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Regular Second Appeal No. 343 of 1958, decided on 6th May 1968.

O. XLI, r. 27‑Appeal Additional evidence‑Cannot be taken until appellate Court after examining evidence on record comes to conclusion that existing evidence is inherently defective and pronouncement of judgment cannot be properly made without such evidence.

Pathana v. Mst. Wasai P L D 1965 S C 134 ref.

Kessowji Issur v. G. 1. P. Railway 31 I A 115; Parsotim v. Lal Mohan 58 I A 254 and Sh. Muhammad Ikhlas v. Muhammad Ismail P L D 1963 S C 466 rel.

S. 100‑Second appeal ‑ Concurrent findings on question of fact by two lower Courts Cannot be questioned in second appeal by High Court.

Pathana v. Mst. Wasai P L D 1965 S C 134 rel.

M. G. Cheema for Appellant.

Hafeez Ahmad for Respondent No. 1.

Abbas Raza for Respondents Nos. 2 and 3.

Nemo for Respondent No. 4.

Dates of hearing : 23rd and 24th November 1967

Mst. Sakina Bibi (respondent No. 1 herein) sued her three sisters, namely, Mst. Husain Bibi, Mst. Sharifan Bibi (respon dents 2 and 3 herein) and Mst. Allah Rakhi (appellant herein) in the Court of Civil Judge, Sialkot, for the possession of 3/4th share in the land in dispute, Bahawal respondent No. 4 a mortgagee of 1/4111 share of the suit land from Mst. Allah Rakhi appellant, was also impleaded as a dafendant. The trial Court decreed the plaintiff's suit vide its judgment dated the 22nd May 1957. Mst. Allah Rakhi alone annealed against the judgment of the trial Court as respects 1/4th share in the suit land standing in her name and mortgaged to Sahawal respondent. Her app gal, However, was dismissed by the Senior Civil Judge, Sialkot, vide judgment dated the 20th May 1958. Hence this second appeal by her.

2. It would be advantageous, to set out at this stage some history concerning the land in dispute, in order to help under standing fully the contentions raised on behalf of the contesting parties to the appeal.

By means of a registered sale deed dated the 11th August 1930. Umar Din, a Lobar by caste‑father of the plaintiff (respon dent No. I herein) and her three sisters as aforesaid, purchased land measuring 113 kanals 5 marlas situate in village Punwana, Tehail Pasrur from Labhu a Hindu Jat and a member of notified agricultural tribe of Sialkot District. Umar Din himself not being a member of statutory agricultural tribe ostensibly had the sale deed executed in favour of Syed Ali Husain Shah, a member of statutory agricultural tribe, obviously to circumvent the provisions of the Punjab (now West Pakistan) Alienation of Land Act, 1900. The land was also under a previous mortgage with Tulsi Ram, etc. for Rs. 1,179 which were left with the vendee for the redemption of the mortgage. Owing to consoli dation in village Punwana the land in dispute has been substituted for the land originally sold by Labhu to Umar Din. Umar Din died in 1936 leaving him surviving, his widow Mst. Rehmat Bibi and the four daughters, aforesaid. The land, in dispute however, continued to remain ostensibly in the name of Syed Ali Husain Shah. In about the year 1937, Mst. Sakina Bibi plaintiff acquired the mortgagee rights from Tulsi Ram, etc.

In 1945, Mst. Sakina Bibi plaintiff was married to one, Wazir Muhammad a Khokhar Rajput by caste which is a notified agricultural tribe in Sialkot District. It appears that prior to his marriage with Sakina Bibi, Wazir Muhammad induced her mother Mst. Rehmat Bibi to have the land, standing ostensibly in the name of Syed Ali Husain Shah transferred to him. Ac cordingly, by means of a registered sale deed dated the 2nd October 1945, which incidentally is also the date of marriage between Mst. Sakina Bibi and Wazir Muhammad the land was transferred in favour of Wazir Muhammad subject to the mortgagee rights of Mst. Sakina Bibi which he redeemed later in 1949 purporting to have paid the mortgage amount.

