1981 PLP 492 (SCMR)

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on- Record for Petitioners. Nemo for Respondents. Date of hearing: 15th March, 1981. NASIM HASAN SHAH, J.-This petition is directed against the judgment dated 8-7-1980 passed by a learned Single Judge of the Lahore High Court in R. S. A. No. 609 of 1966. The relevant facts are that the respondents filed a suit for possession through pre-emption of land measuring about 8 kanals situate in village Chak Qada, Tehsil Chakwal, District Jhelum on the plea that respondent No. 2 had sold the land in favour of Ghazan, now deceased, and represented by his legal representatives (the petitioners herein) for a sum of Rs. 1,300, and that the respondents had superior right of pre-emption. The case of the petitioners, on the other hand, was that the transaction was not a sale, but respondent No. 2 had made a gift of the suit land in favour of the aforesaid Ghazan by a registered deed of gift dated 14-1-1964. The crucial question was, therefore, whether the impugned alienation is a sale or a gift? The trial Court found the same in favour of the respondents holding that it was a sale and decreed their suit on 11-2-1966. On first appeal by the predecessors -in-interest of the petitioners, the judgment and decree dated 11-2-1966 was set aside and the suit of the respondents dismissed. The respondents, therefore, took up the matter in a regular second appeal which was accepted by a learned Single Judge of the Lahore High Court by his judgment dated 8-7-1980. Hence this petition for leave to appeal. Mr. Bashir Ahmad Ansari in support of this petition, has submitted that the respondents had produced four witnesses in support of their case, P. W. 2 (Sumandar Khan) and P. W. 3 (Warts Ali) out of the said four witnesses these two alone were the witnesses of the transaction which they alleged was a sale and that the consideration had passed in their presence. However, both these witnesses were disbelieved by the trial Court and the first appellate Court. In decreeing their suit, the trial Court had relied upon only circumstantial evidence. However, the High Court while restoring the order of the learned trial Judge had also relied on the aforesaid two witnesses although they had been found to be unreliable by both the Courts below, Before us it was contended firstly, that in second appeal, the High Court could not have interfered with the concurrent finding of fact that those two witnesses were unreliable and second, the question whether the nature of the transaction is different from what it is stated to be in the deed itself is a question of fact; the learned District Judge having given a finding of fact that the transaction was, indeed, a gift the High Court in the second appeal could not have interfered with such a finding of fact in view of the provisions of sections 100 and 101 of the Civil Procedure Code. Reliance was placed on Abdul Majid and others v. Khalil Ahmad (1), in support of this contention. We have fully considered the submission made before us and have also carefully perused the judgment of the learned Judge in the High Court, The perusal of the said judgment shows that the learned District Judge had overlooked several relevant circumstances which were apparent on the record, while arriving at the conclusion that the transaction was, a gift and not a sale. The consideration of these circumstances would have established that the transaction was, in fact, a sale. The finding of fact arrived at by the learned District Judge, in these circumstances, was, therefore, vitiated as no heed was paid by the learned District Judge to the large number of circumstances that have been noticed in the judgment of the High Court appearing from the evidence on the record. In these circum stances, interference by the High Court in second appeal was not illegal. This petition, therefore, cannot succeed and is dismissed hereby. Petition dismissed.