1980 PLP 675 (SCMR)

(5) Whether the sale in question was for consideration and legal necessity? (6) Whether the suit is barred under the provisions of Muslim Per sonal (Shariat) Application Act of 1962 as amended uptodate? (7) Whether the sale price includes a mortgage debt of Rs. 3500 If so, what is its effect? After recording the evidence of the parties, which they wished to adduce before him, the learned trial Judge, vide his judgment, dated 28th November, 1.976, dismissed the suit holding that Hussain Bakhsh had sold the suit land to Muhammad Khan for valid consideration, as well as owing to legal necessity. In appeal filed by him before the learned District Judge, Sialkot, late Ahmad Din failed to get the judgment of the trial Court reversed, therefore, he went in second appeal to the High Court, and a learned Single Judge vide his judgment dated 17th May, 1977, allowed the same; consequently set aside the concurrent findings recorded by the two Courts below, and decreed his suit. Leave to appeal was granted to the appellants on 14th September, 1977 to consider the following contentions: ‑ "It was argued before us with considerable force that the learned Judge in Chambers, in accepting the appeal of the plaintiff did not even expressly (advert to these findings concurrently 'recorded by the two Courts below and was influenced by his own conclusion to the effect that the recitals in the title deed or an assertion made by the vendor to the vendee could not be relied upon for the purpose of proving legal necessity for the sale in the instant case and that the vendee did not appear to have made any bona fide enquiry about the necessity for the sale." Just as in the High Court, the learned counsel for the parties have confined their arguments only to issue No.

5. The grievance of the learned counsel for the appellants is that the concurrent finding recorded by the trial Court, as well as the Court of the District Judge, on the said issue being purely a finding of fact could not competently be upset in second appeal under section 100 of the Code of Civil Procedure‑specially when the High Court also disregarded the substantial material evidence in support of the said finding. Now by going through the judgment of the High Court, it has been noticed that the concurrent finding recorded by the two Courts below to the effect that the sale of land by Hussain Bakhsh in favour of Muhammad Khan was for valid consideration had been implicitly endorsed. But on the question whether the sale was for legal necessity, the High Court disagreed and in that b‑.half relied on a number of judgments: ‑ (1) Lala Atma Ram v. Thakur Sadhu Singh A I R 1938 P C 77. (2) Ghulam Muhammad v. Ghulam Riasat Ali P L D 1954 F C 270. (3) Riaz Ahmad Javaid v. Pirthl Raj P L D 1955 Lah. 567. (4) Ghulam Muhammad v. Ghulam Muhammad P L D 1949 Lah. 384. and (5) Muhammad Chiragh v. Fatta etc. A I R 1934 Lah. 452 in all of which the principle of law laid down is that any person dealing with an agriculturist, governed by the Customary Law, is presumed to know that his powers of alienation are limited and that the alienation could not be made without some necessary purpose, therefore, it would be the duty of the intending alienee to satisfy himself that the ancestral property was going to be transferred from some valid object recognised by the Customary Law. This would necessitate some sort of an honest enquiry. The nature and scope of the enquiry however, would differ with circumstances of each case. The learned counsel for the appellants conceded the correctness of the legal principle laid down in the said judgments. But he contended that there existed on the record of the case substantial evidence to prove that when Muhammad Khan purchased the land from late Hussain Bakhsh he had satisfied himself that the sale was being made for legal necessity as recognised by the Customary Law by which Hussain Bakhsh was governed. In support of his contention the learned counsel first referred to the evidence of late Ahmad Din, the predecessor in‑interest of the respondents, in which be admitted (in cross‑examination) that Hussain Bakhsh, who was previously residing with him, had left his house and had gone to live with his daughters at a place called Bhoor Mandi ; that prior to selling the suit land to Muhammad Khan, Hussain Bakhsh had mortgaged the said land with one Ghulam Muhammad with possession for Rs. 3,500 ; that in order to get the said transaction set aside he had instituted legal proceedings but the same were dismissed ; that before mortgaging the suit land to Ghulam Muhammad, he used to cultivate the same ; and that at the behest of