To all appearances the transfer of the land in favour of Wazir Muhammad was also benami to circumvent tile provisions of the Punjab Alienation of Land Act, 1900. In the meantime, however, all notifications issued from time to time under section 4 of the Act to classify certain tribes in each District as statutory agricultural tribes were withdrawn and thus the imitation of sale of agricultural land by a member of statutory agricultural tribe in favour of a non‑agriculturist was dune away with.

3. Some times after the marriage between Mst. Sakina Bibi and Wazir Muhammad, the relations between the two, became strained. The latter also began to set up hostile title in the land in dispute and also threatened to alienate it. This led Mst. Rehmat Bibi to file a Suit (No. 57 of 1951) on the 10th June 1949, in the Court of Civil Judge, Pasrur, impleading Wazir Muhammad, Syed Ali Husain Shah and Mst. Sakina Bibi as defendants seeking a declaration that she Rehmat Bibi was the beneficial owner of the land and that Wazir Muhammad was merely a benamidar and, as such had no right to alienate he land. A further declaration that after her death the land dispute would devolve exclusively upon Mst. Sakina Bibi or her children was also sought. A copy of the plaint in that suit is Exh. P. 2. Mst. Rehmat Bibi died during the pendency ref the suit and her three daughters who hitherto were not parties were brought on the record as legal representatives. Mst. Sakina Bibi was also transposed as co‑plaintiff as legal representative of her deceased mother. The suit was decreed against Wazir Muhammad on the 22nd June 1951. He filed an appeal which was dismissed by the learned Senior Civil Judge, Sialkot. vide judgment dated the 1st October 1951 (Copy Exh. P. 3). Further appeals by Wazir Muhammad :o the High Court and the Federal Court wore similarly dismissed.

After the decision in the suit brought against Wazir Muhammad by Mst. Rehmat Bibi, the land in dispute was mutated in favour of her four daughters in equal shares vide mutation copy Exh. D. 1, attested on the 24th July 1952. Taking advantage of this mutation Mst. Allah Rakhi mortgaged her 1/4th share in the land in dispute in favour of Bahawal res pondent. The present litigation between the parties is a sequal to the mutation Exh. D. 1 and the further mutation by Mst. Allah Rakhi purporting to mortgage her 1/4th share in the land in dispute to Bahawal.

4. To avoid both these mutations Mst. Sakina Bibi brought Suit No. 25 of 1956 in the Court of Civil Judge, Pasrur, for the possession of 3/4th share in the land in dispute on the allegation that it was purchased by her father for her sole benefit to be settled on her as her dowery to the exclusion of her other three sisters. Accordingly, she also challenged the competency of Mst. Allah Rakhi to mortgage 1/4th share of the land in dispute in favour of Bahawal. She also based her claim to the exclusive possession of the land as transferee of mortgagee rights from Tulsi Ram, etc, Besides her three sisters, Bahawal was also impleaded a defendants in the suit.

5. Of the four defendants, Mst. Husain Bibi respondent No. 2 conceded outright the plaintiff's claim. Mst. Sharifam and Bahawal respondents Nos. 3 and 4 not having appeared to contest the suit were proceeded ex parte, leaving Mst. Allah Rakhi defendant No. 1 (appellant herein) to contest the suit with regard to her 1/4th share. She in her written statement denied that Mst. Sakina Bibi was the sole beneficiary of the and in dispute once purchased by her father. She also denied that the plaintiff was transferee of mortgagee rights from Tulsi Ram, etc. The learned trial Judge settled the following issues on the pleadings of the parties:‑

(1) Whether the plaintiff (respondent No. 1 herein) is the sole owner of the suit land

(2) If Issue No. 1 (sic) is proved whether the mortgage: made in favour of defendant No. 4 (Bahawal) is valid and, binding upon the plaintiff

(3) What is the effect of the previous litigation upon the present suit

(4) Relief.

