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Civil Petition for Special Leave to Appeal No. 20-P of 1972, decided on 16th December, 1972.

(On appeal from the judgment and decree of the Peshawar High Court, dated 11-1-1972 passed in Regular First Appeal No. 26 of 1962).

---Art. 185(3)--Leave to appeal--Contention that Courts below had erred in holding that father was of a sound disposing mind when he threw away valuable property for a paltry consideration, thus favouring one son at the expense of rest of his children--Question raised, held, was pre-eminently one -of fact which was answered against petitioners by both Courts below on a consideration of evidence brought on record--Such being case, there was no room for interference by Supreme Court by way of special leave to appeal--Leave to appeal refused.

Mian Yunus Shah, Advocate instructed by Nur Ahmad Khan, Advocate-M-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th December, 1972.

This petition for special leave to appeal is directed against the judgment of a Division Bench of the High Court of Peshawar, dated the 12th of January, 1972, in R.F.A. No. 26 of 1963 arising out of a suit for possession instituted by the respondent Haji Fazal Elahi, since dead and represented by his legal representatives.

By means of a sale-deed registered on 12-11-1956 the late Haji Mian Muhammad, the predecessor-in-interest of the present petitioners, sold the property in suit in favour of his son, Haji Fazal Elahi for Rs. 8,000. The vendee's claim for possession was resisted by the petitioners mainly on the ground that the sale-deed executed by Mian Muhammad in favour of the plaintiff was null and void for want of consideration and because of undue influence. It was also asserted that at the time of sale the vendor was not in a sound disposing mind. It was stated at the Bar by the learned counsel for the petitioners that property worth Rs. 94,000 had thus been thrown away by the vendor for a sum of Rs. 8,000 and his other children had been deprived of their legitimate share.

After examining the evidence brought on the record by the parties the learned Senior Civil Judge, Peshawar, who had tried the suit, came to the conclusion that the vendor was of sound disposing mind at the time of making the sale, that he had not been subjected to any undue influence, and that full consideration had been paid. It may be stated that although the sale had been made on 2-11-1956, the vendor lived for five years thereafter and died on 7-11-1961.

Besides recording these findings, the learned trial Judge also observed that in view of Explanation 4 to section 11 of the C . P . C . , the defendants were debarred from raising these pleas for the reason that they had previously brought a suit, in respect of this very property, and this very sale on the ground that the property was Wakfal-aulad, but they did not raise the pleas on which they were resisting the present suit. That suit was decreed by the trial Court on 6-12-1956, but in appeal this decree was reversed by the High Court and the petitioners' suit was dismissed on 8-6-1959.

Acting in first appeal, the Division Bench of the High Court has upheld these findings of the trial Court. (We find that in the opening sentence of the order of the High Court, as placed on the record, it is wrongly stated that the suit of the petitioners, who were the appellants in the R.F.A. had been dismissed with costs by the learned Senior Civil Judge, as in fact the suit had been instituted by the respondent, Haji Fazal Elahi, and had been decreed against the petitioners).

In support of this petition, it is submitted by Mian Youna Shah, the learned counsel for the petitioners, that the Courts below have erred in holding that late Haji Mian Muhammad was of a son disposing mind when he threw away valuable property for a paltry consideration, thus favouring one son at the expense of the rest of his children.

It will be seen that the question raised is pre-eminently one o fact, and has been answered against the petitioners by both the Courts below on a consideration of the evidence brought on the record. Such being the case, there is no room for interference by us by way of special leave to appeal.

The petition, therefore, fails and is hereby dismissed.

M . Z . M . Petition dismissed.

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