' QALANDAR AL! KHAN, J.---This revision petition by Nadeem Khan and Muhammad Ali Khan, petitioners, is directed against the order dated 06.12.2014 of the learned Additional District Judge-VI, Abbottabad, whereby, the learned Appellate Court dismissed application of the petitioners under Order XLI, Rule 27, C.P.C. For permission to produce additional evidence and summon Sardar Manzoor Ahmad, Revenue Officer, as a witness.
2. The facts essential for adjudication of the instant revision petition, briefly stated, are that respondent No,1, Naureen Sultan Jadoon, lodged suit for declaration to the effect that she was owner in possession of land bearing Khasra No,462E1 measuring 08 Kanals situated in village Nawanshehr Shumali, Abbottabad, to the extent of 3-1/2 shares and that Mutation No, 143 dated 24.11.2005 was illegally and fraudulently attested by respondents Nos.1, 2 and 863, because she had neither sold the said land nor had received sale consideration and had- not appeared before the Revenue Officer. She also disputed her statement and signature/thumb impression on the impugned sale mutation. The suit was contested by the petitioners/defendants Nos. 1 and 2, who claimed in their written statement that Respondent No,1/plaintiff had herself appeared before the Revenue Officer and had got the mutation attested in their favour after receipt of sale consideration, therefore, their rights were protected under section 41 of the Transfer of Property Act; Whereupon issues were framed and evidence was led by both the parties; leading to decree in favour of respondent No, 1/plaintiff against the petitioners/defendants Nos. 1 and 2, vide judgment and decree of the learned trial Court/Civil Judge-IX, Abbottabad dated 05.01.2013. -It may be added here that during pendency of the suit, the petitioners/defendants Nos.1 and 2 moved application for examining signature of Respondent No, 1/plaintiff on mutation No,14386 dated 24.11.2005 through FSL, but the application was rejected by the learned trial Court/Civil Judge-IX, Abbottabad vide the same judgment dated 05.01.2013, on the sole ground that the defendants did not prove presence of the appellant before Revenue Officials through cogent evidence, therefore the application was not maintainable.
3. Aggrieved of the aforesaid judgment and decree of the learned Trial Court/Civil Judge-IX, Abbottabad, the petitioners preferred appeal, and during pendency of the appeal, moved application under Order XLI, Rule 27 CPC for additional evidence of Sardar Manzoor Ahmad, Revenue Officer, who had attested the mutation in question; but the application was resisted by respondent No,1, and dismissed by the learned Appellate Court/Additional District Judge-VI, Abbottabad vide impugned order dated 06..12.2014; hence this revision petition, inter alia, on the grounds that the reasons advanced by the learned Appellate Court in support of the impugned order were devoid of any legal wisdom as application at a belated stage and omission to mention name of the witness were not at all legal reasons to disallow production of a vital witness who was personally acquainted with respondent No,1 that statement of the said Revenue Officer was essential for discovery of truth and could not be termed as an attempt to fill in lacuna in the case; that law favour providing full opportunity to the parties to lead evidence which could help the court at arriving the just and correct conclusion; that the learned Appellate Court failed to exercise jurisdiction vested in it by law; and that the learned Appellate Court failed to appreciate the relevant provisions of law contained in Order XLI, Rule 27, C.P.C. Or to refer to the judgments relied upon on behalf of the petitioners.
4. Arguments of the learned counsel for the parties heard, and record perused.
5. Since the petitioners/defendants Nos. 1 and 2 had raised the plea of their rights protected under section 41 of the T.P Act after having purchased the suit land from respondent No, 1/plaintiff and other co-u wners, the onus of proof of issue No,5 pertaining to their rights as bona fide purchasers protected under section 41 of the T.P. Act was on them; and in order to discharge the onus they had produced both the attesting witnesses of the impugned sale mutation, namely, Hamayun and Khan Gul Khan as DWs 1 and 2, and had also moved application for examining signature of respondent No, 1/plaintiff on the mutation in question through FSL; but the learned trial Court neither relied upon the statements of the said attesting witnesses nor accepted application of the petitioners/defendants Nos.1 and 2 for examination of signature of respondent No,1/plaintiff on the mutation in question in the judgment dated 05.01.2013, wherein, it was also observed that presence of respondent No, 1/plaintiff at the time of sale consideration was not proved by the petitioners/defendants Nos.1 and 2 through cogent and reliable evidence, neither the petitioners/defendants could produce revenue official to prove presence of respondent No, 1/plaintiff at the time of' attestation of mutation.
