MUHAMMAD SHARIF vs SHER MUHAMMAD
This petition for leave to appeal arises out of a property dispute concerning a house in Sheikhupura, where the respondent filed a declaratory suit claiming to be the real owner and alleging that the petitioner, his brother-in-law who purchased the property in 1946, was merely a 'benamidar'. The trial court and the first appellate court concurrently dismissed the respondent's suit, finding that the petitioner was not a benamidar. However, a learned Single Judge of the High Court accepted the respondent's second appeal, set aside the concurrent findings, and granted the declaration. The petitioner sought leave to appeal before the Supreme Court, contending that the question of ownership and benami transaction was one of fact and that the High Court erred by interfering with concurrent factual findings and misreading the record regarding the production of the original sale-deed. The Supreme Court held that the contentions required examination and granted leave to appeal, directing security for costs and preparation of the appeal.
- Whether the question of whether a person is a benamidar is a question of fact?
- Is it open to the High Court in second appeal to interfere with concurrent findings of fact by subordinate courts?
- Does the misreading of the record by the High Court regarding the production of the original sale-deed warrant the grant of leave to appeal?
ORDER
' SAAD SAOOD JAN, J.--The dispute between the parties in this petition relates to a house situate in Sheikhupura. The petitioner is the brother-in-law of the respondent. The house was purchased by the petitioner in 1946 prior to Independence. However, it remained in the occupation of the respondent. On 22-7-71, the respondent filed a suit for seeking a declaration to the effect that he was the owner of the house as it had in fact been purchased by him and that the petitioner was merely a 'benamidar'. The suit was dismissed by the trial Court inter alia on the basis of finding that the petitioner was not a 'benamidar'. The respondent filed an appeal before the Additional District Judge who affirmed the findings of the trial Court and dismissed the appeal. The respondent then filed a second appeal in the High Court. A learned Single Judge accepted the appeal, set aside the finding of the subordinate Courts and granted the declaration sought by the respondent. The petitioner seeks leave to appeal from the order of the learned Single Judge.
2. In support of this petition it is contended that the question whether the petitioner was not the real owner but only a 'benamidar' was one of fact and it was not open to,the High Court in second appeal to interfere with the concurrent finding of the subordinate Courts. It is also pointed out that the High Court misread the record when it held that the original sale-deed had been produced at the trial by the respondent.
3. The contention raised on behalf of the petitioner needs examination. Leave to appeal is granted.
Security for costs in the sum of Rs,5,000. The appeal may be made ready for hearing on the present record with direction to the parties to file additional documents, if any, within two months. The original record of the trial Court be also summoned.