1988 PLP 1900 (CLC)

A suit filed by the first three respondents for possession of 41 Kanals 17 Marlas, being a 7/20th share of 119 Kanals 12 Marlas of agricultural land situated in village Khaprala, Tehsil Pasrur, District Sialkot on the claim of pre‑emption on the grounds of being the owners of the Patti wherein the suit‑land is situated and being also the co‑sharers thereof; was resisted by the vendees by denying superiority of the plaintiffs' right of pre‑emption and also raising some technical objections. The suit was set down to be tried on a total of 6 issues, including that of the relief and parties led their evidence upon consideration whereof trial Court decided all the issues in favour of the plaintiffs and decreed their suit by its judgment dated 20‑6‑1974.

2. An appeal there against filed by the vendees came up for hearing before an Additional District Judge wherein arguments were confined only to issue No.l relating to the plaintiffs' superior right of pre emption which had been held by the trial Court to be proved on the basis of entry relating to Khata No.92 in the Jamabandi relating to the years 1965‑66 produced as Ex.P.1, alongwith the one relating to the suit‑land as Ex.P.2. There was also a copy of the Jamabandi fort the year 1965‑66 furnished on the record by the respondents with regard to.6 Marlas. Ihata Chah comprised of Khasra No. 309, Khata No.97 but the ‑ same had, however, not been got formally exhibited and the trial Court's finding was sought to be assailed with reference to this copy which was also applied for to be admitted into evidence under Order XLI, Rule 27 of the C.P.C. Learned appellate Judge dealt with the plea raised before him as under:‑ "Abdur Rahman DW. 1 and Muhammad Latif D.W.2 have deposed only about the sale price of the land, they have said nothing to the effect if the defendants /appellants were owners in the Khata or Taraf of Patti from which the land , in dispute was sold. But Qaim Din, appellant No.l, when he appeared as his own witness as D.W.3 admitted in his cross‑examination that the plaintiff‑respondents, i.e., Muhammad Hussain and others were owners in the village and they were also owners in the Khata. It is interesting to note that Qaim Din appellant did not say anything at all about his own ownership in the Khata Patti or Taraf, when examined as D.W.3. On the other hand we find it in 'the statement of Muhammad Shafi plaintiff/respondent No.2 that he has positively asserted that they (the plaintiffs) were owners in the village and the defendants appellants were not." The learned appellate Judge dismissed the appeal on 9‑9‑1975 by affirming the trial Court's decree and upholding its findings upto rejecting the application under Order XLI, Rule 27 of the C.P.C with the following observations:‑ "I‑think that in view of the admission of Qaim Din appellant that the respondents Nos.1 to 3 are owners in the village and Khata, no additional evidence . is required to come to a just and proper decision in this case. Qaim Din appellant when examined as D.W. 3 at the trial did not at all say that he or his brother‑appellants were owners in the village or the Khata. so it is not understood in support of what assertion and whose assertion this copy of record of rights is sought to be produced as additional evidence."

3. The two vendees have now come up to this Court to assail in this Second Appeal the decrees of the two Courts below based on concurrent findings. Apart from the admission made by one of the appellants Qaim Din in his statement recorded as D.W.3, not having left anything to be proved to the contrary. Rule 27(1) of Order XLI of the C.P.C. opens. up with the declaration that the parties to an appeal shall not be entitled to produce additional evidence, whether B 'oral or documentary, in the appellate Court. The case of the vendee /appellants does not fall under clause (a) appended thereunder. View of the learned appellate Judge is unexceptionable inasmuch as he had rightly held that in the circumstance of this case such an additional evidence cannot be required by the Court for pronouncing judgment.

4. There is not made out any case for. interference within the scope of Section 100 of the C .P. C . Hence, dismissed with costs. M.Y..H./Q‑8/L Appeal dismissed.