6. In the circumstances, explained above, when plea of the petitioners/defendants was rejected also on the ground that they did not produce any revenue official to prove presence of respondent No,1/ plaintiff at the time of attestation of the mutation, the petitioners/ defendants were left with no option but to apply for additional evidence of the Revenue Officer, Sardar Manzoor Ahmad.
7. The learned Appellate Court, however, dismissed application for additional evidence, mainly, on the grounds that the petitioners/ defendants had neither mentioned any official witness in their list of witnesses nor any written request was subsequently, made by them for producing the concerned Revenue Officer and that the application for additional evidence was made at a belated stage with no cogent and valid reason producing additional evidence. The learned Appellate Court also observed that in the light of judgments of the superior Courts the Courts could neither create evidence for a party to the suit nor the party could be allowed to fill their lacuna by producing fresh evidence in respect of those facts which were already in their knowledge. The learned Appellate Court also held that fresh/additional evidence under Order XLI, Rule 27, C.P.C.
Could only be produced in exceptional circumstances such as when the relevant evidence was not in the knowledge of a party which was seeking to produce the additional evidence. In support of the impugned order, the learned Appellate Court placed reliance on 2009 SCM R 221 (c) and PLD 2008 SC 564.
8. Undoubtedly, an Appellate Court possesses ample powers to allow additional evidence, whether oral or documentary, under Order XLI, Rule 27 of Code of Civil Procedure Code, 1908, when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; and it is, indeed, ironic that in the judgment reported as PLD 200 SC 564, the apex Court allowed application filed by the appellant for production of additional evidence before the first Appellate Court, and thereby reaffirmed the provision of Order XLI, Rule 27, C.P.C.
9. In the former case (2009 SCM R 221 (c)), production of additional evidence and inclusion of an admission which were fully in the knowledge of the petitioners and were neither raised by them before the trial Court nor before the appellate Court were disallowed and order of the appellate Court in this respect was maintained on the ground that the suit was instituted in 1975 and decided in 1995 and the plea for additional evidence was not taken by the petitioner at the relevant time. It would thus be seen that neither of the two judgments of the apex Court, relied upon by the learned Appellate Court, are applicable to the facts and circumstances of the instant case, rather the latter judgment (PLD 2008 SC 564) entirely reinforces case of the petitioners/ respondents Nos.1 and 2.
10. In order to discharge the burden of plea of bona fide purchase and their rights protected under section 41 T.P Act, set up by the petitioners/respondents against the suit of respondent No,1/plaintiff for declaration of her ownership right in respect of the suit land through inheritance and challenging the mutation dated 24.11.2005 on the ground that she neither received the sale consideration nor appeared before the Revenue Officer, the petitioners/respondents were obliged to produce evidence proving presence of respondent No, 1/appellant and her signature on the sale mutation, especially when their application for examination of signature of respondent No, 1/plaintiff on to sale mutation was rejected. In any case, Manzoor Ahmad was the concerned Revenue Officer at the relevant time, therefore, his testimony becomes essential and critical for proper adjudication of the case, particularly when the trial Court granted decree in favour of respondent No,1/plaintiff also on the ground that the petitioners/defendants could not produce any revenue official to prove the fact that the plaintiff/respondent No,1 was present at the time of attestation. Of the sale mutation.
11. Since the petitioners have only sought the relief of allowing them to call Sardar Manzoor Ahmad as a witness, with no further prayer, the revision petition is accepted, and the impugned order of the learned Appellate Court/Additional District Judge-VI, Abbottabad dated 06.12.2014 is set aside, thereby allowing the application of the petitioners for production of additional evidence.