1. NASIM HASAN SHAH, J.-By this petition the petitioner seeks leave to appeal against the order dated 7-5-1974 of a learned Single Judge of the Lahore High Court, whereby her second Appeal (R.
2. S. A. No. 179 of 1961) directed against the judgment and decree of the District Judge was dismissed.
3. The dispute in this case relates to a piece of land measuring 78 kanals 10 marlas, situate in village Chan, Teshil Khoshab, District Sargodha, which was allegedly purchased by the respondent from the petitioner for a sum of Rs 4,000. A suit was filed by the petitioner against the respondent for a declaration that she was the owner in possession of the suit land. A perpetual injunction was also sought restraining the respondent-defendant from interfering with the possession of the petitioner-plaintiff. It was alleged in the plaint that the suit land devolved on her from her husband by way of inheritance, but the respondent, in collusion with the Revenue staff, got it mutated in his name on the basis of an alleged sale in his favour, which was fictitious, fraudulent and without consideration.
4. The suit was contested by the respondent-defendant, inter alia, on the ground that the land in dispute was sold to him by the petitioner and a sum of Rs. 4,000 was duly received by her as consideration in lieu thereof.
5. Out of the issues framed by the trial Judge, the substantial issue on which the fate of the case hinged was whether the petitioner-plaintiff executed any sale deed in favour of the respondent- defendant in respect of the suit land received the consideration of Rs. 4,000, The learned trial Judge held that it was not proved that the sale deed was executed and consideration received by the plaintiff petitioner. He, accordingly, decreed the suit of the plaintiff-petitioner.
6. The District Judge, on appeal, reversed this finding holding that the plaintiff-petitioner did execute the sale deed and received consideration from the respondent. He, therefore, setting aside the judgment and decree of the trial Court, dismissed the suit of the plaintiff-petitioner.
7. The High Court, on Second Appeal (R. S. A. No. 179 of 1961) filed by the petitioner, refused to interfere with the finding of the District Judge, on the ground that the finding of the District Judge that the petitioner executed the sale deed and received consideration in lieu thereof was a finding of fact, and interference therewith by reappraising the evidence afresh, which the petitioner in fact desired, was beyond the scope of section 10o C. P. C.
8. The learned counsel appearing in support of this petition has submitted before us that the learned Single Judge of the High Court dismissed the petitioner's appeal on the sole ground that the learned District Judge, after having duly appraised the evidence, had opined that the sale deed in question was executed by the petitioner and the consideration was also received by her and, as such., the same being a finding of fact could not be interfered with. The learned Judge, however, did not appreciate that it was not a case of concurrent finding of fact. The findings of the two Courts below, being at variance, the learned Judge should have, as held by this Court in Madan Gopal v. Maran Bepari (PLD 1969 SC 617) examined the basis of the varying findings arrived at by the two Courts. He should have undertaken examination of the evidence on record for determining if the finding of the first appellate Court could be supported by the evidence or revealed a logical basis for differing from the finding of the learned Civil Judge.
9. We have carefully examined the matter in the light of the dictum in the case of Madan Gopal and finding that the learned District Judge was justified in reversing the finding of the learned trial Court on the crucial issue and he has based his decision on proper materials on the record and drawn the correct inference there from. The learned Judge in the High Court was, therefore, right in not interfering with the finding on the material question in the circumstances of this case. We fully agree with the judgment recorded by the High Court and find no ground for interference therewith.
10. The result is that this petition must fail and is, accordingly, dismissed.