1. MUHAMMAD HALEEM, J.---This order will govern C. P. S. L. A. Nos. 73-R and 75.R of 1975, which arise from the common judgment dated 14th May 1975 of the learned Single Judge of the Lahore High Court in R. S. As. Nos. 372 and 166 of 1973, by which the suit filed by Khushi Muhammad, who is now represented by his L/Rs. The petitioners in both the petitions, was dismissed.
2. The facts, which are necessary for the decision of these petitions, are that Fatah Muhammad owned 255 kanals and 5 -- marlas of land in village Muslamanian, District Sialkot. He had inherited the land under custom on the demise of his father before the coming into force of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. By a deed registered on 28th April. 1948 he mortgaged his entire land with possession to Rehmat Khan for a consideration of Rs. 24,000.
3. Claiming to be a collateral of Fatah-Muhammad within the fifth degree and taking the property qua him and Fatah Muhammad as ancestral, Khushi Muhammad filed a suit in the Court of the Administrative Civil Judge, Sialkot on 26th July 1958 seeking the usual declaration that the alienation was opposed to custom as it was without legal necessity and for no consideration. It was further pleaded that the transfer was not voluntary but as a result of coercion after wrongfully confining Fatah Muhammad, who was blind. In support of this plea it was stated that Rahmat Khan, defendant No. 1 who, being a Sub-Inspector of Police, had managed to obtain a general power of attorney from Fatah Muhammad in favour of Sultan Muhammad who had executed the mortgage deed in his favour. During the pendency of the suit Fatah Muhammad died and his widow Mst.
4. Hajiran Bibi and his son, Mukhtar Ahmad, were impleaded in the suit as defendants 2 and 3. Khushi Muhammad was allowed to amend his plaint so as to convert it into one for possession.Khushi Muhammad disputed the factum of marriage of Fatah Muhammad with Hajiran Bibi and so also the legitimacy of his son, Mukhtar Ahmad. Rehmat Khan pleaded that the property was not ancestral qua Khushi Muhammad and that the mortgage was for consideration and legal necessity as Fatah Muhammad required the money to pay his debts and to meet the litigation and marriage expenses. It was also disputed that Khushi Muhammad was not the collateral of Fateh Muhammad within the fifth degree. The trial Court framed issues on the disputed questions of fact.
5. Its findings were that Fatah Muhammad was legally wedded to Hajiran Bibi, from whom he had an issue. Mukhtar Ahmad, that Khushi Muhammad bad failed to establish that he was the collateral of Fatah Muhammad within the fifth degree that the suit land was not ancestral qua Khusi Muhammad and lastly that the mortgage with possession was for consideration and legal necessity. Having hold so, the trial Court dismissed the suit with costs on 9th March. 1963.
6. Khushi Muhammad being thus aggrieved by the dismissal of the suit filed an appeal before the District Judge at Sialkot. The first appellate Court held that since Hajiran Bibi was already wedded to someone else, she could not contact a second marriage with Fatah Muhammad and hence Mukhtar Ahmad was not his legitimate son. The first appellate Court thus reversed the finding of the trial Court on this issue. Again, the finding of the trial Court that Khushi Muhammad had failed to establish that he was a collateral of Fatah Muhammad within the fifth degree was also reversed and it was held that he was so, The finding of the trial Court that the property, was not ancestral qua Khushi Muhammad was not challenged and accordingly it was upheld. The learned counsel for Khushi Muhammad also did not dispute that the mortgage was for consideration and legal necessity and hence this finding was also upheld. In the result, the first appellate Court held that Khushi Muhammad was the sole heir of Fatah Muhammad and the land devolved on him on the demise of Fatah Muhammad and as such he would be entitled to possession of the suit land subject to the mortgagee rights of Rehmat Khan. His appeal was therefore, partly accepted by judgment dated 13th June 1963.
7. Both Khushi Muhammad and Hajiran Bibi on her behalf and as next friend of her son filed the aforementioned second appeals in the erstwhile High Court of West Pakistan at Lahore. Before the learned Single Judge arguments were addressed on three issues. The first was as to whether Hajiran Bibi was the widow and Mukhtar Ahmad, the son of Fatah Muhammad. The second was as to whether the property was ancestral and the third was as to whether Khushi Muhammad was a collateral of Fatah Muhammad within the fifth degree.
8. The learned Single Judge reversed the conclusion of the first appellate Court and held that Hajiran Bibi was legally wedded to Fatah Muhammad and that Mukhtar Ahmad was his son. On the second question, the finding of the learned Single Judge was that the property was not ancestral qua Khushi Muhammad and on the third, that Khushi Muhammad was related to Fatah Muhammad within the fifth degree, but the learned Sin le Judge further held that he stood excluded from inheritance.
9. It is now urged before us that in view of the previous marriage of Hajiran Bibi with Akbar, it is not established that she was legally wedded to Fatah Muhammad. It was an argument raised before the trial Court, but no plea was taken that she was not a divorcee and consequently neither an issue was framed nor evidence was led. What is apparent from the record is that she was asked a question in cross-examination a to whether she had a divorce deed, to which she replied in the affirmative. No question was further put as to whether she would be able to product it. As such it leaves no room for doubt that she did not posses the divorce deed. If Khushi Muhammad had wanted to contest that she was not validly divorced then he should have raised such a plea to, enable an issue to be framed and evidence led on it, which he has failed to do. In the circumstances, the first appellate Court misdirected itself and reversed the finding of the trial Court merely on the assertion that she had been previously married to someone else and that she had failed to establish her divorce, which cannot be correct, for she had stated that she had a divorce deed but that she had left it at bar house. There was overwhelming evidence to establish her marriage with Fatah Muhammad which was duly considered by the learned Single Judge while upholding the finding of the trial Court on this issue, and we do not see how such a conclusion can be regarded as conjectural as is contended by the learned counsel for the petitioners. There is, therefore, no scope for reappraising the conclusion on fact when it does not suffer from any defect.
10. On the second issue as to whether the property was ancestral qua Khushi Muhammad, his learned counsel had not challenged the finding of the trial Court which was upheld by the first appellate Court. In the circumstances, it was not open to him to reagitate the merits of the issue, on which there are concurrent findings of fact. Nevertheless the learned Single Judge went into the question and held that it was not ancestral property qua Khushi Muhammad. Such finding is not open so any exception.
11. As for the third contention, it was not pressed as the finding was in favour of Khushi Muhammad.
12. For these reasons we do not see any justification to grant leave to appeal and the petitions are accordingly dismissed.