' This revision petition assails the judgment and decree dated 12-7-2003 passed by the learned Additional District Judge Gujrat, whereby the appeal of the respondents was accepted and judgment and decree. Dated 12-12-2000 passed by the trial Court was set aside.
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1. A short factual background of the case is that Abdullah Khan predecessor in interest of the respondents, owned land measuring 112 Kanals and two Marlas situated in village Peroo Shah, Tehsil and District, Gujrat, who transferred it to Kishion Singh, Peja Singh, Daisha Singh and. Joon Singh, the non-muslims through a sale which was alleged to be without legal necessity and consideration under the Punjab Customary Law. This sale was challenged by Abdul Aziz Khan etc. Respondents, through a declaratory Suit No.114/ 1990 of 1948, which was decreed in their favour on 25-7-1950 holding that this sale will not affect the reversionary rights of the respondent. Abdullah Khan died in 1970 and reversionary rights of the respondents became operative. Mutation No.7659 dated 9-10-1970 was attested in faovur of the respondents, it appears that disputed land was treated as evacuee property and was allotted to the petitioners. Petitioners on the basis of their allotment from the Settlement Department and a decree-dated 7-5-1981 took over the possession of the land in dispute whereafter the respondents filed a suit for possession on the basis of judgments and decrees dated 25-7-1950/2-8-1950. In this suit initially, petitioners-defendants were preceded against ex parte, after recording of respondent its ex parte evidence their suit was decreed ex parte, and the !Natter ultimately came up before this Court, in form of Writ Petition No.2771 of 1992 which was decided on 26-2- 1992 and the case was remanded back to the trial Court for taking de novo proceedings, after granting opportunity to the parties to prove their respective cases, by producing evidence. Respondents prior to the remand of case by this Court had produced certain documents as Exhs.P.1 to 5 in their ex parte evidence which consisted of Jamabandi (Revenue Record), copy of plaint, copy of judgment dated 27-5-1950 and copy of decree sheet of 1950 whereas, in post remand proceedings, these documents remained on the record but could not be reproduced in evidence by the respondents. The learned trial Court on 12- 12-2000 decided the case on the basis of fresh evidence and did not take into account the documents, which were already on the file, as Exhs.P.1 to 5 and dismissed the suit of the respondents.
2. Respondents aggrieved of the decision of the trial Court, filed an appeal before the Additional.
District Judge, Gujrat and alongwith their appeal, they filed an application under Order XLI, rule 27 of the C.P.C. Praying permission to produce as additional evidence, the documents which were already part of the record of the trial Court, produced by the respondents before remand of case, as Exhs.P.1 to 5. The Appellate Court after obtaining reply to this application under Order XLI, rule 27 of the C.P.C. From the petitioners who contested it, decided both the appeal, as well as, the application, simultaneously. Appeal of the respondents was accepted and their suit was decreed.
Application seeking permission to produce documents, by way of additional evidence was refused, on the ground that these documents are already on the record, vide judgment and decree dated 12-7-2003. The petitioners have now come up, against this judgment, in revisional jurisdiction of this Court.
3. Learned counsel for the petitioners submits that respondents by filing an application under Order XLI, rule 27,C.P.C. Have themselves admitted that documents sought to be produced by way of additional evidence, are not part of their evidence. He further submits that Appellate Court has erred in law, in taking contradictory stands of dismissing the application of the respondents for additional evidence, on the one hand and relying on same documents which were sought to be produced in additional evidence, while accepting their appeal, on the other hand. He further contends that this Court had ordered de novo trial in earlier round of litigation which means, trial of the suit from the very beginning and this term has been interpreted in the cases of Abdul Kadeer Miah alias Abdul Quader Molla v. Amir Hussain PLD 1965 Dacca 369; Atiqur-Rehman (Minor) and 7 others v. Muhammad Ibrahim and 2 others PLD 1982 Lahore 62 and Taj Din and two others v.
Ghulam Muhammad and another PLD 1982 Lahore 177. The learned counsel, elaborating his arguments, urged that on Issue No.2 trial Court had decided that the suit is not maintainable but the Appellate Court while accepting the appeal of the respondents, has not reversed the findings on Issue No.2 thus in presence of these findings, their suit could not have been decreed.
