1. This second appeal is on behalf of defendants in the pre-emption suit. It was dismissed on 22-4- 1969 by learned Civil Judge, Pindigheb. In appeal, this decision was reversed on 7-5-1970 and suit was decreed to the plaintiff-respondent upon payment of Rs.2,700 as the sale price of the land. In second appeal, two arguments have been raised. First argument is that no proper determination in regard to superior right of pre-emption was made by the Courts below and there is no tangible evidence in support 'of the right asserted by the respondent. Second argument is that in case it was proved that the plaintiff had superior right of pre-emption, in default of a proper power of attorney, appeal filed before the Court of District Judge was wholly unauthorised. To make the points more intelligible, some relevant facts bearing thereupon need to be stated.
2. By mutation No. 35 sanctioned on 11-8-1967, one Mohammad Aslam Khan sold 121 Kanals, 17 Marlas of land bearing Khasra No.25 situate at Chak Dost Mohammad, Tehsil Pindigheb to Lal Baz, Sher Baz sons of Shah Nawaz (hereinafter referred to as appellants) at the sale price of Rs.4,000. Ghulab claimed pre-emption in respect of this sale on the grounds of being a co-sharer in the joint Khata, owner of agricultural land in Patti as also revenue estate and sued to recover possession by filing a civil suit on 30-7-1968 in the Court of Civil Judge, Pindigheb. Price paid for the land was disputed and it was asserted that only a sum of Rs.1,800 was fixed as its sale price and actually paid to the vendor. Rest was a mere false show.
3. Appellants resisted the pre-emption suit. It was pleaded in defence that the plaintiff had no superior right of pre-emption; that the price paid was Rs.4,000 and that the pre-emption suit was hit by provisions in Land Reforms Regulation 64.
4. On 31-1-1969, Court settled following issues:- (1)Whether the plaintiff has superior right of pre-emption?
5. (2)Whether the suit cannot be decreed as the decree would be against Martial Law Regulation No. 64?
6. (3)Whether the sale price of Rs.4,000 was fixed in good faith or paid?
7. (4)If issue No.3 is not proved, what was the market value of the land when sold?
8. (5)Relief.
9. For the plaintiff, Ghulam Haider his special attorney P.W.1, Mohammad Aslam P.W.2 and Patwari Halqa Chak Dost Mohammad P.W. 3 appeared and made statements in Court. Sale averages Ext.P- 1, copy of jamabandi Ext.P-2, copy of. Decree sheet Ext. P-3 were relied upon and evidence was closed. In opposition thereto, Sher Baz D.W.-1 entered the witness-box and was supported by one Karam Din D.W.-2 On consideration of this evidence, learned trial Court concluded that plaintiff as a co-owner in the suit Khasra had superior right; that the market value of the land was Rs.2,700 and that the decree if passed shall offend para. 25 of Land Reforms Regulation 64 and by placing reliance upon the decision of this Court in Rahim Bakhsh v. Gul Mohammad PLD 1968 Lah. 907, dismissed the suit.
10. Plaintiff preferred an appeal; As to the application of para 25 of Land Reforms Regulation 64 to the exercise of pre-emption rights, learned District Judge differed with learned trial Judge.
11. Consequently, trial Court's decision was upset and suit was decreed on the terms stated above.
12. Dissatisfied with the correctness of the decision, vendees have preferred this appeal. Alongwith memorandum of second appeal, appellants also sought permission to adduce additional evidence to produce copy of Jamabandi for the year 1961-62 and copy of the judgment of Civil Judge passed on 14-9-1965. On the same day when the appeal was admitted to hearing, application for additional evidence (C.M.5667-C-70) was also accepted by passing a short order which reads:- "Presence as above.
13. Allowed, subject to all just exceptions."
14. First question is in regard to superior right of pre-emption. Ghulam Haider attornery deposed that plaintiff, his father, was a co-sharer in the land sold whereas defendants had no such qualification.
15. To the similar effect is the testimony of Patwari Halqa P.W-3. Copy of Jamabandi prepared for the year 1964-65 clearly indicated that plaintiff was a co-sharer. It is true that Lal Baz and Sher Baz appellants are also recorded as co-owners in column 3 of Ext. P-2. However, the land purchased by them (18 kanals, 5 marlas) vide mutation 27 dated 23-11-1963 from Mst. Gohri, Mst. Makhni, Mst.
16. Resham Jan was successfully pre-empted by one Mohammad Aslam Khan and by mutation 31 sanctioned on 1-10-1966 was mutated in his name. This is evident from the combined reading of Jamabandi for the year 1961-62 admitted in additional evidence and Ext. P-2 copy of Jamabandi for the year 1964-65. From Ext: P-2, it is apparent that the plaintiff was a co-sharer in the jointly owned land prior to the date of impugned sale whereas the defendants had no such right. They were mere owners of estate and as such their right was inferior to that of the plaintiff. At the hearing, Mirza Nasir Ahmad, Advocate did not rely on Jamabandi for the year 1961-62, copy of the judgment of Civil Judge dated 14-9-1965 brought on record by order dated 3-9-1970 of this Court and frankly conceded that application for additional evidence may be dismissed as not pressed.
