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Regular Second Appeal No. 52 of 1979, decided on 19th December 1979.

--- S. 100-Question of fact --Held: Court of first appeal competent to enter into and decide question whether findings of facts by lower Court erroneous or not--Court of second appeal, however, not competent to entertain such questions and second appeal lies only on one or other of grounds 5p.cified in S. 100.-[Question of fact).

--- S. 100--Erroneous finding of fact--Different from an error or defect in procedure-No error or defect in procedure, finding of first appellate Court on question of fact, held, final if such Court had before it evidence proper for its consideration in support of finding-Mere fact of High Court having upon evidence placed before Court of first appeal, come to a different conclusion, however, no ground for second appeal.-[Question of fact].

Sher Zamin son of Musafir, purchased one kanal, 13 marlas of land specified in the plaint by a sale deed dated the 15th February, 1977, for an ostensible sum of Rs. 8300. Nowsherwan Khan plaintiff - appellant pre-empted the sale on the ground of his being a co-sharer in the property sold as well as being an owner of contiguous property. The vendee resisted the plaintiff's clam on various grounds, one of them being that the transaction was not pre-emptible by virtue of section 5 (c) of the North-West Frontier Province Pre-emption Act, 1950 (hereinafter referred to as the Act), he having purchased the land for the construction of a house as he bad neither a house nor a vacant site in the village where the land sold was situate and of which he was a resident. This contention found favour with the Civil Judge who dismissed the suit with costs, ride judgment and decree dated 23rd November, 1978.

Aggrieved by the decision of the trial Court, the plaintiff appealed to the District Judge. In appeal. the District Judge concurred in the findings of the trial Court that the sale was exempt from pre-emption by virtue of section 5 (c) of the Act and consequently by his judgment dated 25th April, 1979, dismissed the appeal with costs.

The plaintiff lodged a second appeal in this Court calling in question the decisions of the two Courts below. The only point for determination, and on the decision of which the fate of this appeal hinges, is whether the vendee way which reads :-

"3. No right of pre-emption shall exists in respect of the sale of, the foreclosure of, a right to redeem :-

(a) ........ ........ .. . ,

(b) ............ ........... ..... ........... ........

(c) agricultural land or village immovable property, consisting of area measuring not more than two kanals purchased by resident of the village in which such land is situated, where neither owns a house nor a vacant site measuring more than of kanal, for constructing a house for his own occupation."

. Upon consideration of the evidence on record, both the Courts be found that the vendee was a resident of the village where the suit la is situate and that he purchased the land for the construction of a house because he neither owned a house nor a vacant site in the village. 1 going through the judgment of these Courts, it appears that the Court believed the evidence produced by the vendee and came to the conclusion contained in the findings referred to above, It can hardly be doubt that the questions-

(1) Whether the vendee was a resident of the village where t suit land was situate ;

(ii) Whether he did not own a house or a vacant site in the village ; and (M) Whether the suit land had been pruchased by him for construction of a house for his own occupation, were all questions of fact, pure and simple, and were before the Courts blow for consideration and were decided by them in favour the vendee. It may be stated that section 101 of the Code of Civil Procedure provides that no second appeal shall lie except on ground mentioned in section 100. A reference to section 100 would show that a appeal shall lie to the High Court from every decree passed in appeal, by any Court subordinate to a High Curt, on any of the following grounds, namely,

(a) the decision being contrary to the or to some usage having the force of law ;

(b) the decision having failed to d ermine some material issue be law or usage having the force of .

(c) a substantial error or defect in he procedure provided by this Code or by any other law for the time being to force, which may possibly have produced or defect in the decision of the case upon the merits,

Nothing is clearer than the declaration in the Civil Procedure Code the Ro second appeal shall lie except on the rounds specified in section 199

A Court of first appeal is undoubtedly competent to enter into question of fact, and decide whether the findings of facts by the lower Court are, or are not, erroneous. But a Court of second appeal is not competent to entertain questions as to the soundness of a finding of fact by ,4 the Court below. A second appeal car, only the on one or other of the grounds specified in section 100. In the present case, I have gone through, the judgment of the Courts below and found that the findings of the two Courts on the points formulated above are well-founded. But even if it be assumed for the sake of arguments that there Onerous findings of facts by the two Courts below, this Court would not interfere. It is well settled that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact. No doubt, a second appeal does lie where there is substantial error or defect in procedure, but an erroneous finding of fact is a different thing from an error or defect in procedure. Where there is no error or effect in procedure, the finding of the first appellate Court upon a question of fact is final, if that Court had before it evidence proper for its consideration, in support of the finding. The mere fact that the High Court would have upon the, evidence placed before the ' Court of first appeal come to a different conclusion is no ground for a (second appeal.

The position that emerges, from the discussion given above is that the findings of the two Courts', below on questions of facts indicated above are based on cogent evidence and are well founded. Assuming, however, for the sake of argument that the findings of facts given by the said Courts on the point were appellant is faced with a further difficulty, and a formidable faculty indeed, arising out of the provisions contained in sections 100 and 1,01 of the Code of Civil Procedure, accord ing to which the finding of the first appellate Court upon a question of fact would be final and the High Court will not entertain a second appeal on this ground.

In the result the appeal fails and is accordingly dismissed in limine.

M. Y. M. Appeal dismissed.

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