P L D 1954 Lahore 447 (PLP)

(b) Practice‑Objection based on law involving investiga tion into facts not allowed to be raised for first time in second appeal. The objection that the house in dispute, being situate within limits of a cantonment could not be transferred except by a registered deed involved the question of the value of the house at the time of transfer. The objection was not allowed to be raised in second appeal for the first time. Said Akbar, for Appellant. M. H. Munir, for Respondent (1). MUHAMMAD MUNIR, C. J.‑This appeal under Clause 10 of the Letters Patent has been brought in the following circumstances. Lal Shah, who is the respondent before us brought a suit in the trial Court for a declaration that he was the owner of house No. 873, situate in the Campbellpur Cantonment, and that he was in possession of it as an owner. The suit was resisted by Nadir Shah, the appellant before us, on the ground that the house belonged to him and not to Lal Shah. The house originally belonged to a man also named Lal Shah who has been described as 'Lal Shah Senior' and who was married to a sister of Lal Shah respondent Lal Shah's first wife was a sister of Nadir Shah appellant, Amir Hussain Shah is Lal Shah's son from his first wife. Lal Shah Senior died some time after 1937 and Lal Shah rested his claim to the ownership of the house on a sale deed which was executed in his favour by Muhammad Shah and Sadiq Husain sons of Lal Shah Senior and Ijaz Husain. Akhtar Husain and Shafclat Husain sons of Haider Shah another son of Lal Shah Senior. Nadir Shah based his title to the house on a sale deed dated 11th October 1946, executed by Amir Husain Shah. Thus, while the respondent claimed the house on the strength of a sale deed executed by the heirs of Lal Shah Senior on 29th March 1947, Nadir Shah appellant resisted the claim on the ground that he had purchased the house from Amir Husain Shah to whom this house had been transferred by Lal Shah Senior some time in 1936 or 1937. The claim was decreed by the trial Court but on appeal the decree of the trial Court was reversed and the suit dismissed. On second appeal by Lal Shah respondent the suit was decreed by a learned judge of this Court who set aside the decree of the lower appellate Court and restored that of the trial Court. The only issue in the case was whether Nadir Shah appellant had succeeded in proving his ownership of the house. The finding by the trial Court on this issue was against the appellant and in favour of the respondent. The finding was, however, set aside by the judge of the lower appellate Court who held that the appellant had succeeded in proving in himself a title acquired prior to the respondent's purchase of the house This finding was based on oral evidence, the conduct of Lal Shah senior the original owner of the house, and entries in assessment records of the Campbellpur Cantonment in which originally Lal Shah Senior was mentioned as the owner of the house and subsequently, even in the lifetime of Lal Shah Senior, Amir Husain Shah. That 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. The learned judge of this Court who upset the finding has not in his judgment stated the reasons which led him to reverse a finding of fact in second appeal. But when the application for leate to appeal under the Letters Patent came up before him, he stated the question involved in the case to be whether the Lower Appellate Court's finding of fact was so obviously perverse as to justify interference in second appeal, and he granted leave on this point. Now a second appeal under subsection (1) of section 100 of the Code of Civil Procedure lies, inter alia, on the ground that the decision of the lower appellate Court is contrary to law or to some usage having the force of law a The necessary implication of this subsection is that questions of fact cannot be agitated before the High Court in second appeal unless their decision raises some question of the kind mentioned in clause (c) of that subsection. On more than one occasion the Privy Council has pointed out the distinction between an erroneous finding of fact and an error or defect in the procedure adopted in coming to that finding. The rule that can be deduced from the various judgments of the Board on this subject is that, however gross or inexcusable the error in coming to a finding of fact may be, there is no jurisdiction in the High Court to question that finding unless 6 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 the merits. Reference in this connection may be made to the leading Privy Council case, Durga Chowdhrani v. Jawahir Singh Chowdhri (I L R 18 Cal. 23.) and the subsequent case, Wali Muhammad v. Muhammad Bakhsh (I L R 11 Lah. 199.). In the Midnapur Zemindari Company Limited v. Uma Charan Mandal (A I R 1923 P C 187.) Lord Sumner pointed out that unless it can be shown that the first appellate Court has misdirected itself in point of law in dealing with a question of fact upon the evidence, there can be no ground for a second appeal from its decision on that question of fact. Again, in JJenkata Kumara Mahipati Suryarao Bahadur Garu v. Secretary of State (A I R 1929 P C 152.), Lord Tomlin said that no second appeal can lie except on the grounds specified in section 100 of the Code of Civil Procedure, and referred to the observations of Lord Macnaghten in Mst. Durga Chowdhrani v. Jawahir Singh Chowdhri (supra) 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. Therefore, in the present case the learned single judge had no jurisdiction to disturb or upset the finding of fact recorded by the lower appellate Court, unless he thought that there was no evidence to support the finding or that in coming to the finding the Lower appellate Court had committed some error of procedure or misconstrued any document which was an instrument of title or otherwise the direct foundation of the right claimed by the appellant. The case set up by the appellant was one of oral transfer in 1936 or 1937 by Lal Shah Senior to Amir Husain Shah and the evidence produced by him was intended to be merely presumptive evidence of such transfer. The assessment records were not relied on as instruments of title but merely as evidence of an anterior transfer. As such they were admissible evidence and the inference to be drawn from them was one of fact and not of law. In the same way, Lal Shah Senior's conduct in not objecting to the change in the entries in the assessment, records and the conduct of his successors‑in‑interest was relied on to persuade the Court to hold that Lal Shah Senior must have himself transferred his rights in the property to his wife's brother's (?) son Amir Husain Shah who was then an infant. The learned judge had therefore no jurisdiction to question the finding of fact recorded by the lower appellate Court. It is contended by Mr. Mushtaq Husain Munir, learned counsel for the respondent, that a conclusion or inference to be drawn from the evidence is always a matter of law, the correctness of which can be called in question in second appeal. This argument is often advanced from the Bar butt, there is no warrant for it. An inference as to a fact, drawn from the evidence, direct or circumstantial, remains an E inference of fact which cannot be questioned in second appeal but where the question is whether the facts found do or do not constitute a legal transaction of a particular kind, e.g., a sale, mortgage, servitude or tort, such question is clearly one of law. In the same way, where the evidence of title is a document, the question what interest, if any, it transfers is a question of law and any misconstruction of such document will maintain a second appeal In the present case, however, no such question arose. Before us the decree of the learned judge was sought to be supported by the respondent on the ground that by reason of section 287 of the Cantonments Act, read with section 54 of the Transfer of Property Act, the house could not be transferred by Lal Shah Senior to Amir Husain Shah except by a registered instrument. This point was neither taken at the trial nor at the hearing of the first or the second appeal. Though a pure question of law may be permitted to be taken in second appeal, including a Letters Patent appeal if no prejudice is caused to the other side, where the decision on the question of law depends upon the determination of a question of fact it cannot be permitted to be raised for the first time in appeal. The question whether in 1936 or 1937 the house could not be transferred except by a registered instrument depends upon the value of that house at that time. If the house was less than Rs. 100 in value, it could be transferred by an oral sale. Lal Shah Senior himself pur chased the house for a sum of Rs. 99 in 1919, and it may be that its value at the time of its transfer to Amir Husain Shah was still less than Rs.

100. As the application of the rule under section 287 of the Cantonments Act depends upon a question of fact on which the parties are not agreed, we cannot allow the point to be taken at the present stage of the proceedings. The result, therefore, is that the decree of the learned judge of this Court is reversed and that of the lower appellate Court restored. In the circumstances of the case, however we leave the parties to bear the costs of this appeal. A.H. Decree reversed