17. From the evidence on record, it is established beyond dispute that plaintiff was a co-sharer in the joint land and had superior right of pre-emption. Defendants as mere owners of estate could not successfully resist the pre-emption suit.'
18. This brings me to the second limb of argument and that is whether the special power of attorney dated 30-7-1968 gave authority to its holder to make statement in Court on behalf of the plaintiff and also to file appeal against the adverse decision made by the trialJudge. On 30-7-1968, plaintiff gave special power of attorney to his son Ghulam Haider. It was thumb marked by him and was witnessed by one Syed Ashiq Hussain and Mohammad Khan who also appended their signatures under their names. At the top of the document, it is shown to have been attested by someone on 30-7-1968. Pre-emption suit was instituted on 30-7-1968. Plaint is signed and verified by the plaintiff. It bears his thumb-impressions and that of his attorney. In defence, defendants did not object to execution or genuineness of the special power of attorney. Also in the evidence led in the case, no such objection was taken and the authority of Ghulam Haider to make statement on behalf of the principal was never questioned. So much so, when the, matter went up in first appeal, defendants who were respondents, neither pleaded nor urged want of authority in Ghulam Haider to file the appeal on behalf of plaintiff-appellant, though such a course was clearly open to them under Order XLI; rule 22, Civil Procedure Code. Even in the memorandum of second appeal filed in this Court, this objection was not specifically taken. For the first time, it is sought to be debated at the hearing of this appeal by Mirza Nasir Ahmad learned, Advocate. It was argued that it was a pure question of law which could be allowed to be urged at any time, second appeal notwithstanding. Maulvi Siraj-ul-Haq learned Advocate for the respondents vehemently opposed the arguments and submitted that it was not a purely legal question. Rather, in his opinion, it was a mixed question of fact and law and could not be permitted to be taken' up for the first time in second appeal. For a while leaving the question whether it was a pure question of law or a mixed question of fact and law, I shall first advert to section 85 of the Evidence Act which was strongly relied upon in this behalf by learned counsel for the appellants. It was argued that unless the power of attorney was executed and authenticated in the manner specified in this section, no presumption in regard to its correctness can be raised by the Court and that it was for the plaintiff to establish by leading affirmative evidence that deed of attorney :vas executed which gave power to its donee to appear as a witness in the case and file an appeal against the adverse decision.
19. Now, section 85 of the Evidence Act contains a presumption as to powers of attorney and the presumption is couched in the following language:- "85. Presumption as to the power of attorney.
20. The Court shall presume that every document purporting to be a power of attorney, shown to have been executed before, and authenticated by, a Notary Public or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul or representative of the Central Government, was so executed and authenticated." For this presumption to attract, it is evident that the power of attorney was required to be executed before and authenticated by one of the persons mentioned in section 85. Section 85 fell for interpretation in Wali Mohammad Chaudhari and others Jamaluddin Chaudhari AIR (37)
21. 1950 All. 524, Punjab State v. Ram Singly-AIR 1907 Punj. And Haryana 344, Jugraj Singh v. Jaswant Singly-AIR 1971 SC 761, Yogesh Singh Sahota v. Niranjan Lal Cupta--AIR 1981 Delhi 222, Mvi.
22. Mohammad Nurullah Chowdhury v. Golam Solaiman Kazi and others--1971 D.L.C. 782. In AIR 1950 All.
23. 524, it was observed that "Under section 85, Evidence Act, there is a presumption that every document purporting to be a power of attorney, and to have been executed before and authenticated by, a notary public, or any Court, Judge, Magistrate, British Counsel or Vice-Counsel or representative of Her Majesty or of the Central Government, was so executed and authenticated.
