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Civil Second Appeal No. 5 of 16th February 1953, decided on 10th May, 1953. against the order of the Senior Sub‑Judge, Rahimyar Khan dated the 23rd November 1952.

S. 100‑Question of credibility of witness not one of law or of error of procedure‑No second appeal.

A decision as to the credibility of the witnesses is neither an error of law nor of procedure and cannot furnish a ground for second appeal.

Mustafa Khan, for Appellant.

Inayat Ali, for Respondent.

‑This second appeal desires this Court to disturb findings of facts of two subordinate Courts. The plaintiff‑respondent sued for the issue of perpetual injunction restraining the defendant‑respondent from installing a brick kiln in land situate in Mauza Wahi Qadar Dinna, Khata No. 55 Khasra No. 147/14. This land which is four kanals eight marlas, in area, is surrounded on three sides by land belonging to the plaintiff‑respondent while on the fourth side it is surrounded by Crown land. The plaintiff‑respondent who, as stated above, owns land contiguous to it, alleged in his plaint that the installation of the kiln by the defendant‑respondent would damage his land and that the poisonous gas emitting through the chimneys of the (kiln would prove detrimental to the crop and other cultivation existing on the land. The parties produced evidence and the trial judge was of the opinion that the evidence adduced on behalf of the plaintiff was more reliable than that of the defendants and therefore issued permanent injunction restraining the defendants from constructing a kiln on that land. This decision of the trial judge was affirmed in appeal by the learned Senior Sub‑Judge, Rahimyarkhan. In second appeal, it has been urged before me that the trial judge was wrong in placing reliance on the evidence produced by the plaintiff'‑respondent in that court. It was also urged that the trial judge mis‑read the evidence and formed wrong conclusion from the evidence. I have accordingly been taken through the evidence by the learned counsel for the appellant and I find that there are no cogent grounds for disturbing the concurrent finding of fact of both the lower Courts. The plaintiff produced Hashim Ali, Inspector Cotton Control, Agriculture Department Bahawalpur, Hafiz Muhammad Anwar, Mohtamim Jagirat, Haq Nawaz Khan, Ghulam Mohyuddin Shah and Syed Imam Shah etc. who unanimously stated that due to the heat and poisonous gas of the kiln, the cultivation on the adjoining land would be damaged. They further stated that the poisonous gas does make the plants weak and dry. It was also stated that a garden is likely to sustain damage due to all the above mentioned conditions. The defendants witnesses, Major Ghulam Rasool, Rahim Bakhsh and Malik Allah Wasaya also supported the plea of the plaintiff by stating that the installation of kiln does cause damage to the standing crop on the adjoining land.

It is surprising to note that Allah Wasaya D. W. went to the length of stating that the adjoining land does not even remain capable of any cultivation whatsoever. They also further stated that there is absolutely no way or approach to this kiln as it is enclosed on all sides. Hafiz Muhammad Anwar P. W. stated that the defendant‑appellant could not get a passage through Crown land which is situated contiguous to the land in question on which he wants to install this kiln. The net result therefore is that the trial judge was correct in concluding that the plaintiff had sub stantiated his plea.

I am therefore of the opinion that the trial judge drew proper inferences from the facts placed before him. The contention of the counsel that the evidence was mis‑read by the trial judge does not find support from the record. I am therefore of the view that the decision is not contrary to law. I may add that a decision as to the credibility of the witnesses is neither an error of law nor of procedure and cannot furnish a ground for second appeal.

Hence I am not prepared to upset the concurrent findings of facts of both the Courts below.

I accordingly hold that this second appeal could not lie and is hereby dismissed with costs.

A.H. Appeal dismissed.

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