' This appeal calls in question the judgment and decree dated 30th July, 1974 passed by the learned District Judge, Jhang.
2. Briefly stated the facts leading to the filing of this appeal are that the appellant instituted a suit in the Court of Civil Judge, Jhang against the respondents for a declaration to the effect that sale of land described in the plaint made vide Sale Deed dated 21st February, 1966 by respondent No, 1, the father of the appellant in favour of the predecessor-in-interest of respondents Nos. 2 to 5 was against custom, without consideration and legal necessity and thus did not affect the reversionary sights of the appellant-plaintiff. The suit was resisted by the respondents. Seven issues were framed on the divergent pleadings of the parties. The relevant issues for the purposes of present controversy are issues Nos. 2 and 7 which read as under :- "2. What is the effect of the previous judgment between the same parties ?
7. Whether the sale of the land in dispute was for consideration and legal necessity ?"
3. The learned trial Court decided the aforementioned two issues in favour of the respondents- defendants and by his judgment dated 9th April, 1973 dismissed the suit of the appellant.
4. Aggrieved by this judgment and decree passed by the trial Court, the appellant preferred an appeal before the District Judge, Rung. The learned District Judge reversed the findings of the trial Court on Issue No, 2, but maintained Abe one on No,
7. As a result he dismissed the appeal by his judgment dated 30th July, 1974: Hence this appeal.
5. The learned counsel for the appellant contended that the finding on Issue No, 7 recorded by the trial Court and confirmed by the first Appellate Court stands vitiated by misreading of the record.
He elaborated his contention by stating that the legal necessity as brought out in the evidence on record was that the sale was effected by respondent No, 1 in favour of the predecessor.In-interest of the other respondents for want of money for marriage of his son. This, he submitted, was contradictory to the recital in the Sale Deed (Copy Exh. D/3) in this regard wherein it was mentioned that the sale was being made for agrarian purposes. He submitted that Exh. D/3 was not at all referred to. Similarly he submitted that the Courts below failed to take into consideration the fact brought on record by production of Exh. P/2 that the son of the respondent/vendor got married in 1971, whereas the sale had been effected in 1916 and as such the marriage having taken place much after the sale, the sale could not be said to have been made for procuring money for marriage of the son of the respondent/vendor.
6. The learned counsel for the respondents was not equipped with the brief on the first date of hearing as the same had been misplaced. On 11th June, 1979 he started his arguments by raising a preliminary objection about the appeal having been filed beyond the period of limitation. He submitted that the appeal was initially filed on 5th November, 1974 when there were only four days left for expiry of the period of 90 days prescribed as limitation period for filing the second appeal.
This appeal, he submitted was not stamped with proper Court fee as only Rs, 30 had been paid, whereas the required Court fee was only Rs, 187.50. The appeal, he further stated, was returned with an objection on 5th November, 1974 to be reined within period of limitation after affixing proper court-fee. He drew my attention to the Memorandum of appeal to show that it was refiled on 7th December, 1974 by which time the appeal had become barred by time by about a month. He argued that not only the appeal was refiled when the period of limitation had expired, but no application even was filed for extension in time for making up the deficiency in court-fee nor even any explanation was given for refiling, it on 7th December, 1974 when the deficient Court fee also had been purchased on 13th November, 1974. He submitted that there was thus no ground available for condonation of delay, even if an application had been made in this ground.
7. As to the merits, the learned counsel for the contesting respondents submitted that there had been no misreading of the record. The trial Court had justifiably recorded the finding on the basis of evidence and material available on the record. He submitted that in any case this is a finding on a point of fact and even if it be assumed that it was erroneous, it cannot be interfered with in a second appeal especially when the same was confirmed by the first Appellate Court.
