' This civil revision is directed against the judgment and decree, dated 14-11-1989 whereby the appeal of the petitioners was dismissed and the judgment and decree of the learned trial Court, dated 16-1-1988 whereby the declaratory suit of the petitioners was dismissed, was maintained.
2. The facts are that the petitioners instituted a suit for declaration that they are owners in possession of the suit land and that the entries of ownership in the names of defendants Nos. 1 and 2 in the Revenue Record and Mutation No, 762 dated 24-12-1963 and. Mutation No, 800, dated 20-8- 1965 in their favour were void and ineffective against the rights of the plaintiffs. It was averred in the plaint that a portion of suit land was mortgaged which was redeemed by the plaintiffs after the payment of the mortgage money. It was denied that any sale was made in favour of the defendants.
3. The suit was contested by defendants Nos. 1 and 2 while defendant No,3 conceded the claim of the plaintiffs.
4. From the pleadings of the parties, the following issues were framed:-- ' ISSUES
(1) Is the suit not maintainable in its present form?
(2) Is the suit bad for misjoinder of necessary parties?
(3) Is the suit within time?
(4) Have the plaintiffs not cause of
(5) Are the plaintiffs in possession of the suit land and the impugned mutations are null and void?
(6) Are defendants Nos.1 and 2 in possession of the suit land as owners having purchased the same from the plaintiffs and their predecessors?
(7) If the alleged ownership of the defendants is not proved have they become owners of the suit land on the basis of adverse possession?
(8) Have the defendants violated injunction order of this Court?
(8-A) Whether the plaintiffs are estopped by their words and conduct to file the suit?
(8:B) Whether the suit is barred by res judicata?
(9) Relief.
5. After going through the evidence of the parties, the learned trial Court found that the petitioners/plaintiffs were not in possession and therefore, the suit for declaration simpliciter was not maintainable. The suit was also held to be time-barred under Article 14 of the Limitation Act.
The material Issues Nos. 5 and 6 were returned against the plaintiffs and it was found that the impugned mutations did not suffer from any illegality. It also found that all the ingredients of sale were ,proved through the said mutations. Consequently, the suit was dismissed vide judgment and decree, dated 16-1-1988.
6. The petitioners preferred an appeal which was dismissed vide judgment and decree, dated 14- 11-1989. The learned Appellate Court attended to the contentions raised by the petitioners and after reappraising the evidence concurred with the findings of the learned trial Court on all the material issues.
7. This civil revision assails the above 'mentioned concurrent findings of fact on the grounds that the petitioners had moved an application under Order 41, rule 27, C.P.C. For permission to produce additional evidence before the learned Appellate Court. It is contended that the appeal of the petitioners was disposed of without adverting to the said application and without passing any order thereupon. It is next contended that both the learned lower Courts have misread the oral and documentary evidence on the record particularly as far as it related to the possession of the petitioners.
8. The civil revision was mainly admitted to regular hearing to examine the effect of the omission of the learned Appellate Court to pass a specific order upon the application made for additional evidence.
9. Mr. Ajaz Ahmad Ansari, Advocate for the petitioners has placed reliance on the case of Mst.
Umari and another v. Faqir Muhammad and another PLD 1983 Lahore 349 to contend that when a party can avail the benefit of Order 41, rule 27, C.P.C. And has submitted an application for permission to produce additional evidence, it is incumbent upon the learned Appellate Court to decide the same alongwith the main appeal and failure to advert to and decide the same amounts to failure to exercise jurisdiction. He urged that in view of failure of the learned Appellate Court, the judgment and decree passed in appeal was liable to be set aside and the case be remanded to the learned Appellate Court for deciding the appeal afresh after decision upon application under Order 41, rule 27, .C.P.C. It was further contended that the oral and documentary evidence has been misread, both regarding the possession as well as the making of the alleged sale by the petitioners in favour of the respondents.
10. To appreciate the submissions of the learned counsel for the petitioners, it is necessary to refer to the provisions of Order 41, rule 27, C.P.C. Which reads as under:--- Order 41, rule 27, C.P.C.
(1) The parties to an appeal shall not be entitled to produce 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 witeness to be examiend to enable it to pronounce judgment or for any other 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 reasons for its admission."
11. There is no cavil with the proposition that this power is not confined only to suo motu, exercise of powers by the learned Appellate Court but can even be availed of by a party who seeks its benefit.
