P L D 1957 Azad J (PLP)

ABDUL HAMID KHAN, J.‑

This second appeal arises out of a suit for possession of land measuring 6 kanals 16 marlas comprised of khasra No. 967 situate in village Hoorna Mehra. The plaintiff alleges to have purchased this land on 6th August 1952, by virtue of a sale‑deed from Muhammad Akbar owner of the land. The defendants took the plea that they were in adverse possession of the land for more than 12 years. The trial Judge observed that in the `jamabandi' of Sambat year 2003, the defendants were entered as cultivators and there was no entry of adverse possession in their favour. He, therefore, rejected the plea of the defendants and granted plaintiff a decree for possession against the defendants for the suit land. On appeal, the learned District Judge reversed this finding of the trial Judge by his order dated the 31st January 1956. In the lower appellate Court, the defendants filed attested copies of khasra girdawaris of Sambat years 1988 to 1991 and of jamabandis of Sambat year 1995 and 1999. These copies were admitted into evidence by the lower appellant Court and on the basis of these documents the finding of the trial Judge on the: point of adverse possession was reversed and the plaintiff's suit dismissed. In this second appeal, the appellant questions the admission of the fresh documentary evidence by the lower appellate Court as this should have been produced by the defendants earlier in the trial Court. It is contended that the lower appellate Court also did not give any opportunity to the appellant to rebut this fresh evidence produced by the defendants. In the trial Court, the defendants (respondents) did not produce any documentary evidence. They contented them selves with the production of oral evidence which was disbelieved by the trial Judge. On the contrary, the plaintiff had produced a copy of jamabandi of Sambat year 2003 and a copy of khasra girdawaris of Sambat year 1992 to 1995. In the jamabandi of Sambat year 2003, there is no entry of adverse possession by the defendants. The entry in the rent column is "bashara asamian" meaning rate which `asamis' annually pay and this is fixed as Rs. 1‑4‑

