' This judgment will dispose of R.S.As. Nos,146 of 1972 and 162 of 1972 inasmuch as these are between the same parties and involve determination of exactly the similar questions of fact and law.
2. Facts of the case out of which these appeals have arisen are that Muhammad Shaukat appellant purchased two lots of land measuring 10 Kanals and 9 Malras situated in village Jagiot KhaLsa, Tehsil Kahuta, District Rawalpindi from Khurshid Ahmad, etc. Through two registred sale- deeds dated 9-7-1966 and registered on 11-7-1966. Respondent filed two different Suits Nos,446 and 447 of 1968 to pre-empt the aforementioned two sales on the qualification of being co-sharer in the Khata and owner in the estate. Both the suits were contested by the defendant who is appellant before this Court. On the basis of the pleadings of the parties, learned trial Court settled following issues in both the suits:--
(1) Whether the plaintiff has not instituted this suit for his own benefit? OPD.
(2) Whether the plaintiff has superior pre-emption right as against the vendee defendant? OPP.
(3) Whether Rs,1,500 were fixed in good faith or paid as the sale price of the suit land? OPD. (In suit No, 447).
(4) What is the fair market value of suit land? O.P.
(5) Relief.
' Evidence was recorded in Civil Suit No, 446/68. Vide statement made on 25-4-1970 by the learned counsel for the parties, it was agreed that evidence recorded in Civil Suit No,446/68 shall- be read as evidence in Civil Suit No,447/68. Learned trial Court after recording of evidence vide consolidated judgment and decree dated 28-10-1970 decreed both the suits in favour of the respondent holding that he is possessed of a superior pre-emptive right as being owner in the estate whereas the defendant has not been able to prove that he is owner in the estate and therefore his right to purchase is inferior to that of the pre-emptor. Aggrieved of this judgment and decree defendant-appellant filed two appeals before the District Court of Rawalpindi namely Civil Appeals Nos, 295 of 1970 and 296 of 1970. Learned District Judge, Rawalpindi vide consolidated judgment and decree dated 8-9-1971 dismissed both the appeals_ Aggrieved of the judgments and decrees rendered by the learned Courts below, the defendant has filed two regular second appeals, namely' RSA No,146 of 1972 which arises out of Civil Suit No,446 of 1968 and RSA No, 162 of 1972 which arises out of Civil Suit No, 447 of 1968. During the pendency of the appeals, Fazal Khan respondent died and his legal representatives have been brought on record. The appellant has filed C.M. No, 383-C/91 under the provisions of Order XLI, Rule 27, C.P.C. For production of additional evidence in both the appeals. It is stated in the application that the appellant has purchased the land measuring 16 Kanals Marlas vide registered sale-deed dated 21-7-1966 and therefore at the time of filing of the suit by the respondent he had become owner and hence his qualification being equal, the suit could not have been decreed in his favour. Learned counsel contends that the said sale being the subject-matter of the pre-emption suit, it was necessary that the result of the suit should have been awaited by the Courts below and as now the pre-emption suit cannot be decreed, the appellant has become owner in the estate and as such is entitled to defend the pre- emption suit decreed in favour of the respondent. In the application, however, it is not mentioned as to why the document which is now sought to be produced by way of additional evidence was not tendered in evidence either before the learned trial Court or before the learned First Appellate Court although it has throughout been in his possession. It is also not explained in the application as to why a plea was not raised in the original written statement or by way of amendment that the Court should await the result of the pre-emption suit filed against the sale in question on account of the sale-deed mentioned in the application. Arguments have been heard both in C.M. No, 383- C/91 in RSA-146/72 and C.M. No, 381-C/91 in RSA-162/72 as well as both the appeals.
3. Mr. Muhammad Munk Peracha, Advocate has appeared on behalf of the appellant, whereas Raja Muhammad Aslam, Advocate has appeared on behalf of the respondent. Learned counsel for the appellant has argued that it is a fit case where the discretion should be exercised in favour of the appellant to produce in evidence the registered sale-deed dated 21-7-1966 by way of additional evidence inasmuch as it is a public document and has a direct bearing on the matter in issue.
