P L D 1965 (W (PLP)

(iii) on any such application the Court of the Judicial Commissioner shall not revise the decision of the Court below except in so far as such decision involves the, question of law or custom in respect of which the application has been admitted; and (iv) when any such application has been admitted, the Court of the Judicial Commissioner shall, subject to proviso (iii), treat the matter of the application as if it were an appeal. Explanation,‑A question of procedure is not a question of law or custom within the meaning of cause (b). (2) In computing the period of limitation mentioned in proviso (i) to subsection (1), and in all respects not herein specified, the limitation of the application shall be governed in by the provisions of the Indian Limitation Act, 1908. (3) Section 115 of the Code of Civil Procedure, 1908, shall not apply in the territory to which this Regulation extends."

6. This civil revision was admitted to a full hearing on the 28th of October, 1959. According to proviso (iv) to section 34 (b) of the N.‑W. F. P. Courts Regulation, 1931, it is amply clear to me that the revision petitions filed before the coming into force " of the West Pakistan Civil Courts Ordinance (It of 1962) are to be heard as `revision' ‑under the Regulation after the repeal of Regulation by Ordinance (II of 1962). See Pir Bakhsh v. Ajaib Gul and others (P L D 1962 Pesh.61). There is thus no force in the preliminary objection and I hold that the revision is competent. The preliminary objection is therefore, over‑ruled.

7. For the petitioner it was strenuously argued by Mr. Pir Bakhsh Khan that the request of his client for producing additional evidence at the appellate stage was wrongly disallowed by the appellate Court and in this connection he cited a large number of rulings to which I shall presently refer in this judgment; Parsotim Thakur and others v. Lal Mohar Thakur and others (A I R 1931 P C 143); Maharajadhiraj Kameshwar Singh Bahadur v. Hirday Singh all/others A I R 1931 Pat. 181); Mst. Durga Tawary v. Ramrati Kuer (A I R 1937 Pat. 584) ; lfuhammaa Hussain and 3 others v. Alam Din and 5 others (P L D 1955 Lah. 420) ; Muhammaci Shafi and others v. Mst. Zainab Bibi and others (P L D 1959 Lah. 941); J7uhammad Sidik and others v. Ghulam Hyder and others (P L D 1961 Kar. 511) and Mst. Sahib Bibi v. Muhammad and others (P L D 1961 Lah. 1036).

8. Mr. Abdul Latif Khan, counsel for the plaintiff‑respondents referred to: Wali Muhammad and others v Muhammad Bakhsh and others (A I R 1924 Lah. 444); Wadgooji Kalar v. Mahadeo and another (A I R 1927 Nag. 398) and Sir Muhammad Akbar Khan v. Mst. Watti and others(AIR 1948 P C 36)

9. In Kameshwar Singh Bahadur v. Hirday Singh and others the appellate Court did not receive into evidence a certified copy of the previous case filed in order to show that no notice under ,Order XXI, rule 22 was required as the case proceeded within a year of the last execution case. Courtney‑Terrel, C. J., and Admi, J. who decided that case held that the' learned Judge should not have taken a narrow view of the rules of the procedure. Their Lordships considered that in order to do justice between the parties, the District Judge should have taken into consideration a certified copy of the previous case showing that no notice under Order XXI, rule 22 was required as the case was proceeded within one year of the last execution case.

10. The Patna High Court held in Mst Durga Tewary v. Ramrati Kuer and others that if a party succeeds in showing that the evidence which he could not produce at the trial has become available which is material to the decision of the case, there was good and substantial cause justifying the admission of the additional evidence.

11. In the Lahore case, Kaikaus, J. (as he then was) took the view that the trial Court wrongly refused to‑take into con sideration a certified copy of an entry in a Court register showing an execution having been taken out in a decree of dower. His Lordship admitted the document in appeal in order that the question of relationship in issue might be decided.

12. In Muhammad Shafi and others v. Mst. Zainab Bibi and others Kaikaus and Yaqub Ali, JJ. finding it not possible to give a satisfactory judgment in that case unless additional evidence was examined, directed the parties to produce such documentary evidence consisting of extracts from the Revenue record and the record of the Corporation of the City of Lahore to prove relationship of the plaintiffs in that case with Ghulam Muhammad deceased. The additional evidence was examined because the Revenue record of District Gujranwala up to 1918 had been burnt.

13. In the Karachi case P L D 1961 Kar. 511, after the appeal was heard, their Lordships felt the necessity of recording additional evidence with a view to find out as to how the name of Muhammad Waris appeared as the exclusive owner of the property in dispute in the years 1937‑38.

14. Abdul Aziz Khan, J. in Mst. Sahib Bibi's case expressed the view that the Court may allow a party to produce additional evidence, provided the application is made to it at the proper time.

15. In the case reported as Wali Muhammad and others v. Muhammad Bakhsh and others, the learned counsel for the appellants desired to be allowed to produce additional evidence at the appellate stage consisting of certain remarks in the misl‑haqqiat or Records‑of‑Rights under rule 27 of Order XLI, C. P. Code, but the request was disallowed on the ground that this evidence was not tendered or produced in the lower appellate Court and their Lordships were not prepared to admit it at the time of appeal to the High Court.

