P L D 1959 (W (PLP)

YAQUB ALI, J.

‑The facts giving rise to this second appeal lie within a short compass, but a good deal of arguments have been addressed to us on its competence under section 100 of the Civil Procedure Code. viz. how far it is permissible for a Court of second appeal to interfere with findings of fact, howsoever erroneous or perverse, by the first Court of appeal.

2. The suit land, measuring 481 kanals and 15 marlas, situated in village Chhini Khichi, Tahsil Chiniot, belonged, to Allah Bakhsh who died some 20 years before the institution of the present suit, leaving behind a widow, Mst. Fateh Bibi, and the widow of his pre‑deceased son, Mst. Fatima. In accordance with the rule of customary law, the estate of Allah Bakhsh was mutated in equal shares in the names of Mst. Fateh Bibi and Mst. Fatima, and subsequently when the former died, her one‑half share was also mutated in the name of the latter. In August 1951, Khuda Bakhsh and Muhammad Bakhsh (defendants Nos. 1 and 2), brothers of Allah Bakhsh deceased, reported to the village patwari that Mst. Fatima had remarried in October 1947, i.e., before the enforcement of the Muslim Personal Law (Shariat) Application Act (Act IX of 1948) and as such her life estate in the suit property had terminated and it should be mutated in their names as well as in the names of defendants Nos. 3 to 5, brothers of Mst. Fatima.

3. Mst. Fatima contested the mutation and during the proceedings, which followed, her brother Nur Muhammad (defendant No. 4) supported Mst. Fatima's claim that she had not remarried but nevertheless he wanted that a mutation should be sanctioned as desired by defendants Nos. 1 and 2 on the ground that Mst. Fatima was entitled to maintenance only. The allegation that Mst. Fatima had remarried prevailed with the revenue officer and the mutation was sanctioned to the effect that the life estate of Mst. Fatima had terminated. Aggrieved by it, Mst. Fatima went up in appeal to the Collector but failed in obtaining any redress. Thereafter defendants Nos. 1 and 2 alienated a part of the suit land to Sadar Anjuman Ahmadia Rabwa (defendant No. 6) by means of sale deed (Exh. D. 1). This was followed by another sale of a part of the suit land by defendants Nos. 3 to 5 in favour of the same vendee by means of sale deed (Exh. D. 2). Mst. Fatima instituted the present suit for a declaration that as she had not remarried, her life interest in the suit property remained intact and claimed possession of part of the suit land which had been alienated to defendant No. 6.

4. The suit was contested by all the defendants including defendants No. 3 to 5, her real brothers but the latter based their claim on the plea raised by them during the mutation pro ceedings, namely, that the plaintiff was entitled to maintenance only, and defendants Nos. 1 and 2 persisted in their allegation that Mst. Fatima had remarried in October 1947 while defendant No. 6 claimed to be a bona fide purchaser for consideration without notice of the plaintiff's claim. On the pleadings of the parties, the learned trial Judge framed the following issues :‑ (1) Did the plaintiff. marry Ahmad Yar after the death of her first husband Khuhi Muhammad ? If so, when and what is its effect ? (2) Was the purchase of a portion of the suit land made by defendant No. 6 made in good faith, for consideration and from an ostensible owner in possession of the property with the plaintiff's express or implied consent ? If so, what is its effect ? (3) Is the plaintiff estopped from bringing this suit against defendant No. 6 ? (4) Relief.

5. All the above issues were found in favour of the plaintiff and her suit decreed with costs against the defendants. On appeal by defendants Nos. 1 and 2, Mr. Farooq Ahmad, Additional District Judge, Lyallpur, maintained the findings of the trial Court on issues Nos. 2 and 3, but reversed the finding on issue No. 1 holding that the plaintiff had remarried soon after Partition and as such lost her life estate in the suit property. Dissatisfied with it, Mst. Fatima has come up in second appeal to this Court and the principal issue which falls for determination is how far the findings of the learned Additional District Judge on issue No. 1 are binding on this Court under section 100 of the Civil Procedure Code. It will be advantageous at this stage to set out the parties' evidence in affirmation and rebuttal of issue No. 1, for the question as to how far it is open to this Court to interfere with the findings of the lower Appellate Court cannot be disposed of satisfactorily without making reference to it. The defendants have examined a large number of witnesses who deposed that a few days after the disturbance which followed Partition the plaintiff was married to Ahmad Yar, son of Muhammad Bakhsh (defendant No. 2), and thereafter they lived together as husband and wife until the dispute arose between them regarding the suit land. In defence, the plaintiff appeared as her own witness and examined five other witnesses including her brother Nur Muhammad (defendant No. 4). They all denied the factum of the alleged marriage and deposed that the plaintiff had all along resided in the house of Khushi Muhammad, her deceased husband. It is obvious that so far as the appreciation of the evidence of the witnesses is concerned, the findings of the first Court of appeal are binding on this Court, howsoever erroneous or perverse [Wali Muhammad v. Muhammad Bakhsh (I L R 11 Lah. 199)]. Besides the oral testimony to which reference will be made presently, the trial Court in deciding issue No. 1 in favour of the plaintiff took into consideration a number of circumstances which emerged out from the facts on the record of the case to which little or no attention has been given by Mr. Farooq Ahmad, e.g. :‑-- I (i) The register of marriages was maintained in the village of the parties and it was admitted by D. W. 4, who keeps it, that there were Government instructions to register all the marriages, but there was no entry of the alleged marriage of the plaintiff with Ahmad Yar in it. (ii) Remarriage of the plaintiff was said to have taken place in October 1947, but report to the patwari for entering a mutation regarding forfeiture of her life estate in the suit property was, for the first time, made on the 13th of August 1951, for which no explanation whatsoever was furnished by the defendants. (iii) The plaintiff was admittedly in possession of the entire area of the suit land excepting the portions sold to defendant No.

6. In case the plaintiff had re‑married in 1947 and lost her all rights, title, or interests in it, there was no reason why defendants Nos. 1 to 5 did not enter into possession of the suit property. (iv) Great disparity in the ages of the plaintiff and Ahmad Yar, the former claimed to be 60 and had passed the child bearing age, while the latter was not more than 26 at the time of the alleged marriage. In this respect the learned trial Judge observed that if Mst. Fatima was to be re‑married to Ahmad Yar, the event would not have been postponed until Mst. Fatima well‑nigh passed the marriageable age. (v) If in fact the plaintiff had been married to Ahmad Yar she would not have repudiated it, particularly when the suit property was to be divided among her real brothers and uncles. As regards the oral testimony, the trial Court remarked that it was of the worst type imaginable. In the opinion of the learned Judge the demeanour of most of the witnesses for the contesting defendants was highly unsatisfactory, although he had recorded notes to that effect in respect of D. Ws. 1 and 2 only. This is followed by a detailed analysis of the testimony of each one of the defendants' witnesses. Fateh Muhammad (D. W. 2) who claimed to be a witness of the alleged marriage, was asked whether the wife of defendant No. 1 was his first cousin to which he answered "I do not know". Several other questions were then put to the witness to admit the relationship. The cross‑exami nation of some of the remaining witnesses further disclosed that they were closely related to defendants Nos. 1 and

2. We have mentioned these two facts because on appeal the learned Addi tional District Judge made the following interesting observa tions :‑ "It is correct that he (Fateh Muhammad) at first did not admit whether the wife of Khuda Bakhsh, appellant, was the daughter of his collateral. That fact alone does not, however, justify the rejection of his evidence. Village people are generally hesitant to admit such relationship". As regards the relationship of the D. Ws. with the defendants his appreciation of the parties' evidence is indeed perverse, for he rejected the evidence of the plaintiff on the ground that no reliance could be placed on their testimony as they were related to her. At the same time while discussing the defendants' evidence it is observed "But it must be borne in mind that only relatives can act as witnesses to the marriage for they have to go in to obtain consent of the bride." D. W. 5 (Nadar Shah) is son‑in‑law of appellant No.

