M.S.H.QURAISHI, J.-- Leave to appeal is sought from the judgment dated 26-5-1984 of the Lahore High Court, Rawalpindi Bench whereby the decree passed in favour of the petitioners by the Additional District Judge was modified in second appeal of the respondents.
2. The land in dispute measuring 55 Kanals 14 Marlas situate in village Vardag, Tehsil Attock, was owned by Jaffar Khan, predecessor-- in-interest of the petitioners, who appointed his cousin Gulab Khan (predecessor-in-interest of respondents 1 to 8) as his attorney by a registered deed dated 10-10-1957, on the basis of which the latter sold the said land in favour of his own sons for the consideration of Rs.30,000 (including Rs.1,000 mortgage money) by registered sale-deed dated 6- 12-1957. After the death of Jaffar Khan, the petitioners challenged the sale by instituting a suit on 23-9-1960 for declaration and possession and in the alternative for the recovery of Rs.30,000. Their main pleas were that Jaffar Khan had been insane at the the of the execution of the power-of- attorney and the sale-deed and that the sale was without consideration. As the suit was contested, a number of issues were framed but the same were found against the petitioners with the result that their suit was dismissed by the trial Court. The first appellate Court agreed with the trial Court that Jaffar Khan was quite sane at both the times but differed on the other issues. It held that the sale was without consideration inasmuch as the attorney had not paid the money to Jaffar Khan, that no authority to sell was conferred on the attorney and that the sale made by the attorney in favour of his sons was based upon fraud. The appellate Court, therefore, decreed the petitioners' suit.
3. In second appeal, the High Court noticed that the Mukhtarnama contained ample reasons for the sale which were that Jaffar Khan having settled down at Khanewal where he owned valuable canal irrigated lands, was incapable of managing his properties elsewhere and held that the view taken by the first appellate Court that the Mukhtarnama was only to confer managerial powers on the attorney was not justified and that Gulab Khan acted as a legally constituted attorney and was free to make the sale even in favour of his own sons. The High Court saw no reason to differ from the concurrent finding of the Courts below that Jaffar Khan was of sound mind on both the occasions. In this connection, the High Court noticed that at least four sales, made by Jaffar Khan around the same the, of which one was subsequent in the, had been admitted by the petitioners but none had been challenged on the ground of insanity of Jaffar Khan and that besides Gulab Khan, he had appointed his nephew Muhammad Hayat Khan also as attorney for some of the other sales. The High Court, therefore, came to the view that there was no fraud in the execution of the power-of-attorney in favour of Gulab Khan or the sale made by Gulab Khan as attorney. In regard to the payment of consideration, the High Court held that the money had been received by Gulab Khan and if he had not paid it to Jaffar Khan, no consequence could follow against the vendees and that the matter remained between the principal and the agent, the sale itself being in all respects binding on the principal. In the result, the High Court modified the decree to the extent that the petitioners shall be entitled only to the alternative relief of a decree for Rs. 29,000.
4. The grievance of the petitioners, in the first instance, is a legal one, which is that the High Court in second appeal could not re-open the question of fact decided by the first appellate Court. The principle of interference with the finding of fact of the first appellate Court, particularly in a case of judgment of variance, was laid down by this Court in Madan Gopal v. Maran Bepari PLD 1969 SC 617, wherein it was observed: "'... If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is' found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavored in the contrary finding. The finding being at variance with that of the trial Judge, the to will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the to different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
Where the trial Court and the appellate Court differ in their finding on the basis of the same evidence, both findings cannot be correct and, therefore, the High Court, in second appeal, can compare the to findings in order to satisfy itself as to which of the to is in accord with the facts of the case and if the finding reached by the appellate Court is not supported by the evidence on record, the High Court can interfere. A conflicting finding on an issue of fact is not clothed with the same sanctity as is a concurrent one. It is noteworthy that, in the instant case, the High Court has not disturbed the concurrent finding of fact on the question of sanity of Jaffar Khan at the relevant the.
5. Malik Muhammad Jaffar Khan, learned counsel for the petitioners, then emphasized that the fact that the receipt, Exh. D.2, had not been believed by the first appellate Court and the High Court was sufficient to cast doubt on the genuineness of the entire transaction conducted by Gulab Khan including the execution of the power-of --attorney. This, however, cannot be accepted because if Jaffar Khan was sane and capable of understanding his acts at the the of the execution of the power-of-attorney, and there is material to justify the concurrent view on this point, then the genuineness of the power-of-- attorney cannot be doubted. Our attention in this connection was drawn to the proceedings under the Lunacy Act but that proceeding commenced some to months after the execution of the power-of-attorney and had in any case concluded much later, that is, on 28-1-1959 when he was pronounced a lunatic. The lunacy proceeding, therefore, was not sufficient to rebut the oral evidence coming from disinterested source like Raja Khizar Hayat Khan, the Naib- Tehsildar -cum-Sub-Registrar. The Mukhtarnama, as found by the High Court, did not put any restriction on the attorney such as to prevent him from affecting the sale. The sale made by Gulab Khan on the basis of the power-of-attorney, therefore, cannot be held to be incompetent. On the question of consideration, the High Court was right in holding that if Gulab Khan had received the amount; the sale was not invalid merely because the amount had not been paid to Jaffar Khan.
These and other points raised basically relate to questions of fact, and after examining the material before us, we are not satisfied that the conclusions reached by the High Court are open to exception.
6. No case is, therefore, made out for interference. The petition is dismissed and leave to appeal refused.