P L D 1966 (W (PLP)

M. JAMIL ASGHAR, J.‑Arbab Qadir Bakhsh, Hadi Bakhsh and Unnar, appellants, are related to Roshan and Umar respondents. The pedigree‑table showing their relationship is as follows:‑

|

Mehamn Noor Muhammad Roshan | | Respondent No. I | | | Khuda Bakhsh | Umar (D. W. 4) | Respondent No. 2 | |

| Arbela Sachal Ghulam (D. W. 3) | | |

Arbab Qa it Bakhsh Hadi Bakhsh Unnar Appellant Appellant Appellant Sachal owned twenty two bandats of land situated in mauza Tahir Kat, Jagir Abdur Rehman Shah Jilani, Tehsil Chattar, District Kachchi. Sachal died during the lifetime of his father, Noor Muhammad, and grandfather, Shadi. After the death of Shadi his property was divided between his heirs. Khuda Bakhsh filed a suit on the 19th of February 1960, for the possession of another band of land on the ground that he was entitled to more land than what he had received. During the pendency of that suit the parties went to their Pir Maulvi Abdul Baqi, Hamayuni, who asked Arbab Qadir Bakhsh appellant as to whether his father Sachal had died during the lifetime of his (Sachal's) father, Noor Muhammad, and he replied in the affirmative. The Pir then gave his opinion that the appellants were not entitled to any share in the property of Shadi, because Sachal had died when his father, Noor Muhammad, was still alive. Up to that time the property of Shadi had been held jointly by his heirs, but as a result of the compromise the property was divided among the heirs including Khuda Bakhsh and his suit was dismissed by Qazi Lehri on the 18th of January 1961, on the ground that Khuda Bakhsh had been given more land on account of that compromise. In 1961 Arbab Qadir Bakhsh appellant filed a complaint before the Nazim alleging that his crops had been looted by the respondents. The Nazim during the pendency of the complaint took over the property in dispute and on the 29th of December, 1961, passed an order that the crops belonged to Roshan, respondent No. 1, and there. fore, the possession of the land was also handed over to him. He, however, advised the appellant, Arbab Qadir Bakhsh, to go to a Civil Court. On the 14th of March, 1962, the appellants filed the present suit for possession of one band of land, alleging that Roshan, respondent No. 1, had given them beating and had looted their crops, and had also forcibly taken possession of the land in dispute. It was also alleged that when the appellants filed the complaint, respondent No. 1 was convicted and sentenced to a fine of Rs. 300 by the Nazim. The respondents controverted the allegations. The Naib Tehsildar, who had received the plaint and the written statements, without framing issues, sent the case to Qazi Lehri, who vide his order dated the 6th of November, 1962, dismissed the same. The appellants' appeal was also dismissed by the Majlis‑i‑Shoora, Kalat Division, on the 4th of March, 1963. Aggrieved by that order the appellants have preferred the present appeal under section 24 of the Kalat Dastur ul‑Amal Diwani, Kalat.

2. The learned counsel for the respondents raised a preliminary objection that this appeal was not competent, because Dastur‑ul- Amal Diwani had been repealed and in its place Code of Civil Procedure had been extended to Kalat area, In support of his contention he relied on the case Dost Muhammad v. Rais Salik (P L D 1962 Quetta 82) wherein it was held: "The Dastur‑ul‑Amal Diwani, Kalat stands repealed only to the extent of those of its provisions which correspond to the provisions of the Code of Civil Procedure, 1908, but those of its provisions which deal with other matters, not provided for in the Code of Civil Procedure, remain unaffected."

3. The learned counsel for the appellants, on the other hand, contended that section 24 of the Dastur‑ul‑Amal Diwani had not been repealed because section 24 gave an unrestricted power to file a second appeal. In other words a second appeal would be competent even on a question of fact, whereas in the corresponding section 100 of the Code of Civil Procedure no second appeal would lie on a question of fact. Under section 100 of the Code of Civil Procedure the appeal would lie on the following grounds namely:‑

(a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error, or defect in the procedure provided by this Code or by any other law for the time being to force, which may possibly have produced error or defect in the decision of the case upon the merits. Therefore, according to the learned counsel there is no corresponding section in the Code of Civil Procedure which covers section 24 of the Kalat Dastur‑ul‑Amal Diwani, Kalat, hence section 24 has not been repeated, This contention has force because section 24 of the Kalat Dastur‑ul‑Amal Diwani provides that an appeal would lie to the Majlis‑i‑Shoora against the order a of Qazis and then an appeal would lie to the High Court against the order of the Majlts‑i‑Shoora, No restrictions as embodied in section 100 C. P. C.? are mentioned therein. In view of the above we find no force in the preliminary objection raised by the learned counsel for the respondents.

4. In the plaint the appellants merely alleged that the land in dispute was in their possession till 1961 when the respondents looted their crops and not only gave them beating, but also forcibly took possession of the land, and that they (the appellants) filed a complaint before the Nazim, who convicted respondent No. 1 and sentenced him to a fine of Rs.

300. From the perusal of the record, however, we find an order of the Nazim dated the 29th of December 1961, whereby he delivered possession of the land in dispute to respondent No. 1, holding that the crops belonged to him. There is no other order forthcoming on the record to show that respondent No. 1 was convicted and sentenced. In view of the above the allegations made in the plaint have not been proved. The appellants also relied on a document alleged to have been executed by Shadi on the 5th of May, 1913, which finds no mention in the plaint. It was introduced during the trial at some later stage.

5. According to the appellants it was a will made by Shadi, giving 1/4th share of his property, i.e., the land in dispute, to Sachal, the predecessor‑in‑title of the, appellants. The appeal of the appellants was admitted on the ground that the appellants' title to the property in dispute required examination in the light of the aforementioned document. It was also contended at that time that since the date of the execution of that document, Sachal, the predecessor‑in‑title of the appellants, remained constantly in possession of the property in dispute and became an owner by prescription, even though his title be held to be defective. We have examined the document and find that it is a copy of the original document. It has not been proved on the record that the original document has been lost or destroyed, and as such this document is not admissible in evidence. We also find that it is not a will, but only an agreement in respect of division of crops. It also does not mention the land in dispute. The appellants in support of their case had also examined Rahim Bakhsh and Noor Din. Their statements were recorded on the 29th of June, 1962. They gave their ages as 50 years on that day. According to them they were present when Shadi had executed the will on the 5th of May 1913 and since then Sachal had been in possession of the land in dispute. This cannot be true because on that day they must have been of very tender age and, therefore, they could not have been present at the time of the execution of the document. In any case from the perusal of the document it is established that it is not a will at all, but only an agreement in respect of the division of crops and under these circumstances no reliance can be placed on their testimony.

6. In the result we find no force in this appeal, which is hereby dismissed with costs. S. Q. Appeal dismissed