1. He is also a son of the appellant's sister. The same remark applies to his evidence regarding relationship as stated above in respect of the evidence of D. W. 3." Thus while defendants' witnesses were considered to be trust worthy in spite of their relationship with the party who had called them in the witness‑box, the same measure was reversed in case of the plaintiff's witnesses. Mr. Ghias Muhammad, learned counsel for the plaintiff has also drawn our attention to the following observations in the judgment of the learned Additional District Judge :‑ "Nur Ahmad (P. W. 5) is a real brother of the plaintiff. This witness also stated that the plaintiff had not re‑married. The witness, however, got the mutation of the suit land effected in his and his brothers' favour and sold a part of the suit land to defendant No. 6 and thus by his conduct showed that the plaintiff‑respondent had remarried." It was contended that in this respect the lower Appellate Court had misread the evidence, for Nur Muhammad had appeared during the mutation proceedings and supported the plaintiff's claim that she had not remarried. Similarly in the written state ment filed by defendants Nos. 3 to 5 jointly it was admitted that the plaintiff had not remarried although her claim in the suit was contested on the ground that she was entitled to maintenance only. In view of this the assumption that Nur Muhammad P. W. had by conduct admitted that the plaintiff had remarried was certainly contrary to the record. Similarly at another place the learned Additional District Judge has observed : "it is not uncommon for village people to hesitate to answer questions and especially those about which they have no knowledge." It was intended to explain the note of the learned trial Judge about Sher Shah (D. W. 1) which reads : "Every question was put after some effort had been wasted in getting the statement of the witness in the normal course." Lastly, there is no denying the fact that there were glaring discrepancies in the testimony of the D. Ws. on very materiel points but the lower Appellate Court has disposed them of with the charitable observations : "I am aware that there are some discrepancies in the statements of the D. Ws., but they relate to minor points such as may easily escape memory after such a long time and are not on material points." Later on we will have an occasion to examine whether the discrepancies in the testimony of the defendants' witnesses are on material or immaterial points which might have escaped memory after some time.

6. Being conscious of the poor quality of the evidence led by defendants Nos. I ‑ and 2 as to the plaintiff's remarriage, Mr. Bashir Ahmad, learned counsel for defendant No. 6, naturally laid great stress on the limits to the jurisdiction of this Court in reviewing the findings of fact in a second appeal under section 100 of the Code of Civil Procedure. It was contended that howsoever erroneous or perverse be the findings of the first Court of appeal, this Court has not jurisdiction to review them and that it was not always necessary or possible to refer in the judgment to every document or the evidence of every witness so as to find fault with it in a second appeal on the ground that some material evidence has not been considered. Reliance was placed in support of these two propositions on Durga Chowdhrani v. Jewahir Singh Chowdhri (I L R 18 Cal. 25 P C) ; Wali Muhammad v. Muhammad Bakhsh ; Nadir Shah v. Lal Shah (P L D 1954 Lah. 447) ; Abdul Majid v. Khalil Ahmad (P L D 1955 F C 38) ; Mst. Saroo v. Yeshtvant (A I R 1934 Nag. 124) ; Mst. Akhtari Begum v. Allah Jawaya (A I R 1936 Lah. 543) ; Kunj Bihari v. Umashankar (A I R 1938 Pat. 38) ; Sheo Kumar Singh v. Mahraj Singh (A I R 1946 Oudh 72) and D. Pattabhiramasawamy v. Hanymayya (A I R 1959 S C (Ind.) 57). In reply learned counsel for the appellant has referred to equally large number of authorities but before dealing with them it is appropriate to examine more closely the authorities cited by Mr. Bashir Ahmad.

7. The earliest case on the subject is Durga Chowdhrani v. Jewahir Singh Chowdhri. The finding of the trial Court was reversed by the Court of first appeal and on second appeal by the plaintiff the Judicial Commissioner declined to interfere with the decision arrived at by the lower Appellate Court by observ ing "The lower Appellate Court decides that there was no partition, but it does not give fully the grounds on which this decision is based. However, I do not consider, after hearing the careful argument of the learned Advocate for the appellant, that this finding is open to second appeal. It is a finding of fact, and if there is evidence to support it, I do not think that it is open to a Court of Second Appeal to rehear the case and reconsider the evidence. I might perhaps come to a different conclusion from that arrived at by the Court of First Appeal, but that clearly would not justify my interference with the finding." In the course of further appeal before the Judicial Committee, the counsel for the plaintiff contended that it was open to the Judicial Commissioner and, therefore, to their Lordships to review the finding of the first Court of appeal on the ground that his decision involved` or amounted to a substantial error or defect in procedure. Reliance was placed on Fattehma Begum v. Muhammad Ausur (I L R 9 Cal. 309) and Niyath Singh v. Bhikki Singh (I L R 7 All. 649). In the former case it was observed :‑ "It is not the ordinary course of procedure for this Court to interfere in second appeal with any findings of fact which have been arrived at by the lower Appellate Court ; but we are well within the scope of the authorities in holding that where the lower appellate Court has clearly misapprehended what the evidence before it was, and has thus been led to discard or not give sufficient weight to important evidence, and to give weight to other evidence to which it is not entitled, and has thus been led not into any mere accidental mistake but totally to misconceive the case, this Court may interfere." In Niyath Singh v. Bhikki Singh the observations of the learned Judges of the Calcutta High Court, reproduced above, were cited with approval and it was held that an erroneous finding of fact under similar circumstances might be treated as an error or defect in procedure within the meaning of section 584 (corres ponding to section 100, C. P. C.). Their Lordships of the Judicial Committee did not accept the decision in these cases as correct and without calling upon the counsel for the respondent dismissed the contention raised by the counsel for the appellant with the remarks :‑ "Nothing can be clearer that the declaration in the Civil Procedure Code that no second appeal will lie except on the grounds specified in section

584. No Court in India or else where has power to add to or enlarge those grounds. It is always dangerous to paraphrase an enactment, and not the less so if the enactment is perhaps not altogether happily expressed. Their Lordships, therefore, will not attempt to translate 'into other words the language of section

584. It is enough in the present cap a to say that an erroneous finding of fact is a different thing from an error or defect in procedure, and that 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". The first Court of appeal had reversed the finding in favour of the plaintiff without discussing the evidence adduced by the parties and while disapproving the sketchy nature of the judgment their Lordships observed ‑-- "They have no reason to doubt that all the evidence was fully and duly considered by him, but they cannot help thinking that a judgment more carefully expressed might have prevented an idle appeal". Their Lordships have thus laid down two propositions‑-- (i) That when there is no error or defect in procedure, the finding of the first Appellate Court on a question of fact is final if that Court had before it evidence proper for its con sideration in support of the finding. The word "proper" obviously means evidence admissible under the Evidence Act. (ii) That although the first Court of appeal had dealt with the matter before it in a meagre fashion yet it did not furnish a proper ground under section 584 of the Code to interfere with it in a second appeal on the ground that all the relevant evidence had not been discussed before drawing conclusions of fact from it.

