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Second Appeal No. 75 of 1960, decided on 28th August 1963.

Question of fact-- Decision of lower appellate Court cannot be interfered with merely on account of divergence of opinion between trial Court and first Appellate Court.

Fakhruddin for Appellant.

Azizullah Shaikh for Respondent.

Date of hearing : 28th August 1963.

This appeal is directed against the judgment of the learned District Judge, Larkana, dated the 18th of June 1960, by which he dismissed the 1st appeal which was before him against the judgment of Mr. Azizur‑Rahman Z. Shaikh, Sub‑Judge, Ratodero. The 1st appeal has been dismissed by the following observation made by the learned District Judge :‑

"I, therefore, though for different reasons, agree with the finding of the lower Court and find that there are no valid grounds to interfere in appeal."

2. The important findings of both the lower Courts are on questions of fact. The main issue was the following :‑

"(2) Whether the defendant acted as agent and took the land in suit on behalf of the plaintiff from the Barrage Depart ment."

3. The background of this case is that the present appellant has alleged that the respondent had taken land from the Barrage authorities as his agent and that, therefore, the appellant was the owner of the land and was in possession of it in that capacity. The plea of the respondent was that he had never acted as the agent of the appellant and that the appellant was not in possession of the property from the date of its acquisition, but that subsequently there was another transaction to complete which an arrangement was made so that the appellant might get possession of the land, which position was being misused by the appellant by putting up the case of agency. This plea of the respondent has been accepted by the trial Court and upheld by the 1st appellate Court.

4. Mr. Fakhruddin appearing for the appellant realised that this being a 2nd appeal, he could not argue against the concurrent findings of fact of the two lower Courts and that, therefore, as far as the result of this appeal was concerned, he could not attempt in these proceedings to get the judgment of the 1st appellate Court reversed. But he contended that there was one decision of fact which though not material for the decision of this appeal, was material to the consequences that were likely to follow the conclusion of this litigation. The consequences, according to counsel, are bound to be that there will be further litigation between the parties, and that at that time the questions to one of the payments, which was the payment of Rs. 1,500 would assume importance. On this question, the trial Court has made observations which have not been upheld by the 1st appellate Court. Counsel says that, owing to the divergence of opinion between the trial Court and the 1st appellate Court, the question of fact becomes open for review in this Court, and that there is importance of the decision of this question of fact for future litigation ; therefore, he should be allowed to refer to the decision of the East Pakistan High Court for purposes of arguing that a question of fact may be separately decided irrespective of whether the decision of this appeal turns on it or not. To my mind, this contention of counsel does not carry weight because the view prevailing in the West Pakistan High Court is that questions of fact which are decided by the 1st appellate Court should not be interfered with merely on the ground that there was difference of opinion between the 1st appellate Court and the trial Court. Moreover, as far as the contention which has been raised by counsel is concerned, it is obviously, and according to counsel himself, not material for the decision of this appeal. Counsel says that this point may, therefore, be left open to which Mr. Azizullah Shaikh does not agree.

5. I think that the conclusion at which one arrives in the situation is that the question which counsel has raised not being material to the decision of this appeal is of no importance, and further the question being of fact will not be open merely because of the disagreement of views between the two Courts.

6. Therefore, in view of the absence of any substance in the arguments advanced by counsel, the appeal is dismissed with costs.

K. B. A.

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