Hussain Bakhsh a case had been registered against him under section 107/151 of the Code of Criminal Procedure. The learned counsel; therefore, argued that in view of the evidence of Ahmad Din himself, late Hussain Bakhsh had been driven to the necessity of selling the suit land to Muhammad Khan, as otherwise he would not have gone over to another village to live with his daughters at the old age of about 80 years, would not have mortgaged his land with Ghulam Muhammad for the sum of Rs. 3.500 evidently to provide himself the basic necessities; and certainly would not have instituted criminal, proceedings against Ahmad Din under section 107/151 of the Code of Criminal Procedure. There seems to be force in the contentions urged by the learned counsel. In this behalf reference may also be made to the evidence of Muhammad Khan (D. W. 5), in which he deposed that before entering into the sale transaction of the suit land, late Hussain Bakhsh had told him that after the sale of the land he intended to purchase another piece of land in the area of Bar in which he intended to sink a tube‑well; that when Hussain Bakhsh was younger and healthy, he used to derive substantial income from the suit land but having grown old he gave the land to Ahma Din for cultivation, who however, paid him no income with the result that Hussain Bakhsh left his house and went over to Bar to live with hi daughters. Now this evidence of Muhammad Khan was not questioned in cross‑examination, and so it cannot be said that before entering into the sale transaction of the suit land he has not satisfied himself that late Hussain Bakhsh was indeed driven to the necessity of selling the same. In point of fact, the evidence of Mahmood Ahmad (P. W. 3), as well as of Ghulam Muhammad (D. W. 1) also supports the said conclusion in some measure. But in the High Court only the evidence of Ghulam Rasool (P. W. 1), Faqir Muhammad (P. W. 2) and Mahmood (P. W. 3) was noted, and on that basis, it was held 'The defendants' evidence about legal necessity is thus not more than a mere recital in the sale‑deed or an assertion by vendor that he was selling it for purchasing other land and sinking a tube well therein. The vendee just relied on it and made no further inquiry. According to the plaintiff's evidence the land in question yielded income sufficient for vendor's maintenance and he need not sell the same. Now by recording the said finding, the High Court evidently failed to analyse the rest of the evidence on record to see if Hussain Bakhsh was really driven to the necessity of selling the suit land. It is true that the quality of evidence tendered by Muhammad Khan may have been wanting in some measure. But it cannot be said that upon the said evidence, which was considered by the trial Court, as well as the Court of the District Judge, the High Court could competently set aside the concurrent finding recorded in favour of the sale transaction entered into between Hussain Bakhsh and Muhammad khan, unless it could be shown that the judgment passed by the learned District Judge was contrary to law or to some usage having the force of law; the judgment had failed to determine some material issue of law ; or that there existed an error or defect in the procedure adopted by him which may possibly have introduced errs or defect in the decision on merits, which however, was not the case. The learned counsel for the respondents, however argued that Hussain Bakhsh had admittedly purchased no land in the area of village Bar, and consequently it cannot be said that he had sold the suit land to Muhammad Khan owing to any necessity as recognised by the Customary Law by which he was governed. The short answer to this submission, however, is that there is no evidence on record that until the year 1966, Hussain Bakhsh had purchased no land in the area of village Bar, and so the said contention is evidently misconceived. The learned counsel next argued that all the four D. Ws. produced by the respondents belonged to a different village, and consequently their evidence ought not to have been relied upon by the trial Court, as well as the Court of the learned District Judge. Quite apart from the fact that the said contention is misconceived, the trial Court, which had the benefit of seeing the demeanour of the said witnesses believed them, the said contention cannot be reopened in the present proceedings. We are, therefore, satisfied that the impugned judgment of the High Court cannot be sustained; the same is accordingly set aside with the result that this appeal is allowed, but under the circumstances the parties would bear their own costs. Appeal dismissed