MUHAMMAD HUSSAIN And Another vs ALI GOHAR
This petition for leave to appeal arose from a pre-emption suit filed by the respondent, Ali Gohar, who claimed a superior right of pre-emption over the suit land based on his status as a co-sharer, a participator in amenities and appendages, and an owner of contiguous land. The trial court decreed the suit in favor of the respondent, a decision subsequently upheld by the District Judge and the Peshawar High Court. The primary legal question before the Supreme Court was whether the respondent retained his status as a co-sharer in the suit property despite the petitioner's contention that an official partition had occurred, thereby extinguishing the respondent's superior right. The Supreme Court dismissed the petition, holding that the lower courts had concurrently determined the issue of the respondent's superior right based on a proper appreciation of the evidence. The Court affirmed that the finding regarding the respondent's status as a co-sharer was a finding of fact and that no substantial question of law was presented to warrant interference with the concurrent findings of the courts below.
- Does a finding regarding the status of a pre-emptor as a co-sharer constitute a question of fact?
- Can the Supreme Court interfere with concurrent findings of fact made by lower courts in a pre-emption suit?
ORDER
S.A. NUSRAT, J.--This petition for leave to appeal is from the judgment of the Peshawar High Court, Abbottabad Bench, dated 8-6-1985.
2. The dispute in this case arises out of the proceedings in a suit filed by Ali Gohar who pre-empted a sale on the ground of being a co-sharer and a participator in the amenities and appendages in the suit land as also the owner of land contiguous to the suit land. The plaintiff on such pleas claimed a superior right of pre-emption over the vendee-petitioner.
3. The trial Court framed as many as 10 issues in the suit and decreed it for possession of the suit land through pre-emption on payment of pre-emption amount of Rs.26,285. The issue whether the plaintiff/respondent had a superior right of pre-emption was considered in the light of the evidence brought on the record. The petitioners unsuccessfully appealed against the judgment of the trial Court acid their application for revision also met the same fate in the High Court.
4. We have gone through the impugned judgment as also the judgments of the learned two Courts below. The finding of the trial Court on the disputed issue was confirmed by the learned District Judge and it was held on appreciating the evidence on the record, that the plaintiff/respondent was "undoubtedly a co-sharer in the suit property." The contention of the petitioner, as also raised before us, that in the wake of an official partition the respondent ceased to be a co-sharer in the suit property and for that purpose some additional evidence was also recorded, was duly considered by the learned District Judge and found to be without any substance. It was held that no official partition had taken place and even if airy official partition, as alleged "is presumed to have become conclusive, the respondent remained a co-sharer iii the suit property." In this connection reference was made to certain documents on the record. The learned High Court found, again looked into the evidence and confirmed that the factum of respondent pre-emptor having a superior right stood proved.
5. After hearing the learned counsel and having gone through the impugned judgment and also the judgments of the trial Court and the District Judge, we find that the three Courts have given finding oil the relevant issue oil the basis of evidence which is one of fact, and no question of law arises for consideration. The petition is accordingly dismissed.