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C. J.‑‑This certified appeal from a judgment of the High Court at Lahore has arisen in the following circumstances :

Abdur Rahman, one of the proprietors of village Kot Qazi Sharqi, sold some of his land to Muhammad Fazal of the same village by three sale deeds. The first sale deed was executed on 2nd February, 1925, for a consideration of Rs. 2,000, the second on 25th February, 1927, for Rs. 3,500, and the third on 14th June, 1928, for Rs. 2.000. Khalil Ahmad respondent is a son of Abdur Rahman and at the time of the sales he was a few years' old infant.

After passing the Intermediate Examination, Khalil Ahmed joined the Army' and on 25th July 1944, he brought a suit against his father and Abdul Majid, Abdul Qadirand Muhammad Shafi, sons of Muhammad Fazal who had died in the meantime, for a declaration that the three sales effected by his father were not binding on him as the land was ancestral and had been alienated without legal necessity. The suit was dismissed by the Subordinate Judge on 25th July, 1944, and an appeal. to the District Judge failed and was dismissed by him on 13th February, 1946.

Khalil Ahmed filed a second appeal, and a Division Bench of the High Court at Lahore b) their judgment of 2nd February, 1949, set aside the decree of the Courts below and finding that necessity for the sales had been proved only to the extent of Rs. 2,640 granted him a declaratory decree that on payment of‑ that amount he would, after the death of his father, be entitled to possession of the lands sold. Abdul Majid, Abdul Qadir and Muhammad Shafi have now appealed to this Court from the judgment of the High Court.

The main point urged by Mr. Yakub Ali Khan, on behalf of the appellants, is that the question involved in the case was purely one of fact, and that under section 100 of the Code of Civil Procedure the High Court had no jurisdiction to upset the finding of the District Judge that the sales were for legal necessity. In recording its findings the trial Court had judged the evidence relating to the existence of necessity in the light of the admitted facts that the sales were old transactions, that the original vendee who should have had knowledge of the existence of the necessity was dead at the time of the suit that the sale deeds contained no recital of the circumstances justifying the alienations and that there was now allegation that ' the vendor was a profligate, a drunkard or a gambler, allegations which are usually made in such suits. The Court also found that the vendor's income, in view of the area of culturable land in his possession, could not have been more than Rs. 200 a year. Bearing all these circumstances in mind the Subordinate Judge discussed the oral and documentary evidence produced by the parties and found that each of the sales was for legal necessity, and that the proceeds of the sales had in fact been expended by the vendor in redeeming certain mortgages and paying off just antecedent debts, building a house for the family and other household needs and on the marriage ceremony of his daughter's marriage. These findings were confirmed by the District Judge in appeal.

It is not argued before us by the learned counsel for the respondent that if the application of the money to the purposes just mentioned was proved, those purposes did not amount to legal necessity under the Punjab custom. What is contended is that in second appeal the High Court could set aside the findings as to the application of the money because the trial Court and the Court of First Appeal had approached . the case from an erroneous view‑point. The reasons stated by the learned Judges of the High Court in interfering with these findings will be apparent from the following passage in their judgment. They say

"In the present case, there is no recital of necessity in any one of the three deeds, and in each case the entire con sideration was received in cash. Even assuming that the alienee acted bona fide, the least inference which can be drawn, bearing in mind that he himself was governed by agricultural custom, is that he did not apply his mind at all to the question of necessity' for if he did, and if he was satisfied that the money was needed by the alienor for the purposes now alleged by his descendants, there was nothing to be lost and on the other hand everything to be gained by mentioning in the formal documents that Qazi Abdur Rahman needed the money for, e.g., paying of a mortgage, putting up a house, performing the marriage of his daughter, etc, No presumption can be drawn in favour of such an alienee and it makes no difference that at the time of the suit, he is dead and the task of defending the alienation against the challenge of the reversioners falls to be performed by his successors who may be totally ignorant of the circumstances in which the alienation was carried. through. Of necessity, reliance has to be placed exclusively on oral evidence, not as to the existence of need prior to the alienation, but as to the application of the sale proceeds after the sale and such evidence is apt. to be either conjectural or merely procured, for the chances of its being genuine are, in the majority of cases distinctly remote. It is the duty of the Courts in dealing . with such evidence to examine it with more than ordinary care, for not only is it intrinsically unreliable, since memory must fade with the passage of time, and in the absence of documentary evidence, particular items of expenditure cannot be related to the date of alienation with any approach to exactness, but there is also to be borne in mind another factor, viz., the extreme anxiety of the alienee to retain the land. In the present case the Courts below have taken exactly the opposite view, i.e., that the alienee's evidence should be accepted at its face value and should not be regarded with suspicion, etc., and their findings being based on this fallacious method of approach are not binding on this Court in second appeal.

It, therefore, becomes necessary to examine the evidence regarding the application of the sale proceeds afresh."

It is obvious that what the learned Judges intended to say was that for the reasons stated by then the Courts below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence is, in second 'appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lai Shah and others (P L R (1954) 595=P L D 1954 Lah. 447

) where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. 'lewahir Singh Chowdhri (1 L R 18 Cal.

23) and Wall Muhammad v. Muhammad Bakhsh (11 Lah. 199) which lay down this proposition in clear and unmistakable term. It is not suggested that there was in the present case any "error in the procedure provided by law", nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First Appeal which is the final judge of facts. The circumstances that the sale deeds contained no recital as to necessity, that the alienations were old sales, that the alienee was dead at the time of the suit and that the vendor was leading the life of a country gentleman and not that of a debauch or wastrel, had all been duly considered by the Courts below in arriving at their conclusions, and assuming that the High Court did not agree with the lower Courts appreciation of the evidence, that could not be a ground for it to reverse the concurrent findings of fact of the lower Courts. In my opinion, the High Court had no jurisdiction to entertain the second appeal on this ground, and it exceeded ' its functions in interfering with those findings.

The High Court was of course right in considering the question whether a payment of Rs. 1,200 to the village B ,nk: by the vendor amounted to legal necessity or not because what constitutes legal necessity is essentially a question of D law. While dealing with this item the learned Judges observed :‑

" The payment towards mortgage money has been duly proved, and may be allowed, but although the sum of Rs. 1,200 does appear on the credit side in the alienor's bank

account, on the 10th March, 1927, some 13 days after the sale, it cannot be allowed as being for necessity, as by the payment, the alienor's account was placed in credit to the extent of Rs. 1,430 and it is not open to question that ancestral land cannot be sold in order to create credits in Banks."

If the facts had been as stated, the High Court's view would have been quite unexceptionable, but that the payment of R. 1,200 to the Bank did not make the vendor a creditor is apparent not only from a certified copy of the khata behi produced before the High Court by the appellants, but also from the document Exh. D. W. 5/1, which shows that even after the payment of Rs. 1,200 and without the creation of any further credit the vendor was still shown as a debtor making payments towards principal and interest and costs of execution which had been taken out against him by the Bank. The finding by the lower Courts was that this payment of Rs. 1,200 was in reduction of a pre‑existing debt, and it seems to be quite clear that the High Court interfered with this finding under an erroneous impression.

I would, therefore, accept this appeal, and reversing the decree of the High Court, would restore that of the lower appellate Court. The respondent will pay the appellants' costs in this Court.

A. S. M. AKRAM,

J.‑I agree.

M. SHAHABUDDIN,

J.‑I agree.

x. M. A. Appeal accepted.