On the basis of the evidence produced in the case, the learned trial Judge found Issues No. 1 and 2 in favour of the plaintiff. No definitive finding, however, was recorded on Issue No. 3,. though it was found that the previous suit instituted by Mst. Rehmat Bibi ended in a decree against Wazir Muhammad, which was upheld in successive appeals by Wazir Muhammad right up to the Federal Court. As a result of the above findings, a decree for the possession of 3/4th share in the land in dispute was passed in favour of Mst. Sakina Bibi. On appeal, the above findings and the judgment of the trial Court were maintained by the learned Senior Civil Judge. Hence this appeal.

6. Ch. Abdul Hafeez, Advocate, appearing on behalf of Mst. Sakina Bibi raised a preliminary objection that Issue No. 1. in the case was crucial which was concurrently found by the two Courts below in favour of the plaintiff‑respondent No. 1. Being germane to the question of fact, the findings of the two Courts below on this issue cannot be questioned in second appeal under section 100, C. P. C. This objection was sought to be supported by learned counsel on the recent judgment of the Supreme Court in Pathana v. Mst. Wasai (PLD1965SC134). Learned counsel for the appellant did not seriously dispute the proposition that Issue No. 1 was germane to a question of fact, namely, as to whether the plaintiff was the sole owner of the suit land. He however argued that the concurrent findings were based on sufficient evidence and that in any case the two Courts below had not perused the judgment of the trial Court in the suit brought by Mst. Rehmat Bibi, according to which the decree was enure for the benefit of the four sisters and not for the sole benefit of Mst. Sakina Bibi. Being conscious of the fact that a ropy of the judgment of the trial Court (sic) in the suit brought by Mst. Rehma Bibi had not been placed on the record of the trial Court, the application under Order XLI, rule 27 was moved by the appellants' counsel for leave to produce copy of judgment of the trial Court in that suit. This application was registered as C. M. 557/C‑58. Learned counsel for the contesting respondent, however, objected to the production of additional evidence at the appellate stage.

7. It is well‑established principle that additional evidence under Order XLI, rule 27, C. P. C. cannot be taken until the appellate Court has examined the evidence on the record and has come to the conclusion that the evidence, as it stands, is inherently defective and therefore, unless additional evidence is allowed to be produced, the appellate Court cannot properly pronounce the judgment. It was observed by their Lordships of the Privy Council in Kessowji Issur v. G. I. P. Railway (31 I A 115), that the legitimate occasion for the application of the above rule is when on examining the evidence, as it stands, some inherent lacuna or defect becomes apparent and not where a discovery is made outside the Court of fresh evidence and the application is made to import it. In the subsequent case of Parsotim v. Lal Mohan (58 I A 254) following the dictum in Kessowji Issur's case, the Privy Council held that the rule is not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak point in his case and to fill up omissions in the Court of appeal. It was emphasised that it is only when the appellate Court "requires it" that is to say, when the appellate Court finds it needful that the additional evidence can be admitted. In a recent case reported as Sh. Muhammad Ikhlas v. Muhammad Ismail (P L D 1963 S C 466), the Supreme Court "ignored altogether" from consideration additional evidence recorded by learned Judge of the High Court in second appeal, when in the opinion of their Lordships there was enough material on the record for the deter mination of the case in the High Court.

8. In the instant case, it is not contended before me that there was not enough material to enable the trial Court to record an affirmative finding on Issue No. 1. The learned trial Judge mainly based himself on the averments in the plaint in Suit No. 51 of 1941, instituted by Mst. Rehmat Bibi, a copy of which is Exh. P. 2. In paragraph 6 of the plaint Mst. Rehmat Bibi had averred in unmistakable language that her deceased husband owned, besides the land in dispute, certain other land which he had given to his other three daughters and that he had ear‑marked the land in dispute to be given to Mst. Sakina Bibi after the death of .her mother Mst. Rehmat Bibi. Again in the relief clause of the plaint, after describing herself as the beneficial owner Mst. Rehmat Bibi prayed that after her death the land in dispute would devolve exclusively on Mst. Sakina Bibi, and that Wazir Muhammad was merely an ostensible owner of the land with no power of alienation. It is common ground between the parties that on the basis of the above averments, the earlier suit brought by Mst. Rehmat Bibi succeeded and Wazir Muhammad who was the sole contesting defendant in that case failed in his successive appeals. These averments in the pleadings partake of the nature of an "instance" within the mean ing of section 13 (b) of the Evidence Act, in which Mst. Rehmat Bibi asserted her exclusive right in the land in dispute during her life with the further qualification that the land, after her death, would devolve upon Mst. Sakina Bibi by way of her dowery, and that indeed the land was purchased by her deceased husband Umar Din with that object.

