' Shah Behram, his two brothers and two sisters, sued Mst. Khairunissa, their step-mother, Najmunissa and Shamsunissa, their step-sisters for possession by partition of 56/80 share of a house as described in the heading of the plaint and situated in Zafar Abad Colony in Tehsil and District, D.I. Khan. The plaintiffs claimed 56/80 share by way of inheritance of their father Bara Khan alleging that partition of the disputed house was expedient due to quarrels between the parties and for bringing about improvements therein. The suit was resisted by Mst. Khairunissa in person and as guardian ad litem of her minor daughters Mst. Najmunissa and Mst. Shamsunissa by filing a written statement. While denying the title of Bara Khan, the predecessor-in-interest of the parties to the disputed house, she asserted her own onwership thereto. A few legal objections were also taken up by way of preliminary objections. The pleadings of the parties gave rise to as many as five issues. For the purposes of this revision petition, the following two issues are relevant:-
(5) Whether the suit house is the ownership of defendant No,1 ?
(6) Whether the plaintiffs are entitled to the relief sought?
2. Parties led their evidence upon consideration whereof the trial Court found on issue No,5 that defendant No,1 had miserably failed to prove that the plot underneath the disputed house had been purchased by her and also that she had raised the superstructure thereon. On issue No,6, it held that the plaintiffs being also the successors-in-interest of Bara Khan had become owners of 56/80 shares by way of his inheritance alongwith the defendants who had inherited the remaining 24/80 share and thus passed a preliminary decree for possession by partition of 56/80 share of the disputed house in favour of the plaintiffs against the defendants leaving the parties to bear their own costs. In an appeal thereagainst filed by the defendants, the learned Additional District Judge, who was seized of the matter, not only dismissed the appeal but also rejected an application seeking permission to adduce additi mal evidence in order to prove the execution of the two unregistered sale-deeds dated 25-2-1972 purporting to transfer the two plots of 40' x 30' each in favour of the defendant-appellant No,1. The defendants have now come up to this Court in revision.
3. S. Zafar Abbas Zaidi, in support of this revision petition contended:- ' Firstly, that admittedly Bara Khan deceased was permanently living with Mst. Khairunnisa petitioner No,1 and that neither respondent No,1 nor his witness Sher Khan and Badizaman had seen the house nor did they know the boundaries of the house; ' Secondly, that presumption that the plot stands recorded in the name of the predecessor-in- interest of the parties, therefore, it had been purchased by him in the absence of any evidence cannot be extended to the effect that the superstructure thereon was also raised by him; ' Thirdly, that right from joining the issues till the evidence of Mistry Karim Bakhsh (D.W) the case of the petitioners has been that the construction had been made in the plot at the instance and cost of Mst. Khairunnisa petitioner No,1; and ' Fourthly, that the learned Additional District Judge had erred to disallow addition evidence on the premise that in one of the two sale-deeds covering the disputed plot whereby half of the plot had been purchased in the name of petitioner No,1 on the basis of recital, the payment itself had been made by Bara Khan deceased.
4. As against this, Mr. Motiullah Baloch, the learned counsel for the respondents, contended that in the written statement no details concerning the purchase of the plot were made available nor the alleged originals of the sale-deeds photo copies whereof were annexed with the application at the appellate stage were annexed therewith. He further maintained that photo copies could be annexed with the lists of witnesses and that in case the originals were misplaced, the same could be proved by leading secondary evidence and having not done so petitioner No,1 had miserably failed to prove her exclusive title to the plot underneath this disputed house. He had serious criticism to the evidence of Mistri Karim Bakhsh (DW) and dubbed him as unreliable witness. He also defended the order of the learned appellate Court refusing to allow the additional evidence by reiterating the above-noted hypothesis.
5. The provision of law enshrined in Order XLI, rule 27, Cr.P.C. Invoked by the learned counsel for the petitioners-appellants in the appellate Court is reproduced:- "27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produced additional evidence, whether oral or documentary in the appellate Court.
But if:-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.
6. The analysis of rule 27 ibid would show that the additional evidence can be allowed only where:-
(i) The trial Court has improperly refused to admit the evidence which ought to have been admitted, or
(ii) The appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, or
(iii) the appellate Court requires such evidence for any other substantial cause.
