PARDOOL Versus SATTAR KHAN

Sattar Khan respondent herein had instituted a suit against Pardool and others petitioners herein in the Court of Additional Civil Judge, Swabi for possession by pre‑emption of the suit land. The respondent had claimed the superior right of co‑sharership in the suit land. The suit was contested by the petitioners herein and the learned Trial Judge framed the following issues:‑

(1) Whether the plaintiff has got a cause of action?

(2) Whether the plaintiff has got superior right of pre‑emption?

(3) Whether the amount of Rs.12,000 has been fixed and paid in good faith?

(4) What is the market value' of the suit land?

(5) Relief?

After recording evidence of the parties the learned Civil Judge came to the conclusion in issue No. 2 that the respondent was not a co‑sharer in the suit land in his own right but claimed the same through inheritance from his father but the inheritance mutation was attested in his favour on 18‑10‑1982 while the sale transaction had taken place on 6‑3‑1982. The learned Civil Judge came to the conclusion that the respondent herein was not possessed of superior pre‑emptive right on the date the transaction was completed, so he dismissed his suit vide judgment dated 8‑12‑1983. The respondent herein filed an appeal which was heard by Mr. Mohammad Farooq Khan, Additional District Judge, Swabi. The learned Additional District Judge took into consideration another mutation No. 14475 of Moza Yar Hussain which was attested on 10‑10‑1979 whereby respondent herein had inherited property of his father and relying on the said mutation‑the learned Additional District Judge came to the conclusion that in the village where the suit land was situate the respondent herein had also become a co‑sharer by inheritance from his father and as such he set aside the finding of the learned Civil Judge on issued No. 2 as also his judgment and granted a decree in favour of the respondent herein by judgment dated 25‑10‑1986. Hence the present revision petition by the vendees Pardool etc.

2. The learned counsel for the petitoners has contended that the learned Additional District Judge recorded additional evidence in the case at the appellate stage without any request from the appellant before him and he also did not give any opportunity to the respondents before him to rebut the same. In this connection he has drawn my attention to order dated 31‑10‑1985 of the learned Additional District Judge, which is reproduced below for the sake of convenience:‑

"Counsel for the parties present. Arguments heard. During the course of arguments, the learned counsel for the appellants produced a certified copy of mutation No.14475 attested on 10‑10‑1979, which is regarding the inheritance of Kalar Khan deceased, and the present appellants are also one of them as LRs of the deceased. This mutations pertains to village Yar Hussain whereas the inheritance mutation of deceased Salar Khan in the suit village, was attested on the basis of mutation No.4227 attested on 18‑10‑1982. In order to clarify this position, it is necessary, that patwari halqa Yar Hussain be summoned alongwith register of mutation pertaining to mutation No.14475 attested on 10‑10‑1985 for 17‑11‑1985. Diet money be deposited within three days."

3. The perusal of this order will show that the counsel for the appellant produced a copy of the mutation No.14475 attested on 10‑10‑1979 and the learned Additional District Judge not only admitted it into evidence and called for the patwari to prove it but also relied upon it in arriving at a decision regarding issue No.2 whereas neither l any request for production of additional evidence was made before him by the appellant nor any opportunity was afforded to the opposite party to produce any rebuttal. It shall thus be seen that the learned Additional District Judge adopted a course of action which was not warranted by law. He should not have allowed the appellant to produce the copy of the mutation without first obtaining permission to produce additional evidence. He adopted that course of action suo motu which would show that he had somehow or other become interested in the case of the appellant and caused undue prejudice to the opposite party. The course of action adopted by the learned Additional District Judge was in clear violation of the provision of Rule 27 of Order XLI, C . P . C . It appears that the appellant had discovered some important evidence having a material bearing on the merits of the suit and he should have applied to the appellate Court for admission of additional evidence and if the said application was allowed with notice to the opposite party only then additional evidence could be allowed and in that case a right of rebuttal had to be given to the opposite party. At the appellate stage additional evidence can only be recorded provided the trial Court has refused to admit evidence which ought to have been admitted or the learned Additional District Judge required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.

4. The perusal of the record of the trial court would clearly reveal that the appellant had neither relied upon mutation No.14475 to prove his case nor any other evidence had been produced‑before the Court which it had refused to admit. Moreover, it is apparent from the record that sufficient evidence was available to decide the case one way or the other effectively and in so far as the matter, before the learned Additional District Judge was concerned it could also be disposed of effectively on the available evidence and there was no requirement of any document to enable him to pronounce judgment. It is a settled principle of law that an appeal is a rehearing and as such appellate Court does not ordinarily record fresh evidence and the same can only be recorded provided the provisions of Rule 27 of Order XLI, C . P . C . are attracted.

5. I am, therefore, of the confirmed opinion that the learned Additional District Judge acted without lawful authority by taking into consideration mutation No.14475. I will, therefore, accept this revision petition, set aside the impugned judgment and decree of the learned Additional District Judge and would restore the judgment and decree of the learned Civil Judge. There shall, however, be no order as to costs.

A . A . / 568/ P. Revision accepted.