1. ' MUHAMMAD HALEEM, C.3.--This is a direct appeal under section 185(2)(d) & (c) against the judgment of the Peshawar High Court, Peshawar, dated 10-7-1975 passed in Civil Revision No,60 of 1973.
2. ' The facts giving rise to this appeal are that one Ghulam Muhammad as per Mutation No,1112 dated 27th July, 1965, sold land situate in village Regi Lalam, Tehsil Peshawar, measuring 300 Kanals 16 Marlas comprised in Khasras Nos.1287, 1288, 1161, 1214/1, 1215/1, 989 and 1289/1 to Haji Mir Haider Khan and Sher Haider Khan in equal shares for a price of Rs,68,160. Ghulam Muhammad's share was 90/118 in the first six Khasra numbers and 18/59 share in the seventh Khasra number.
3. ' As it was a sale of joint share, Mohabbat Khan instituted a suit on 13-3-1963 in the Court of Senior Civil Judge for possession through pre-emption of 90/118 share out of land sold, as according to him, the remaining share of 28/118 belonged to other joint owners who were impleaded in the suit.
4. In the alternative, he claimed a decree for the entire area in case the other joint owners were not held to be owners of any part of the land. Mohabbat Khan claimed a suprior right of pre-emption not only on the ground that he was a co-sharer in the Khata of the land in suit but also that his land was contiguous to the land in dispute, and as a participator in the immunities and appendages.
5. The amount of sale consideration was also disputed as according to him, it was not more than Rs,10,000.
6. ' On the question as to whether Mohabbat Khan the appellant herein, had a superior right of pre- emption, the trial Court held as under:
(a) Neither the pre-emptor nor the vendees are co-sharers in the suit land;
(b) Only Khasra No,1214/2 of the pre-emptor was contiguous to Khasra Nos.1214/1 and 1215/1 of the suit land; and that- the vendees did not have any land contiguous to any of the pre-empted Khasra number;
(c) None of the pre-emptor's land adjoined Khasra Nos.1287, 1288 and 1289/1 of the suit land;
(d) Khasra No,1161 of the suit land was separated by a 'Salaba' from Khasra Nos.1214/2 and 1220 owned by the pre-emptor; and, therefore, they did not adjoin Khasra No,1161;
(e) There was no evidence to establish that the pre-emptor owned any land contiguous to Khasra No,989 of the suit land; and,
(f) Lastly, that Khasras Nos.1287, 1288 and 1289 of the suit land were also separated by a 'Sailaba' from Khasra Nos.1214/2 and 1220 belonging to the pre-emptor, and, therefore, did not adjoin the pre-emptor's Khasra numbers.
7. ' In conclusion, the trial Court held that the pre-emptor's right of pre-emption extended only to an area of 14 Kanals 10 Marlas comprised in Khasra Nos.1214/1 and 1215/1 of the suit land, and, accordingly, decreed the suit for possession on payment of Rs,2,679 on 27th of June, 1970.
8. ' On appeals having been filed by the pre-emptor and the legal representatives of Mir Haider Khan who died during the pendency of the proceedings, the District Judge, Peshawar, by judgment dated 3-2-1973, decreed the suit for possession of all the Khasra numbers in dispute except Khasra No,989 measuring 30 Kanals 7 Marlas on payment of Rs,49,979 as this was the price of the land on the basis of the five years average statement furnished by the Patwari which was also not disputed. In holding so, the first appellate Court observed: "From the statement of the Patwari it would appear that Khasra No,1214/2 of the pre-emptor was separated from Khasra No,1161 by a 'Sailaba' on one side and from. Khasra No,1289/1 by another 'Sailaba' on the other side. These 'Sailabas' curiously enough bear no khasra numbers according to the statement of the Patwari. Assuming that these 'Sailabas' do not bear any Khasra number, it cannot be denied that the 'Mahazi' owners of the Khasra numbers, on either side of these 'Sailabas' own that part of the 'Sailabas' which adjoin their khasra numbers. This being the case, Khasra No,1214/2 of the pre-emptor would be contiguous to khasra No,1289/1 which is contiguous to Khasra Nos. 1288 and 1187 also. Similarly Khasra No,1214/2 is contiguous to Khasra No,1215 which is again contiguous to Khasra No,1161. As I have stated earlier, Khasra No,1214/2 is also contiguous to Khasra No,1214/1. Thu. The pre-emptor shall be entitled to a decree for possession these Khasra numbers, namely, 1214/1, 1215/1, 1161, 1289/1, 1288 and 1287, leaving only one Khasra No,989 in dispute to which he is not entitled on the ground of contiguity or any other ground."