8. The next pronouncement of their Lordships of the Judicial Committee on the scope of an appeal under section 100, C. P. C. is in Nafar Chandra Pal v. Shukur Sheikh (I L R 46 Cal. 189). It was followed by the decision in Midnapur Zamindary Co. v. Uma Charan Mandal ((1923) 29 Cal, W N 131). In Wali Muhammad v Muhammad Bakhsh their Lordships have defined the limits of an appeal under section 100, C. P. C. at some length and laid down the following four propositions:-- (1) There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the error seem to be. (2) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact. (3) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights, but were really historical materials, have to be construed for the purpose of deciding the question. (4) A second appeal would not lie because some portion of the evidence might be contained in a document or documents and the first appellate Court had made a mistake as to its meaning. The question whether a statutory presumption is rebutted by the rest of the evidence was held to be question of fact and this was approved by the Judicial Committee in Kumeda Presunna Bhuiya v. Secretary of State for India in Council ((1914) 19 Cal. W N 1017).

9. In Wali Muhammad v. Muhammad Bakhsh a suit for redemption of agricultural land was resisted by the mortgagees on the plea that the mortgagor had sold to them the equity of redemption. In support of their claim they relied upon the entries of their names as owners in the record of rights made in 1892 which under the Punjab Land Revenue Act, 1887, were presumed to be correct. The trial Judge had dismissed the suit but on appeal the Additional District Judge found for the plaintiffs and passed a decree for redemption. On second appeal to the High Court, Broadway and Forde, JJ. held that under sections 100 and 101, C. P. C. the finding that there had been no sale was binding on them. After laying down the aforementioned four propositions their Lordships of the Judicial Committee dismissed the appeal with the observation that whether there was a sale or not was a question of fact and they had no hesitation in holding that the finding of the first Appellate Court that there was a sale was final and that the judgment of the High Court was right.

10. In Nadir Shah v. Lal Shah Nadir Shah claimed to be the owner of the house in dispute and the finding of the lower Appellate Court on this issue was reversed by my Lord the Chief Justice in a second appeal. On a further appeal under Clause 10 of the Letters Patent, Muhammad Munir, C. J. (now the Chief Justice of Pakistan) sitting with M. A. Sufi, J. restored the decree of the first Court of appeal on the ground that this Court had no jurisdiction to interfere with a finding of fact in an appeal under section 100, C. P. C. Attention was then drawn to the aforementioned judgments of the Privy Council in which the distinction between erroneous finding of fact and an error or defect in procedure was laid down and it was observed that there is no jurisdiction in the High Court to question the finding of fact, howsoever gross or inexcusable the error in coming to that finding may be unless the error is an error in the procedure provided by law which may possibly have produced error or defect in the decision of the case on merits. Lastly, reference was made to venkata Kumara Mahipati Suryarao Bahadur Garu v. Secretary of State (A I R 1929 P C 152) in which the observations of Lord Macnaghten in Durga Chowdhrani's case, reproduced above, were referred to with approval, namely, howsoever gross or inexcusable the error may seem to be, there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In Abdul Majid v. Khalil Ahmed (P L D 1955 F C 38) my Lord the Chief Justice has reaffirmed his finding in Nadir Shah v. Lal Shah. At page 41 of the report it is observed: "I adhere to that opinion which was based on the Privy council decisions in Durga Chowdhrani v. Jewnhlr Singh Chowdhri and Wali Muhammad v. Muhammad Bakhsh which lay down this proposition in clear and unmistakable terms. 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 final Judge of facts. The circumstances that the sale deed 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 function in interfering with those findings."

11. In D. Pattabhiramaswamy v. Hanymayya the learned Judges of the Supreme Court have observed that the finding on the title was arrived at by the District Judge not on the basis of any document of title but on consideration of relevant docu mentary and oral evidence adduced by the parties. Their Lordships proceeded to remark that in their opinion the High Court had clearly exceeded its jurisdiction in setting aside the said finding, that the provisions of section 100 were clear and unambiguous and as early as 1891, the Judicial Committee in Durga Chowdhrani v. Jewahir Singh Chowdhri has said that there is no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact, howsoever gross the error may seem to be. The subsequent pronouncement of the Judicial Committee in which this dictum was re‑affirmed are then referred to and the discussion is concluded by the following pertinent observation : ‑ "Notwithstanding such clear and authoritative, pronounce ments on the scope of the provisions of section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does, not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under section, 100, Civil Procedure Code."

12. Keeping in view the dictum in the judgments discussed above, it is idle to refer to the remaining authorities of the various High Courts of the Indo‑Pak. Sub‑continent relied upon by Mr. Bashir Ahmad in support of the proposition that a finding of fact cannot be interfered with in an appeal under section 100, C. P. C. howsoever perverse, gross or inexcusable erroneous the finding may be. This, however, does not bring us to the end of the controversy, for there are authorities in which after taking notice of the aforementioned authorities the findings of fact by the first Court of appeal have been reversed in a second appeal on what is described as "well‑recognised grounds".

13. In Nadir Shah v. Lal Shah at page 448 of the report, my Lord the Chief Justice has also acknowledged the existence of such grounds in the following sentence :‑ "The issue between the parties was purely one of fact, the correctness of which could not be questioned in second appeal except on certain well‑recognised grounds."