16. In the Nagpur case Findlay, J. C. took the view that where the appellant had the opportunity of producing the evidence in the lower Court, but had failed to do so, it should not be admitted in appeal. The plaintiff‑appellant in that case wanted to produce a document and it was contended that if the document were admitted, it, would be possible to measure exactly the dimensions and fix the site of the strip of land in dispute, but the request was not granted.

17. Their Lordships of the Privy Council in Sir Muhammad Akbar Khan's case examined the scope of rule 27, Order XLI, C. P. Code and considered that the power of an appellate Court to admit further evidence is only confined to those cases in which the Court requires any document to be produced, or any witness to be examined, to enable it to pronounce judgment or for any other substantial cause.

18. After carefully going through the reported cases I agree with the Court below that it was not a fit case in which Pordil petitioner should have been permitted to produce additional evidence at the appellate stage. Pordil had sufficient opportunity to produce these documents in evidence in the trial Court. He was in possession of the documents, but he did not produce them, obviously due to the slackness on his part and on the part of his counsel.

19. The West Pakistan High Court ruled in Ghulam Muhammad and another v. Shah Wali (P L D 1956 Lab. 756) that: "If an appellant, who had ample opportunity of giving evidence in the trial Court,‑elects not to do so, but rests his case on the evidence as it stood, he ought not to be allowed to give evidence which he could have given in the trial Court." Muhammad Sharif, J. (as he then was), who decided the above said case, was of the view that if the appellate Court permitted a party to improve his case by calling fresh evidence, there would be no end to litigation. ,

20. The preponderance of authority is in favour of the view that the party who had the opportunity to produce the evidence in the trial Court, but did not avail of the opportunity, should not be allowed to improve its case by producing evidence at the appellate stage. I think the application of Pordil for producing additional evidence was rightly disallowed by the lower appellate Court and the High Court will not interfere in revision with the discretion exercised by the lower appellate Court. See A I R D 1937 Pat. 584 wherein it has been laid down that ordinarily an appellate Court does not interfere with the discretion exercised by the lower Court unless it is shown that the discretion was exercised wrongly.

21. The contention that the unregistered deed (copy Exh. D..A.) which is prior in time should have precedence over the subsequent deed in favour of the plaintiff‑respondents which is registered because the petitioner was in possession of the land, is untenable. There is no evidence that Pordil had been in possession of particular Khasras numbers representing 17 kanals 10j marlas e of land which he acquired by unregistered deed. There is no dispute that this deed required registration under section 17 of the Registration Act (XVI of 1908) and even the amended section 50 to which a proviso was added by Ordinance XLV of 1962 is not of any help to the petitioner. The proviso runs: "

14. Amendment of section 50, Act XVI of 1908.‑In the said Act, in section 50, in subsection (1),‑ (1) * * * * * * * * * * * * (2) * * * * and thereafter the following provisions shall be added, namely:‑ "Provided that the person in possession of the property under an unregistered document prior in date, would be entitled to the rights under section 53‑A of the Transfer of Property Act, 1882 (IV of 1882) if the conditions of that section are fulfilled "

22. Learned counsel for the petitioner was unable to convince me that this proviso advances the case of his client in any manner. He referred to Hahi Bakhsh v. Kalumal and others (A I R 1939 Lab. 29). In that case A sold a vacant site to B and possession was delivered. A began to stock his fodder and tie his cattle there. After a year, A mortgaged the same. vacant site to another person by means of a registered deed. It was held "That the alleged possession of the vacant site obtained by the vendee was not of such a nature as could be held to be tantamount to `notice' of his rights under the sale‑deed. Hence the mortgagee was entitled to preference for his registered mortgage deed over the prior unregistered sale‑deed in favour of the vendee on the strength of the provisions of section 50."

23. In my opinion, the above said case helps the other side and not the petitioner. In the absence of evidence to show that Pordil was in possession of 17 kanals 10 marlas of land which he acquired by unregistered document, it cannot be reasonably held that the plaintiff-respondents had notice of the sale in his favour. They acquired land by a registered sale‑deed.

24. In view of the material on the record, I find it impossible to sham the view that unregistered document must have precedence over the subsequent registered deed, because the unregistered document had taken effect by delivering of possession. There is thing to that effect either in the statement of Patwari halqa or the cross‑examination of the plaintiff, who appeared as his own witness, though Mr. Pir Bakhsh Khan learned counsel for the petitioner feebly argued that the statement of the plaintiff coupled with the recital in the deed (Exh. P. 12) sufficiently establishes the claim of his client to this piece of suit land.

25. On a careful consideration of the material on the record and the arguments addressed at the Bar. I am of the view that the appeal of Pordil was rightly dismissed by the learned Additional District Judge, Peshawar, In the result, the decree granted by the trial Court is hereby affirmed and the, revision is dismissed, with costs.

26. Taking up the application (Civil Miscellaneous No. 208 of 1964) made by the plaintiff‑respondents for correction of mis-description of a particular Khasra number, 1 find that no relief can possibly be granted because Khasra No. 214, was held to be in adverse possession of Wahdat Khan and Sher Muhammad Khan defendants in a separate suit and the decision in that suit was upheld in, appeal by the Additional District Judge, Peshawar on 2‑1‑1963. Accordingly, Civil Miscellaneous Application (No. 208 of 1964) is also dismissed. S. A. H. Petition dismissed.