P L D 1965 (W (PLP)

"It is also essential to examine Mst. Shahzada Begum for she must know whether her mother was divorced by her father. The rest of the mutations regarding devolution of Allah Yar's land be filed and Mst. Shahzada be summoned for the 8th of January 1957. Parties to deposit process fee, diet money etc, of witnesses in equal shares." The learned counsel for the appellant contended that the existence of Mst. Shahzada Begum was known to the plaintiff and, therefore, he had ample opportunity to examine her in the lower Court, and so he should not have been allowed to patch up the weak part of his case and fill up the omission in the Court of appeal by producing additional evidence in appeal. According to the learned counsel it is not the business of the appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Even the inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important is not of itself a sufficient ground for admitting that evidence in appeal. The learned counsel added that no satisfactory reasons were given for the non‑production of the additional evidence in the trial Court and, therefore, the additional evidence should not have been admitted in appeal, because a party guilty of remissness in the lower Court is not entitled to the indulgence of being allowed to give further evidence under this rule. In support of his contention the learned counsel cited the cases: Parsotim Thakur and others v. Lal Mohar Thakur and others (A I R 1931 P C 143) and Sh. Muhammad Ikhlas and others v. Muhammad Ismail (PLD 1963 SC 466). In Parsotim Thakur and others v. Lal Mohar Thakur and others it was held:‑ "The provisions of section 107 as elucidated by Order XLI, rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under Rule 27, Clause (1) (b) it is only where the appellate Court requires it (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in ether case it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but `when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27 (2) to record its reasons for so doing, and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case." In case Sh. Muhammad Ikhlas and others v. Muhammad Ismail it was observed: "In the present case, when the matter came before the High Court, the learned Judge suo motu made an order directing that further evidence should he led on the question of the necessity of the landlords, The order reads as follows: `It also appears necessary to take some evidence on the question of the necessity of the respondents with regard to the shops in dispute.' Muhammad Fayyaz, one of the landlords, who was present in Court, was examined forthwith, and Muhammad Riaz, who had already been examined twice, was next examined, his statement, being concluded on an adjourned date. On that date, an employee of the Pakistan Tobacco Company, who happened to be in Court, was examined, and on an adjourned date, a Mr. Husain Mehdi, also an employee of the same Company, was examined, apparently as a `Court' witness, for the landlord had expressly declined to lead his evidence, for reasons which were not disclosed. In the result, the concurrent findings of the Courts below on the point of necessity were reversed. In the judgment, the learned Judge explained that he had received further evidence because he was `of opinion that it was necessary for the proper determination of the case. This is not quite the language used in sub‑rule (1) of rule 27 of Order XLI of the Code, and it is necessary to note that rule 27, in sub‑rule (2) lays down that whenever additional evidence is allowed to be produced by an appellate Court, `the Court shall record the reasons for its admission'. It is clear that more is required under this sub‑rule than mere repetition of the provisions in sub‑rule (1); the reasons would be expected to be factual, leading to an inference of necessity for proper determination. Moreover, in the present case, further evidence could only have been allowed if the appellate Court had required `any witness to be examined to enable it to pronounce judgment or for any other substantial cause. (Sub‑rule (1)). On a review of the entire case, we are unable to see that the learned Single Judge in the High Court need have felt any obstacle in the way of his pronouncing judgment in the case upon the record as it had come to him. The `substantial cause' for allowing fresh evidence would therefore seem to be mere necessity `for proper determination of the case', but as mentioned above, it was the duty of the learned Single Judge then to have stated expressly his reasons for the view that additional evidence was not necessary for such proper determination. No reasons were stated, and it must be stated, with respect, that, on the record, a determination of the case, in relation to the pleadings, and the issues framed was patently possible. The parties had already enjoyed two opportunities of placing their evidence before the Court, and there was, in our opinion, ample evidence on which the issues could be satisfactorily and definitely resolved." The learned counsel thus argued that the learned District Judge, in the present case, could have pronounced judgment without recording the evidence of Mst. Shahzada Begum, as there was no obstacle in the way of his pronouncing judgment in the case upon the record as it had come to him.

