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Civil Petition for Special Leave to Appeal No. 58‑P of 1969, decided on 27th March 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, dated the 4th July 1969, in Civil Miscellaneous No. 84 of 1969).
Art. 58 (3)‑Conclusion of lower Court based upon adequate evidence both oral and documentary Finding that sale was of entire property and not of a moiety based on consideration of such evidence‑A finding of fact‑Leave to appeal refused.
Peer Bakhsh Khan, Advocate Supreme Court instructed by Mohd. Tariq Khan, Advocate‑ on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing : 27th March 1970.
J.‑This is a petition for special leave to appeal from the judgment of a learned Single Judge of the High Court of West Pakistan, Peshawar Bench, in a second appeal., The learned Judge has also refused to certify the case as fit for appeal under the Letters Patent.
The appeal arose out of a suit filed by the present petitioners against the respondent for possession of a 2/3rd share in the lands in suit. These lands belonged to the petitioner and his two brothers Mohammad Afzal and Akram Khan jointly, but by a mutation of sale attested on the 18th October 1933, they were purported to have been sold to the respondent herein.
The petitioners who are one of the three brothers and the son of another brother, averred in their plaint that it was Mohammad Afzal alone who had sold his individual 1/3rd share. It was not a sale of the entire share of all the three brothers.
The respondent on the other hand claimed that all the three brothers had sold their entire share in the suit lands along with the Hissa Shamilat, for consideration and that he had since then been in. possession of the same as owner. In the alternative he claimed title by adverse possession for more than 12 years.
The trial Court found that the shares of all the three brothers had been sold in the entire land and, therefore, dismissed the suit. On appeal, however, the learned Additional District Judge, Peshawar, reversed the decision of the trial Court and passed a decree for joint possession of 2/3rd share in the suit lands in favour of the petitioners. On second appeal the High Court reversed the decision of the learned District Judge and restored that of the trial Court dismissing the suit of the petitioners.
The petitioners now seek special leave to appeal to this Court and it has been strenuously contended on their behalf by reference to the mutation entry that since the mutation was only attested in the cultivation column by Mohammad Afzal and not by the other brothers, the sale was of only the 1/3rd share in the cultivation of Mohammad Afzal.
The finding of the High Court is that the sale was of the entire property. This is a finding of fact which is based on a consideration of the evidence.
Learned counsel appearing for the petitioners has, however, contended that even if the sale was of the entire property by one co‑sharer then the transferee of such a co‑sharer merely stepped into the shoes of the transferor and got nothing more than the transferor's share. But these arguments are of no avail to the petitioners now, for, it appears from the Jamabandi of 1942‑43 that the present petitioner Dilawar Khan was himself shown as a tenant‑at‑will under the respondent on payment of Batai by Hissa‑e -Nisfi. This clearly showed that he too had attorned to the transferee and, therefore, it does not lie in his mouth now to say that the sale was only of the 1/3rd share of Mohammad Afzal.
We see no reason to differ with the conclusions of the High Court which appear to be based upon adequate evidence both oral and documentary, including the Jambandis. This petition is, accordingly, dismissed.
Leave refused.
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