' This civil revision assails judgment and decree dated 31-5-2003 passed by the learned Additional District Judge, Bhalwal, whereby appeal of the respondents was accepted and their suit was decreed, by setting aside judgment and decree dated 4-1-2000 of the trial Court.
2. Precisely, relevant facts are that the respondents filed a suit for declaration that they are owner in possession of land mentioned in the plaint and Mutation No.1908 dated 19-10-1957 in favour of the petitioners with regard to inheritance of Salehoon son of Qudu is illegal, void and ineffective qua their rights. According to averments in the plaint Salehoon deceased was predecessor of the parties who died in the year, 1957 and was succeeded by a widow Mst. Rehmoo, two sons and four daughters. Mst. Aalan, the mother of the respondents was one of the daughters of said Salehoon who was alive at the time of death of propositus and died subsequently. They also pleaded that name of Mst. Aalan was not illegally included in the inheritance mutation of her father. According to their averments name of Mst. Aalan was included in another Mutation No.725 dated 21-4-1960 which also related to property of her father Salehoon, deceased. With these assertions, the respondents claimed share in the estate of their maternal grandfather.
3. The petitioners being defendants in the suit, denied assertions in the plaint and pleaded that Mst.
Aalan was not daughter of Salehoon deceased. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter on the basis of appreciation of evidence vide his judgment and decree dated 4-1- 2000 dismissed the suit of the respondents.
4. The respondents aggrieved of the decision of the trial Court dated 4-1-2000 filed an appeal before the learned Additional District Judge where they succeeded, as their appeal was accepted and their suit was decreed, reversing judgment and decree of the trial Court dated 4-1-2000. The respondents, pending their appeal, had filed an application under Order XLI, rule 27, C.P.C. Seeking summoning of birth record of Mst. Aalan, which was dismissed, separately by the Appellate Court, earlier to the decision of the appeal. The petitioners are aggrieved of the appellate decision and have filed instant revision for annulment of the same.
5. Learned counsel for the petitioners submits that the Appellate Court, itself earlier dismissed application of the respondents for summoning of birth record of Mst. Aalan but subsequently, on its own, summoned the record and examined it, without providing the petitioner an opportunity of rebutting it. He further submits that course adopted by the Appellate Court is not in accordance with law and as such, appellate judgment is not sustainable. In this behalf he referred to the judgment in the cases of Sh. Muhammad Ikhlas and others v. Muhammad Ismail (PLD 1963 SC 466) and Abdus Samad Khan v. Jiwan and others (1989 M LD 3082). He further contends that the Appellate Court was required to give reasons for summoning of any record, beyond the file of the trial Court but no such reason has been given in the impugned judgment. It has also been argued on behalf of the petitioners that Appellate Court while reversing well-reasoned judgment of the trial Court, did not meet the points evolved therein that as Mst. Aalan was not proved to be daughter of Salehoon, as held by the learned Judge of first instance.
6. Learned counsel appearing on behalf of the respondents, has refuted the arguments of the petitioners, supported the appellate judgment and argued that in view of provisions of Order XLI, rule 27, C.P.C. Appellate Court felt the necessity of B examining the birth entry of Mst. Aalan and thus has rightly summoned the record. According to his submission, since no additional evidence was allowed by the Appellate Court, there was no question of any rebuttal by the petitioners. He further contends that Mst. Aalan was real daughter of Salehoon son of Qudu as she did inherit his estates under Mutation No.725 dated 21-4-1960 which has become final between the parties.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. There is no cavil about the proposition that Appellate Court feeling necessity of production of any document or any witness, can summon it and examine for just decision of the case under Order XLI, rule 27, C.P.C. Act of Appellate Court of summoning of birth record of Mst. Aalan, cannot be said to be unlawful or without jurisdiction but the manner in which it was examined is objectionable. Parties to the lis have a right to rebut each evidence brought on file by the Appellate Court but instead birth record of Mst. Aalan was summoned and was examined by the Appellate Court, without recording of statement of the person who produced the record and without allowing the parties an opportunity of cross- examining him. Exclusive examination by the Appellate Court, without inviting the parties to put questions with regard to record produced, is absolutely unjustified. The Appellate Court should have recorded statement of the person producing record and opportunity of cross c xamination should have been granted to the parties. Neither they were given right of cross-examination nor they were given a right of rebuttal. In the case of Abdus Samad Khan (supra) it was held by this Court that Appellate Court was bound to grant right of rebuttal to the evidence admitted as additional evidence under Order XLI, rule 27, C. P . C .
8. The Appellate Court no doubt referred to other evidence on the file, as well, while taking the decision that Mst. Aalan was daughter of Salehoon son of Qudu but its main emphasis was on the register of birth entry summoned by him. As observed earlier, his findings to this effect, without affording the parties a right of rebuttal or cross-examination, are of no legal value. Consequenth I conclude that judgment and decree of the Appellate Court dated 31-5-2003 is tainted with material irregularities and illegalities as envisaged by section 115, C.P.C. Resultantly, I accept this revision petition, set aside the judgment and decree dated 31 5-2003 passed by the learned Additional District Judge, Bhalwal, with the result 'Sat the appeal of the respondents will be deemed to be pending before the Appellate. Court who shall summon the birth record of Mst. Aalan again, if necessary and would record the statement of the concerned official, who shall be cross-examined by the parties, if they so wish and shall decide the case afresh after hearing the parties, in accordance with law: The parties are directed to appear before the learned Additional District Judge, Bhalwal, on 26-2-2004. There will be no order as to costs. accordingly.