P L D 1978 Lahore 994 (PLP)

S. 100 --Question of fact-Question whether or not sales in dispute made for legal necessity-Purely question of fact-Not open for determination in second appeal..-[Question of fact-Second appeal-Legal necessity]. Ch. M. Z. Khalil for Appellant. Ilam-i-Hassan for Respondent. Date of hearing : 24th November 1976. This appeal is directed against the judgment and decree dated 12-4-1958 passed by the learned Additional District Judge, whereby he endorsed the findings of the trial Court and dismissed the appeal with a modification than the alienation would not affect the reversionary rights of the plaintiff respondent to the extent of 1/3 share of the suit land after the death of the alienor. . 2. The brief facts as stated are that Muhammad Yar, the father of the plaintiff respondent Mukhtar Ahmad, was the owner of the land in dispute He had sold the land in the year 1952 to Muhammad Nazar Abbas and Muhammad Iqbal Hussain through two separate sale deeds. The sales were pre-empted by Islam, the appellant. Having realised that a decree for possession had been granted in favour of the appellant, Mukhtar Ahmad the son of Muhammad Yar filed two separate suits for declaration challenging the sales under Customary Law on the ground of being without consideration and legal necessity. Since the questions of facts and law involved in both the suits were identical, the trial Court consequently consolidated both the suits and delivered one judgment for both of them. The trial Judge in hi; judgment found that 1/3 of the property was ancestral whereas the 2/3 of it was his self-acquired property therefore the suits to that extent were dismissed. The payment of consolidation was held proved but existence of legal necessity was not found in the sales.' Consequently, the suits were decreed for 1 / 3 of the land in. dispute. On an appeal made to the learned Additional District Judge the pleas raised by the appellant did not find favour and the decree was maintained with a variation as indicated above. 3. The learned Additional District Judge found that Muhammad Yar, the alienor, was governed by custom and that 1/3 of the property was ancestral qua the plaintiff-respondent whereas the remaining 2/3 was his self-acquired property. The finding of the trial Court was affirmed on the question of payment of consideration and legal necessity. Consequently, the appea1was dismissed with a variation that the alienation would not have any effect on his reversionary rights to the extent of 1/3 share of the suit land after the death of Muhammad Yar, the alienor. 4. The learned counsel for the appellant contended that the findings of both the Courts below were based on misreading of evidence and conclusions of fact were, therefore, not final. In this behalf, the learned counsel had cited various authorities dealing with the question of misreading. It is a decided principle that finding of fact arrived at by misrepresentation of facts and misreading of evidence is not binding on the High Court. On the question whether there had been a misreading, the learned counsel referred to statements of various witnesses and contended that the Courts below have failed to arrive at a conclusion against the respondent-plaintiff. The misreading would mean if there was evidence and the Court held that there was no evidence and the Court would hold that there was evidence. If the Court bad considered each piece of evidence and arrived at a conclusion of its own, it would not amount to an error of law, however erroneous the conclusions may be. While determining the ancestral character of the land, the learned Additional District Judge had considered the relevant record from the year 1924 up to date. Different jamabandis and the mutations gave a complete history of how the land was acquired by Muhammad Yar, the original owner. It was found that on the death of Mehr Azam, Muhammad Yar inherited 1/4 share and the remaining 3/4 went to his other three brothers. In the meantime, two of the brothers had sold the land to Muhammad Yar and for that reason he became an owner of 3/4 share of the entire property left by his father Mehr Azam. Oral evidence was also examined and the plaintiff respondent tried to show that the two shares coming to Muhammad Yar were obtained through exchange. This version was repelled and it was held that acquisition was under a sale and for that reason 2/3 portion of the land was the self-acquired property of Muhammad Yar. In this respect, I do not think that the learned Additional District Judge had in any way misread any piece of evidence. It is also not a case where the learned Additional District Judge had in any way misconstrued the documents or misappreciated evidence. In the circumstances, I am constrained to endorse the view of the Courts below that 1/3 of that property alienated by Muhammad Yar was ancestral qua the plaintiff-respondent. The question whether or not the sales in dispute were for legal necessity is purely of fact and has been determined by both the Courts against the appellant. In the circumstances, the net result would be that the plaintiff-respondent was entitled to a decree to the extent of 1/3 share only. The decree granted by the trial Court that the plaintiff would be entitled to possession of 1/3 of the suit land on the death of the alienor was considered by the learned Additional District Judge to be ambiguous. The reason given by him was that by the decree passed by the trial Court the rights of the female heirs, if any, would be affected. Therefore, he had rightly amended the decree with a declaration that the alienation would not affect the reversionary rights of the plaintiff to the extent of 1/3 share of the suit land after the death of the alienor. The amendment in the law is not questioned by the appellant. For the reasons aforementioned there is no force in the appeal and the same is, therefore, dismissed with no order as to costs. S. A. H.?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.