ABDUR RAHIM and anothers vs Mst. ROOH AFZA and 6 others
The petitioners sought leave to appeal against an order of the Peshawar High Court which remanded a civil suit back to the trial court for a fresh decision. The original suit was filed by the petitioners' predecessor-in-interest, claiming her Sharia share in land inherited from her father, Kabirullah, which had been alienated by her brothers to the defendants-vendees without her consent. The trial court and the district court had initially decreed the suit in favor of the plaintiff. However, the High Court set aside these judgments, suggesting the vendees were bona fide purchasers without notice. The petitioners contended that the defendants never denied the plaintiff's lineage or her entitlement to a 1/3rd share of the property, making the alienation by the brothers legally ineffective. The Supreme Court found that the contentions raised regarding the evidence on record and the status of the vendees required further consideration. Consequently, the Court granted leave to appeal, allowing the trial court proceedings to continue but prohibiting a final order until the appeal is decided.
- Can a property alienation by brothers be held valid if it infringes upon the Sharia share of their sisters?
- Does a finding of a 'bona fide purchaser without notice' require a re-evaluation of evidence regarding the plaintiff's established lineage and share?
- Is a trial court permitted to proceed with a case while an appeal against a remand order is pending before the Supreme Court?
ORDER
' MANZOOR HUSSAIN SIAL, J.---The petitioners seek leave to appeal against order dated 19-7-1994 of the Peshawar High Court passed in Civil Revision No,170 of 1992.
2. The petitioners predecessor-in-interest namely Mst. Mehboob Jan instituted suit for declaration against the defendants-vendees to the effect that she along with her sister Mst. Maryam being daughters of Kabirullah were entitled to their Sharia share in the disputed land along with their brothers/namely Ihadimullah and Sarbaland. The alienation of the aforementioned land made by them in favor of the vendees-defendants was illegal and ineffective qua their rights in the suit property.
3. The suit was contested by the vendees-defendants but was decreed by the learned Trial Court on 16-10-1989. The contesting defendants challenged the judgment and decree of the learned Trial Judge in appeal but the same was dismissed on 15-4-1992 by the learned District Judge, Mansoura.
4. Aggrieved by the aforementioned judgment and decree of the learned lower Courts they filed Revision Petition No,170 of 1992 in the Peshawar High Court which was allowed vide impugned order dated 19-7-1994 and the case was remanded to the learned Trial Court for fresh decision in accordance with the observations made by the High Court in the impugned order.
5. Learned counsel for petitioners contended that the defendants did not deny the faction of the plaintiff and Mst. Maryam. Bibi being daughters of Kabirullah and sisters of Khadimullah and Saraland. It was argued that the property in dispute to the extent of 1/3rd share devolved on the daughters and could not have been alienated by the brothers in favor of the vendees without their consent. It was further contended that the observations of the learned Single Judge of the Peshawar High Court to the effect that the vendees of the land in the instant case appeared to be bona fide purchasers without notice was untenable and contrary to the evidence on record.
6. The contentions raised by the learned counsel for petitioners in the light of the evidence on record need consideration. Leave to appeal is, therefore, granted in this case.
' The proceedings before the learned Trial Court shall continue but no final order shall be passed pending decision of the appeal.