4. The learned counsel appearing on behalf of the respondents controverted the arguments of the petitioners and asserted that the documents produced by them at the time when the petitioners were proceeded ex parte, as Exhs P.1 to 5, remained part of the record, but could not be re- exhibited, out of over sight, in the statement of their counsel and those being copies of the public record, were not to be formally proved, as such, were sought to be produced by way of additional evidence before the Appellate Court. He also submits that view taken by the Appellate Court is absolutely justified because, the documents already forming part of the record, could be competently made basis of the decision by the Court. He in this behalf relied on the cases of "Hakim Khan v. Aurang Zeb and another" PLD 1975 Lahore 1170; "Muhammad Ashraf v. Syed Ghulam Murtaza and others" 1993 CLC 185 and "Mst. Begum through legal heirs and 27 others v. Allah Ditto"
5. I have considered the arguments of the learned counsel for the parties and have examined the record. It is admitted between the parties that the documents subject of dispute are public documents, which are admissible in evidence, without formal proof. It is, also admitted that these documents were produced in ex parte evidence by the respondents when the petitioners were not present before the Court, having been proceeded against ex parte. Respondent's claim is that these documents could not be re-exhibited through over sight, but remained part of the record, whereas petitioner's stance is that these documents in no manner, can be considered and made basis of the judgment. Respondents after losing case before the trial Court realized the mishap whereupon, they moved to the Appellate Court under Order XLI, rule 27, C.P.C. But the Appellate Court taking the view that since, these documents are already on the record of the trial Court, dismissed their application for additional evidence, considering those documents as part of evidence and granted them a decree, prayed for. I think that view taken by the Appellate Court is not contrary to judicial precedents. Courts had been considering and basing documents on the record, but not tendered in evidence, as foundations of their judgments, to do complete justice between the parties. In case of Hakim Khan (supra) the view was taken that there is no law preventing a Court from looking into and considering documents even if those are not exhibited, provided those have been placed on record. It was further held in this case that omission to mark a document is merely an irregularity, which is, otherwise, curable. In the other case of Muhammad Ashraf (supra) the view taken was that a document although not properly produced in evidence but available on record can be looked into and then in a latest judgment of this Court, in the case of Mst. Begum (supra) the entire case law was scanned and it was held that Courts can take necessary steps, even sou motu and can issue directions, to bring all necessary and relevant documents on record of the suit, by way of additional evidence, even without asking of either party.
In the instant case documents were produced in evidence though at the time when the petitioners were ex parte yet remained part of the record. These documents required no formal proof being copies of the public record and cannot be tampered with and thus I feel that those have rightly been relied by the Appellate Court for its decision.
6. In order to see relevancy of these documents and to assess, as to whether, by exclusion of these documents what would be the fate of the case, I have examined the merits as well. Property subject of litigation was owned by Abdullah Khan who sold it to non-Muslims, as noted in the earlier part of this judgment but was ultimately held that it will not affect reversionary rights of the respondents and in this manner it was a Muslim property and was incorrectly treated as evacuee by the Rehabilitation Department and thus was wrongly allotted to the petitioners. Now if we exclude the documents Exhs.P.1 to 5 subject of dispute, property goes to the petitioners to whom this property could not have been allotted, being a Muslim property and the real owners i.e. Respondents will be deprived of their rights, to have their ancestral property. Another injustice will ensue by exclusion of these documents that is the decree dated 25-7-1950 will be nullified by this act, hence in view of circumstance of this case and following the earlier view consistently taken by this Court, in the above referred judgments, I hold that the documents forming part of the record can be considered as part of evidence and can be made basis for decisions in order to do complete justice between the parties especially when there is no probability of forging those documents and the other side is not deprived of any vested right.
7. Adverting to the objection of the petitioners that since Issue No.2 regarding maintainability of the suit by the respondents in the present form, was decided by the trial Court in favour of the petitioners/defendants and Appellate Court could not decree respondent's suit as it was not their suit, as it had not set aside those findings of the trial Court, I find that trial Court after giving incorrect findings on Issues Nos. 5, 7 and 8 jointly, observed while answering Issue No.2 that on account of its decision on other issues, it is also decided in favour of the defendants. Primarily this issue was framed on the basis of Preliminary Objection No.2 of the written statement filed by petitioners/ defendants and it is to the effect that since a part of the land in dispute has been allotted to defendants Nos.8 to 16 thus suit cannot proceed in its present form. Allotment of Muslim property by Settlement/ Rehabilitation Department cannot strike out the suit, even otherwise suit, as framed, is not bad at law. Learned counsel for the petitioners, has not suggested me any other probable form of the suit. By setting aside false findings on Issues Nos.5, 7 and 8 of the trial Court by the Appellate Court, result of Issue No.2, in the circumstances, also stood reversed.
8. For what has been discussed above, I am of the considered opinion that Appellate Court has rightly relied on documents already part of the record as Exhs.P.l to 5 for deciding the issue involved in the case. Its findings are absolutely in consonance with the evidence on the file, which neither have been asserted nor is proved to have been misread or non-read, in absence of which no interference in the revisional jurisdiction is called for. This revision petition has no merits in it and is accordingly, dismissed, leaving the parties to bear their own costs.