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Civil Petition for Special Leave to Appeal No. 836 of 1980, decided on 7th April, 1981.
(Against the judgment and order dated 26‑4‑1980 of the Lahore High Court in R.S.A. No. 788 of 1977).
‑‑‑Art. 185(3)‑‑Leave to appeal, grant of‑‑Concurrent finding of fact‑ Supreme Court declined to re‑appraise evidence for reconsidering correctness of concurrent finding of fact and did not permit petitioners to raise legal plea which was not urged before first and second Appellate Courts.
Ch. Mushtaq Ahmad, Advocate Supreme Court and Wajid Hussain, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 7th April, 1981
This petition is directed against the judgment of the High Court, dated 26‑4‑1980 whereby the petitioners' R . S . A . was dismissed.
2. The facts giving rise to this petition, are briefly that Jewan son of Imam Din died in 1971 leaving behind landed property in Village Seroba, Tehsil and District Sialkot. Inheritance was mutated in the name of the petitioners as his heirs on the assumption that he was a Shia by faith. The respondents who claim themselves to be the collaterals of the deceased, filed a suit for possession of 3/8 share of the property left by Jewan, deceased on the ground that he was riot a Shia but was a Sunni by faith. Evidence was produced by both sides. It was held by the learned trial Court that Jewan was Sunni by faith. The suit was accordingly decree on 1‑10‑1974.
3. Aggrieved by the aforesaid judgment and decree the petitioners filed an appeal which was dismissed by the learned District Judge, Sialkot on 24‑10‑1977. The petitioners then filed an R . S . A . But the High Court also concurred with the finding of fact arrived at by the two Courts below to the effect that Jewan was a Sunni by faith.
4. The petitioners have now come up to this Court through the present petition for leave to appeal. The petitioners' counsel submitted that Maqbul Hussain, D.W. 1 had produced a Survey List of Shia living in the locality and also a Register maintained by 'Anjuman Shian' of the area, and that Jewan was shown as a Shia in the aforementioned Survey List as well as the Register. He submitted that this evidence had been wrongly rejected by the Courts below. He submitted further that the evidence produced by Maqbul Husain D.W. 1 was relevant under section 11 of the Evidence Act and had been wrongly rejected by the, learned Courts below.
5. We notice that the petitioners have not raised the last mentioned contention in this form in any of the Courts below, but what was urged before the first and second Appellate Courts was only that the evidence was sufficient to establish that Jewan was Shia. We would, therefore, not permit the petitioners to raise the aforementioned legal plea at this late stage. The question whether Jewan was a Shia or a Sunni at the time of his death is one of fact on which a concurrent finding of fact i.e. that he was a Sunni has been given by the three Courts below. We, therefore, decline to embark on the re‑‑appraisal of the evidence for reconsidering the correctness of the concurrent finding of fact.
The petition is dismissed.
M.I. Petition dismissed.
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