MAQSOODA BEGUM and 5 others vs Mst. JAN BEGUM and anothers
This petition for leave to appeal was filed against the judgment of the Lahore High Court, which had dismissed the petitioners' civil revision. The respondent had filed a suit claiming ownership and possession of 1 Kanal of land purchased via a registered sale deed, asserting that the petitioners' predecessor-in-interest had sold land to his wife in excess of his share, making the subsequent mutation ineffective. The trial court decreed the suit in favor of the respondent, which was upheld by the first appellate court and the High Court. Before the Supreme Court, the petitioners contended that the suit was not maintainable because the respondent did not seek cancellation of the underlying sale deed, but only the mutation. The Supreme Court held that since the petitioners failed to raise an issue or press this contention before the trial or first appellate courts, they were estopped from raising it. Finding that the concurrent findings of the three courts below were based on proper evaluation of evidence showing the alienation was beyond the vendor's entitlement, the Court dismissed the petition.
- Can a party raise a plea regarding the non-maintainability of a suit for not seeking cancellation of a sale deed for the first time before the Supreme Court if no such issue was claimed or pressed before the lower courts?
- Whether a sale of land by a co-sharer in excess of their entitlement or share is valid and binding against other purchasers of the same land?
- Whether concurrent findings of fact by three courts below can be interfered with by the Supreme Court in the absence of any misreading or non-reading of evidence?
ORDER
' MANZOOR HUSSAIN SIAL, J.---Leave to appeal is sought by the petitioners against judgment dated 9-10-1994 of the Lahore High Court, Rawalpindi Bench, whereby Civil Revision No,88 of 1989 filed by the petitioners was dismissed.
2. On 14-6-1986, Mst. Jan Begum respondent, instituted suit against Mst. Maqsooda Begum and other heirs of Mirza Khan claiming therein that she had purchased 1 Kanal of land out of Khasra No,1591 from one Muhammad Yousuf and that she was in possession thereof. It was further pleaded by her in the suit that Mirza Khan had sold the land measuring 2 Kanals 13 Marlas out of Khasra No,1591 in favour of his wife Mst. Maqsooda Begum. The vendor was not owner of the land to the extent alienated by him and, therefore, the sale of the suit land made by him was in excess of his share. The Mutation No,3568 dated 29-4-1981 attested in respect to the aforementioned sale was ineffective qua her rights in the suit property.
3. The suit was contested by the petitioners but after perusing evidence on the record led by the parties, the learned trial Court, vide judgment dated 17-11-1987, decreed the suit in favour of the respondent. The petitioners preferred appeal which was dismissed by the First Appellate Court and their revision petition also failed before the Lahore High Court vide impugned judgment, referred to above.
4. Learned counsel for petitioners contended that the respondents did not seek cancellation of the sale deed in respect of the suit property whereby the land in dispute was alienated in favour of petitioner No,
1. The suit for cancellation of Mutation No,3568, dated 29-4-1981 based thereon was not maintainable. Learned counsel for petitioners on a question had to admit that no issue in respect thereto had ever been claimed nor this contention was emphatically pressed into service before the trial Court or the First Appellate Court. The petitioners are, therefore, estopped to raise this point. Mst. Jan Begum had purchased the suit property through registered sale deed and obtained possession thereof as was admitted by Bostan Khan, the real brother of Mirza Khan, in his deposition made before the trial Court. The alienation of the land made by Mirza Khan in favour of Mst. Maqsooda Begum, his wife, was undoubtedly beyond his entitlement; therefore, all the three Courts, after evaluating evidence on the record, held that transaction of little consequence as against the sale transaction of the land in dispute in favour of Mst. Jan Begum. The concurrent findings of all the three Courts recorded in favour of the respondents merit no interference by this Court.
' In our view, this is not fit case for grant of leave to the petitioners in the matter. Consequently, this petition is dismissed and .