BAHADUR And Another vs SALEH MUHAMMAD
This petition for leave to appeal arises out of a judgment of the Lahore High Court dismissing the petitioners' second appeal in a pre-emption matter. The respondent had instituted a suit for pre-emption on the ground of being an owner in the estate, which was initially dismissed by the trial court. However, the first appellate court decreed the suit based on a concession made by the petitioners' counsel regarding the respondent's status, a position subsequently affirmed in second appeal. Before the Supreme Court, the petitioners contended that an admission of fact by counsel should not override trial court findings based on documentary evidence, and that the principle of sinker should not apply because the purchase involved two independent divisible transactions, with one petitioner also being an owner in the estate. The Supreme Court held that the petitioners' counsel's admission of fact was validly relied upon and that the lower courts' finding of fact regarding the indivisibility of the transaction was supported by the mutation entries. The petition was accordingly dismissed.
- Whether an appellate court can rely on an admission of fact made by a counsel against findings of fact reached by the trial court?
- Does the principle of sinker apply when a transaction of sale is found to be indivisible and the purchase money is paid jointly?
- Can findings of fact regarding the divisibility of a transaction and joint payment be successfully challenged when supported by mutation entries?
ORDER
MUHAMMAD AFZAL ZULLAH, J.--This petition for leave to appeal against judgment, dated 2-3-1981 of the Lahore High Court; whereby petitioners' /vendees' Second Appeal arising out of a pre- emotion decree passed in favour of the respondent, was dismissed.
2. The respondent's suit for pre-emotion on the ground that he was owner in the estate while the petitioners/ vendees had no such qualification, was dismissed by the trial Court. Respondent's appeal before the High Court, however, succeeded on a concession made by the petitioners' counsel that the respondent was an owner in the estate. Same position having been confirmed by the High Court on petitioners' second appeal, they have now sought leave to appeal.
3. Learned counsel has raised two contentions; firstly, that the second Appellate Court should not have accepted the petitioners' counsel's admission on fact as against findings of fact reached by the trial Court on consideration of the documentary evidence; and secondly, that one of the petitioners/ vendees--Bahadar, being himself an owner in the estate, to the extent of his share in the purchase, the suit of the respondent should have been dismissed and the principle of sinker should not have been applied; because the two petitioners had purchased the land in dispute in two independent divisible transactions., 4.Both the questions relate to findings of fact. There is no material on record to show that the petitioners' counsel did not make admission of fact with full responsibility. The same and Mahboob petitioner's admission, having rightly been relied upon by the Appellate Court, there is no justification for interference by this Court on the first ground raised by the learned counsel.
5. On the second point, the finding of the High Court is that the transaction was indivisible and that the amount had also been paid jointly by the two petitioners. On examination of entries in the mutation the observation of the High Court does not seem to be other against any law or principle.
This petition fails and is accordingly dismissed.