Learned counsel however has conceded that this document has throughout been in possession of the appellant and has not been tendered in evidence either before the learned trial Court or before the learned First Appellate Court. Learned counsel has also conceded that there is no mention of this document in the written statement or at any stage of the proceedings pending before the two learned Courts below. He has further conceded that there is no plea in the written statement that the pre-emption suit filed by the respondent should be stayed to await the result of the preemption suit filed against the sale which had taken place through registered sale-deed referred to above. Learned counsel has further argued that although the land owned by the appellant is {{URDU TEXT}} yet it falls within the definition of agricultural land, and, therefore, the appellant has illegally been held to be non owner in the estate. Factum of the land owned by the respondent as being {{URDU TEXT}} is not denied. In rebuttal to the arguments addressed by the learned counsel for the appellant, it is argued by the learned counsel for the respondent that under the provisions of Order XLI, Rule 27, it is not the prerogative of the parties to lead evidence whatever the party wants to produce at the stage of second appeal. It is a provision which confers discretion upon a Court of law to allow production of additional evidence in three situations envisaged in the rule itself exists and none in this case. In the case in hand as conceded by the learned counsel for the appellant the document has throughout been in possession of the appellant and was never produced in evidence either before the learned trial Court or before the learned First Appellate Court. No request was made even at the time of the filing of the application and the present petition has been moved on 25-5-1991. There is absolutely no explanation in the application as to why this document was not produced earlier. There is no plea in the written statement to the effect that the pre-emption suits out of which these appeals have arisen should be stayed as there is a pending pre-emption suit against the sale referred to above. Consequently, the appellant cannot be permitted to fill up the lacuna in his evidence, if any.
4. On merits of the appeal, learned counsel has argued that there is a concurrent finding of fact rendered by the two learned Courts below after correct interpretation of the documentary evidence on record that the appellant is not the owner in the estate and therefore, the respondent being owner in the estate possesses a superior pre-emptive right and hence no interference is possible in the second appeal with the findings of fact recorded by the two learned Courts below.
5. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly, the sale-deed which is now being sought to be produced by way of additional evidence through C.Ms. Referred to above was in possession and power of the appellant. It could have been produced in evidence at trial stage and thereafter. The appellant did not produce this document in evidence during the course of trial during the course of hearing of regular first appeal and during the course of pendency of this appeal up to year 1991. It is for the first time on 26-5-1991 that a request has been made for production of registered sale-deed by way of additional evidence. Provisions of Order XLI, Rule 27 are very dear on the point that a litigant cannot be allowed to fill up the lacunas in evidence who is negligent. In this case there is absolutely no explanation and reason as to why the document was not produced earlier and as to why it should not be allowed to be produced by way of additional evidence for decision of the matter in issue. Evidence already on record is sufficient to decide the case and this Court does not regain the document to be produced in evidence for effective decision of the appeal. The sale deed even otherwise is a private document. It has to be proved by evidence. Consequently, in view of the law declared in case of M/s. Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684) wherein at page 694 of the report it has been held as under:-- "It is true that in the case of Parsotim and others v. Lal Mohar and others (58 IA 254) the Judicial Committee had observed that the provisions of this rule were clearly not intended to allow a litigant who has ber n unsuccessful in the lower Court to patch up the weak parts of his case and fill up .Omissions in the appellate Court but even in this case it was conceded that if the appellate Court finds the additional evidence 'needful' it may be admitted when some inherent lacuna or defect becomes apparent' to the Court. This defect may also be pointed out by a party, but 'the requirement must be requirement of the Court upon its appreciation of the evidence as it stands?
' I do not consider it a fit case to exercise my discretion in allowing the appellant to produce sale- deed by way of additional evidence inasmuch as the appellant is not only negligent but has also not disclosed any reason for his failure to produce evidence earlier and any justification for allowing him to produce document by way of additional evidence at this stage. The plea of staying of the pre-emption suits was never raised in the written statement as originally filed or by way of amendment which could have been raised by the appellant during the course of trial even thereafter. Consequently, the C.Ms. Being not maintainable and having been filed after an unexplained inordinate delay are dismissed.
6. So far as the merits of the case are concerned, learned counsel for the appellant has conceded that as per evidence produced by the appellant himself, the land owned by him is not assessed to land and as such it cannot be said that the land owned by the respondent is a part of the estate on the basis whereof it could be said that the appellant is owner in the estate. In case of Muhammad Akhtar Chishti v. Ijaz Ahmad and 5 other (1982 CLC 1700), it has been held that a major test to determine as to whether a person is owner in the estate is the factum of assessment of the land to land revenue. There is no other evidence to show that the land owned by the appellant is agricultural in character or in any manner falls within the definition of "ownership of land in the estate". Consequently, the interpretation placed by the two Courts below on the documentary evidence which are the copies of the Revenue Record is quite in consonance with the law declared by this Court and therefore, it cannot be said that the Courts below have committed an error of law on the basis whereof interference could be made in second appeal. It has been held in case of Abdul Majid and others v. Khalil Ahmad (PLD 1955 Federal Court 38) that concurrent_ findings of fact cannot be interfered with in second appeal unless and until it is a case of misreading/non- reading or of no evidnce. In the case in hand, the learned counsel for the appellant has conceded that it is not a case of misreading or non-reading of evidence. Consequently, the judgments and decrees rendered by the two learned Courts below are unexceptionable. The findings of fact to the effect that the respondent has a superior pre-emptive right inasmuch as the appellant is not proved to be "owner in the estate' whereas the respondent is proved to be the owner in the estate, are unexceptionable and are upheld.
' Resultantly, I see no force in these two appeals, which are dismissed with costs.