7. It would be noticed that the power to allow the additional evidence is discretionary in nature but the discretion is circumscribed by the limitations specified in rule 27 ibid. From the record it is establihed that ample opportunity was available to petitioner No,1 in the lower Court to adduce evidence in support of her claim qua purchase of the plot herself but she did not avail it on the pretext that the original deeds had been misplaced. Even if it was so, her counsel could with an ordinary diligence, lead secondary evidence under Article 76 (c) of the Qanun-e-Shahadat, 1984. In the circumstances of the case, the learned appellate C Court was, therefore, perfectly justified to have disallowed petitioner No,1 to lead additional evidence which she had failed to produce in the trial Court. The argument that the fault lay with the counsel for petitioner No,1 to have ignored to adduce secondary evidence in the trial Court is also not tenable in that it does not constitute a substantial cause within the contemplation of clause (b) of sub-rule (1) of rule 27 ibid.
8. The contention that the presumption qua the ownership Of Bara Khan deceased over the plot cannot be extended to cover the superstruture raised thereon, however, has to be examined. There is no doubt that the plot stands recorded in the name of Bara Khan, the predecessor-in-interest of the parties. In the absence of any evidence in rebuttal the concurrent findings of the two Courts below that the plot underneath the superstructure belonged to Bara Khan is D therefore, unexceptionable. But this presumption cannot be extended any further to hold, in absence of any evidence on behalf of the respondents, that construction was also raised by and at cost of Bara Khan. Upon their own showing none of the respondents had visited the disputed house.
Respondent No:1 and two witnesses examined by him did not know even the boundaries of the suit house. There is not an iota of evidence on the record that house was built by and at the cost of Bara Khan deceased. On the other hand, in order to substantiate her assertion that construction was raised by and at her cost, special attorney of Mst. Khairunnisa raised the plea and examined Mistri Karim Bakhsh who had substantiated this assertion in terms unequivocal. But the Courts below have brushed aside his testimony on very flimsy ground that Mst. Khairunnisa had not been able to divulge her source of income for incurring the cost of construction. But the same yardstick was not applied to Bara Khan deceased to whom the cost of construction of the house had been unduly assigned. Known sources of income cannot be determinative of the propriety and genuineness of huge constructions coming up in the posh localities of our country. Such a consideration would be wholly out of place in arriving at a judicial decision of the present nature particularly when benami nature of construction is neither asserted nor proved. Articles 2(4) and
(5) of Qanun-e-Shahadat, 1984 indicate the degree of certainty which is required to treat a fact as proved. In civil matters, it is to be determined whether a fact is proved to such degree of probability as would satisfy the mind of a reasonable man on its existence. Absolute and conclusive proof is not necessary. See Emperor v. Ram Dat 143 L C 129: 1933 0.340 and Jarat Kumari Dassi, v. Bessessur- Datt 39 C. 245: 13 L C 577. The salutary principle deducible from the above statement of law would be that petitioner No,1 was right in urging that Courts below were obliged to consider the probative value of testimony of Mistri Karim Bakhsh (D.W.) and give decision in her favour. It hardly needs to be emphasised that the Court is obliged to consider the evidence present on record, judge its value in the light of legal principles applicable thereto and then pronounce its final decision. It is the result of the cumulative effect of evidence on the mind of the Court that finds expression in its final opinion." In this context reference may be made to Mushtaq Hussain v. Fazal Jan (1986 CLC 1699). From this it follows that findings recorded by the two Courts below on the point as to whether or not construction of the house had been undertaken by Mst. Khairunnisa was the result of non- reading of evidence which would attract the revisional jurisdiction of this Court.
9. In view of the concurrent findings reached by the Courts below that the plot in dispute belonged to Bara Khan, the predecessor-in-interest of the parties and that the respondents are entitled to a preliminary decree for possession by partition of 56/80 share of the plot underneath the superstructure are affirmed but they have got nothing to do with the construction raised thereon.
The impugned judgments and decrees passed by the two Courts below stand modified to this extent. Parties are, however, left to bear their own cost.