' Haji Khan Baz Khan and 8 others, plaintiffs/petitioners herein, instituted Suit No,373/1 of the year 1988 against Abdur Rashim and five others, defendants/respondents herein, for declaration to the effect that they were owners in possession of the suit house fully described in the heading of the plaint and also for possession of the suit house and recovery of rent of Rs,7,200 for the period from 1-11-1985 to 1-11-1988 at the rate of Rs,200 per month.
2. The defendants/respondents contested the suit, inter alia, on the ground that they were the owners of the suit house and had never paid any rent to the plaintiffs/petitioners.
3. The trial Court framed the following issues from the pleading of the parties:--
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is ambiguous?
(3) Whether the plaintiffs arc estopped to file the present suit?
(4) Whether the suit is bad for the purposes of court-fee and jurisdiction?
(5) Whether the predecessor of defendants had purchased the suit house from one Amir Khan son of Khan Sardar vide registered sale-deed No,573 dated 18-12-1922 for Rs,600?
(6) Whether the suit is within time?
(7) Whether the defendants have matured their title due to adverse possession?
(8) Whether the suit is bad for non-joinder of necessary parties?
(9) Whether father of defendant No,1 had become owner of the suit house as a result of private partition?
(10) Whether predecessor of the plaintiffs Khan Jan had become owner due to Court decree dated 26-3-1924?
(11) Whether predecessor of the plaintiffs had redeemed the suit house? If so , from whom?
(12) Whether the plaintiffs are entitled to the decree as prayed for?
(13) Relief.
4. On the basis of evidence produced by the parties, and arguments addressed before him, the learned trial Judge held the plaintiffs/petitioners to have a cause of action. Issues 2, 3, 4 and 8 were decided in negative as these were not pressed. On issues 10 and 5, the findings of the learned Civil Judge are that that the claim of the plaintiffs/petitioners that their predecessor-in interest had obtained ex parte decree dated 26-3-1924 was not acceptable and that prior to that decree, the predecessor of the defendant/respondent No,1 had purchased the suit house. These issues were decided accordingly. Issues 6, 11 and 9 were found not proved and decided in the negative. The findings on issue No,7 were in favour of the defendants. Issue No,12 was decided in the negative.
Consequently the plaintiffs/petitioners' suit was dismissed with no order as to costs vide judgment dated 23-7-1989.
5. Aggrieved from the judgment and decree of the lower Court, an appeal was filed before the learned Additional District Judge, Bannu by the plaintiffs/petitioners. The learned Appellate Court while dismissing the appeal on 11-6-1990 observed that since the ex parte decree in pre-emption suit in the year 1924 was passed conditionally and there being no evidence for the deposit of the pre-emption money and also no evidence of the execution of decree, the claim of the plaintiffs/petitioners was not acceptable.
6. The aforesaid judgments and decrees of the lower Courts have now been challenged in this revision.
7. The first submission of the learned counsel for the plaintiffs/petitioners was that he should be allowed to produce additional evidence as per C.M.No,112/90 so as to produce a certificate from the District Accounts Officer, Bannu obtained now that pre-emption money was deposited in time in the pre-emption suit decreed on 26-3-1924. In support of the submission, reference was made to Order 41 Rule 27, C.P.C. And the following case-law was also cited:--
(1) PLD 1989 SC 112.
(2) 1991 SCM R 1981.
(3) 1992 CLC 125.
8. On merits of the case, learned counsel for the plaintiffs/petitioners contended that out of 9 Marlas decreed in favour of the predecessor-in-interest of the plaintiffs/petitioners in the year 1924, 3 Marlas were later on segregated and was given to the defendants/respondents as tenants. This aspect of the case was lost sight of by the Courts below.
9. Haji Saadullah Khan Mian Khel, Advocate for the defendants/respondents in reply argued that additional evidence cannot be allowed at the revisional stage to fill in the lacuna. He also placed reliance on PLD 1989 SC 112 and cited the case reported in 1990 CLC 1095. It was argued by him that plaintiffs/petitioners failed to prove their ownership to the house and induction of defendants as tenants.
9-A. I have heard learned counsel for the parties and with their assistance have carefully gone through the evidence recorded in the lower Court in order to see the correctness of the findings of the lower Courts. Plaintiffs/petitioners had claimed the suit house on the basis of pre-emption decree obtained by their predecessor-in-interest in the year 1924. They could not produce evidence to show that pre-emption money was deposited within time or the decree was executed.
The Courts below have, therefore, rightly dismissed the suit of the plaintiffs/petitioners. It is now at the revisional stage that prayer is made for additional evidence to prove that pre-emption money was deposited. This cannot be allowed, inasmuch as under Order 41, Rule 27, C.P.C. Only at the appellate stage the plaintiff/petitioner could ask for the production of additional evidence and the appellate Court could permit the same in case it was refused by the trial Court, or the appellate Court itself required any document to be produced or any witness to be examined to enable it to pronounce judgment. No such prayer for additional evidence was made to the appellate Court. In the cases cited at the bar, additional evidence was refused by the appellate Court and then the matter was considered as to whether the appellate Court had rightly refused the production of additional evidence and in doing so whether the appellate Court had exercised jurisdiction illegally or with any material irregularity and in that situation the matter was discussed. In the instant case, the plaintiffs/petitioners had not applied for additional evidence to the appellate Court and as such the question of refusal of evidence dubs not arise. In the case of Muhammad Yousuf v. Abdul Khaliq 1991 SCM R 1981, the High Court was seized of appeal and not revision and in that situation it was directed to dispose of the application under section 107(2), C.P.C. And another application for additional evidence and then the respondent also did not object to the direction made. In Hidayatullah. v. Haqnawaz 1990 CLC 1095, it has been held that unsuccessful litigant cannot be allowed to produce additional evidence to patch up the weak portion of his case to fill up omissions.
10. On merits, no misreading/non-reading of evidence by the Courts below or jurisdictional error could be pointed out by the learned counsel for the plaintiffs/petitioners in this revision. The induction of defendants/respondents as tenants in the suit house is not proved. The conclusion arrived at by the Courts below that the plaintiffs/petitioners failed to prove their ownership to the suit house is based on the correct appreciation of evidence.
11. For the foregoing reasons, this revision petition is dismissed with costs.