Amir Hani Muslim, J.--The material facts as they appear from the record are that appellant Ali Muhammad is the son of Sher Muhammad. Ali Muhammad has three other brothers. The appellant Ali Muhammad filed a civil suit against his brother Bashir, for declaration in the Court of Civil Judge, First Class, Vehari, claiming that certain land measuring 25 acres situated in Chak No, 166/W.B, Tehsil Mailsi was allotted to him under Well Sinking Scheme on 10.10.1959. The land was jointly cultivated by both the brothers. The appellant and respondent jointly applied for grant of proprietary rights in 1969 and then the Collector on examination of the case of both the parties and after recording their statements passed appropriate order by which proprietary rights were conferred on both the parties in equal proportion. As a consequence of this order, conveyance deeds were registered on 24.7.1975, in the name of both the parties. The appellant in the suit sought declaration that the conveyance deed dated 24.7.1975 was illegal, void and ineffective to the extent that it conferred half share to the respondent.
2. The learned Civil Judge after framing issues recorded evidence of the parties and by its judgment dated 26.5.1981 dismissed the suit against which the appellant preferred appeal. In appeal, the learned District Judge, by its judgment and decree dated 5.12.1981, set aside the judgment of the trial Court and decreed the suit of the appellant. The respondent aggrieved against the judgment of the District Judge, preferred civil revision which was allowed, by the impugned judgment maintaining the judgment of the trial Court.
3. Identical suit was filed by the appellant Fateh Muhammad in the other appeal against his brother Muhammad Ramzan on the same date with the same prayer with the only distinction of khasra number of the property. Fateh Muhammad also claimed the relief of same nature in his suit against Muhammad. Ramzan as claimed by Ali Muhammad. Both the suits were filed on the same date. The second suit filed by Patch Muhammad met the same fate and by the impugned judgment, the said suit was also dismissed and the judgment in appeal was set aside.
4. The learned counsel for the appellants, in both appeals, has contended that the learned Judge in Chambers in the High Court has erroneously considered the additional documents brought on record along with the application made by the respondents for additional evidence, which documents were not produced in evidence before the trial Court while reversing the findings of the first appellate Court. According to the learned counsel, during pendency of the civil revisions, the respondents have filed applications for additional evidence. Neither notices of such applications were issued to the appellants nor the applications were allowed by the learned High Court. Instead, the learned Judge while passing the impugned judgment has considered these documents which were filed along with the application and recorded his findings on the strength thereof. He submits that, in the first place, the revisional Court does not have the jurisdiction to allow application for additional evidence and his next contention was that if at all such evidence is allowed to be brought on record, then the law provides that the parties should be allowed to prove such documents in terms of Qanoon-e-Shahadat Order, 1984.
5. The learned counsel for the appellants further contended that the appellants had no occasion either to cross-examine the person who produced the documents nor were they in a position to challenge its veracity. He submitted that material in the manner taken note of by the learned Judge was not produced in evidence, therefore, the judgment impugned in these proceedings, which is based on such material, merits to be set asi.1e.
6. On the other hand, the learned counsel for the respondents in both the appeals has submitted that the appellants in these proceedings admits the execution of registered instruments (pata milkiat), which was executed in both the cases on 21.7.1975 and were registered on 24.7.1975, by which the respondents had acquired proprietary rights in the land in question. is also not disputed that the respondents were not in possession of half of the portion of the land in question pursuant to these registered documents. He submits that both the suits were filed on 17.2.1.979 whereas the registered documents executed on 24.7.1975, were never sought to be cancelled. He submits that in the plaint, it was admitted that the respondents are in possession of half portion of the property.
According to him, to establish the status of the respondents as sub-tenant, no evidence was brought on record by the appellants. According to him, even the Bai Nama (Exh.D/11) has not been pleaded as forged document nor in the evidence a single word of forgery has been attributed by the appellants. He submits that the argument of the learned counsel for the appellants is without force. The registered instruments were produce in evidence and the arrangement between the parties was produced by examining Sher Muhammad, who is their father.
