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Civil Appeal No.9 of 1984, decided on 11th May, 1988.

(On appeal from the Judgment and decree of the High Court dated 27-4-1983, in Civil Appeal No.59 of 1982).

---S.100--Second appeal--Scope. With the object to put an end to litigation at some stage, Legislature restricted the scope of second appeal, in the shape of section 100 of the Civil Procedure Code. Second appeal was, thus made permissible in the following cases:

(i) When the decision was against law;

(ii) some material point of law was left undecided; or

(iii) some substantial error, or procedural defect occurred, that resulted in error or defect in decision on merits.

Misreading, misinterpreting and non-reading of evidence was termed as a substantial error resulting in miscarriage of justice. This is how in a case of misreading, misinterpreting and non-reading of evidence High Court is allowed to interfere in second appeal.

---S.100--Second appeal--Appreciation of evidence--Where Court did not apply its mind to the testimony of witnesses, case of plaintiff held, was prejudiced.

---S.100--Second appeal--Appreciation of evidence-- Failure of Court to appreciate the evidence while curing error in the decision of subordinate Court in violation of S.100, C.P.C.--Omission to appreciate oral testimony of parties where no reason was assigned in the order to overlook and ignore such evidence, being a serious breach of law, cannot be lightly ignored, --[Evidence].

--- Evidence of plaintiffs overlooked by High Court--Case non-reading of evidence--Interference of Supreme Court justified. [Evidence].

Kh. Muhammad Saeed for Appellants.

Raja Muhammad Hanif for Respondent.

--Thin appeal by leave arises out of the judgment of learned single Judge in the High Court passed on April 27, 1983, whereby setting aside the concurrent findings of subordinate Courts, the suit of plaintiffs-appellants" was dismissed.

2. Mst. Nishada Begum and Muhammad Ayub are related as sister and brother. Muhammad Siddique, Muhammad Misri Khan, Hassan Muhammad are sons and Mst. Barkat Jan plaintiff, daughter of Nishada Begum and Muhammad Alam. In their pleadings plaintiffs averrod that they acquired title in land measuring 10 kanals out of survey No.161 by virtue of two separate gift-deeds executed in favour of plaintiff No.1 and Muhammad Alam deceased, her husband, on February 4, 1950. The gifts were not registered for want of registration machinery at the relevant time. The land measuring 28 kanal5 comprising survey No.163 was forcibly occupied by plaintiffs in 1950 when they took possession of land transferred to them by gift. It was further averred that in March 1954 Muhammad Ayub attempted to dispossess plaintiffs from the suit land but his effort was frustrated by the plaintiffs. They claimed their adverse possession in the suit land and also made claim to improvement effected by them in due course of time. In para 3 of their pleadings it was expressly stated that plaintiff No-1 is a woman and her husband was a simple villager as such despite the fact that they were in continuous possession of the suit land, their possession was not recorded consistently in Khasra Girdawaries. The entries showing inconsistency in possession of plaintiffs were incorrect as such ineffective on the right of plaintiffs. Muhammad Ayub denied the title including possession of plaintiffs in the suit land. The learned Sub-Judge disbelieved the execution of gift in favour of plaintiffs but at the same time arrived at the conclusion that the plaintiffs occupied the suit land by denying the title of defendant w.e.f. 1950. Their possession was continuous and hostile to the owner. The suit was decreed accordingly. The learned Sub-Judge recorded his finding on the basis of oral evidence consisting of the testimony of Muhammad Afsar, Fateh Alam P.Ws. and Mst. Nishada Begum plaintiff. The learned District Judge concurred with the finding of the trial Court-and held that adverse possession of plaintiffs was proved by oral evidence of the parties and Khasra Girdawaries. But the learned Judge in the High Court disagreed with that and reversed the decision.

