P L D 1975 Lahore 101 (PLP)

Briefly summarised the facts giving rise to this second appeal are these. The plaintiffs filed a suit against the defendants for a declaration to the effect that the sale of land by defendants Nos. 1 to 3 in favour of defendant No. 4 and Muhammad, the predecessor-in-interest of defendants Nos. 5 to 13, as per mutation No. 875 attested on the 21st of July 1953, is without consideration and legal necessity and against law and custom and is, therefore, ineffective and inoperative against the reversionary rights of the plaintiffs after the death of the alienors. The suit was resisted by the vendees. Rab Nawaz (defendant No. 6) died during the pendency of the suit. The trial Court decreed the suit. An appeal was carried to the Additional District Judge, who has found that necessity to the extent of sale of the share by defendant No. 3 stands proved. He has accordingly allowed the appeal and modified the decree to the extent that the sale of land made by defendants Nos. 1 and 2 only shall not affect the reversionary rights of the plaintiffs after the death of the said two alienors and the suit shall stand dismissed in respect of the share sold by defendant No.

3. Feeling aggrieved, the alienees have come up in second appeal.

2. The only point argued is with respect to legal necessity, which is contended to be a question of law. It has been argued that the legal neces sity as mentioned in the written statement comprises three items, namely, (f) marriage of Noor Muhammad vendor, (ii) Zawwari of Muhammad Nawaz, and (iii) construction of houses. Out of these three items of necessity, Zawwari of Muhammad Nawaz and construction of houses have been held to be not proved. However, the necessity in respect of the marriage of Noor Muhammad has been accepted and the suit dismissed qua sale of his share. As regards the two other necessities, which have not been accepted as proved, the arguments are confined to the Zawwari of Muhammad Nawaz. The criticism levelled is that in this respect all that the alienees had to do was to enquire about the nature of necessity explained at the time of sale and to satisfy themselves as to its genuineness and legality but they were under no obligation to establish that the amount received by the alienors was actually spent on the ostensible necessities stated at the time of sale. According to learned counsel, if subsequently the amount is not applied by the alienors for the purpose the land was sold, the alienees are not to suffer. Raj Kumar v. Mukand Lal A I R 1935 Lah. 344 has been relied on.

3. Their Lordships of the Judicial Committee while dealing with the question in Lala Atma Ram v. Thakur Sadhu Singh and another A I R 1938 P C 77 observed at pages 79 and 80 of the report:- "Now, it is a well-established rule that the onus lies on the alienee to prove either that there was legal necessity in fact which would justify the alienation, or that he made a proper and bona fide enquiry into the alleged necessity and satisfied himself as to the existence of such necessity. If he fails to prove that there was a necessity in fact, aliention may still be upheld if he proves that he made enquiry as to the existence of the alleged necessity, and that the facts represented to him were such as, if true, would have justified the transaction. If he discharges this burden, he is not bound to see that the money paid by him is actually applied by the alienor to meet the necessity." The finding of the Court below is that the alienees have failed to prove that the enquiry contemplated by law was made by them, as is evident from the statement of Amir (D. W. 5), one of the alienees, as his own witness. He has not mentioned Zawwari of Muhammad Nawaz as one of the necessities mentioned by the alienors at the time of enquiry made by the alienees. In the circumstances I do not feel persuaded to differ from the conclusion arrived at by the learned Additional District Judge on the question of necessity, which finding, although a question of law, is not shown to be in any manner infirm on the legal plane. The appeal fails and) is dismissed. There will be no order as to costs. K. B. A. Appeal dismissed.