P L D 1956 (W (PLP)

MUHAMMAD SHARIF, J.‑--Ghulam Muhammad, defendant No. 1 made a gift of his landed property in favour of defendant No. 2, Noor Khan, who is the son of his first cousin. Shah Wali plaintiff, who is the first cousin of defendant No. 1, brought a declaratory suit that the gift made by defendant No. 1 in favour of defendant No. 2 was not valid according to law and custom and therefore, ineffectual against his reversionary rights after the death of defendant No.

1. The following questions were raised for determination :‑‑ (1) Whether the suit property is ancestral qua the plaintiff and Ghulam Muhammad donor? (2) Whether the plaintiff and Ghulam Muhammad donor were governed by custom in matters of alienation? (3) If issues Nos. 1 and 2 are proved in the affirmative, is the gift in question valid? The trial Court decided issue No. 1 against the plaintiff and dismissed his suit on the 27th of July 1953. The plaintiff went up in appeal to the Court of the District Judge, Jhelum who, after permitting him to produce additional evidence in the case, held that the land had been proved to be ancestral except Khasra Nos. 394, 395 and 235 of 1940 which were not proved to be ancestral qua the plaintiff. He further held that according to the special custom of the tribe to which the parties belonged as stated in the Riwaj‑e‑Am of Jhelum District, the defendant was entitled to make an alienation of 1/3rd of his ancestral land by way of gift to whom‑so‑ever he liked. On these findings he dismissed the appeal of the plaintiff as regards the'three Khasra numbers which were not found to be ancestral, but allowed his appeal to the extent of 2/3rd share in the other four numbers which according to him had been proved to be ancestral qua the plaintiff. The two defendants in the suit, i.e., the donor and the donee, have now come up to this Court in second appeal against the decree of the learned District Judge, Jhelum. The learned counsel for the donee (defendant No. 2) contended that the learned District judge should not have given opportunity to the plaintiff to produce additional evidence in‑the appeal in order to establish the ancestral nature of the suit land, firstly because the plaintiff should have been vigilant enough to adduce all the evidence available to him in the trial Court and, secondly, because the additional evidence was not required by the lower appellate Court itself for ,the proper disposal of the appeal before it. He went on to elaborate the point by stating that Order XLI, rule 27 of the Code of Civil Procedure did not give any discretion to an appellate Court to allow additional evidence in order to permit a litigant who has been unsuc cessful in the lower Court, to patch up the weak points in his case and to fill up omissions in the Court of appeal. He contended that the additional evidence could not be admitted at the instance of an unsuccessful party, but only when the appellate Court itself 'required it' (i.e., found it needful), and relied on Kassowji Issur v. G.1. G. Reailway (34 I A 115 at 122) where their Lordships of the Privy Council stated that "the legitimate occasion for the application of the present rule is when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it" He further relied on Radha Kishun v. Khurshed Hossein (47 I A 11) where their Lordships refused to allow the records of a previous suit to be admitted when its omission was due to the negligence of the party and their Lordships were able to pronounce judgment without it. They further held that if the evidence could have been tendered in the lower Court it was not a substantial cause for producing it in appeal. He then cited Akbar Khan v. Mst. Moral and others (AIR 1948 PC 36), Allah Ditta v. A. F. Ahmad , &. Co. (1951 P L R 268=P L D 1952 Lah. 582) and Shadi Ram v. Mst. Atri (A I R 1936 Lah. 933) in support of his contention. After going through these authorities and the language of Order XLI, rule 27 itself, I agree with the learned counsel for the appellant that this was not a fit case in which the lower appellate Court should have permitted the plaintiff to improve his case by calling further evidence because in this way there would be no end to litigation. If an appellant, who has ample opportunity of giving evidence in the trial Court, elects not to do so, but rests his case on the evidence A as it stood, he ought not to be allowed to give evidence which he could have given in the trial Court. Now, if the additional evidence is kept out of consideration there is no doubt that the evidence produced by the plaintiff in the trial Court was insufficient to prove that the suit land was ancestral qua the plaintiff and in view of this finding the appeal ought to be accepted and the decree of the trial Court restored. He then contended that even if the suit land was held to be ancestral, defendant No. 1 had under the special custom prevailing among the parties, full power to alienate his property in favour of anyone of his collaterals to the exclusion of others and relied on a note given below the answer to question No. 109 of the General Code of Tribal Custom in the Jhelum District compiled by Mr. P. N. Thapar in 1926. After going through this note, I find that the contention of the learned counsel is well founded and it appears that this note had not been brought to the notice of the learned District judge in appeal. The author has himself stated in the introduction to this book that "where ever the replies differ from the instances collected, the custom, as it actually prevails, has been stated in the form of a separate note" (vide paragraph 1 at page 2), it is, therefore, quite clear that the custom stated in an answer to question No. 109 is not the custom which prevails among all the) Muhammadan tribes of Chakwal Tehsil and amongst some of them the custom which really prevails is the one which is embodied in the note given below that answer. On reading the note I had first thought that probably it only applied to the Muhammadan tribes residing in Tehsil Pind Dadan Khan, but my doubts were set at rest after I went through the instances cited below the note, which relate mostly to the Muslim tribes of Tehsils Jhelum and Chakwal. Again, I may point out that though the parties belong to 'Kahut' sub‑community, there is no doubt that Mairs, Kasars and Kahuts are three cognate tribes who between themselves form the predominant race throughout the Dhani country and are a composite group of the same tribe. In Ahmad Din v. Mallan Muhammad and others (I L R 13 Lah. 159) it was held that by custom a sonless Mair of Tehsil Chakwal, District Jhelum is entitled to make a gift of his ancestral property in the presence of other collaterals equally or more nearly related to him. Fateh v. Alayar (I L R 6 Lah. 352), where a contrary view was expressed by the learned judges, was distinguished and disapproved by the learned Judges who decided Ahmad Din v. Mallan Muhammad and others. From the observation made in the last but one paragraph of the judgment it is quite clear that the learned judges were not making any distinction between Mairs and Kahuts in the matter of alienation in favour of one collateral to the exclusion of the other. The following passage may be reproduced with advantage :-- "This view receives support from the fact that the power of disposition over ancestral property enjoyed by sonless proprietors of the Mair and others Muhammadan agricultural tribes in the Jhelum District is very exclusive". For these reasons the decision of the learned District Judge, that defendant No. 1 was not competent to make a gift of more than 1/3rd of his property in favour of defendant No. 2, is not correct. In the end the learned counsel argued that the gift of the suit land by defendant No. 1 in favour of defendant No. 2 could also be upheld by virtue of the provisions contained in section 2 of Muslim Personal Law (Shariat) Application Act (XI of 1951) but in view of my findings on the first two points, I consider it unnecessary to decide this point for the purposes of this appeal. In the result the appeal succeeds and I would accept it with costs and restore the decree of the trial Court dismissing the plaintiff's suit. A. H. Appeal dismissed.