3. Kh. Muhammad Saeed, the learned counsel for the appellants invited our attention to the finding of the learned single Judge in the High Court and emphasised that the learned Judge failed to apply his mind to the evidence of plaintiffs and decided the case by confining his deliberations to the evidence of opposite party. Thus, the High Court fell in error in setting aside the concurrent finding of the subordinate Courts. Moreover, it was emphasised, that the plaintiffs challenged the correctness of the record of rights consisting of Khasra-Girdawaries but despite that the learned Judge dismissed the claim of the plaintiffs by relying on that record. The approach in the High Court, according to the learned counsel in deciding the case on merits, was purely prejudicial, as such unjust and illegal.

4. The learned single Judge in the High Court in second appeal chose to differ with the concurrent findings of the subordinate Courts and in support of his view he relied upon the aforesaid Khasra Girdawaries and oral evidence of defendant"s witnesses. The relevant findings of the learned Judge in the High Court appear at pages 3, 4 and 5 of his order.

5. We have perused the impugned order. The learned Judge in the High Court appeared as dissatisfied with the finding of the District Judge who in support of his reasons relied upon the evidence of plaintiffs and referred to the testimony of D.Ws. Primarily he confined his deliberations to the Khasra-Girdawaries and concluded that entries of Khasra-Girdawaries did not support the possession of plaintiffs. These were rather inconsistent and derogatory to their claim of adverse possession. On appreciation of the testimony of D.Ws. namely Muhammad Aslam and Ali Dad, it was held that their evidence was not conclusive on the point of consistent, continuous and hostile possession of plaintiffs as held by the District Judge. At page 5, at the conclusion of his finding the learned Judge made the following observations:-

"But there is not an iota of evidence to show that in fact, the aforesaid land was forcibly possessed by the respondents or Muhammad Alam, their predecessor and it has been already pointed out that revenue record does not support the case of the plaintiffs-respondents, with regard to the forcible possession of land comprising survey No.163."

6. It is evident from the order of the High Court that the oral evidence consisting of the testimony of Muhammad Afsar, Fateh Alam and Mst. Nishada Begum was not appreciated in deciding the case on merits. We do not propose to emphasise the importance and merit of that evidence but the fact remains that mind was not applied to the testimony of the aforesaid persons while deciding the point at issue on merits. This has obviously prejudiced the case of the plaintiffs.

7. With the object to put an end to litigation at some stage, the Legislature restricted the scope of second appeal, in the shape of section 100 of the Code. Second appeal was, thus, made permissible in the following cases: -

(i) When the decision was against law;

(ii) Some material point of law was left undecided; or

(iii) Some substantial error, or procedural defect occurred, that resulted in error or defect in decision on merits.

8. Misreading, misinterpreting and non-reading of evidence was termed as a substantial error resulting in miscarriage of justice. This is how in a case of misreading, misinterpreting and non-reading of evidence, High Court was allowed to interfere in second appeal. In present case equally, the learned single Judge justified his indulgence in concurrent findings of the subordinate Courts, on this very pretext. Relevant part of the impugned order is reproduced:-

"But if any of the Courts below omits to consider an important piece of evidence or misreads evidence or draws a wrong conclusion from the proved facts, the findings are open to challenge in the second appeal."

But it is unfortunate that while curing the error in the decision of subordinate Court, he committed identical error by failing to appreciate the evidence of plaintiffs-appellants. It is a case of clear violation of aforesaid rule.

9. As stated earlier an omission to appreciate the oral testimony of parties is serious breach of law. Such an omission cannot be lightly ignored. In this case no reason is assigned in the order to overlook and ignore the evidence of plaintiffs. It is a case of clear violation of mandatory rule of appreciation of evidence. In this situation we have no option except to sustain the objection.

10. It is deemed expedient to make it further clear that the plaintiff in Para 3 of their pleadings expressly challenged the correctness entries of Khasra-Girdawaries. Their allegation is that some of the entries, which are derogatory and inconsistent to their claim, against the real position. They have challenged such entries as false and fictitious. This position is also shown to have been ignored b the learned Judge.

As the evidence of plaintiffs was overlooked, it is a clear case of non-reading of evidence. Our interference is justified. We, therefore, do not deem it just to appreciate evidence to record our decision on merits unless this is fairly done first by the High Court. We accept the appeal, set aside the order of the High Court and remand the case for its decision on merits.

M.B.A./223/S.C.A. Cases remanded.

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