The appellants filed a suit against the respondents to pre-empt the sale of land made in their favour by one Ahmad Yar Khan. The sale was evidenced by Mutation No. 31 sanctioned on 27-6- 1966. The respondents inter alia resisted the suit on the ground that the land being evacuee property, suit for pre-emption in respect thereof was not maintainable and that the Civil Court lacked jurisdiction. This controversy between the parties gave rise to formulation of Issue No. 1. In this respect the respondents examined Hadayat Ullah, Patwari (D. W. 20), who in cross-examination stated that he received the settlement fee from the vendees in Kharif 1968. The learned Civil Judge decided Issue No. I against the respondents and held that the vendor was the full owner of the property and in view of his decision on other issues in favour of the appellants, he decreed the suit against the respondents on 20-5-1971. They filed an appeal and also moved an applica--petition under Order XLI, rule 27, C. P. C., before the learned First Appellate Court for production, by way of additional evidence, of a certificate issued by the authorities concerned to the effect that the settlement fee had not been paid in respect of the suit land. It was averred that the Patwari merely made an oral statement which, in the face of the documentary evidence, could not be relied upon and that the document in question was a conclusive piece of evidence for the purpose of decision of the appeal. The learned Additional District Judge by his judgment dated 5-2-1973 accepted this application, set aside the judgment and decree under appeal and remanded the case to the learned trial Court with the direction to frame an additional issue, as to whether or not the settlement fee was paid for the land in dispute, if not what was its effect and decide the suit afresh, after giving the parties an opportunity to lead evidence.
2. The validity of the order dated 5-2-1973, passed by the learned First Appellate Court, has been called in question by the appellants through this appeal.
3. The appellants learned counsel argued that there was sufficient material on the file to substantiate that the settlement fee had been paid and referred to the statements of Sanaullah (D.
W. 19) and Hadayat Ullah, Patwari (D. W. 20). He further submitted that the respondents could not have been permitted to fill up lacuna in this evidence. It was also urged that after the promulgation of the Displaced Persons Laws Amendment Ordinance, 1964, whereby section 16 of the Displaced Persons (Land Settle--ment) Act, 1958, was amended, all the transferees of the land, under the Act, became full owners and that, therefore, the maintainability of the suit for pre-emption, could not be questioned. The learned counsel heavily relied on Mst. Allah Rakhi v. Mst. Sakina Bibi and others (PLD 1969 Lah. 168), Sh. Muhammad Ikhlas and others v. Muhammad Ismail (PLD 1963 SC 466), Mehra v. Zahur Ahmad (PLD 1971 Lah f 834and Baj Din and another v. Din Muhammad and 2 others PLD 1972 Lah. 567 Controverting these submissions, on the other hand, respondents' learned counsel supported the impugned order and submitted that there was no evidence on the file for conclusive determination of the character of the land. He urged that the oral testimony of D: W. 19 and D. W. 20 stood belied by the documentary evidence sought to be produced by the respondents. It was argued that the evidence regarding non-payment of the settlement fee was essential for judicious decision of the case. Reliance was placed by him in support of his these submissions on Sardar Muhammad v.
Mst. Habib Khatoon and others (1971 SCMR 498
4. In Allah Rakht's case it was laid down that additional evidence cannot be allowed until the First Appellate Court on examination of evidence already on the record, has come to the conclusion that such evidence is inherently defective and that for proper announcement of judgment the additional evidence is indispensable. In the authority reported as PLD 1963 SC 466, which has been referred to in this ruling, the Supreme Court, on the facts of that case, did not uphold the production of additional evidence, allowed by a learned Single Judge of the High Court, on the ground that there was sufficient evidence on the record for decision of the case. In . Mehra v. Zahur Ahmad the vendors held the land as provisional permanent allottee and in that context it was maintained that by virtue of the amendment made in section 16 of the Displaced Persons (Land Settlement) Act, the land in dispute stood permanently settled on the vendors. The proposition laid down in Baj Din's case is that a suit which was not competent on the date of its institution would not remain- incompetent even after the removal of the bar against the suit.