5. The learned counsel for the respondent, on the other hand, argued that since the additional evidence had been recorded by the learned District Judge with the acquiescence of both the parties, it was not open to the appellant now to complain of it. In support of his contention he cited the case of Jagarnath Pershad v. Hanuman (361 A 221 PC) wherein it was observed:‑ The appellant applied for probate of the will in the Court of the District Judge of Gaya. Caveates and written statements were filed in answer, and the case was heard before the District Judge. Three of those who appeared as attesting witnesses to the will were called at the hearing. The other two attesting witnesses and the appellant himself were not examined by the applicant; they were tendered for cross‑examination but not cross‑examined. Evidence was called on the other side. The District Judge was satisfied that the testimony to the genuineness of the will and the competency and animus testandi of the testator was overwhelming, and the evidence on the other side altogether untrustworthy and he granted probate accordingly. The respondents appealed to the High Court of Bengal. That Court made an order at the hearing of the appeal for the examination as witnesses of the appellant himself and the two witnesses to the will who had not been examined in the first Court. Those persons were accordingly examined, The High Court also admitted certain extracts from books of account alleged to have been kept by the testator. In the result the High Court held that the circumstances connected with the alleged execution of the will were involved in suspicion, and that the will was not sufficiently, proved, and accordingly a decree was passed which set aside that of the District Judge and: dismissed the application for probate with costs. Against that decree the present appeal has been brought. On the argument of the appeal it was objected that the examination of the three witnesses by the Court of Appeal was irregular; but it appears that that examination was taken with the assent of both sides. It is not open, therefore, to anybody to complain of it now." In Muhammad Ahmad v. Ch. Jamal Ahmad (A I R 1944 Oudh 220), it was held: "Where one party to an appeal has without raising any objection at the time, consented to the additional evidence being taken on request of the other party, it is not open to the former to object in the next appellate Court to the admission of additional evidence." In case of Md. Saadat Ali Khan v. Mst. Badala (A I R 1950 All. 182), it was held :‑ "Where parties cons en to the admission of additions evidence in appeal, it is no longer open to any of the parties to say that the additional evidence was improperly admitted."

6. From the perusal of the order dated the 23rd of November 1956 of the learned District Judge, by virtue of which he proceeded to record additional evidence, it is clear that the parties had assented to the recording of that evidence because, they even deposited process fee and diet money etc. of the witness in equal shares. From the perusal of the record I also find that the appellant never objected to the recording of the additional evidence by the learned District Judge. In view of the above it is obvious that the appellant cannot now say that the additional evidence was improperly admitted. Mst. Shahzada Begum, when she appeared before the learned District Judge, stated that Mst. Gahran was her mother, that after her death her (this witness's) father Allah Yar married Mst. Alfan, whom he divorced in her presence, about three months prior to his death, and after that Mst. Alfan started living in her parents' house. She also added that besides her, Muhammad Noor, plaintiff, Mehr Khan, Fazal Dad and Amir Khan were also present at the time of the divorce. The respondent in support of this issue, besides himself, examined Fazal Dad, Mehr Khan, Ami: Khan, Mowaz, Shahnawaz and Ahmad Noor, who supported him. It was, however, argued by the learned counsel for the appellant that no reliance should be placed on their testimony because most of them were closely related to the appellant and some of them had enmity against the parents of the respondent. In addition to the above oral evidence, the appellant also produced mutation No. 332 Exh. P. 4, mutation No. 355, Exh. P. 3, Jamabandi Exh. P. 1 of the year 1949‑50 and khasra girdaivari Exh. P. 2 of the year 1951‑

52. Mutation Exh. P. 4 was entered on the 23rd of July 1947, and was sanctioned on the 25th of August 1947. According to this mutation, after the death of Allah Yar, the land of Allah Yar was mutated in the name of Mst. Shahzada Begum and she was shown as the owner. When Mst. Shahzada Begum married, the land of Allah Yar deceased was mutated in the name of his nephew, Muhammad Noor bide mutation No. 355 Exh. P. 3 entered on the 6th of March 1948 and sanctioned on the 28th of August 1948. If Mst. Alfan had not been divorced she, being a widow of Allah Yar, would have inherited the property on his death. Similarly where Mst. Shahzada Begum got married and the property was mutated in the name of Muhammad Noor, Mst. Alfan could have come forward and claimed the property as a widow of Allah Yar deceased. Since she did not do so, it is clear that she must have been divorced and as such could not inherit the property. Mst. Alfan respondent stated that she did not appear before 'the revenue authorities, because she did not know anything about the mutations and that is why the property was not mutated in her name. This argument does not appear to be plausible because she and her father, Zaru, lived only a mile away from the village of Allah Yar and under those circumstances it is difficult to believe that they did not know that mutation had been sanctioned in the names of other persons. The property left by Allah Yar consisted of more than 500 bighas of land, and the revenue authorities could not have ignored the rights of Mst. Alfan and sanctioned mutation first in favour of Mst. Shahzada Begum and then in favour of Muhammad Noor, the nephew of Allah Yar deceased. In Jamabandi Exh. P. 1 of the year 1949‑50 Mohammad Noor is not only shown as the owner of the property, but also shown in the column of kashtkar as. The aforementioned Zaru is the father of Mst. Alfan. This would show that Zaru knew that the land of Allah Yar, which he was cultivating as a tenant, had been mutated in the name of Muhammad Noor, plaintiff‑respondent. In khasra girdawari Exh. P. 2 Mst. Alfan has been shown to be in possession of five out of six fields in the suit land in kharif 1953. She is described as the divorced wife of Allah Yar. Muhammad have got this entry recorded against his own Mst. Alfan in recognition of her right in the land by way of gift by her husband, because in the previous; entry he (Muhammad Noor) had been shown in possession as a co‑sharer. It appears that Zaru (D. W. 1), father of Mst. Alfan, who was in possession of this land as a tenant under Muhammad Noor, surreptitiously got this entry made by the patwari.

