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Regular Second Appeal No. 310 of 1955, decided on 30th June 1959.

Civil Procedure Code (V of 1908), Ss. 100 & 103‑Finding of lower Appellate Court arrived at in utter disregard of evidence ----Can be upset in Second Appeal.

Though the pronouncements of the Court of first appeal on questions of fact are for all purposes final and it is only on well -recognised principles that they could be upset in second appeal yet no sanctity attaches to a finding which is in utter disregard of the evidence in the case and the Court of second appeal can upset the finding of fact if it finds that the lower Appellate Court has failed to carefully weigh the evidence.

Raja Hasan Akhtar for Appellants.

Nemo for Respondents.

Date of hearing : 30th June 1959.

This appeal arises out of suit brought by Muhammad Razzaq respondent for the usual declaration under the customary law that the three alienations as specified in the plaint made by Mst. Karam Jan and Mst. Karim Jan, widows of Ali Bahadur, will not affect his reversionary interests. The alienations were challenged on two grounds that the will, on which they were based, was void and ineffective, and in the alternate that the alienations were in any event without consideration and necessity and, therefore, not bind ing on the plaintiff‑respondent. the facts on which the claim was founded may here be mentioned. The land in suit belonged to one Ali Bahadur who died leaving behind surviving him two widows and four daughters. On his death the land was mutat ed in the name of his two widows mentioned above, it is alleged, under a will. The widows sold 26 kanals and 12 marlas of land situate in village Lehtrar Bala, Tehsil Kahuta, for a sum of Rs. 1,500 in favour of Ali Akbar and Mardan Ali, the appellants before me, and a mutation to that effect was duly effected vide mutation No. 1396 dated the 21st of June 1950. There was another transaction of gift of 16 kanals and 14 marlas of land vide mutation No. 1397 of the same date in favour of their two daughters, defendants Nos. 5 and 6, Mst. Sufeda Jan and Mst. Zaraat Jan, respondents to this appeal. In addition to these two transactions, on the 28th of September 1949, the widows sold 1 kanal and 14 marlas of land in favour of Muhammad Nazir respondent.

2. Defendants Nos. 3 to 7 contested the suit and denied that Ali Bahadur left any will and in case there was a will it was ficti tious and forged. The alienations were alleged to be for consi deration and necessity. In the present appeal it is not necessary to repeat all the allegations in the written statement for it is direct ed only against the first alienation, and there has been no challenge to the findings of the learned Additional District Judge with respect to the other two alienations.

3. The learned trial Court found that the will was not proved, but he held under custom that the first alienation was for consi deration and necessity and upheld it. On appeal, the learned Additional District Judge disagreeing with the finding of the learned trial Judge held the alienation to be for necessity only to the extent of Rs. 300 and with that modification he, dismissed the appeal.

4. Ali Akbar and Mardan Ali have come up before me in second appeal, and I have heard Raja Hasan Akhtar, the learned counsel for the appellants, who has contended that the finding of the learned Additional District Judge is vitiated by the fact that it is based on misreading of the record and ignoring the material portions of evidence. A perusal of the judgment passed by the learned Additional District Judge leaves an impression that he has not carefully weighed the evidence nor does his judgment indicate that he has given full thought to the evidence before him. The judgment is sketchy in character and it is much to be regretted that a Court of first appeal, whose finding of fact is final and binding on a Court of second appeal, should have performed this duty in such manner. , The Court of first appeal ought to be alive to the fact that its pronouncements on questions of fact are foi all purposes final and it is only on well recognised principles that they could be upset. The judgment under appeal does not inspire that confidence. The sale deed covered by mutation No. 1396 consists of the following four items :‑

