' SYED HAMID ALI SHAH, J.---Allah Rakha son of Shera, predecessor-ininterest of plaintiffs/respondents, through a pre-emption decree dated 26-1-1933 became the owner of land measuring 43 Kanals and 7 Malras with appurtenant Shamilat. The possession of the property was delivered on 3-5-1935 as per Report No,253, which was entered in Roznamcha. Mutation No,234 dated 31-9-1935 was sanctioned on the basis of decree. Shamilaf in the village Daggar Kotli were partitioned in view whereof 909 Kanals were held entitlement of lands, measuring 47 Kanals and 7 Marlas, comprising of Khata Nos.232/208 and Khatoni Nos .693 to 718. Ghulam Hussain, predecessor of the appellants/ defendants succeedd in getting a new Khata No,37/528 in the course of partitioning of Shamilat, resultantly 7502 Kanals, 2 Marlas was included in new Khata of which, land of plaintiffs/respondents predecessor measuring 909 Kanals and 47 Kanals, 7 Marlas of Adna Malkiat, was also included. Mutation No,234 dated 31-9-1935 was reviewed on 23-3-1941 with the result that land of fallen to the share of the Allah Rakha was included in Khata of Ghulam Hussain.
Allah Rakha instituted suit with regard to land measuring 909 Kanals out of Khata Nos.232/208/37, which was decreed in his favour on 31-10-1942. The matter attained finality on dismissal of first appeal on 8-6-1943 and dismissal of 2nd appeal on 16-11-1943. Ghulam Hussain, in order to defeat decree, transferred specific numbers to his son Muhammad Afzal and others.
2. The plaintiff instituted suit praying therein that defendants/appellants be restrained from interfering in the possession of their joint Khata till partition. The suit was contested and defendants Nos.1 to 15 filed joint written statement, wherein the assertions made in the plaint were controverted. Learned trial Court framed as many as ten issues, out of divergent pleadings of the parties. Learned trial Court recorded evidence of the parties. Four witnesses entered into the witness box from the plaintiff's side and 28 documents were produced as Exh.P.1 to Exh.P.28. The evidence from the other side was comprising of D.W.1 to D.W.6, besides production of Exh.D/1 to Exh.D/16. Parties were heard at length and thereafter the learned trial Court passed judgment dated 13-12-1972 whereby issues Nos.6 and 7 was discussed together and decided in favour of the respondents/plaintiffs. Issues Nos.1, 2, 4, 5 and 8 were discussed jointly and decided in favour of plaintiffs/respondents. While deciding Issue No,9, Mst. Saddan was held not entitled to the benefit of section 41 of Transfer of Property Act. Issue No,3 was not pressed. The suit of the plaintiffs was decreed holding plaintiffs co-shares to extent of 4545/37538 share along with appellants and also to the extent of 909/7502 share in land measuring 909 Kanals i.e, 70 Kanals 5 Marlas. The appellants were further restrained from interfering in the possession till partition of land. Issue No,9- A was decided subsequently on 26-10-1978, after remand from appellate Court. Learned Court has held while deciding Issue No,9-A that defendants were not in adverse possession of the property.
Judgment and decree dated 13-12-1972 was challenged in appeal, which met the fate of dismissal on 20-12-1986. Lower appellate Court upheld the decision of the trial Court. Defendants have now assailed concurrent findings of two Courts below, through this second appeal.
3. Learned counsel for the appellants has contended that suit was not liable to be decreed as only one son, of Ghulam Hussain was made a party and other three sons were not impleaded as party.
The entitlement of appellants was to the extent of 1/4th and they were not entitled to 3/4 of the suit property. The sights of the appellants were protected under section 41 of the Transfer of Property Act and by not extending benefit of section 41, Courts below have fallen to error. It has been argued that issues have been decided jointly, while as per requirement of law each issue was to be decided separately. Impugned judgments are passed ignoring material evidence. It was submitted that the respondents were not in possession and objection as to limitation was not properly attended. It was lastly contended that question of joint possession of co-sharers, was determining without producing the Inquiry Officer.
4. Learned counsel for the respondents has stood behind the decree, fully supported it and has submitted that Court has decided all issues after considering whole evidence; that concurrent findings are not open to challenge, that no error has been committed and that the impugned judgments do not suffer from any illegality. The suit was originally filed against all the defendants, some of whom were deleted by the order of the Court.
5. Heard learned counsel for the parties and record perused.
6. Suit-land was originally owned by Ghulam Hussain son of Dildar, which devolved upon his son, on his death through mutation of inheritance (Exh.D.26). Mst. Saddan received entire property from Khudda Baldish in lieu of her claim of dower, through mutations Exh.D.1 and Exh.D.8. The suit decreed in favour of respondents vide decree dated 30-10-1942. The decree was challenged in appeal. Learned appellate Court in its decision vide Exh.P.14 (which was affirmed by the High Court) had observed that land comprising of Khasra No,37/578 to 596, fell to the share of Ghulam Hussain, which included 909 Kanals of Shamilat of Khewat land which covered an area of 43 Kanals and 7 Marlas (suit-land). Allah Rakha has entered in suit-land as owner of land being a co-sharer in Khata Nos.208/636/556, which was previously Khata Nos.37/578/596 the land was shown "{{URDU TEXT}} " and Ghulam Hussain and Allah Rakha were owner in this particular Khata. While passing the impugned judgments and decrees learned Courts, took into consideration findings of appellate Court (Exh. P. 14), warrant Dakhal as consequences of decree and relevant entries in the Revenue Record and then reached the conclusion that respondents were in join possession of the suit property. Concurrent findings of Courts below are based on proper appreciation of the evidence and in line with the judgment passed earlier, with regard to the suit property.
7. Learned Courts below have rightly decided that Saddan being wife of Khudda Bakhsh was transferred disputed land in lieu of her claim of dower. Transfer of land by husband of wife against the claim of dower, without showing amount of dower, make the transaction doubtful. It was observed that nothing was brought on record as to amount of dower debt for which entire property was transferred. A very valuable property cannot be transferred in the normal circumstances against a dower debt. Transaction apparently was unconscientious and requires a purchaser to go to the root of transaction and see whether it was genuine transaction. A person who claims benefit under section 41 of the Transfer of Property Act has to show that he has undertaken a proper inquiry regarding the genuineness of the title of the vendor. The element of proper inquiry was missing and Courts were right in not extending benefit g under section 41 of the Transfer of Property Act to the appellants. A transaction which has been made to defeat the decree or deprive the decree-holder of fruits of the decree is not a valid transaction. The other question which the appellants has raised for first time at stage of second appeal, cannot be entertained.
8. Additionally, the scope of second appeal is not very vast. As per provisions of section 100 of C.P.C., it is restricted to the case where the decision is contrary to law or usage, the material issues of law or usage having the force of law have not been determined or where there is substantial C error or defect in the procedure. Section 101 of C.P.C. Is coached with negative covenant. This provision of law provides that no second appeal lies except on the grounds mentioned in section 100. The appellant has failed to bring his case within the ambit of sections 100 and 101 of C.P.C. The Court cannot interfere in the second appeal solely on the ground that on appraisal of evidence there is possibility of other view. Fallacy in appraisal of evidence does not justify interference in second appeal.
9. For the foregoing, I find no illegality or infirmity in the impugned judgments therefore not persuaded to interfere in the exercise of appellate jurisdiction. The appeal is without any merit and is accordingly dismissed with no order as to costs.