14. The authorities cited by Mr. Ghias Muhammad in which these well‑recognised grounds have been laid down are numerous and out of them we have selected only those which are more in point and contain weighty reasons. The first of them is Bharpura v. Diwan Chand (A I R 1940 Lah. 329). In disposing of an objection by the respon dent's counsel that this Court had no jurisdiction to question a finding of fact arrived at by the lower Appellate Court, Din Muhammad, J. has observed in the case :‑ "It is true that it has been observed by their Lordships of the Privy Council as well as by the other High Courts in India in several cases that a finding of fact arrived at by a lower Appellate Court is binding on the High Court, however erroneous it might be. But in my view, this dictum presupposes that the finding is honest, that it has been arrived at on the facts of the case uninfluenced by any extraneous considerations, that it is the result of a correct appreciation of material on the record and that it is based on evidence and not on surmises and conjectures. Any finding of fact which does not satisfy any of the requirements stated above will in my view not be binding on this Court. There is ample authority in support of the proposition that every finding of fact is not sacrosanct and that if findings of fact are arrived at on mere surmises and conjectures or on evidence that is inadmissible or otherwise legally insufficient, those findings can be disturbed". With this preface his Lordship proceeded to find out numerous faults with the judgment under appeal. Firstly, in reversing' the finding of the trial Court, the Senior Subordinate Judge had remarked that the lower Court had ignored the expert's opinion while in point of fact the trial Judge had at more than one place referred to the opinion of the expert and based his decision on issue No. 1 against the plaintiff mainly on the score of that evidence. Secondly, the trial Judge had rejected the evidence of some of the witnesses on the ground of hostility to the defendant but the lower Appellate Court had overcome that objection on the ground that no question had been asked from those witnesses as to why they became hostile to the defendant. This reasoning of the lower Appellate Court was considered to be ridiculously absurd and the first of these two defects as a misrepresentation of the reasoning of the trial Judge. On these and some other grounds, which ‑need not be recapitulated, the learned Judge interfered with findings of fact by the lower Appellate Court and allowed the appeal.

15. In Munshi v. Bhagat Singh, another case in the same volume, Dalip Singh, J. disregarded a finding of fact by the first Court of appeal, namely, that the plaintiff was a collateral of the vendor and as such had a superior right of pre‑emption. The finding was based upon an inference drawn from kafiat deh prepared in the settlement of 1884. The counsel for the appellant maintained that the inference drawn by the lower Appellate Court was incorrect while the counsel for the respondent contended that no second appeal could be based on misconstruction of a document which was not a document of title. While agreeing with the latter contention supported, as it was, by the decision in Wali Muhammad v. Muhammad Bakhsh Dalip Singh, J. went on to say that the lower Appellate Court had really held that there was an admission of the predecessors‑in‑interest of the vendor that the predecessors‑in‑interest of the pre‑emptor were collaterally related to them but as a matter of fact on his reading the kafiat deh, no such admission existed. It was not, therefore, entirely a question of drawing a wrong inference from a certain document, not being a question of title but a question of mis reading of evidence and holding that an admission had been made whereas as a matter of fact no such admission was made at all.

16. In Muhammad Sarwar v. Feroze Khan (P L D 1951 Lah. 169) Muhammad Sharif, J. while dealing with the question of physical possession in a pre‑emption case observed that there was no clear finding by the first Court of appeal that physical possession of any part of the property in suit was transferred on 1st March 1943, that all that was found by the District Judge was that possession had passed to the vendee before the transaction was reported to the patwari on 8th March 1943 and that it was nowhere found that physical possession had actually been delivered by the vendor to the vendee from 8th March 1943 and as the real question was whether physical possession had been transferred over any part of the property forming the subject‑matter of the sale, there was no finding of fact on the matter in issue which would have precluded a further inquiry into the question of physical posses sion in a second appeal. Having thus cleared the ground for re‑opening a finding of fact, the learned Judge proceeded to observe:

"Moreover, the written statement of Muhammad Sarwar dated 17th August 1944, filed in the suit for declaration instituted by Qamar‑ul‑Zaman, his vendor, regarding the same property, was not at all taken into consideration. It appears that after the pre‑emption suit by Firoz Khan had been instituted, Qamar‑ul‑Zaman brought a suit for a declaration challenging the very sale itself. 1t was admitted that the plaintiff, i.e., Qamar‑ul‑Zaman vendor, was still in possession of the property on account of near relationship, but the ownership had been transferred to himself and that the sale was for consideration and binding upon the plaintiff. Muhammad Sarwar wanted to get out of this admission in his written statement by saying, that he had after the‑sale, entered into possession, but was subsequently dispossessed. This, however, does not find corroboration from any other material on the record. The so‑called finding of fact by the learned District Judge, was, therefore, vitiated and the learned Judge in Chambers was perfectly within his right to examine the whole position de novo". That the written statement of Muhammad Sarwar was not taken into consideration is of course inferred from the absence of any mention of it in the judgment in appeal.

17. In Jahan Khan v. Feroze (P L D 1951 Lah. 433) S. A. Rahman and Muhammad Jan, JJ. did not consider themselves bound by the concurrent findings of fact by the Courts below‑that the impugned gift was effected when the donor was suffering from marz‑ul‑maut as the finding given by the District Judge was vitiated by misrepresentation of the evidence on the record and its mis interpretation. The District Judge had observed that even according to the defendants' witnesses, at the time of the executiod of the gift deed, Maula Dad donor was unable to move about and to sit on his charpai and that the attack from which he suffered was so severe that even the hakim, who was treating Maula Dad, thought that the end was approaching and advised him to undergo treatment by a specialist. A perusal of the evidence on the record, however, showed that these observations were unwarranted which entitled this Court to an independent appraisal of the evidence on the record.

18. In Bashir Ullah v. Mo. Sardar Begum (P L D 1954 Lah. 614) it was laid down that it is not enough for the Court of appeal to say that the defendant had led evidence to show that the sale in question was effected with the consent of the plaintiff. The evidence that was led in the case should be discussed and an independent mind brought to bear on the issue. Even if the Court of appeal professes to have examined the evidence but it does not appear in the judgment that it has done so, a mere statement that upon an examination of evidence it agrees with the conclusions of the trial Judge would not convince the Court of second appeal that the evidence has been so appraised as to make it unnecessary for that Court to undertake a second appraisal and that it was only when the Court of second appeal was thus convinced that it will regard the finding of fact by the first Court of appeal as con clusive. It was further observed that the conviction that the Court of first appeal had brought to bear on the issue an independent mind and that this fact should appear from the judgment itself and not by a mere statement to that effect may of course be gained by going through the entire evidence by the Court of second appeal and not otherwise.

19. In Federation of Pakistan v. Hasham Ali Shah (P L D 1954 Lah. 769) the contention of the Assistant Advocate‑General on behalf of the appellant that a finding of fact could not be disturbed in second appeal was overruled by Ortcheson, J. by observing that there were two answers to the objection. In the first place, the counsel for the appellant had himself challenged the finding of the lower Appellate Court that there had been negligence on the part of the railway which threw open to examination the whole case in second appeal and, secondly, as held by the Patna High Court in Phul Chand Khandelmal v. Governor‑General in Council (29 Pat. L T 76) in second appeal the High Court is entitled to examine the soundness of conclusions drawn from the evidence produced and the question of whether such conclusions are correct is either a question of law or a mixed question of law and fact.

20. In Muhammad Bakhtiar Khan v. Qari Bashir Ahmad (P L D 1957 Lah. 803) Kaikaus, J. has added another ground for reappraisal of a finding of fact by the first Court of appeal, viz., disregarding the evidence of a witness styling him as interested whereas there was nothing to show how he was interested. A number of other defects in the judgment of the first Court of appeal are enumerated at pages 808 and 809 of the report, for instance, the first Court of appeal has observed that a certain document was properly excluded from evidence and this did not find favour with Kaikaus, J. and it had been omitted from consideration that in the cellar, adjacent to the mosque, movable property belonging to the mosque was kept which, in the opinion of the learned Judge, furnished evidence of the management of the mosque by the plaintiff who was admittedly in possession of that cellar. The discussion is concluded by the following observations ‑ -- "The learned Senior Civil Judge said this was not good evidence of the possession of the mosque itself by the plaintiff because the mosque being adjacent to the plaintiff, the possession of the cellar may have been taken by the plaintiff without any objection by any person. He did not note that according to the statement of Bashir Ahmad defendant himself in the witness‑box in this cellar was kept movable property belonging to the mosque."