The learned Additional District Judge has reproduced the reasons which prevailed with the learned Senior Civil Judge in holding that these items stand proved. On the first item the trial Judge had found that some land of Ali Bahadur was under a previous mortgage with Khushal Khan and the appellants before me had purchased those mortgagee rights which is evidenced by mutation No. 1341 (Exh. D. 5). He found that this debt was incurred by Ali Bahadur and had not been proved to have been contracted by the widows, and on that finding fie held the aforesaid debt to be for valid necessity. With respect to item (b), the learned Senior Civil Judge found that the bond dated the 19th of February 1948 (Exh. D. 4) shows that the widows borrowed a sum of Rs. 300 from the appellants for meeting the expenses of a civil suit brought by the plaintiff‑respondent against them. Judgments Exhs. D. 1 and D. 2 in the previous litigation have been placed on the record which show that from the end of 1945 to May 1949 this protracted litigation had gone on. He found, and the learned Additional District Judge has concurred in that finding, that this item was for necessity. With respect to item (c), the learned trial Judge had found that the bond (Exh. D. 6) dated the 18th of March 1949 executed by the widows in favour of Abdul Ghani was for the purposes of celebrating the marriage of the daughters of Ali Bahadur which had taken place during those days. Abdul Ghani, the creditor, had ‑gone into the witness‑box to depose that the money was advanced by him and was paid when the impugned sale was effected, and he made an endorsement on the back of Exh. D. 6 to the effect that the liability has been discharg ed. With respect to item (d) the statement before the learned trial Judge was that the plaintiff‑respondent's father had forcibly taken possession of the entire land in the possession of the widows and he was even convicted for trespass and this sum of money was borrowed by the widows in order to maintain themselves as they had no other source of income. In these circumstances, the learned Senior Civil Judge came to the conclusion that the neces sity for this debt also had been sufficiently proved. After stating these facts, the learned Additional District Judge ought to have focused his attention on each item and the evidence on which the conclusions bad been recorded and the reasons assigned by the trial Court. He has, however, done nothing of the kind, and by a judgment in which all facts are mixed up and no attempt appears to have been made to sift the evidence, he is content to make an observation with respect to item (c) that "There is no cogent evidence worth acting upon to prove that the marriages were at all celebrated or that anything was needed to be spent on any marriage or was actually spent. Thus the necessity to the extent of this sum of Rs. 1,000 is all a bogus affair" and then he goes on to say : "No marriage of any daughter of the widows was going to be actually celebrated. The widows had no powers to anticipate the future needs and to sell away the properties of which they were only limited owners till death or re‑marriage." With this criticism he disposed of the aforesaid item and declared that the alienation to the extent of Rs. 1,000 was without necessity. It is to be regretted that the evidence of Fazal khan, plaintiff's own witness, has been completely ignored by the learned Additional District Judge. He had made a statement that the daughters of Ali Bahadur were wedded some four years ago and their marriages were celebrated by the widows. In the face of this evidence, the learned Additional District Judge had to make a little effort to discover the cogent evidence and such a mistake was not possible if any sifting of the evidence had been done by him. No sanctity attaches to a finding which is in utter disregard of the evidence B in the case and it is difficult to hold in the face of that evidence that no marriage was at all celebrated and that for a marriage of daughters no expenses are needed or because they happen to be widows they ought not to celebrate the marriage of their daughters. I am constrained, therefore, to upset this finding which otherwise, as a Court of second appeal, I would have been precluded to interfere.

5. With respect to the item of Rs. 250 above, the learned Additional District Judge was content with the observation that the widows could not have anticipated future needs and they could not sell the properties of which they were not owners. The learn ed trial Judge upheld it on the ground that the. plaintiff‑respon dent's father had put the widows out of the entire property of which they were in possession and was tried for trespass and even convicted. When widows with four daughters are faced with starvation they have to anticipate nothing. The grim need has its own logic and its own way of working. This again indicates no attempt to get to grips with the issues involved, and I am cons trained even there, in disagreement with the learned Additional District Judge and in agreement with the learned trial Judge, to uphold the latter's finding that the necessity for this amount also has been established. The learned Additional District Judge refers to the previous litigation in which the plaintiff‑respondent and his father tried to usurp the entire property and becomes critical of this fact for recording a finding that the present alienees also are playing the game which previously the plaintiff's father had set himself on. I have not discovered the result which apparently a critical examination by the learned Additional District Judge had produced. This is purely a surmise, and a surmise is a slender foundation for recording a conclusion. In disagreement with the learned Additional District Judge and in agreement with the trial Judge, I hold that the appellants had established that the sale in their favour was with consideration anti for necessity.

6. For the reasons given above, I accept the appeal, set aside the decree of the learned Additional District Judge and restore that of the trial Judge declaring that the aforesaid alienation was valid for legal necessity. The suit of the plaintiff‑respondent with respect to this item of the property stands dismissed with costs throughout.

7. Mr. Ziaullah, Advocate, appears to be the counsel for the respondents on the record. I waited for him for the whole of the day and sent for him several times, but he did not turn up. The proceedings are, therefore, ex parte against the respondents.

K. B. A./A. H. Appeal accepted.

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