0. In the copy of the khasra girdawaris of Sambat years 1992 to 1995 produced before the trial Judge, the defendants have been shown to be in adverse possession. As the presumption of truth in law is attached to Jamabandis and not to khasra girdawaris, the trial Judge held on the basis of the jambandi of Sambat year 2003 that no adverse possession had been proved by the defendants. The point for determination in this second appeal is whe ther the lower appellate Court should have admitted fresh evidence in appeal or not? The law on the point is governed by Order XLI Rules 27, Civil P. C. Rules 27 lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court. But if‑ (a) the Court from whose decree, the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the appellate 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, the appellate Court may allow such evidence or document to be produced or witness to be examined. Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record reasons for its admission. In the present case, the additional evidence was not produced by the defendants in the trial Court and therefore clause (b) would apply to the admission of additional evidence by the lower appellate Court. Actually additional documentary evidence in the form of attested copies were attached to the grounds of appeal by the defendants in the lower appellate Court. Not a word was entered in the grounds of appeal as to why this additional documentary evidence was being produced so late. On 3rd December 1955, arguments were heard by the lower appellate Court but there is no mention of this additional evidence in the interim order. The interim order of 14th December 1955, is vague. It does riot clearly show that the additional documentary evidence was admitted in evidence by the appellate Court. All that it states is that the perusal of the revenue record concerning the suit land was necessary, therefore Patwari halqa Hurna Mehra was summoned with the jamabandis and khasra girdawaris of the years beginning from Sambat years 1993 upto that time for 21st January 1956. On 21st January 1956, the Patwari, though present, was not examined but the copies of the record filed in the lower appellate Court were compared with the original record in possession of the Patwari by the lower appellate Court and found correct. Opportunity was then granted to the parties to further address arguments in the appeal, if they liked. But they did not add anything to their arguments. The judgment was then announced by the lower appellate Court on 31st January 1956. In the judgment, the lower appellate Court for the first time clearly held that for giving a correct finding in the case, admission of the additional documentary evidence produced by the defendants was necessary and as these were attested copies of public documents, these were admitted into evidence. In these documents, the defendants were shown to be in adverse possession from Sambat year 1991 to 1999. On the basis of these documents, the finding of the trial Court on the point of adverse possession was reversed by the lower appellate Court. I have strong objection to the way in which the additional documentary evidence was admitted by the lower appellate Court. The perusal of its interim orders show that it was avoiding to put the issue clearly to the other party. It was not even hinted by the defendants as to why this additional evidence was being produced so late. There can be two possible reasons for this attitude of the defendants. Either they had no possible explanation for the delay and preferred to offer no explanation or they were so conscious of their weakness that they dared not come forward with any explanation and hoping that they might quietly succeed in getting them admitted by springing a surprise on their opponents by taking them unawares at the time of hearing, adopted this course. To their good luck, the lower appellate Court also did not face the issue boldly as required under the law. Generally additional evidence is admitted in appeal when the party wishing to produce additional evidence was unable, thorough no fault of his, to produce it in the trial Court; or when the evidence has been taken by the trial Court so imperfectly that the appellate Court cannot pass a satisfactory judgment. In the present case, it has not been shown that this additional evidence was not produced earlier for no fault of the defendants or that the evidence recorded by the trial Court was so imperfect that the lower appellate Court could not pass a satisfactory judgment Allah Ditta v. A. F. Ahmad & Co. (P L D 1952 Lah, 582) is a clear authority on the point. In that case, the additional subordinate Judge had refused to admit additional evidence, a copy of the jamabandi of the Sambat year 1945‑46, in evidence because it was produced at late stage on a date which was fixed for orders. The lower appellate Court (the Senior Subordinate Judge) up‑held the finding of the Additional Subordinate Judge His Lordship of the Lahore High Court concurred with the Senior Subordinate Judge and remarked as under:- "It has to be conceded that from the point of view of appellants, the fresh evidence, sought to be produced, is of great importance. But this circumstance alone is not sufficient, in my opinion, to entitle the appellants to ask me to exercise my powers under Order XLI, Rule 27 (b), Civil P. C. in their favour. The document was all along within the knowledge of the plaintiffs and they had ample opportunity to produce it at the proper stage. As already observed, no explanation has been offered for not producing it at that stage, although the suit remained pending for nearly two years. It is therefore, obvious that the plaintiffs and their counsel betrayed gross lack of diligence in conducting the suit." He was further pleased to remark as under:‑ "On examining the evidence, as it stands, I have not been able to discover any inherent lacuna or defect. It is true that an important piece of evidence was left out by the appellants, but for this they themselves or their Counsel is entirely to blame; and I feel that I would not be exercising my powers under Order XLI, Rule 27, Civil P. C. legitimately, if I admitted the additional evidence in order to enable the appellants" to patch up the weak parts of their case and fill up omission "in this Court. I am, therefore, unable to accede to the request of the learned Counsel for the appellants that I should admit copy of the jamabandi as fresh evidence." His Lordship of the Lahore High Court in this judgment also referred to the Privy Council judgment reported as Parsotim Thaker v. Lall Mohar (A I R 1931 P C 143) which is the leading authority on the point. Their Lordship of the Privy Council held that a litigant unsuccessful in the lower Court could not patch up weak part of his case and fill up omissions in the Court of appeal. These authorities are on all fours with the present case. In the present case, the suit was filed in the lower Court on 11th November 1952 and was decided on 26th July 1955. During this period of approximately three years, the defendants did not produce the additional evidence which they produced in the lower appellate Court. Absolutely no explanation has been offered by them as to why they did not produce the additional evidence earlier. It has not been said that for some inherent lacuna or defect apparent on the record, additional evidence was necessary to be admitted. By producing additional evidence in this case in the lower appellate Court, the defendants have tried to make‑up the weakness in their case and fill up the omissions which they should not be allowed. It is no business of the appellate Court to supplement the evidence adduced by one party or the other in the trial Court. The lower appellate Court should not, therefore, have admitted the additional evidence B in appeal and on the basis of it upset the finding of the trial Court on the point of adverse possession. If the additional evidence in the lower appellate Court is ignored, there remains nothing to show that the defendants were in adverse possession of the suit land. I, therefore, accept the appeal, set aside the finding of the lower appellate Court and restore that of the trial Court with costs throughout. A. H. Appeal accepted.