On 22-9-1969 the respondents filed a suit against the appellant. In the plaint it was stated that part of the suit-land was owned by Jan Muhammad son of Sher Ali while a part was owned by Jawahar Shah son of Allah Mehr Shah, both caste Pathan Mahar. A pedigree was also drawn in para. 1 of the plaint. According to the plaint Jan Muhammad had died somewhere in 1940 while Jawahar Shah had pre-deceased him and after their deaths it was the respondent who were entitled to inherit the land and they are continuing as owners in possession; that the appellant misrepresenting himself to be the son of said Jawahar Shah and nephew of said Jan Muhammad got attested Mutations Nos,2598 and 2599 of village Shehbaz Khail Pacca as also Mutation No,2670 of village Shehbaz Khail Kacha in respect of the suit-land. In the plaint it was stated that the appellant is neither the son of Jawahar Shah nor has he any right of inheritance. The suit was contested by the appellant Mid filed a written statement. The pedigree drawn in para. 1 of the plaint questioned only to the extent that. Jawahar Shah had been survived by the appellant. He levelled counter-charges on the respondents that they got the mutations illegally attested in their favour which were corrected by the 'Revenue Authorities and the matter stood decided in his favour up to the Board of Revenue. Issues were framed, relevant being issue No,4 which is reproduced here:--
(4) Who are the heirs of Jan Muhammad and Jawahar Shah? OP Parties.
Evidence of the parties was recorded. The learned Trial Court in the first instance decreed the suit on 28-3-1973. However, on appeal filed by the appellant the case was remanded back vide order, dated 17-11-1973. After remand the suit was dismissed by the learned trial Court on 8-7-1974. A first appeal filed by the respondents was heard by a learned Additional District Judge, Mianwali who allowed the same and decreed the suit vide judgment and decree, dated 14-5-1975.,
2. Learned counsel for the appellant argues that it had been proved on record that the appellant is the son of Jawahar Shah and that the said Jawahar Shah was a collecteral of Jah Muhammad and as such it was the appellant who was entitled to the entire estate being the nearer collateral than the respondents. According to the learned counsel the learned Additional District Judge was proceeded to record a finding which runs contrary to the evidence on record on a basis which has no foundation either in the pleadings or, in the evidence. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree branding the appellant as an imposter who somehow or the other managed to get his name recorded in the pedigree.
3. I have examined the trial Court's record, with the assistance of the learned counsel for the parties. I have already referred to the pedigree reproduced in para. 1 of the plaint by the respondents. Apart from this the respondents produced pedigree-table Exh.P.16 pertaining to Shehbaz Khail Kacha in the District of Mianwali while the appellant has produced pedigree-table Exh.D.5 also pertaining to Shehbaz Khail in the District of. Mianwali. Now Exh.P.16 pertain to the year 1955-56, whereas Exh.D.5 pertains to the year 1962-63. The pedigree-table in the plaint the one produced by the respondents as Exh.P.16 and the one produced by the appellant as Exh.D.5 are almost similar in particulars. However, in Exh.D.5 Zarghoon, appellant is recorded as son of Jawahar Shah. I may further state here that the witness Umar Khan P.W. 1 in the course of his cross- examination was suggested the pedigree-table and the witness admitted the same. Now this suggested pedigree-table in same also incorporated in Exh.D.5 or for that matter Exh. P.16 and one reproduced in the plaint. There is no evidence on record of any fraud that might have been committed by the appellant while getting himself entered as' son of Jawahir Shah in the pedigree- table Exh.D.5 which is a certified copy of the said record and otherwise stands corroborated apart from the very pleadings of the respondents themselves by the D. Ws. produced by the appellants.
4. It may be of some importance to note that whereas the appellant and his witnesses have specifically stated that Jawahar Shah had shifted to some place in Bannu and that he is buried there. None of the P.Ws have been able to point out as to where Jawahar Shah died and where he is buried. It was the case of the appellant that at some point of time Jawahar Shah had taken up residence in Bannu.
5. Now coming to the sole reasons given by the learned Additional District Judge for disbelieving the said testimony on record, lie says that the appellant is recorded as a Saran Pathan while Jawahar Shah was a Mahar Pathan. To my mind the matter stands fully explained in the statement of Zarghoon as D.W.3. It was suggested to him and he denied that he is Sarang Khail Pathan. He stated that he is Mahar Pathan. He was asked to explain as to why was he recorded in some documents as a Sarang Pathan. He says that his maternal grandfather belonged to a place called Sarang Khail and the persons coming from the said place are called Sarang Pathan.
6. There is yet another aspect of the case. The respondents have not at all come out with a plea as to whose son the appellant is if not the son of the said Jawahar Shah. The fact remains that he is a collateral of Jan Muhammad who is stated by the respondents to have died after Jawahar Shah.
7. Learned counsel for the respondents with reference to judgment Exh.P.10 has sought to argue that whereas according to the pedigree Exh.P.16 there is no brother of Jan Muhammad, the said judgment shows-that Jan Muhammad of whom Zarghoon is a nephew had a brother namely, Said Muhammad. I am afraid nothing turns an the said arguments. I have examined the judgment. It was a plea of the appellant that Said Muhammad had not survived Jan Muhammad son of Sher.Ali.
In fact his plea was that Said Muhammad was not a brother of Jan Muhammad. An examination of the judgment would further show that the said plea, was not at all decided in the judgment. Rather abruptly the alternate arguments of the counsel of the lady representing to be the daughter of said Said Muhammad that let the parties share the estate was noted and then the judgment was passed accordingly.
8. There is no foundation either in the pleadings or in the evidence led by the respondents that a strange co-incident has occurred that Zarghoon came to be born to Jawahar Shah in a family which had a pedigree absolutely similar to that of the Jawahar Shah mentioned in the pedigree- table reproduced in the plaint or Exh.P.16. This to my mind, is even otherwise highly improbable.
9. As a result of the above discussion I do agree with the learned counsel for the appellant that the learned Additional District Judge has failed to read the evidence on record while setting aside the judgment and decree of the learned trial Court. His judgment cannot be sustaized in this R.S.A.
10.This R.S.A. accordingly allowed. The judgment and decree, dated 14-5-1975 of learned Additional District Judge, Mianwali is set aside while that passed by the learned trial Court on 8-7- 1974 dismissing the suit of the respondents is restored leaving the parties to bear their own costs.