ABDUL SALAM AND Others vs NOOR NISA
The petitioners, unsuccessful plaintiffs, sought leave to appeal against a judgment of the Peshawar High Court dated 19-10-1981, which had accepted a civil revision petition, set aside concurrent findings of fact by the two courts below, and dismissed the plaintiffs' pre-emption suit. The dispute arose over a small house purchased by the respondent, in respect of which the petitioners claimed a right of pre-emption as owners of contiguous property. The respondent claimed exemption under Section 5(d) of the N.-W.F.P. Pre-emption Act, asserting she was a resident of Haripur. The trial and appellate courts initially denied the exemption, holding she resided elsewhere, but the High Court reversed this finding upon discovering material misreading and ignoring of evidence regarding her twenty-five-year residence in Haripur. The Supreme Court examined the record and held that revisional interference is justified where there is a manifest misreading or total ignoring of material evidence by fact-finding courts. Consequently, the Supreme Court refused leave to appeal, affirming the High Court's judgment.
- Can revisional powers be exercised by the High Court to set aside concurrent findings of fact based on a misreading of evidence?
- Whether residence of the vendee for a significant duration in the town where the property is situated entitles her to exemption under Section 5(d) of the N.-W.F.P. Pre-emption Act?
- Section 5(d), N.-W.F.P. Pre-emption Act
ORDER
1. SHAFIUR RAHMAN, J.-The petitioners who are the unsuccessful plaintiffs seek leave to appeal against the judgment of the Peshawar High Court dated 19-10-1981 whereby a civil revision petition filed by the respondent was accepted, the concurrent finding of fact recorded by the two Courts below was set aside and the suit of the plaintiff was dismissed.
2. Mst. Noor Nisa purchased a small house in Haripur town by a registered deed. The plaintiffs- petitioners claimed a right of pre-emption in respect of it being the owner of contiguous property and participants in the immunities and appendages. The respondent claimed exemption for the sale under section' 5 (d) of the N: W. F. P. Pre-emption Act. The trial Court and the first appellate Court denied this exemption on the ground that Noor Nisa respondent was not resident of Haripur but resident of a village known as Mehlum.
3. The High Court found and it has not been disputed as a fact that Mst. Noor Nisa was residing with her parents before her marriage at Mehlum but after her marriage and for the last twenty-five years she was residing with her husband in Haripur. This appears on the surface from the evi-- dence recorded in the case. The High Court held that not only there was misreading of evidence but material evidence on the subject bad been to--tally ignored. It was in this background that the concurrent finding re--corded by the two Courts on the question of fact was reversed.
4. It cannot be seriously disputed that where a manifest misreading of evidence on a material point affecting the application of law is involv--ed or material evidence has been altogether ignored, the revisional powers can be appropriately exercised as it would not be proper exercise o jurisdiction possessed by the fact finding Courts. We, on appraisal of the portions omitted or ignored, find that this is abundantly borne out from the record and the interference was called for. Leave to appeal is, therefore refused.
5. S. Q.