9. ' Against this judgment, the legal representatives of Haji Mir Haider filed Civil Revision No,60 of 1973 against the pre-emptor Mohabbat Khan and the other joint owners. A learned single Judge of the Peshawar High Court on 21-5-1975 held, on the only point which was argued as to whether the pre- emptor had a superior right, as under: "Now the main point for determination in this case is as to what was the position of this Sailaba type of fields lying in between Khasra numbers 1215/1 and 1161 on the one hand and in between khasra numbers 1220 and 1289 on the other. In this connection the whole confusion had been created by the statement of the Patwari and copy of the Shajra filed by him in the lower Court. In the Shajra Kistwar these Sailaba type of fields have been shown as long channel type and no khasra numbers have been given to them. The Patwari in his statement too had not given out the khasra numbers of these Sailaba fields and had described them as channels through which water flowed. Since there could be no fields in the Shajra to which Khasra numbers are not allotted, I therefore, summoned the Patwari and examined him on this point, From his statement it transpired that the Sailaba fields were not water channels but were fields of the Ghair Mumkin Sailaba type and bore Khasra numbers 1224, 1212 and 1163. Sailaba is a type of land irrigated by flood belonging to different persons and is not Shamilat of the village. The plaintiff owned no share in these khasra numbers. The plaintiff's field bearing khasra No,1220 was not, therefore, contiguous to Khasra No,1289 as Khasra No,1224 intervened between the two ancP similarly Khasra No,1215/1 was not a compact block with Khasra No,1161 as Khasra No,1212 intervened between the two. The plaintiff could not, therefore, claim superior right with respect to Khasra numbers 1161, 1289, 1288 and 1287 on the basis of contiguity. The net result of this is that the plaintiff had only superior right of pre-emption with respect to khasra numbers 1214/1 and 1215/1 as held by the lower Court but had no superior right with respect to Khasra Numbers 1289, 1288, 1287 and 1161."
10. ' But as it was argued on behalf of the petitioners-vendees that according to the relevant Jamabandi for the year 1962-63 Khasra Nos. 1289, 1288, 1161, 1214/1, 1215/1 and 989 were all situate in one- Khata and as the pre-emptor did not establish his superior right with respect to. Khasra Nos.989, 1287, 1288 and 1161, the vendees remained as owners in the Khata and no superior right could be claimed as against the petitioners-vendees on the basis of contiguity; and for this proposition reliance was placed on an unpublished judgment of a Division Bench of the High Court rendered on 5th. Of May, 1970 in Civil Revision No,2 of 1963 (Muhammad Sharif etc. v.. Pir Bakhsh Khan). On the other hand, on behalf of the pre-emptor, reliance was placed on an unpublished judgment of a Division Bench of the same High Court rendered on. 17th of June, 1971 in Regular Second Appeal No,183 of 1971 (Hafiz Ghulam Khawaja v. Qazi Abdul Latif etc.) to support the assertion that the petitioners-vendees could not claim a superior right under such circumstances.
11. As the learned single Judge was of the opinion that the latter authority did not correctly lay down the law, he, referred on 21-5-1975, the following question for decision to a larger Bench: "If a person purchases land bearing more Khasra numbers than one, situated in the same khata, then can a pre-emptor of the said sale get a decree for one of the khasra numbers on the ground of contiguity; or can the vendee defeat the claim of pre-emptor even to that one khasra number on the basis of contiguity on the ground that he is to remain a co-sharer in the Khata after the decree."
12. ' It was heard by a Bench of three Judges including Mr. Justice Qaiser Khan and the question was answered by Mr. Justice Abdul Hakeem Khan a Member of the Bench on 13th June, 1975, as under: "Our answer to the question referred is that if a person purchases land bearing more khasra numbers than one situated in the same khata, a pre-emptor to the &aid' sale can get a decree for such khasra numbers as are to his land, that is to say, vendee cannot defeat the 'claim, of the pre- emptor to the land which is contiguous to his land on the ground that he is to remain a co-sharer in khata 'after the decree."