The language in which Order 41, rule 27, C.P.C. Is couched does not exclude the filing of the application by a party in the case before the learned Appellate Court to allow additional evidence.
11 The question, however, is as to what is the mode in which a party can seek the benefit of this provision of law. A perusal of the record would show that the petitioners had filed an application for production of additional evidence before the learned trial Court which application was considered and dismissed by the learned trial Court before passing the decree against the petitioners. A perusal of para. 11 of the memo. Of appeal filed by the petitioners would show that the petitioners had filed an application for comparison of thumb-impression before the learned trial Court on 28- 5-1986 which application was dismissed by the learned trial Court. The same contention was made the memorandum of appeal elsewhere in para.4 thereof. Thus, the request contained in a separate application under Order 41, rule 27, C.P.C. In respect of -the comparison of the thumb-impressions was superfluous as it was already incorporated in the memo. Of the appeal itself.
13. The learned trial Court had appreciated the oral and documentary evidence produced before it and came to a conclusion of fact that the impugned Mutations No,762, dated 24-12-1963 and No,800. Dated 20-8-1965 were attested in accordance with law. It held that the petitioners had appeared before the Revenue Officer at the time of the mutations and had made the statements that they had received the sale price and had delivered the possession. The entries in the Revenue Record in favour of the respondent/defendants were longstanding entries and there was no reasons to interfere in the same. The learned trial Court was also persuaded by the fact that after the purchase- by the respondents, the suit land was separated by the Consolidation Authorities and wandas Exh. D,5, Exh. D.9 and Exh. D.10 have been created and confirmed on_ 30-12-1984. The learned Appellate Court while concurring with the findings of the learned trial Court believed the statements of D.W.1 who produced the mutations Exh. D.1 and Exh. 'D.2 and the copies of Jamabandis Exh. D.3 and Exh. D.4 alongwith the copies of Khasra Girdawaris Exh. D.6 and Exh. D.7. He also placed reliance upon the Parcha Ishtamal which was produced on the record.
14. In view of this overwhelming evidence, both the learned lower Courts came to the conclusion that the petitioners had failed to ' successfully challenge the mutations evidencing a completed sale in favour of the respondents. It is solely in the discretion of the Courts to allow or not a request for comparison of the thumb-impressions . The learned trial Court had passed a conscious order while dismissing the application for additional evidence to this effect.
15. As the prayer for comparison of thumb-impressions was incorporated in the memo. Of appeal itself, there was no necessity to file a separate application for the same purpose which application was superfluous and also duplication of proceedings. While deciding the appeal finally, the learned Appellate Court has considered the entire case of the parties placed before it and the result of long drawn out litigation cannot be set at naught on the ground that a separate order was not passed upon the aforementioned application.
16. The contention of the learned counsel for the petitioners that it is the legal obligation of the learned trial or Appellate Court to dispose of all applications filed befroe it may not be incorrect.
However, this principle is not an inflexible rule of law but is adhered to for the, larger interest of administration of justice. When, however, it is found that the contention in an application is superfluous and has been dealt with implicity by the relevant Court, this fact alone shall not thwart the proceedings of the Courts, if otherwise the matter is consciously dealt with by it.
17. Apart from the above contention, the learned counsel for the petitioners has not been able to indicate any misreading or non-reading of evidence on the record. Both the learned lower Courts have concurrently found that the petitioners are out of possession and that their suit for declaration simpliciter was not competent. The suit was also barred by limitation. Interestingly, neither any ground against the , findings of the learned lower Courts regarding the question of limitation has been taken in the revision petition nor anything has been urged by the learned counsel in this behalf.
18. It needs no emphasis that the revisional jurisdiction is to be exercised only when the lower fora have exercised their jurisdiction with material irregularity or if the impugned judgments are otherwise in violation of law or are perverse. In view of the above discussion, the findings of both the learned lower Courts do not suffer from any such defect.
19. Before parting with this judgment, it is also necessary to dispose of C.M. No, 266 of 2001 filed under Order 1, rule 10 read with section 151, 'C.P.C. For impleading Bakhtoo son of Wahid Bakhsh as, a party. The said applicant was not a party either before the learned trial Court or before the learned Appellate Court and no ground is made out to implead him in this C.M. The application is accordingly dismissed.
20. Resultantly, there is no merit in this civil revision which is hereby dismissed, leaving the parties to bear their own costs.