24. The authentication is not merely attestation, but something more. It means that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution. It is for this reason that a power of attorney bearing the authentication of a notary public or an authority mentioned in section 85 is taken as sufficient evidence of the execution of the instrument by the person who appears to be the executant on the face of it. The presumption, no doubt, is rebuttable. But unless rebutted the presumption stands and the document can be admitted in evidence as a document executed by the person alleged to have executed it without any further proof: vide Haggitt v. Ineff, (1855) 24 L.J. Ch. 120: (3 W.R. 141) and Performing Right Society Ltd. v. Indian Morning Post Restaurant, AIR (26) 1939 Bom. 347 (I.L.R. (1939)
25. Bombay 295)". On this section, D.K. Mahajah, I. , in AIR 1967 Punjab and Haryana 344 observed, "As rightly pointed out by learned Additional District Judge, no specific form of authentication is prescribed under section 85 of the Evidence Act. 'Authentication' ordinarily means 'establish the truth of, establish the authorship of, make valid'. The words 'subscribed and sworn to before me this 23rd day of March, 1964' in exhibit Dl2 clearly show that Vernon Seth Chotia, the executant of this document, had admitted on oath in the presence of the Notary Public that he had executed and signed the document. 'Subscribed' means 'to write one's name at the foot of a document, or sign a document'. This attestation by the Notary Public shows that he had satisfied himself about the identity of Vernon Seth Chotia and also about the fact that the executant had signed the document after having admitted its contents to be correct. This would, in my opinion, mean authentication as envisaged in Section 85 of the Evidence Act and it was not necessary for the Notary Public to use the particular word 'authentication' in the attestation made by him on the said document". To somewhat similar effect are the observations of S.K. Desai, J., in AIR 1979 Bombay 202 and Sultan Singh, J., in AIR 1981 Delhi 222. In the Dacca case decision reported as A . I . R . 1950 Allahabad 524 was relied upon and the view taken in it was reiterated. Section 85 is couched in mandatory form. Under this section, the Court is bound to presume that the power of attorney executed and authenticated before the designated authorities was duly executed and authenticated. In other words, there is an initial presumption of valid execution and authentication of the power of attorney. It means that section 85 raises a rebuttable presumption as to its valid execution and authentication. Therefore, it is for the person objecting to the power of attorney to allege and prove that it was not duly executed or authenticated. Necessary consequence flowing therefrom is that if the power of attorney is not executed and authenticated in the prescribed manner, no presumption can arise as to its proper execution. Nonetheless, it is difficult to hold that in absence of execution before and authentication by the designated functionaries, other modes of proving the execution are necessarily excluded. In my opinion, section 85, Evidence Act is not exhaustive on different legal modes of executing a power of attorney and its proof. Had the defendants raised objection to the execution or genuineness of the special power of attorney, plaintiff would have been obliged to prove its execution in the manner and modes prescribed by law. The plaintiff could have been called to support the deed .o`' attorney. Till to date, it has been disowned by the plaintiff. Since C no objection was raised to the execution of the power of attorney throughout the protracted proceedings, it cannot be successfully urged at this belated stage that the power of attorney did not exist or 'that it conferred no powers on its donee. As said above, section 85 deals with presumptions. It may be that there was no presumption in favour of this particular power of attorney but it does not follow that there was an opposite presumption that it had not been duly executed by the plaintiff. Whether or not a document was executed and represented the state of affairs shown therein was a pure question of fact and in case of denial could have been subject of proof. No denial, either express or implied, was ever made. Therefore, it is manifest that the defendants were satisfied with the genuineness of power of attorney given by the plaintiff to his son for prosecution of the pre-emption suit on his behalf. Therefore, even if the appellants aye allowed to urge this point, it shall not advance their case. Other point taken by Mirza Nasir Ahmad, Advocate is that power of attorney did not empower Ghulam Haider to make statement in the case and to file appeal in the Court of District Judge. This question can well be examined with reference to the powers given in Mukhtarnama. Its close examination shows that it conferred wide and extensive powers and concluded with the statement that all acts of the Mukhtar shall be treated to have been performed on he half of the plaintiff and be acceptable to him as if these were all his own acts. The powers enumerated in the power of attorney, authorise the attorney-to do everything on behalf of the plaintiff necessary for further prosecution of the pre- emption claim just as effectually as plaintiff himself could have done these things. Therefore, the statement made by him as P.W.-1 in Court and the appeal filed by him cannot be termed as unauthorised acts. Therefore, argument that the attorney had no power to file the appeal has no substance. Relevant portion in regard to the power to prefer appeal reads:- It clearly connotes that the attorney was authorised to prefer appeal to the superior Courts. This provides a sufficient answer to the argument of learned counsel that the Mukhtar had no right to appear to file the appeal. May be for this reason, no objection was urged to the maintainability of the appeal in the Court below. Mirza Ahmad learned counsel also relied upon the decision of the Supreme Court in Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 to submit that in the peculiar circumstances of this case, no decree could be passed in favour of the plaintiff. Ratio of the decision does not apply to the facts of this case. Neither waiver nor estoppel was ever pleaded and no evidence was led in the case to show that plaintiff was not entitled to claim pre-emption or that he was not entitled to any relief from the Court on account of his conduct. This contention also is without substance. Provisions in and Reforms Regulation 64 of 1959 also pose no unsurmountable obstacle to passing of a decree. Reference in this behalf can, with advantage, be made to decisions reported as PLD 1974 Lah. 268, PLD 1975 Lah. 628, PLD 1982 SC 53. It may be noted that in view of the aforestated case law, learned counsel for the appellants no more relied upon Land Reforms Regulation as a bar to the passing of a decree in pre-emption suit. It may also be noted that since learned counsel for the appellants did not rely upon the additional evidence and stated that application for additional evidence may be dismissed as not pressed, yet the manner in which it was allowed is open to the question. No doubt, appellate Court has discretion to receive and admit additional evidence. This discretion, however, is not an arbitrary one but is judicial discretion circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure, If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case or improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is F whether the appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. Unless any difficulty is experienced in rendering the satisfactory judgment on the material already before the Court or there is any inherent lacuna or obscurity requiring clarification for pronouncement of proper judgment or for any other analogous substantial reason, additional evidence under Order 41, Rule 27 cannot be admitted in routine to fill up the gaps in the evidence of the party.
26. For the aforestated reasons, I hold that decision impugned in the appeal properly concludes the controversy and no further l interference can be caused.
27. Second appeal fails. It is dismissed butt with no order as to costs.