21. In Shree Meenakshi Mills Ltd. Madurai v. Commissioner of Income‑tax Madras (P L D 1957 S C (Ind.) 188) Venkatarama Ayyar, J. in considering section 66 (i) of the Income‑tax Act has observed at page 195 of the report that the determination, of the Tribunal in those proceedings being one of fact it was open to review by the High Court only on the ground that it was not supported by any evidence or that it was perverse. Thus the perversity of a finding was treated as a question of law which should be referred to a High Court under section 66 (i) of the Income‑tax Act. In support of this view, reliance was placed on the observations of Lord Atkinson in G. W. Rly. Co. v. Bater (1922 T C 231 at p. 244) ___ "Their (Commissioner's) determination of questions of pure fact are not to be. disturbed, any more than are the findings of a jury, unless it should appear that there was no evidence before them upon which they, as reasonable men, could come to the conclusion to which they have come ; and this, even though the Court of Review would on the evidence have come to a conclusion entirely different from theirs." It may be asked as to what is the scope of the criterion whether the Commissioner had acted as a reasonable man or not and whether it is possible to interfere with a finding of fact by the first Court of appeal on the ground that no reasonable man could have come to it or in other words that perversity of finding would furnish a good ground to ignore it in a second appeal.

22. In Naurang Rani v. Ganpat Rai, in describing the limits of an appeal under section 100, C. P. C., Modi, J. has observed :

"Where the Courts below have entirely misdirected themselves by ignoring important evidence on the record and by misreading the evidence their judgments cannot be held to be binding on the High Court." The judgment is not reported but only the above note is repro duced at No. 4350 in A I R 1955 N U C (Notes from Unreported Cases) (Rajasthan). It is, therefore, not possible to appreciate the context in which the above observation has been made but there is no doubt that omission to recapitulate important evidence in the case was considered such a misconstruction on the part of the first Court of appeal that it was permissible for a High Court to interfere with the finding of fact in a second appeal.

23. In Bhim Singh and another v. Ramji and others (42 P L R 136) Tek Chand, J. disregarded a finding by the first Court of ‑appeal on the ground that the judgment in appeal was not a proper judgment as the Additional District Judge had not discussed the evidence produced before or after the remand and had based his judgment on asssumption which was not borne out from the record. After analysis the evidence led by the parties on the issues arising in the case, Tek Chand, J. proceeded to remark that in a case in which the findings of fact of the lower Appellate Court are to be final, it is necessary that the Court should examine the entire evidence and its judgment should indicate that it had done so.

24. In another case, Lala Ram and another v. Chhanga and others (42 P L R 275) appearing in this very volume at page 275, the same learned Judge, while describing the limits of the jurisdiction of this Court to interfere with a finding of fact in an appeal under section 100, C. P. C., observed that a final Court of fact, especially when it reverses the decision of the Court of first instance, should consider the entire evidence on the record and its judgment should indicate that its conclusions have been arrived at after a consideration of all the material on the record.

25. In Bhuput Rai, and another v. Kali Rai and another (6 C W N 357) Amir Ali and Pratt, JJ. did not consider a finding of fact by the first Court of appeal binding in a second appeal on the ground that the procedure adopted by the Subordinate Judge was not in accordance with law which required that all the facts and the circumstances of the case should be taken into consideration. At page 359 of the report it is stated :‑ "The Munsif pointed out in his judgment that Rashdhari's evidence did not relate to any material point and there was nothing to show that it was not perfectly true ; and only because Rashdhari at one time gave evidence against the Plaintiff, the Subordinate Judge (Court of first appeal) has considered it to be a sufficient ground for disbelieving his testimony. There are other matters mentioned in the judgment of the Munsif which go to show that the case put forward by the Plaintiff could not be true. These facts and circumstances apparently have not been considered by the Subordinate Judge. We are of opinion that the procedure adopted by the Sub ordinate Judge in the trial of this case was not in accordance with law which requires that all the facts and circumstances of the case should be taken into consideration". The observation is apparently based on the omission of the facts and circumstances of the case in the judgment under appeal and it is held to be not in accordance with the law.

26. The latest authority of the Privy Council on the subject is Shankarrao v. Sambhu (AIR 1940 P C 192). The head note (c) of the report reads‑ "When the existence of a document does not appear from the judgment of the first Appellate Court to have been appreciated by it, and no effect whatever is given to the statutory presump tion arising from the document, the questions of fact as well as of law are open in second appeal as well as in Privy Council appeal". In order to appreciate the above dictum it is necessary to briefly recapitulate the facts of the case and the judgment of the first Court of appeal. The appellant was the Inamdar of a village in West Khandesh District in the Presidency of Bombay and traced his title back to an inam granted by the Maratha Ruler In 1798. This title was confirmed by the British Government in 1843 and in 1880 a sanad was granted by the Government of Bombay to the appellant's father showing that, subject to the deduction of some 120 acres alienated by the grants of earlier date than 1798, the village was the grantee's permanent heritable property held subject to payment to Government of a judi or quit rent of Rs. 13 per annum and nazrana of Rs. 14‑8‑0, in all Rs. 27‑8‑

0. It was contended by the respondents that the appellant was not shown to be a grantee of the village but only of a certain share in the revenue of the village. The High Court had held that the appellant was the grantee of the soil and the finding appeared to their Lordships so well‑founded that they considered it unnecessary to discuss the question afresh. The matter had come to the High Court in the following manner. Six suits were filed against the inamdar, one of which was decided by the First Class Subordinate Judge against the inamdar on the ground that he had no title to the soil but only to the‑ revenue of the village. An appeal was taken to the High Court from this judgment in which questions of fact as well as of law were open. The other five suits were decided against the inamdar in the Court of the Second Class Subordinate Judge and on appeal the finding had been confirmed by the lower Appellate Court. The inamdar went up in second appeal from these cases and the High Court disposed of all these cases by one judgment dismissing the suits in favour of the appellant. As regards the five cases which came up before the High Court on second appeal, the finding of the District Judge though not his conclusions as to their effect in law were considered to be prima facie conclusive by their Lordships in view of the provisions of sections 100 and 101, C. P. C. and the decision of the Judicial Committee in Dhanna Mal v. Moti Sager (54 I A 178). This is followed by the observations‑-- "But the existence of the Record of Rights does not appear from the judgment of the learned District Judge to have been appreciated by him, and as he has given no effect whatever to the statutory presumption, their Lordships are unable to regard the appellant as taking any advantage from the circumstance that five of the cases were dealt with in the High Court upon second appeal. The questions of fact as well as of law are open to the High Court and must be considered by the Board". The presumption of correctness attached to the record‑of‑rights in this case was similar to the presumption contained in section 44 of the Punjab Land Revenue Act on which reliance was placed by the defendant's counsel in Wali Muhammad v. Muhammad Bakhsh, At first glance their Lordships appear to lay down a rule in Shankarrao v. Samonu which is contrary to the rule propounded in Wali Muhammad v. Muhammad Bakhsh and the various authorities cited in it but a closer examination will show that in fact this is not so. At page 197 of the report, their Lordships have no doubt observed that questions of fact as well as of law are open to the High Court because the first Court of appeal did not appear to have appreciated the existence of record‑of‑rights and given effect to the statutory presumption which attached to it. In Wali Muhammad v. Muhammad Baksh section 44 relied upon by the defendants in support of their claim that they had acquired equite of redemption of the suit land was given proper effect and it was found that the statutory presumption had been amply rebutted. The omission to raise the statutory presumption in the latter case was then considered a defect or error in the procedure within the purview of clause (c) of section 100, C. P. C.

