' SAIDUZZAMAN SIDDIQUI, J.---The dispute in the above petition relates to a house situated in Village Jadda, measuring 12 Marlas, 2 Sarsais. According to the findings of all the Courts below, this house was ancestral property belonging to one Saddar Din. The said Saddar Din died leaving behind two sons Maula Dad and Nur Hussain. Maula Dad was issueless while Nur Hussain, who died in 1948, left behind one son Allah Dad and five daughters. Subsequently, Allah Dad also died leaving behind a son by the name Raza and a widow Mst. Irshad Begum. After the death of Raza son of Allah Dad, a suit was filed by Karam Dad as a collateral claiming 2/3rd share in the property.. The suit was resisted by the widow of Allah Dad and daughters of Nur Hussain. The trial Court after recording evidence of the parties, reached the conclusion that Maula Dad predeceased Nur Hussain and therefore, his share was inherited by Nur Hussain thus, making Nur Hussain the owner of entire house measuring 12 Marlas 2. Sarsais. According to the judgment of the trial Court on the death of Nur Hussain, the property was inherited by his son Allah Dad and 5 daughters in proportion of 2/7 and 5/7 respectively. On the death of Allah Dad, the property was inherited in the proportion of 1/8 by his widow Mst. Irshad Begum while rest of the share went to his son Raza. On the death of Raza I/3rd of the property went to his mother Mst. Irshad; widow of Allah Dad, while 2/3rd share was inherited by Karam Dad plaintiff. This 2/3rd share in the property was calculated by the Trial Court equal to 2 Marlas and as Karam Dad was found in possession of the property measuring 2 Marlas, his suit for partition was dismissed by the trial Court. On appeal filed by Karam Dad, the first Appellate Court came to the conclusion that Karam Dad plaintiff failed to establish that the property was inherited by Raza from Maula Dad who died after the death of Nur Hussain. It was, accordingly, held by the first Appellate Court that on the death of Nur Hussain, his son Allah Dad inherited 2/7th share in the property while the rest of the share in the property was inherited by his five daughters and on the death of Allah Dad his son Raza and his widow Mst. Irshad Begum inherited his 2/7th share in the proportion of 3/4th and 1/4th. On the above reasoning, the learned first Appellate Court held that Raza when died in 1969, he was only owner of 1/4th share in the property and therefore, on his death, 1/3rd share out of it went to his mother, the widow of Allah Dad while 2/3rd share was available which could be inherited by the collateral (Karam Dad, the plaintiff). In this way the first Appellate Court also concurred with the findings of fact arrived at by the trial Court and remanded the suit to the trial Court on the ground that the trial Court had failed to pass a decree of partition as prayed by Karam Dad (plaintiff). Karam Dad filed second appeal before the High Court which was accepted by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, and the judgment and decree of the first Appellate Court was modified to the extent that the share of Raza which was inherited by Karam Din (plaintiff) worked out to 4 Marlas.
The learned Judge in Chambers did not agree with the conclusion of the trial Court and first Appellate Court that Maula Dad had predeceased Nur Hussain. The learned Judge in Chambers came to the conclusion that there was no satisfactory evidence on record to reach the conclusion that at the time Maula Dad died, Nur Hussain was alive. The learned Judge in Chambers relying on the statement of witness who had stated in Court that Maula Dad had died about 17/18 years ago, came to the conclusion that according to this statement Maula Dad died after the death of Nur Hussain who died earlier in 1948. The learned Judge in Chambers, accordingly, came to the conclusion that at the time Nur Hussain died he was only entitled to 1/2 share in the property which devolved on his son Allah Dad and five daughters and similarly, on the death of Allah Dad the share of Allah Dad devolved on his son Raza and widow Mst. Irshad Begum. It was also held by the learned Judge in Chambers that on subsequent death of Maula Dad his share devolved on Raza deceased and his widow in the proportion 3/4th and 1/4th. In this way the learned Judge came to the conclusion that the share of Raza when he died, was about 6 Marlas and therefore, on his death 1/3rd devolved on his mother Mst. Irshad Begum which worked out about 2 Marlas while his remaining share of 4 Marlas devolved on Karam Dad as his collateral.
2. In seeking leave to appeal, the learned counsel for the petitioner contends that the learned Judge in Chambers while hearing second appeal could not interfere with the concurrent findings of fact recorded by the two Courts below holding that Maula Dad had died issueless before the death of Nur Hussain and, therefore, his share devolved on Nur Hussain on his death. It is contended by the learned counsel that in the absence of any misreading of evidence by the two Courts below, mere fact that on reappraisal of evidence another view was possible, concurrent findings of fact could not be disturbed in the second appeal by the learned Judge in Chambers. The contentions raised by the learned counsel require examination and we accordingly grant leave to appeal.
There is an application for stay of the operation of the impugned judgment. Status quo to be maintained until hearing and disposal of the appeal.