13. ' Mr. Justice Qaisar Khan while agreeing with, it added his separate note as under:-- "The vendee in such a case cannot be allowed to prejudge the findings of the Court by asserting that after the decree he would be left with such and such 'Kkasra numbers on the basis of which he can defeat the "right of the pre-emptor. In the circumstances the question of his asserting superior right on the basis of land to be left with him after the decision of the case, therefore does not arise; After the decision of the case making of such an assertions useless because there is no case pending in which the assertion can be made."
14. ' Upon reference having been answered, the matter was placed before Mr. Justice Qaisar Khan for orders in accord/ince with the opinion of the Full Bench, and, accordingly, the learned Judge accepted the revision and set aside the judgment and .Decree of the District Judge and restored that of the Senior Civil Judge which granted relief of possession through pre-emption of an area measuring 14 Kanals 10 Marlas comprised in Kasra Nos.1214/1 and 1215/1 on payment of Rs,2,679.
15. ' The learned counsel for the appellant contended that there was no occasion for the learned single Judge to record additional evidence of the Patwari while exercising revisional jurisdiction in regard to which there was no request by the counsel of the respondents nor was any such request made at the appellate stage and in doing so, the learned single Judge misdirected himself as if he was exercising powers of an appellate Court. In this behalf, it was stressed that the revision was not a continuation of the suit like an appeal, and, therefore, no additional evidence could be recorded on the merits of the case.
16. ' It will be of interest to note that in paragraph 9 of the judgment dated 21-5-1975, the learned Judge has observed that there was confusion as to the identity of the "Sailaba type of fields" lying in between Khasra Nos. 1215/1 and 1161 on the one hand and in between Khasra Nos. 1220 and 1289 on the other which was created by the statement of the Patwari and the copy of the Shajra filed by him in the lower Court. As in the view of the learned Judge there could not exist any field in this Shajra to which a Khasra number was not allotted but the Patwari had not given out the khasra numbers of these Sailaba fields which he has described as channels through which water flowed, the necessity, therefore, arose to clear this confusion in the ends of justice.
17. ' A reference to Order XLI, Rule 27, C.P.C. Makes it clear that where the appellate Court, requires any witness to be examined to enable it to pronounce judgment, it may allow such witness to be examined, and the only rider placed is that it shall record reasons for doing so.
18. ' In Hak Muhammad Zaman v. Zafar All Khan and others PLD 1986 SC 88, leave was granted to consider amongst other questions, the question whether "the High Court could have decided a revision under section C.P.C. So as to reverse judgment impugned in the revision on admission of fresh evidence in the High Court in its revisional jurisdiction", so as to determine the scope of the revisional jurisdiction. It was held that having regard to the merits of the case, the impugned judgment neither fell under clause (a) nor clause (b) nor clause (c) of subsection (1) of section 115, C.P.C. So as to enable the High Court to interfere with the findings of fact or record additional evidence at the revisional stage. However, the decision records the statement of the counsel for the parties qua the admission of the additional evidence as under: "Learned counsel for the appellant has while agreeing that some evidence might be admitted at the revisional stage in order to determine the jurisdictional facts, the revision not being in continuation of the suit like an appeal, additional evidence could not be recorded on the merits of the case so as to set aside the appellate and/or the original judgment. He, however, could not exclude exceptional cases, depending upon the facts and circumstances of each case however could not be excluded where, in order to see whether a lower Court had acted with material irregularity by virtue of which the case could fall under sub-clause (c) of section 115(1), C.P.C.
19. Clarificatory statement might be recorded by the High Court or evidence material might be admitted in any other form. Learned counsel for the respondents, however, contended that additional evidence could be recorded by virtue of Order XVIII, rule 17 and if it is treated that the said provision is relatable to a suit and/or at the most an appeal, a revisional Court could record additional evidence under section 151, C.P.C. As a part of its inherent jurisdiction."