27. The remaining authorities relied upon by Mr. Ghias Muhammad may be briefly referred to now. Bhikhan Qassab v. Mardan Ali (A I R 1920 Pat. 359), Failure to consider evidence is a substantial error in procedure. Velayuda Gurukal v. Annammal (A I R 1926 Mad. 652). The High Court will interfere in cases where the lower Courts have overlooked important evidence or where they decided points not raised by the parties or where they misconstrued important documents. The last point is elaborated by the observation which was that when a Court misconstrues a document it relies upon a construction which it is not capable of bearing and such misconstruction leads not merely to a wrong view of the evidence but to relying upon what it considers to be an inference from the evidence which the evidence is not capable of bearing. Ghulam Hussain v. Secretary of State (A I R 1939 Lah. 510). Finding of fact by lower Appellate Court based partly on conjectures and partly on a misunderstanding of the evidence is liable to be set aside in second appeal. Sheikh Muhammad v. G. G. In Council (A I R 1954 Nag. 337). A finding of fact by the lower Appellate Court which is contrary to pleadings and evidence is not binding in a second appeal. Ram Narain v. Manki Singh (A I R 1954 Pat. 562). Where a Court of appeal in reversing the conclusion arrived at by the trial Court erred in many respects and the finding given by the Court of appeal was partly based on conjecture and partly on a wrong application of law, it is as such perverse and not of a character which can be said to be' binding on the High Court in second appeal. Lal Singh v. Tejmal (A I R 1954 Ajmer 75). Findings of fact recorded by the first Appellate Court, however erroneous they may be, cannot be reopened unless it is held that the findings are vitiated. When the Appellate Court fails to take into consideration evidence on record or misreads some important evidence or omits to pay sufficient attention to some evidence which shifts the burden of proof, commits some mistake in law or omits to consider the evidence of a material witness, the findings of fact may be vitiated and not binding on the second Appellate Court. Mangilal v. Jagannath (A I R 1955 N U C (Rai.) 540). The High Court should be slow to interfere with the finding of fact arrived at by the lower Appellate Court, but where an Appellate Court ignores important evidence on the record and discards a portion of it on grounds which are more or less imaginary, the finding of fact is vitiated and cannot be upheld."

28. The authorities cited by the counsel for the respondents lay down the broad proposition that a Court of second appeal has no jurisdiction to interfere with findings of facts howsoever grossly erroneous, perverse or inexcusable. The authorities relied upon by the counsel for the appellant do not profess to differ with the above dictum but lay down certain excep tions to the rule (1) that a judgment must show that it is the result of correct appreciation of the material on the record, i e., the evidence must be discussed and an independent mind brought to bear on the issue and this fact should appear from the judgment itself and not from the mere statement to that effect, (2) the findings of fact must be based upon evidence present on the record and not on surmises and conjectures and (3) misrepresentation or misreading of evidence vitiates a finding of fact arrived at by the first Court of appeal. Some authorities have gone further, for instance, (i) if the finding is based on misunder standing of the evidence, it is liable to be set aside in second appeal, (ii) in a second appeal the High Court is entitled to examine the soundness of conclusions drawn from the evidence led by the parties, and (iii) the finding must be honest, i.e., it has been arrived at on the facts of the case without extraneous influence and is a result of the appreciation of the material on the record.

29. All these exceptions barring Nos. 2 and 3 need not detain us very much. The rule enunciated by the Judicial Committee in Durga Chowdhrani v. Jewahir Singh Chowdhri is that if there is no error or defect in the procedure, the finding of the first Court of appeal upon a question of fact is final if that Court had before it evidence proper for its consideration in support of the finding. It will be further recalled that in this case the Court of first appeal had merely expressed its agreement with the finding of the trial Court and there was no indication in the judgment that an independent mind was brought to bear on the issue and practically there was no discussion of the evidence on the record. It was with reference to this defect in the procedure that their Lordships observed

"They have no reason to doubt that all the evidence was fully and duly considered by him, but they cannot help thinking that a judgment more carefully expressed might have prevented an idle appeal." In view of the pronouncement of their Lordships of the Judicial Committee in the various cases, referred to above, we find our selves unable to agree with the authorities which have laid down the exception that a judgment must show that it is the result of correct appreciation of the material on the record, that the evidence must be discussed and an independent mind brought to bear on the issue and this fact should appear from the judgment itself and not from the mere statement to that effect.

30. The second exception that the finding of fact must be based on the evidence present on the record and not on surmises and conjectures gives rise to a situation which is somewhat difficult to resolve. There can be two answers to it firstly, that the finding is vitiated because it is not known how far the first Court of appeal has been influenced by the evidence on the record and how far by its own surmises and conjectures. The second answer can be that so long as there is some evidence in support of the finding it is not vitiated by the addition of certain surmises or conjectures on the part of the first Court of appeal. In support of this latter view, reliance may be placed on the dictum of their Lordships in the aforementioned cases that a finding of fact howsoever grossly erroneous, inexcusable or perverse cannot be reviewed in second appeal. The terms "perverse, inexcusable and grossly erroneous" have a very large scope and may well include a finding extracted from evidence coupled with surmises and conjectures arising from the circum stances of the case. In fact perversity may include something more. But as this aspect of the proposition has not been con sidered in any reported case and we were not addressed by the learned counsel on it, we consider it proper to refrain from expressing any considered opinion as to the correctness of this exception.