9. There is yet another significant circumstance in the case which does not seem to have received due notice by the two Courts below. It appears that Mst. Rehmat Bibi, by means of a registered deed dated the 8th February 1943 (Copy Exh. P. 5) gifted certain land, situate in Sarai Shah Fateh in Tehsil Pasrur, in favour of her other three daughters to the exclusions of Mst. Sakina Bibi. This lends a strong support to the version that the land in dispute was earmarked to be given to Mst. Sakina Bibi, who had been excluded from the gift of the land situate in Sarai Shah Fateh.

10. On the top of it all, the fact that Mst. Husain Bibi conceded the exclusive claim of Mst. Sakina Bibi to the lard in dispute is highly significant. By conceding the exclusive claim of Mst. Sakina Bibi. she (Husain Bibi) was making a very strong admission against her own interest, arid there is no reason, what ever, why full effect should not be given to this admission. So also tile fact that Mst. Sharifan Bibi did no enter appearance to contest the exclusive claim of Mst. Sakina Bibi is equally significant, there being parity of interest in the land between her and the appellant Mst. Allah Rakhi.

11. These factors would obviate the application of Order XLI, rule 27, C. P. C. to enable the appellant to produce the copy of judgment of the trial Court in the suit brought by Mst. Rehmat Bibi. Moreover, it is difficult to see how that judgment would be relevant in this case For one thing, it is not inter parties and, therefore, would not operate as res judicata and to fortiori would not be covered by section 40 of the Evidence Act, 1872. It is not a judgment in rem so to fall within the provisions of section 41 ibid, Again it does not "relate to matters of a public Lacure relevant to enquiry" in this litiga tion so as to fall within the ambit of section 42 ibid. The judgment is not a "transaction" either so as to be relevant under clause (al of section 13 of the Act. Indeed, learned counsel for the appellant could not Ant to any section of the Evidence Act under which the judgment suggestion aced at this stage, would relevant. The same is true of the judgment of the learned Senior Civil Judge (Exh. P. 3) produced by Mst. Sakina Bibi, though no objection seems to have been taken on behalf of appellant when it was being tendered in evidence. Therefore, it must also be excluded from consideration for tae purpose of the first issue, The existence of the judgment is not issue even as a fact, the central point litigated between Mst. Sakina Bibi and Wazir Muhammad it, the previous suit, was whether the latter was a benamidar for the former with regard; to the suit lance and it is common ground between the parties to this litigation that the above question was answered in the affirmative and this decision was maintained throughout up to the Federal Court. Therefore, apart from the relevancy of the pleadings in the previous litigation between Mst. Rehmat Bibi and Wazir Muhammad either as admissions or under section 13 (b) of the Evidence Act, the findings of Courts on the various issues are not relevant in the present litigation between the daughters of Mst. Rehmat Bibi.

For these various reasons, I reject the prayer in C. M. 577/C‑58 for the production of the copy of the judgment of the Civil Judge, Pasrur, in the suit brought by Mst. Rehmat Bibi.

10. The consideration of the merits of the appeal should not detain us long. On the basis of the evidence produced in this case, the two Courts below in my opinion, rightly found Issue No. 1 in favour of Mst. Sakina Bibi. As observed already, the issue is essentially one of fact the findings of the two Courts below thereon cannot possibly be questioned in this second appeal on the authority of the Supreme Court in Pathana v. Mst. Wasai. This follows a string of earlier cases decided by the Federal Court and the Privy Council.

11. No other point was pressed nor indeed could be pressed by the appellant's learned counsel, Bahawal having allowed the suit to proceed ex parte against him and not having chosen to appeal against the judgment of the trial Court.

12. For the foregoing reasons, the appeal fails and is dismissed with costs.

A.E./S.A.H. Appeal dismissed.

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