20. ' But it also observed' that it was not necessary to ge any further than what has been stated as on the facts of the case under consideration it was cevered by the dictum in Kanwal Nein and others v. Fateh Khan and others (PLD 1983 SC 53), It would thus appear that in a case falling under clause
(c) of subsection (1) of section 115 where it is established that -the appellate Court had exercised its jurisdiction' illegally or with any material irregularity, the scope of additional evidence is not excluded. In Lal Khan v. Murid Khan (PLD 1980 Pesti. 49), a learned single Judge of the Peshawar High Court repelled the, contention that While exercising revisional jurisdiction, additional evidence cannot be admitted to obtain clarification of Revenue records as in his view the words "acted illegally" in clause (c) of section 115(1), C.P.C. Also included within their ambit gross and palpable errors of subordinate Courts resulting in grave injustice on account of the evidence being led in an haphazard manner which' prevented the reading of the evidence correctly, and, therefore, needed .Clarification with a view to a correct appreciation of evidence for doing substantial 'justice between the parties. It is one of those exceptional cases in which additional evidence was admitted to rectify the error where the Court had acted illegally or with c material irregularity in the exercise of its jurisdiction, and justifiably fell within the four corners of the observation of this Court in Haji Muhammad Zaman v. Zafar All Khan and others (PLD 1986 SC 88).
21. ' The power was purportedly exercised as the High Court felt that it was necessary in view of the confusion as to the identity of the Sailaba type of the fields left wanting by the testimony of the Patwari which was elemental in deciding the question of contiguity of the lands pre-empted with that of the land of the pre-emptor. The first appellate Court assumed that if the Sailaba fields did not bear any Khasra number it could not in that event be denied that the 'Mahazi' owners of the Khasra numbers on either side of these Sailabas owned that part of the Sailabas which adjoined their Khasra numbers.
22. ' In pare 7.49 of the Land Records Manual, under the heading "Soils and Classes of Land", 'Sailaba' is described as "land flooded or kept permanently moist." Therefore, such land is not fit for cultivation, and they are classified as. "Ghair Mumkin Sailaba type". The High Court did not accept the view of the trial Court that the Sailabas did not bear any Khasra number and admitted evidence to clarify the confusion as would appear from the judgment of the High Court in order to decide the question of superior right of pre-emption. The further examination of the Patwari revealed that the Sailaba fields were not water channels but the fields of the Ghair. Mumkin Sailaba type and bore Khasra Nos. 1224,.1212 and 1163 which, according to Register Haqdaran for the year 1966-67 belonged to Mst.
23. Maqdasa and others, Wali Muhammad and others and Mst. Awal Jan and others. The pre-emptor did not own any share in these survey numbers, therefore, there could not be any contiguity of Khasra No,1220 owned by *the appellant with Khasra Nos.1289 as Khasra No,1224 intervened between the two. Similarly Khasra ,No,1212 intervened between Khasra Nos.1215/1 and 1161, and as such they did not form one compact block. There was, therefore, no superior right of the plaintiff to claim the pre-empted Khasra Nos. 1161, 1289, 1288 and 1287 on the basis of contiguity. The fatal error on the merits of the case cannot be described as an exercise of an erroneous discretion but a jurisdictional error in terms of subsection (1)(c) of section 115 of the Civil Procedure Code resulting from an erroneous assumption of fadts that since the Sailabas did not bear any number, therefore, the 'Mahazi' owners of 'the Ktasra numbers on either, side of the 'Sailabas'' could claim ownership of that land which was adjacent to their. Khasra numbers. It cannot thus be disputed that Court acted illegally in the exercise of its jurisdiction.
24. ' Having held' so, the observations of this Court in Kanwal Nain v. Fateh Khan (P 'L. D 1983 SC" 53) and Venkatagiri v. H.R.E. Board, Madras (AIR .1949 PC' 156) would- not be applicable .As on facts, the appellate, Court had made an assumption which. Was erroneous and required further evidence to' bring out the real factual position which' was pivotal in deciding 'the case on merits in order to do justice .Between the parties. Therefore, the contention that on merits the appellate Court could not interfere is not tenable.
25. ' Eyen if technically. Order XLI, Rule 27, C.P.C. Did not apply to the revision as it was not a continuation of the suit, I have no hesitation in holding that. The High Court could in the exercise of its inherent- jurisdiction under section' 151 C.P.C. Admit' such evidence for clarification in the ends of justice.
26. ' The learned counsel for the appellant placed reliance on clause Secondly of section 12 of. The N.- W.F.P. Pre-emption Act as the contention raised was that there .Was a common irrigation right from the Sailaba land which was not rebutted. But the pre-emptor himself did not base his' superior right on this ground. His case was founded on contiguity. Therefore; this ground was not considered by the Courts below and we see no reason as to why we should take it into consideration now.
27. ' The appeal is without merit and is hereby dismissed with costs.