8. Invoking Order XLI, rule 33, C. P. C. The learned counsel for the respondents submitted that he should be allowed to urge against the findings recorded by the first Appellate Court on issue No, 2 notwithstanding the position that no cross objection had been filed. He submitted that reversal of the finding of the trial Court on this issue by the learned first Appellate Court was not warranted in the circumstances of the case. He relied on Muhammad Tufail v. Elta Shahbir and 5 others (1) P D 1977 SC 220 to contend that principles of res judicial especially Explanation-4 of section 11 applied to the facts of the case and the suit was barred by res judicata.
9. In reply to the preliminary objection raised on behalf of the respondents the learned counsel for the appellant contended that since under the Rules certified copy of trial Court judgment had also to be filed along with appeal the period of limitation should be calculated from the date on which certified copy of the trial Court's judgment was provided and if so done, the appeal filed on 7th December, 1974 was within time.
10. The preliminary objection raised by the learned counsel for the respondents had no force. The judgment in this appeal was delivered by the learned District Judge on 30th July, 1974, copy of this judgment and decree were applied for on 31st July, 1974 these were attested on 12th September, 1974 and obtained by the appellant on the same day. Calculating the period of 90 days by excluding the days spent in obtaining the certified copies of the impugned judgment and decree, the appeal could be filed in this Court upto 11th December, 1974. The appeal having been refiled on 7th December, 1974 was well within time. The preliminary objection being frivolous is rejected.
11. The submission made by the learned counsel for the appellant in respect of the findings of the Courts below on Issue No, 7 does not appeared to have force. It is a well-established principle that findings of factor concurrently arrived at by the Courts below even if erroneous should not be interfered with in a second appeal.
12. Apart altogether from the above position, the findings as arrived at by the Courts below on Issue No, 7 are otherwise also unexceptionable. The issue is divisible into two parts ; one as to whether the sale was for consideration, and the second whether it was for legal necessity. In so far as the first part is concerned, by production of D. Ws. 3, 4 and 5 and one of the respondents appearing as D. W. 6 and production of Exh. D/3 with the endorsement at the back thereof about passing of the major portion of the consideration, viz. Rs, 1,800 before the Sub-Registrar, it stood conclusively established that the sale was effected for valuable consideration. Adverting to the second portion it may be observed that the testimony of D. Ws. 5 and 6 clearly showed that the sale had been effected for legal necessity. It is in evidence of both these witnesses that the vendor Riaz Hussain at the time of sale gave out that he wanted to sell the land because it was not sufficient for his needs and that he wanted the money for marriage of his son. Now omission to mention one of the needs in the sale-deed would not invalidate the transaction on the ground of being without necessity.
There is no denying the fact that the marriage of one son admittedly and according to D. W. 6 of both the sons of the vendor took place subsequent to the sale.
12-A. It may also be mentioned here that while discussing the evidence of the plaintiff's witnesses the testimony of P. W. 4 had been disbelieved by the lower Appellate Court which it was competent to do. The trial Court had also in detail discussed the evidence of the plaintiff as also of defendants and then come to the conclusion that the vendor was in need of selling his land for the purpose of marriage of his son and also because the parcel was not a living holding.
13. Additionally it may be mentioned that if a person sells his land by giving one reason for the legal necessity, but after obtaining the sale proceeds uses it for other necessities which are also legal and proved so, the sale cannot be held to be without legal necessity merely because the C proceeds had not been put to use for the purposes for which it was initially sold. It is not the duty of the purchasers to follow and ensure that the proceeds are put to the same use for which the sale was initially effected. Now it having been established, as found by the two Courts below, that the proceeds had been put to lawful use, the sale in question cannot be said to be without legal necessity.
14. Before parting with the case, it may be observed that the conduct of the appellant denying absolutely the filing of a previous suit which has been established as having been instituted by him by production of Exhs. D/1, D/2 and D/4, also shows his mala fides and the conclusive nature of the suits.
15. In the context of the above position I confirm the findings of both the Courts below on Issue No, 7.
Since the only contention raised by the learned counsel for the appellant has failed, I do not feel called upon to deal with the contention raised by the learned counsel for the respondents in respect of issue No, 2.
16. In view of the foregoing discussion there is no merit in this appeal which is dismissed with costs.