of action and involving substantially the same questions of fact. There was a misreading and non-reading of the statements of Naimat Ali D.W.1 and the petitioner Shah Muhammad P.W.2 in material particulars.
The learned trial Court acted illegally and with material irregularity in permitting respondent No,1 to re-appear as her own witness after the petitioner had closed their evidence particularly when the onus probandi of all the issues had been placed on respondent No,
1. It was lastly contended that the rejection of application of the petitioners under Order XLI, Rule 27, C.P.C. By the learned Additional District Judge in refusing to allow the production of additional evidence was against the law declared by the superior Courts. The learned counsel relied on the judgments in the cases of Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568), Haji Ilahi Bakhsh v. Noor Muhammad and others (PLD 1985 SC 41), Shahid Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474), Ghulam Muhammad and another v. Allah Yar and others (PLD 1965 Lahore 482), Shah Nawaz and another v.
Nawab Khan (PLD 1976 SC 767), Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and Court of Wards, Hyderabad v. Muhammad Karim (PLD 1965 Karachi 170) in support of his contentions.
5. On the other hand, the learned counsel for the respondents argued that although the civil suit filed by respondent No,1 involved identical questions of law and fact except with respect to a different property but the same was dismissed in terms of Order XVII, Rule 3, C.P.C. And not on merits. The judgment and decree dated 26-6-1983 passed by the.Learned Civil Judge, Faisalabad, did not operate as res judicata within the meaning of section 11 of the C de of Civil Procedure, 1908.
It was submitted that no evidence was led by the parties in the civil suit at Faisalabad. As to the pedigree-tables sought to be produced by the petitioners before the Appellate Court, the learned counsel submitted that one of the pedigree-tables obtained by the petitioners from India was not admissible as it had not been authenticated by the Pakistan High Commissioner in India as required by Article 96 of the Qanun-e-Shandat Order, 1984. It was lastly contended that the Concurrent findings of fact recorded by both the Courts below did not call for any interference in the exercise of revisional jurisdiction of this Court under section 115, C.P.C.
6. I have heard the learned counsel for the parties at length and have also gone through the record and evidence of the case. P.W.1 Iftikhar Hussain and P.W.2 Allah Rakha stated that the respondent No,1 and her brothers were the issues of Misbah-ul-Haq whose father's name was Abdul Bari son of Sharf Din. They further stated that the petitioners had no concern with the suit land or with the aforesaid persons. No evidence was led to show as to their source of information about the relationship or otherwise of the parties to the suit or their ancestors. None of the aforesaid P.Ws.
Claimed to belong to the family of the deceased Riaz Ahmad. Section 50 of the Evidence Act, 1872, provides that when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person, who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. P.Ws. 1 and 2 failed to satisfy the test laid down by section 50 of the Evidence Act.
Their statements could not be treated as relevant to determine the question of the relationship of the parties qua the deceased and his forefathers. They did not utter a word as to whether they were in any way related to the parties. In the case of Ghulam Muhammad (supra), it has been held that section 50 of the Evidence Act requires the Court to critically examine witness and call upon him to state source of his information about relationship and time at which he acquired his knowledge. The deposition of a witness failing to give evidence of conduct on which his opinion about relationship was based was legally irrelevant and inadmissible. In the case of Sitaji and others v. Bijendra Narain (AIR 1954 SC 601), it was held that a member of the family could speak in the witness-box of what he had been told and what he had learnt about his own ancestors. Even in such a case, it was to be seen as to what he said was an expression of his own independent opinion and was not merely repetition of hearsay opinion of others provided further that such an opinion was expressed by conduct. His source of information and the time at which he acquired the knowledge would affect its weight. The petitioner Shah Muhammad appeared as D.W.2 before the learned trial Court. He stated that Muhammad Din was his father and Sharaf Din was his grandfather. His grandfather had two sons, namely, Muhammad Din and Abdul Bari. Misbah-ul- Haq father of the respondents and late Riaz Ahmad was the son of Abdul Bari. I find that there was no cross-examination of the petitioner No,1 (D.W.2) in regard to his deposition on the point of his relationship with the grandfather of the deceased Riaz Ahmad. His deposition of being a collateral of Riaz Ahmad was to be accepted. In the case of Mst. Nur Jehan Begum (supra), it was observed that if a witness was not cross-examined on a material part of his evidence, the inference would be that truth of the same was deemed to be accepted by the other side. The learned Courts below misdirected themselves in discarding the evidence of petitioner No,1 on the ground that he had failed to state as to the number of the brothers of his great grandfather Imam Baldish. It is a matter of common knowledge that ordinarily, the people of the sub-continent are not expected to have the knowledge of the names and number of the brothers of their great grandfathers.
7. As already stated, the civil suit filed by the respondents No,1 substantially involving the same issues and cause of action between the parties was dismissed against the respondents by the learned Civil Judge, Faisalabad, by the judgment and decree dated 26-6-1983, under Rule 3 of Order XVII, C.P.C. The Mutation No,2970 of inheritance of late Riaz Ahmad and in favour of the petitioners as the sons of a full paternal uncle and also in favour of the respondents stood affirmed.
