| Citation(s) |
|---|
| 1952 SLG 73 1952 SLD 73 1952 PLD 230 |
Lahore High Court
Second Appeal No. 6 of 1951, decided on 5th February, 1952, from the order of Sheikh Bashir Ahmed, District Judge, Mianwali, dated the 12th May 1951
MUHAMMAD KHURSHID ZAMAN, J
Syed Jamil Hussain, for Appellant. Sheikh Chiragh Din, for
Respondent
Second Appeal No. 6 of 1951, decided on 5th February, 1952, from the order of Sheikh Bashir Ahmed, District Judge, Mianwali, dated the 12th May 1951
MUHAMMAD KHURSHID ZAMAN, J
Syed Jamil Hussain, for Appellant. Sheikh Chiragh Din, for
Respondent
Mst. MUNI
VS
Mst. KHAN BIBI and another
Law: Civil Procedure Code (V of 1908)
Section: O.XLIII.r.(1)cl.(u),151,96
(a) Civil Procedure Code (V of 1908)----- ----O. XLIII. r. (1) cl. (u)-Order of remand ostensibly under S. 151 C. P. C. Order appealable if conditions mentioned in O. XLI, r. 23 fulfilled in substance. Where the District judge mentioned section 151 of the Code of Civil Procedure in his order as the provision of law under which he remanded the case for enquiry into the additional issues but in substance the order was clearly one under Order XLI, rule 23 of the Code of Civil Procedure the remand order was appealable under Order XLIII, rule (1) clause (u). (b) Civil Procedure Code (V of 1908)------ ----S. 96-Right of appeal-Suit under custom for declaration that sale shall not affect plaintiff's reversionary rights-Issue whether vendor had absolute or life-estate in property sold decided against vendor --Whether vendor did not have a right of appeal. The decisive issue in the case was whether Mst. Munni appellant was only a life tenant of the property in suit. It cannot be seriously urged that Mst. Munni would not be adversely affected if this issue is answered, as it has been in the affirmative. The finding of the lower appellate Court that she holds only a life interest in the property in dispute is an attack on her legal character which she is entitled to repel and she can only do so by preferring an appeal. Analogy from pre-emption cases in which the vendor is not regarded as necessary party to the suit is not opposite because in pre-emption cases the power of the vendor to alienate the property is never in question. Allahabad Bank Ltd., Delhi v. Mrs. Lena MacDonald of Delhi, A I R 1921 Lah. 349; Shamas-ud-Din v. Allah Dad Khan, A I R 1925 Lah. 65, Nand Lal Pal v. Naresh Chandra Deb Goswami and others, A I R 1917 Pat. 585 and Seshayyar v. Pappuvaradayyangar, I L R (1883) 6 Mad. 185, distinguishable on facts. Krishna Chandra Goldur v. Mohesh Chandra Saha, 9 C W N 584, ref. (c) Custom-Succession----- ----Self-acquired property-Daughters succeed as absolute owners in absence of collaterals up to sixth degree -Pathans of Kamar Mushani in Isa Khel Tehsil of Mianwali District-Customary Law of Mianwali District Answers to Questions 16 and 19-Onus to prove contrary…
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