C.G. Suri, J. - (1.) THIS regular second appeal by the defendant -vendees arises out of a civil suit filed by the plaintiff -respondents to pre -empt a sale of land made by two daughters of Sohan Singh deceased. The plaintiff -respondents had claimed that they had a superior right to purchase the property and to pre -empt the sale under sub -section (1) of section 15 of the Punjab Pre -emption Act, 1913 as they had been in occupation of the land sold as tenants of the vendors from a date prior to the sale. It was the case of the vendee -appellants that the female vendors had succeeded to the land through their father and that sub -section (2) of section 15 of the Punjab Pre -emption Act was applicable and that the right of pre -emption was confined only to the few near relations of the vendors mentioned in that sub -section. This plea of the vendees had succeeded with the trial Court and the suit filed by the respondents had been dismissed. The judgment and decree of the trial Court have, however, been reversed on first appeal filed by the plaintiff -respondents. Some additional evidence had been allowed by the lower appellate Court on the application of the plaintiff -respondents under Order 41, rule 27 of the Code of Civil Procedure. The vendees, therefore, appear as appellants in this Court in the second appeal under section 100 of the Code of Civil Procedure.
(2.) THE sole question for decision at this stage is whether the case falls under sub -section (1) or sub -section (2) of section 15 of the Punjab Pre -emption Act. This would depend on whether the two female vendors who were real sisters can be described to have succeeded to the land in dispute through their father Sohan Singh. Shri Aggarwal, the Learned Counsel for the appellants, challenges the correctness of the judgment and decree of the lower appellate Court on the following ground: - (1) The lower appellate Court was not justified in admitting additional evidence at the stage of first appeal. Reliance was in this connection placed on the ruling of the Privy Council in (Raja) Indrajit Pratap Bahadur Sahi v. Amar Singh and other : AIR 1923 PC 128, and of the Supreme Court in State of U.P. v. Manbodhan Lal Srivastava : A.I.R. 1957 SC 912. (2) Part of land in dispute was banjar or waste land and its sale could not be pre -empted in view of the provisions of section 5(b) of the Punjab Pre -emption Act and the explanation given thereunder. (3) The female vendors had in fact succeeded to the land through their father and the contrary finding of the lower appellate Court on that point was erroneous in law and fact. (4) Sub -section (2) of section 15 would be applicable even if the vendors had got the land from their mother Piar Kaur; who is still alive and who appeared in the lower appellate Court as a witness of the plaintiff -preemptors. Palla Singh, a near collateral of Sohan Singh deceased may also appear to have figured in the acquisition of the land by the family and this has also affected the pleas or arguments raised in this case. Shri Aggarwal wanted to make a separate point about Palla Singh's appearance in the picture but the extent of his intervention or the manner in which it affects the case would be dealt with by me during the discussion of point No. (3).
(3.) AS regards point No. (1), the rulings cited by Shri Aggarwal may also seem to justify the admission of additional evidence by the appellate Court either under the general principles of law or under the specific provisions of Order 41, Rule 27 which lays down, amongst other things, that the appellate Court can allow evidence for any substantial cause. No exception can possibly be taken to the observations in Manbodhan Lal Srivastava's case (supra) that 'Supreme Court would not permit additional evidence to be placed in appeal when there was sufficient opportunity for the appellant to place all the relevant matter before the High Court itself. Additional evidence cannot be permitted at the appellate stage to enable a party to remove certain lacunae or to fill up gaps but, all said and done, it was recognised that the position would be different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do substantial justice between the parties. In K. Venkataramiah v. Seetharama Reddy and others : A.I.R. 1963 S.C. 1526, the Hon'ble Judges were pleased to observe, after discussing the provisions of Order 41, rule 27 of the Code, that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on. In the case in hand, both parties had availed of the opportunity afforded by the lower appellate Court to examine additional evidence and no timely objection had been raised by the appellant in any Court.;