Mst. ALI BEGUM And Others vs SABIR HUSSAIN And 13 Other
This petition for leave to appeal arises out of a civil suit for possession of land originally belonging to a common ancestor, Abbas Khan, who died in 1920. The primary legal question considered by the lower forums was whether the deceased was a Shia by faith, which would determine inheritance shares and whether his daughter was the sole heir. The trial court and district judge concurrently held that the deceased was a Shia and dismissed the collateral's suit, but the High Court reversed these concurrent findings in a second appeal. The petitioners contended before the Supreme Court that the High Court erred in interfering with concurrent findings of fact in second appeal. The Supreme Court granted leave to appeal to consider this question, holding that the point raised merits detailed consideration, and directed that the appeal be heard on the existing record with liberty to file additional documents.
- Can concurrent findings of fact recorded by the courts below be called in question in a Second Appeal if they are erroneous?
- Whether the High Court can reverse concurrent findings of fact in second appeal under the applicable procedural law?
ORDER
1. ABDUL KADIR SHAIKH, J.---This petition for leave to appeal from the judgment of Lahore High Court, Rawalpindi Bench, arises out of a suit filed by respondents 1 and 2 against petitioners for possession of suit-land which originally belonged to the common ancestor Abbas Khan who died on 1-2-1920. The deceased left surviving his widow Mst. Dewan Bi and his daughter Mst. Ali Begum.
2. The land was mutated in favour of his widow list. Dewan Bi who died on 6-1-1965, but during her life time she made a gift of land in favour of petitioners, her grandsons (children of Mst. Ali Begum).
3. Respondents 1 and 2 collaterals of the deceased Abbas Khan filed a suit claiming three-eighth share of the estate, and the main question that arose for consideration was whether Abbas Khan deceased was a Shia by faith and thus Mst. Ali Begum was the sole heir.
4. Learned trial Judge held that Abbas Khan deceased was a Shia and dismissed the suit and the learned District Judge on appeal upheld this finding but the High Court on a second appeal reversed the finding of the two Courts below and dismissed the suit.
5. Mr. Bashir Ahmad Ansari, learned counsel for the petitioners, inter alia, submits with reference to Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38 and other cases that High Court failed to appreciate that the concurrent findings of fact cannot be called in question in a Second Appeal even if the same are erroneous.
6. The aforesaid point, amongst others deserves consideration. We, therefore, grant leave to appeal and allow the petition. Security Rs.5,000.
7. Appeal will be heard on the present record but it is open to the parties to file additional documents, if any.