31. A case of finding without evidence or of misrepre sentation of evidence covered by the third exception, however, stands on a different footing. If the Judge believes that there is some evidence on the record from which he has drawn con clusions of fact and in‑fact there is no such evidence, it must follow that there is no proper finding which may be binding on a Court of second appeal. Such an error will clearly fall within the scope of clause (c) of section 100, C. P. C., viz., a substantial error or defect in procedure which may possibly have produced an error or defect in the decision of the case upon merits. Order, XX, rule 4, C, P. C. provides that judgments of Courts other than a Court of Small Causes shall contain a concise statement of the case, the points for determination, the decision thereon and the‑ reasons for such decision. Similarly Order XLI, rule 31, C. P. C. provides that a judgment of the Appellate Court shall state‑-- (a) the points for determination ; (b) the decision thereon ; and (c) reasons for the decision." The reasons for the decision on the points involved in the determination of an appeal must of course be based on the evidence on the record and the provisions of law applicable to them. If there be no evidence in support of a decision, or the evidence is misrepresented, it could be said that there were no reasons for decision within the scope of clause (c) of Order XLI, rule 31, and Order XX, rule 4, C. P. C. and it will warrant inter ference with findings of fact in a second appeal. Perhaps this was in the view of their Lordships when they observed in Durga Chowdhrani v. Jewahir Singh Chowdhri :‑ " 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 findings." It may thus be safely concluded that if there be no proper evidence in support of a finding by the first Court of appeal or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated and a Court of second appeal is entitle to review it. But this is the only exception which is tenable under law and all other exceptions referred to above are clearly unwarranted by the provisions of sections .100 and 101, C. P. C.

32. In the light of the above discussion, a large number of contentions raised by Mr. Ghias Muhammad, which, in our opinion, are quite weighty, must be disregarded and we would have dismissed this appeal but for the contention that the lower Appellate Court has misread and misrepresented material portions of evidence on the issue under discussion.

33. While discussing the testimony of Nur Ahmad (P. W. 5), E a brother of the plaintiff, the District Judge has observed "The witness also 'stated that the plaintiff had not remarried. The witness, however, got the mutation of the suit land, effected in his and his brothers' favour and sold a part of the" suit land to defendant No. 6 and thus by his conduct showed that the plaintiff‑respondent had remarried." This indeed is a misrepresentation because according to the copy of mutation in question Nur Ahmad had supported the plaintiff's assertion that she had not remarried but at the same time claimed that the land in the name of his sister should be mutated in his and his brothers' and uncles' names as she was entitled to maintenance only. The written statement in the present suit is also to the same effect. Thus there was no evidence on the record from which an admission by conduct of Nur Ahmad P. W. could be inferred in favour of the defendants.

34. Sher Shah (D. W. 1) deposed that he was the plaintiff's vakil, at the time of her marriage with Ahmad Yar. His evidence was not believed by the trial Court, inter alia, on the ground that the answers given by him were generally evasive. In order to repel this reasoning, at page 13 of the paper book the District Judge has observed: "It is not uncommon for village people to hesitate to answer questions and especially those about which they have no knowledge. * * * * The second question put to him was whether any meal was served at the time of the marriage and the witness stated that the parties had served the meals to the members of their brotherhood and not to other village people. I do not think the mere hesitation of the witness to answer some questions or the fact that the Court has had to ascertain some facts from him by putting a few questions to him justifies the rejection of his evidence." The answer to the second question was that the meals might have been served to the members of the brotherhood which is of an evasive nature but the District Judge has read it as the parties had served the meals to the members of their brotherhood and not to other village people. The evasive nature of the answer indicated ignorance and anxiety on the part of the witness to avoid making a positive statement which may be contradicted by other defence witnesses but the learned District Judge by misrepresenting the material particulars of the answer has tried to overcome the reasoning of the trial Ciurt. Fateh Muhammad (D. W. 2) was asked in cross‑examination whether Mst. Ghulam Bibi, wife of defendant No. 1, was his first cousin (father's brother's daughter). The answer he gave was : "I do not know". This was followed by a few more questions in reply to which he had to admit the above‑mentioned relationship. This defect the learned District Judge has tried to explain away by the observation‑-- " It is correct that he at first did not admit whether the wife of Khuda Bakhsh appellant was the daughter of his collateral. That fact alone does not, however, justify the rejection of his evidence. Village people are generally hesitant to admit such relationship." We first of all notice that whereas the witness admitted that Mst. Ghulam Bibi, wife of defendant No. 1, was his first cousin, the learned District Judge has translated it as "collateral" in order to dilute the effect of the attempt made by the witness to conceal his interest in the party which had summoned him as a witness. The answer given by the witness was :‑ "My grandfather was Fazal Din. The father of Ghulam Bibi, wife of defendant No. 1, was Muhammad Din. This Muhammad Din, father of Mst. Ghulam Bibi, was the son of my grandfather." In this context the use of the word "collateral" by the learned District Judge is quite misleading. Secondly, the explanation that the village people are generally hesitant to admit such relationship is nothing but a wild surmise for which there appears to be no warrant but we do not wish to base our interference with the finding of the lower Appellate Court on this ground. The other defects mentioned above are, in our opinion, sufficient to vitiate the finding on issue No. 1.

35. Having closely examined the evidence led by the parties on issue No. 1, we have no hesitation in rejecting the defendants' claim that the plaintiff was married to Ahmad Yar, son of defendant No. 2, in September or October 1947. Firstly, the evidence in support of the alleged marriage is highly discrepant on more than one material point and, secondly, the circumstances of the case go much against the defendants, e.g., absence of any entry relating to the alleged marriage in the register of marriages, the delay of four years in reporting the incident of the alleged marriage to the patwari for entering a mutation regarding forfeiture of her life estate, the possession of Mst. Fatima over a major portion of the suit land at the time of the present suit, and there being no good ground for the plaintiff to repudiate the marriage with her cousin when the land held by her was to go to her own brothers and real uncles.

36. The following is the brief summary of the defendants' evidence which brings out glaring discrepancies on more than one material point. Sher Shah (D. W. 1) deposed that he acted as vakil of the plaintiff at the time of her marriage with Ahmad Yar and that he had been seeing them living as husband and wife. He is not related to Mst. Fatima plaintiff but claimed to have acted as her vakil in the presence, of her own brothers which is indeed very odd and the witness did not explain as to why he was taken into confidence more than the bride's brothers. The witness was quite categorical in the assertion that Ahmad Yar had never married any other woman but as will be seen presently this fact was admitted by Ahmad Yar himself besides more than one defence witness. Similarly the witness stated that Rs. 5 were paid to the nikah khwan as his fee and Re. 1 was given for the village mosque but according to Qazi Muhammad Yar, son of the nikah khwan, nothing was paid at the time of the marriage and on his return to the village he was deputed by his father to collect the marriage fee from Sher Shah (D. W. 1). D. W. 2 Fateh Muhammad stated, that the plaintiff had married Ahmad Yar and he along with Elahi Bakhsh had acted as a witness of the nikah. He had also seen the plaintiff living with Ahmad Yar as his wife in the latter's house. In cross‑examination, the witness at first tried to deny that his first cousin was married to defendant No. 1 but later on he had to admit it. In reply to the question whether meals were served at the time of the marriage, the witness stated : "Meals had been served to the near relatives of the parties" as if he was not one. His reply to the second question was similarly evasive. He was asked whether anything was distributed at the time of the marriage. The answer he gave was : "Gun and Chawal are generally distributed". He was then asked the question how long after the marriage the land was mutated in favour of defendants Nos. 1 to

5. The witness at first tried to evade the question and when pressed stated that defendants Nos. 1 and 2 had taken away one or two harvests before mutation was attested in favour of defendants Nos. 1 to

