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Regular Second Appeal No. 66 of 1959, decided on 7th February 1962.
‑Second appeal-- Lower Appellate Court's "wrong inference" on question of act-- Cannot be interfered in Second Appeal.
Durga Chowdhrani v. Jewahir Singh Chowdhri I L R 18 Cal. 23 ; Ramji Patel v. Rao Kishore Singh A I R 1929 P C 190 and Abdul Majid and others v. Khalil Ahmad P L D 1955 F C 38 rel.
Sardar Shah Bukhari for Appellant.
A. S. Salam for Respondent No. 1.
Dates of hearing : 6th and 7th February, 1962.
This is an appeal from the judgment and decree dated the 5th of December 1958 of Malik Abdul Hamid, District Judge, Montgomery, who affirmed the judgment and decree of Mr. C. M. Shafqat, Senior Civil Judge, Montgomery, whereby the plaintiff's suit for possession of the land in dispute was decided in her favour.
2. Mst. Faiz Ilahi plaintiff was married to Ghulam Qadir defendant‑appellant, but she was divorced by him on the 5th of August 1954. It was averred by the plaintiff that she was a full‑owner of one square land, being her 5/36tbs share in an area of 1353 kanals 15 marlas situated in Mauza Chishtian, Tehsil Pakpattan, District Montg emery, and that on the 5th of August 19j4 Ghulam Qadir, defendant No. 1, got mutation No. 468 attested, which purported to relate to the sale of the land in dispute by her to him for a consideration of Rs. 3,600. She pleaded that she never sold the land to Ghulam Qadir, nor she ever appeared before the revenue officer attesting the mutation. She impleaded in the suit defendants Nos. 2 to 7, as they were co‑sharers in the khata.
3. The suit was contested by Ghulam Qadir defendant only, who traversed the averments of the plaintiff. The suit was originally tried by Mr. Sher Muhammad Khan Sial, Senior Civil Judge, who framed the following issues on the pleadings of the parties :‑
(1) What was the value of the suit for purposes of court -fee and jurisdiction
(2) Was the plaintiff a pardanashin woman
(3) Whether the plaintiff had sold the land in suit to defen dant No. 1 for consideration
(4) If issue No. 3 is found in the affirmative, bad the defen dant procured the land by fraud
(5) If Issue No. 3 is found in the negative, had the plaintiff admitted the sale during the mutation proceedings If so, what Is its effect
(6) Relief.
Mr. Sher Muhammad Khan Sial decreed the plaintiff's suit on the 17th of December 1955. Ghulam Qadir defendant preferred an appeal against the judgment and decree of Mr. Sher Muhammad Khan Sial and in the Court of Mr. Azam Ali, District Judge, the counsel of the parties made a joint statement to the effect that there had been no proper trial and that the case be remanded for fresh trial. With the concurrence of the parties' counsel the learned District Judge framed the following issues :‑
(1) Did the plaintiff sell the land in dispute to the defendant for Rs. 3,6C0 by oral transfer
(2) Is the plaintiff estopped by act and conduct .
(3) If issue No. I is proved, is the sale without consideration
(4) Relief.
and remanded the case under Order XLI, rule 23‑A, Civil Procedure Code, for fresh trial with the direction that the parties would be at liberty to produce any additional evidence if they chose to do so. The case was retried and decided by Mr. C. M. Shafqat, who also decreed the plaintiff's suit, recording his findings on issues Nos. 1 and 2 against defendant No. 1. Ghulam Qadir defendant again went up in appeal to the District Judge, but the appeal was dismissed and the judgment and decree of the trial Court were upheld.
4. It was brought to my notice during the course of the arguments that the appellant's counsel had applied for the striking out from the list of the respondents the name of Mst. Zainab, who had died. Mst. Zainab had been apparently impleaded, as she was a co‑sharer in the khata, although the appellant did not seek any relief against her. She was but a pro forma defendant before the trial Court and had not contested the suit. The learned counsel for the contesting respondent stated that he had no objection to the name of Mst. Zainab being omitted from the list of the respondents. In the circumstances, the name of Mst. Zainab should be regarded as struck out.
5. The decision of the suit by the trial Court proceeded on findings on issues Nos. I and 2, which are obviously findings of fact. The learned Senior Civil Judge examined the entire evidence, oral and documentary that had been led by the parties before the order of remand as also that adduced after the order of remand, and after duly weighing it recorded his findings. The entire evidence was again re‑examined by the District Judge before he affirmed the findings of the Senior Civil Judge. The learned counsel for the appellant has contended that the learned District Judge has drawn wrong inferences from the evidence of the appellant's witnesses as they say that the payment of Rs. 3,600 was made to Mst. Faiz Ilahi in their presence. It is true that the witnesses produced by Ghulam Qadir appellant have so stated, but the question is whether the learned District Judge has believed that evidence. After examining the circumstance of unanimity of the appellant's witnesses as regards the receipt of Rs. 3,600 in cash by Mst. Faiz Ilahi from Ghulam Qadir, the learned District Judge has noticed a large number of material discrepancies in the statements of the aforesaid witnesses and has come to the conclusion that their statements regarding the appearance of Mst. Faiz Ilahi before the Co‑operative Consolidation Committee for making a statement regarding the sale of the land and regarding the appellant have paid Rs. 3,600 in cash to her in the presence of these witnesses, were not credible. This is a clear finding of fact and the learned counsel for the appellant has not been able to cite any authority before me in support of his contention that if the first Appellate Court draws a wrong inference from the evidence on a matter of fact, its finding can be interfered with in second appeal. On the other hand, the learned counsel for respondent No. 1 has cited numerous authorities, which lay down that the High Court has no jurisdiction to interfere in second appeal, however erroneous the finding of fact of the lower Appellate Court be. In Durga Chowdhrani v. Jewahir Singh Chowdhri (I L R 18 Cal. 23), the same view was expressed by their Lordships of the Privy Council in the following words: ‑
"There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Where there is no error or defect in the 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."
In Ramji Patel v. Rao Kishore Singh (AIR 1929 P C 190), the observation of their Lordships of the Privy Council was also to the same effect. In Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38), their Lordships of the Federal Court observed that the High Court had no jurisdic tion 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.
6. The decision of the respondent's suit having proceeded on findings of fact as regards issues Nos. 1 and 2, no interference at the stage of second appeal is warranted. The appellant': appeal is, therefore, dismissed with costs.
K. M. A./A. H.
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