The said judgment and decree were not assailed by the respondents in appeal and the same, therefore, attained finality. It hardly made any difference whether the judgment had been rendered after the production of necessary evidence of the parties or not. The impugned judgments and decrees passed by the learned Civil Judge, Narowal and the learned Additional District Judge, Sialkot, were after the dismissal of the civil suit of the respondents at Faisalabad. The earlier judgment and decree dated 26-6-1983 passed by the learned Civil Judge, Faisalabad, was a res judicata within the meaning of section 11, C.P.C. And operated as a bar against the civil suit filed by respondent No,1 at the Civil Court, Narowal.
8. The legal effect of dismissal of a suit in terms of Rule 3 of Order XVII, C.P.C. Was examined in a number of cases decided by the superior Courts of the sub-continent. In Shahid Hussain (supra), it was held that an order of dismissal of a suit for failure to produce evidence under Order XVII, Rule 3, C.P.C. Was deemed to be a judgment on merits and operated as res judicata between the parties which barred a second suit. It was further held that the decision was obviously an adjudication in which the Court conclusively determined the rights of the parties with regard to matters in controversy in the suit between the parties that was why it had been held to operate as res judicata between them, barring any other suit relating to the same controversy. In the case of Court of Wards, Hyderabad (supra), two separate suits were filed on same subject-matter and between the same parties, one instituted at Hyderabad and another at Mirpur Khas. The suit at Mirpur Khas was decided earlier although instituted latter in point of time. It was held that the civil suit which was decided earlier was to be treated to be a former suit for the purposes of section 11, C.P.C. In the case of Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332), it was observed that it was not the date on which the suit was filed that matters but the date on which the suit was decided so that even if a suit was filed later, it will be a former suit if it had been decided earlier. In the cases of Govindoss Krishnadoss v. Rajah of Karvetnager and another (AIR 1929 Madras 404) (D.B.) and Har Dayal v. Ram Ghulam (AIR 1944 Oudh 39) (D.B.) (1944 (201) Indian Cases 462), it was held that the dismissal of a petition owing to failure to produce evidence in respect of the facts alleged in the petition was a dismissal on the merits and so was binding on the Court as well as the parties. It was further held that such a dismissal under Order XVII, Rule 3, C.P.C. Operated as bar to the maintainability of another suit by the plaintiff. In an earlier case of Rama Rao v. Suriya Rao and another (1876) 1 Madras 84) (D.B.), it was laid down that dismissal of a claim for failure on part of plaintiff to produce evidence to substantiate it, was of the same effect as dismissal founded upon evidence, for the purposes of barring a subsequent suit as res judicata. In Ram Gobinda Daw and others v. Smt. H. Bhakta Bala Dassi, etc. (AIR 1971 SC 664), the scope of section 11, C.P.C. Was examined. It was observed that the test of res judicata was the identity of the issues or title in the two litigations and not the identity of the actual property involved in the two cases. In Naganada Aiyar alias Eswa rapier v. Krishnamurti Aiyar and others (1911) 34 Madras 97) (D.B.), the Madras High Court observed where the causes of action were substantially the same, the form in which they were stated or the difference in the frame of the relief would not affect the question and that the subsequent suit was barred as res judicata.
9. It is also to be noticed that the respondent No,1 was permitted by the learned Civil Court, Narowal, to reserve her own evidence to be recorded after the closure of the evidence of the petitioners. Such an act on the part of the learned Civil Court was not warranted by law. In the case of Al-haj Khali! Ahmad v. The Australasia Bank Ltd., Lahore and another (1979 CLC 494), it was observed with reference to the provisions of Order XVIII, Rules 1 and 3, C.P.C. Read with sections 101 and 102 of the Evidence Act, that the practice of reserving plaintiff's evidence in affirmative till defendant closes his evidence and allowing plaintiff to give evidence in affirmative and rebuttal thereafter was not in accordance with law and was likely to prejudice the defendant.
10. As to the application of the petitioners under Order XLI, Rule 27, C.P.C., the reasoning given by the learned Appellate Court in refusing the application for the production of the additional evidence was not based on sound judicial principles. The documents sought to be produced were the certified copies of the pedigree-tables, one obtained from India and the other from the Central Record Office, Lahore. Nothing was said at the bar by the learned counsel for the respondents as against the authenticity, genuineness or admissibility of the pedigree-table as certified by the Central Record Office in accordance with the provisions of law. The same being the public document ought to have been permitted to be produced being a relevant document showing the common line of ancestors of the parties. The certified copy of the pedigree-table as certified by the Central Record Office, Lahore, is allowed to be produced in evidence as no objection was raised thereto. Reference may be made to the cases of Ahmad Ashraf v. University of Punjab (1988 SCMR 1782) and Ghulam Muhammad and another v. Muhammad Aslam and others (PLD 1993 SC 336).
11. For the foregoing reasons, this civil revision is accepted, the impugned judgments and decrees dated 14-10-1984 and 5-3-1985 respectively passed by the learned Civil Judge, Narowal and the learned Additional District judge, Sialkot, are set aside and the civil suit of the respondents against the petitioners shall stand dismissed with no order as to costs.