5. The question to be examined in this case is, as to whether or not there is, legal justification for allowing the respondents to lead additional evidence regarding payment of settlement fee. Section 15(3) of the Displaced Persons (Land Settlement) Act ordains that the allottee shall be settled permanently on the land in such manner and on payment of such fee as may be prescribed by the Central Government: The provisions regarding payment of settlement fee are to be found in rule 7 of the Displaced Persons (Land Settlement) Rules, 1959 which in so far as it is relevant for the purpose of this appeal, is resproduced below :- "7. Permanent settlement on land.-A displaced person to whom any land has been allotted under a scheme shall, subject to the proviso to subsection (3) of section 15, be deemed to have been permanently settled on the land so allotted to him with effect from the 24th day of December 1961, or the date of final confirmation of allotment, which--ever is later. Provided that
(a) the allottee has paid settlement fee as required by rule 10 .
It is, therefore, quite clear that the payment of the settlement fee is the condition precedent for acquisition of permanent settlement of the land. The view taken in Sardar Muhammad's case, referred to above, is also. To the same effect . The effect of the amendment made in section 16 of the Displaced Persons (Laws Amendment) Ordinance, 1964, was that the land on which the displaced person was permanently settled was to be treated to have vested in him absolutely. This amendment, however, did not have the effect of rendering the provisions of rule 7 regarding payment of settlement fee, as redundant. The question of pre-emptibility of the land allotted under the provi--sions of the Displaced Persons (Land Settlement) Act, was exhaustively dealt with by the Supreme Court in Haji Sultan Mohammad and another v. Muhammad Siddiq (PLD-1913 SC 347and it -was laid down that :- "(1) There is no right of pre-emption in regard to sale by. Temporary allottees of their rigl a in the lands as they do not get any saleable interest in those lands held by them temporarily.
(2) Permanent transferees under the Land Settlement Act acquire full ownership rights of the lands conferred on them and the sale by them is the sale of agricultural land owned by them which is subject to the right of pre-emption under the Pre-emption Act.
(3) The rights in land allotted to confirmed allottees under the Land Settlement Act and the Settlement Scheme is "real property" and the rights conferred on them fall in the category of `village immovable property'. The sale of such rights is pre-emptiable under the Punjab Pre- emption Act."
6. While examining the question of allowing additional evidence to the respondents it is to be noticed that the learned First Appellate Court had dir--ected for formulation of an additional issue.
Indeed, the framing of an issue regarding nature of the vendors' rights in the suit land would have been conducive for proper determination of the controversy arising for adjudication in this case.
On review of the law, as laid down by the Supreme Court, it is difficult to agree with the appellants' learned counsel that the question of payment of settlement fee had ceased to be relevant and the vendors were to be deemed to have been settled permanently on the land in dispute w. e. f. 24-12- 1964 on account of the amendment of section 16 by the Displaced Persons Laws Ordinance, 1964.
After going through the oral testimony of Sanaullah (D. W. 19) and Hadayat Ullah (D. W. ,20) I do not feel that the material on the record is sufficient to conclusively determine the nature. Of the vendors rights in the suit property. The learned First Appellate Court was, therefore, not wrong in permitting the respondents to tender documentary evidence regarding payment of the settlement fee. There is no gainsaying that a party is noel entitled to indulgence to patch up the week points of his evidence under the, cover of an application under Order XLI, rule 27, C. P. C. But there is- not bar on the powers of the Appellate Court to permit production of additional evidenceif such evidence is required by the Court for pronouncement of the judgment. I feel that the evidence sought to be adduced by the respondents would have a direct and important bearing on the matter in issue and would be helpful for proper adjudication of the dispute regarding pre-emptibility of the land.
On consideration of the precedents cited by the appellants' learned counsel I do not think that these have any bearing on the case in hand.
7. As a result of this discussion, in my opinion, the order under appeal does not require interference.
The appellants shall have the opportunity to lead evidence in rebuttal to show-that the sale of the land. Was pre-emptiable in accordance with the dictum laid down in Haji Sultan Muhammad's case.
8. The appeal fails and is hereby dismissed. In the circumstances o1 the case, the parties are- left .To bear their own cost,