8. All this documentary evidence, coupled with the evidence of Mst. Shahzada Begum and the oral evidence produced by the plaintiff‑respondent leads to an irresistible conclusion that Mst. Alfan was divorced by her husband, Allah Yar deceased, during his life time and as such she is not entitled to the property in suit. The learned counsel for the appellant, however, argued that the mutations are not evidence to show that Mst. Shahzada Begum and after her marriage, Muhammad Noor, plaintiff respondent were the legal owners in a proprietary sense of the suit land to the exclusion of Mst. Alfan, defendant‑appellant. In support of his contention he cited the case of Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh and others (A I R 1926 PC 100) wherein it was held:‑ "It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property arc determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the. State for the purpose of ascertaining which of the several claimants for the occupation of certain denomination of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. Orders in mutation proceedings are not evidence that the successful applicant was in possession as sale legal owner in a proprietary sense to the exclusion, for example, of all claims of the other members of the family as co‑owners or for maintenance or otherwise as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim." In the present case, however, the revenue record produced by the plaintiff‑respondent is not the only evidence produced by him, but he has also examined other evidence and, therefore, this ruling will not be applicable. In view of the above I find no force to the contention raised by the learned counsel. The learned counsel further argued that khasra girdawaris and mutations are not admissible in evidence and, therefore, they should not be taken into consideration. This contention has also no force. In Monir's Principles and Digest of the Law of Evidence, 3rd edition, page 377, it is mentioned that: "Revenue records are not evidence of title, for they are kept for fiscal purposes; but when the facts recorded are facts which it is the duty of the Revenue Officer to record, then his record is evidence of those facts." In Niaz Ahmad and others v. Mian Abdul Rahman and others (PLD1961 B J1) it was held: "A khasra girdawari is not one of the documents to which a presumption of correctness attaches under section 44 of the Punjab Land Revenue Act (which Act has been made applicable to the Bahawalpur State) but the entries are admissible in evidence under the provisions of section 35 of the Evidence Act. What weight should be attached to the entries in a khasra gridawari will, however, necessarily depend on the circumstances of each case."

9. As already observed above the statement of Mst. Shahzadai Begum was recorded by the learned District Judge with the consent of the parties and, therefore, it is not open to the defendant‑appellant to complain of it. Thus the finding of the lower appellate Court on this issue is also based on a question of fact and as such it cannot be challenged in second appeal. The learned counsel for the appellant, however, argued that the lower, appellate Court's finding of fact, is binding on this Court only when it is honest, is arrived at on the facts uninfluenced by the extraneous consideration, is based on correct appreciation of material on record and is based on evidence and not on surmises and conjectures: In support of his contention he cited the case of Bharpura v. Diwan Chand (A I R 1940 Lah. 329). In the present case the lower appellate Court's finding of fact is based on correct appreciation of material and evidence on the record and, therefore, this ruling, in my view, does not help the learned counsel. In case of Tejpal Jamna Dos v. Ernest V. David and others (A I R 1928 P C 219) it was held that: "A finding of fact by lower appellate Court is binding on the Privy Council as on the High Court." In case of Basiram Saha Roy and others v. Ram Ratan Roy and others (AIR 1927 P C 117) it was held: "Findings of first appellate Court are conclusive and the High Court and the Privy Council are bound to accept them without further enquiry." In case of Ma Pyu v. K. C. Mitra (A I R 1928 Rang. 303) it was held: "Section 100 says nothing about the‑ findings of fact, concurrent or otherwise, and, therefore, a finding of fact by the lower appellate Court, though not concurrent, is final and cannot be interfered with in second appeal." In view of the above rulings the finding of the lower appellate Court on Issue No. 3 is final and cannot be interfered with in second appeal.

10. It may be mentioned that at the time when this appeal was admitted, the learned counsel did not take up the ground now taken up. This is obvious, because the admitting order reads as follows:‑ "If death taken place during `iddat the wife may inherit. Admitted. S. B." This would show that it was admitted that Mst. Alfan appellant had been divorced, but that her husband, Allah Yar, had died during the period of `iddat. The learned counsel for the appellant before me did not concede this point. He, however, took up this point as an alternative plea. There is no evidence on the record to show that the death of Allah Yar had taken place during the period of `iddat of Mst. Allan. In this connection the learned counsel relied on the evidence Of I\4uhammad Noor, who stated that Allah Yar had died three months after the divorce. The learned counsel, therefore, wanted to argue that the death had taken mace during the period of `iddat. In Mulla's Principles of Mahomedan Law, it is mentioned that when marriage is dissolved by divorce, the duration of the iddat, if the woman is subject to menstruation, is three courses; if she is not so subject, it is three lunar months. There is nothing on the record to show as to whether Mst. Alfan at the time of divorce was subject to menstruation or riot. In any case the statement made by Muhammad Noor does not show that Allah Yar had died within three courses or during the three lunar months of the divorce. In view of the above this argument has also no force.

11. In the result I find no merit in this appeal, which is hereby dismissed with costs. K. B. A. Appeal dismissed.