7. We have heard learned counsel for the parties and have also perused the available record. It is an admitted fact that both the suits were filed on 17.2.1979 by appellant Ali Muhammad and Muhammad Ramzan (appellant in the other appeal) against Bashir and Fateh Muhammad respectively seeking declaration and challenging the registered pata milkiat, which was executed on 21.7.1975 and registered on 24.7.1975, to be declared as ineffective. These deeds were produced in evidence. No objection to the production of these deeds was taken by the appellants before the trial Court nor their authenticity was challenged. These deeds were produced and exhibited. On the basis of these deeds, the respondents in both the appeals, claimed their right in the property. The format of the suit is confined to declaration of title. In the plaint; the appellants in both the appeals, have admitted that the respondents are in physical possession of half portion of the properties and were in knowledge of the registered instruments of pata milkiat in favour of the respondents. In the face of such material, the appellants have not sought cancellation of registered instruments in terms of Section 39 of the Specific Relief Act in the suit nor direction of their ejectment in suits have been sought. When confronted with this situation, the learned counsel for the appellants could not offer any plausible explanation except that he contended that the appellants had the right to file a separate suit for possession. Even this argument is without substance. The law does not permit a second suit if a right to the plaintiff is A available at the time of filing of the suit. A second suit in such like situation is otherwise barred under Rule 2 Order II CPC.
8. The learned counsel for the appellants has contended that there was no material brought on record by the respondents to substantiate that the transfer of half of the portion of the land in favour of the respondents was validly made by the revenue authorities. According to him, prior to such a transfer, the parties were required to approach the revenue authorities to seek permission for such a transaction and there is nothing on record to establish this fact that prior permission to the effect was sought. We are not persuaded by the argument of the learned counsel for the appellants as the appellants were the plaintiffs challenging the order of the Collector and they were required, in law, to bring material on record to establish that the respondents were sub- tenants of the appellants Ali Muhammad and Fateh Muhammad.
9. We cannot loose sight of the fact that in the proceedings, Sher Muhammad the father of the parties was examined. In his deposition, he has stated that patties are real sons and 20 years back appellant Ali Muhammad and Fateh Muhammad were allotted 25 acres of land each in well- sinking scheme besides him. It was agreed between us that the allotted lands of 75 acres in all would be distributed in equal proportion amongst all his sons. Appellant Ali Muhammad was required to give half portion to the respondent Bashir whereas appellant Fateh Muhammad was required to give half portion of the land to the respondent Muhammad Ramzan and 5th sen namely Abdur Rashid, who is not a party to the proceedings, was required to share 50% of the land from the allotment made in favour of Sher Muhammad. He further deposed that he sold his lands in order to make the allotted land cultivatable. He, in his statement before the trial Court. has stated that all his sons were working jointly and on 12.6.1965, with the prior permission of the Collector, the lands were divided and all the lands allotted to him and his two sons were made cultivatable jointly and the dues were paid jointly. Slier Muhammad's statement to the effect was not challenged by any of the appellants irf cross-examination.
10.The stand taken by the appellant Ali Muhammad and appellant Fateh Muhammad is contrary to the arrangement coupled with the registered instruments. The father was examined but his evidence could not be shaken. This one witness, who is neither interested nor has stated anything against any of his sons, cannot be disbelieved. It appears that there was an arrangement between the parties which fact was substantiated by the appellants' father Sher Muhammad, who was examined and cross-examined by the trial Court. This material evidence was not considered at all by the revisional Court. As far as the contention of the learned counsel in regard to the additi9nal evidence, it has no bearing on the merits of the case as both suits were filed for declaration of title in which neither the cancellation of the documents nor the ejectment of the respondents was sought. In these circumstances, we are of the considered view that the appellants have failed to establish before the trial Court that they have the right to seek declaration of title of the land in the absence of specific prayer of cancellation of documents and possession, more so when the appellants have admitted possession on the strength of registered documents coupled with the evidence of Sher Muhammad which went un-rebutted. We, therefore, hold that the suits were not competent, in the first place and in the second place evidence of Sher Muhammad has proved the arrangement between the parties pursuant to which the registered instruments were executed by the appellants.
11. For the aforesaid reasons, both these appeals are dismissed with no order as to costs and the judgment of the trial Court is maintained.