5. Then said that the land had been entered in the mutation register in favour of defendants Nos. 1 to 5 nearly six months or one year after the marriage in dispute. Now we know that the mutation was entered in 1951 which means that according to this witness the plaintiff's remarriage had taken place in the beginning of 1951 and not in October 1947. This position was further clarified when the witness stated that he was present at the time of the attestation of the mutation and that the plaintiff had appeared before the revenue officer and denied the marriage in dispute. Thus there can be no doubt that by the words "mutation being entered" the witness meant the date on which the plaintiff had appeared before the revenue officer and denied her remarriage with Ahmad Yar. Elahi Bakhsh (D. W. 3) claimed to have acted as a witness of the plaintiff's marriage with Ahmad Yar and had seen them living together as husband and wife. In cross‑examination the witness stated that as the plaintiff was a widow, there were no jubilations and no meals were served. This is contrary to the statements of D. Ws. 1 and 2, one of whom acted as a vakil of the nikah and the other as a witness along with D. W. 3, The witness further stated that the plaintiff and her new husband lived together for four or the years after the marriage in the house of the plaintiff's deceased husband Khushi Muhammad, which again is contrary to the testimony of D. Ws. 1 and 2 on the point. The first‑named stated that the plaintiff had been living in the house of her first husband Khushi Muhammad for the last seven months or so and previous to that she had lived in the house of her husband Ahmad Yar while D. W. 2 stated that after the attestation of the mutation, the plaintiff left the house of Ahmad Yar and had taken up residence in the house of her first husband Khushi Muhammad. Towards the end of his cross‑examination the witness admitted that Abmad Yar, son of defendant No 2, had remarried Mst. Nur Jahan and she was living with him in his house. This contradicts D. W. 1's statement that Ahmad Yar had never married any other woman excepting Ms,. Fatima. Qazi Muhammad Yar (D. W. 4) is the son of Mahboob Alam who was stated to have performed the plaintiff's nikah with Ahmad Yar. His knowledge of the marriage is based on the hearsay but in cross‑examination he admitted that there were instructions from the Government that all the marriages in the village should be entered in the register of marriages which at the time of the alleged marriage was maintained by his father and on his death by the witness himself. In reply to the question as to where Mst. Fatima lived after the marriage, the witness replied that he could not. say as to the house in which he had been seeing the plaintiff living with her new husband Ahmad Yar. This was obviously an attempt on his part to avoid making a positive statement which might be contradicted by the other D. Ws. The next witness Nadir Shah is the son‑in‑law of defendant No.

1. He is also the son of the sister of defendant loo. 2 and little reliance can be placed upon his testimony which also stands otherwise discredited, for instance he stated that the plaintiff had assented to the sale by defendants Nos. 3 to 5 in favour of defendant No. 6 but the lower Appellate Court has not relied on it. The testimony of Ghulam Hussain (D. W. 6) is not of much avail to the defendants because after making a bald statement that the plaintiff had remarried Ahmad Yar, he hastened to say, that he had lost his memory and, therefore, could not give the particulars of the marriage. In cross‑examination he had to admit that his niece Mst. Zubeda Begum was the wife of Muhammad Ali, son of Khuda Bakhsh defendant, and Mst. Jannat Bibi, daughter of defendant No. 1, was married to his real nephew. The witness further deposed that after her marriage, the plaintiff continued to live in the house of her first husband Khushi Muhammad and her new husband Ahmad Yar took up residence with her in that house. Karam Hussain (D. W. 7) is brother of Sher Shah (D. W. 1). He also claimed to have been present at the time of the plaintiff's marriage and in cross‑examination stated that no meals were served on that occasion. Jalal Din (D. W. 8) is the village shoemaker who deposed to have attended the marriage as a kamin. At first he stated that after her marriage the plaintiff lived with her husband some time in the house of her first husband and some time in the house of Ahmad Yar but in the next sentence he was quite categorical that after her marriage the plaintiff did not leave the house of her first husband and that Ahmad Yar lived with her for one year in that house. D. W. 9 is Ahmad Yar, the alleged husband of the plaintiff. The evasive nature of the replies he gave in cross examination can best be described by reproducing a part of his statement verbatim :‑ "I had willingly married the plaintiff. I and the plaintiff had been living together in my own house as well as in the house left by Khushi Muhammad deceased. The plaintiff's doli had been taken to my house after the marriage. Kamins had been paid at the time of the marriage. Jalal Din D. W., Aziz barber and Muhammad Sheikh were the only Kamins paid at the time of the marriage. My uncle, defendant No. 1, had paid them. I do not know the amount paid to each of them. Muhammad Sheikh had been paid for his services in beating drum at the time of the marriage. The plaintiff and her brothers had served meals to the marriage party, but we had left that very evening after the marriage." It would be noticed that according to Ahmad Yar, the plaintiff left the house of her first husband on the day of the marriage and went to reside with him whereas some of the D. Ws. were positive that after the marriage the plaintiff did not leave the house of Khushi Muhammad and Ahmad Yar took up residence with her in that house. Similarly while Jalal Din P. W. stated that Muhammad Bakhsh defendant had paid Rs. 1 to barber and no other payment was made to any village kamin at the time of the marriage which of course included Jalal Din himself, according to Ahmad Yar Jalal Din was also one of the recipients of money distributed among the kamins at the time of his marriage with the plaintiff. Again there is a distinct attempt on the part of Ahmad Yar to reconcile the contradictory state ments of the remaining D. Ws. as to whether any meals were served at the time of the plaintiff's marriage or not. Some have stated that no meals were served while others maintained that meals were served to the near relatives of the bride and bridegroom. To bridge this difference Ahmad Yar stated that meals were served to the marriage party but he and the plaintiff had left that very evening before partaking the meals. The words "but we had left that very evening" certainly connote that they had not taken the meals and it is absurd on the face of it that while other members of the marriage party were served meals, the bride and the bridegroom had left earlier. The next witness Nur Zaman (D. W. 10) had only heard that the plaintiff was married to Ahmad Yar and his evidence may, therefore, be dismissed as hearsay. The last witness of the alleged marriage is Muhammad Bakhsh defendant, father of Ahmad Yar, who appeared as D. W.

11. He has of course supported the defence version that the plaintiff was married to his son, Ahmad Yar, before coming into force of the Muslim Personal Law (Shariat) Application Act but much reliance cannot be placed on his interested testimony.

37. The above analysis of the defendants' evidence on issue No. 1 has left us in no doubt that the allegation that the plaintiff had married Ahmad Yar in the month of October 1947 and had consequently forfeited her life estate in the suit property is false. It is, therefore, not necessary to minutely examine the plaintiff's evidence on this issue except to observe that the statement of Aziz (P. W. 1) appears to have no bearing on the facts of the case while the testimony of the remaining five witnesses including the plaintiff herself and her brother Nur Ahmad (P. W. 5) is consistent throughout and sounds more convincing than the evidence led by the defendants.

38. In the result we set aside the finding of the lower Appellate Court on issue No. 1 and affirm the decree passed by the trial ‑Court in favour of the plaintiff with costs throughout. A. H. Appeal accepted.