P L D 1965 (W (PLP)

(6) Is the suit properly valued.? (7) Relief. After recording the evidence, adduced by the parties, the learned Trial Judge answered issue No. 1 in the negative. Issue No: 2 was found for the plaintiff. On issue No. 3, he found that the market value of the suit land amounted to Rs. 6,

195. Issues 4 and 5 were found against the defendant and issue No. 6 was found for the plaintiff. As a result of his finding on issue No. 1, the learned trial Judge, by .his order, dated 17‑7‑61, dismissed the plaintiff's suit with costs.

4. On appeal, the learned District Judge, Hazara, set aside the finding of the trial Judge on issue No. 1, accepted the appeal, set aside the judgment and decree of the Court below and passed a decree for possession by pre‑emption of the suit land in favour of the plaintiff against the defendant, on payment of Rs. 6,195 with costs, by his order, dated 23‑1‑62.

5. Legal representatives of the defendant‑vendee have come up in second appeal to this. Court.

6. The only point for determination in this case is as to whether Mst. Asman Pari plaintiff‑respondent has a superior right of pre‑emption on the basis of being a participator in the immunities and appendages, as contemplated by section 12 (secondly) of the N.‑W. F. P. Pre‑emption Act, 1950. In support of this allegation, the plaintiff‑respondent, apart from relying on the report of the Commissioner at page 34 of the, file, also relied upon the statement of his witnesses, viz., Fazal Rabi, Allahdad and Taus Khan. The statement of the Commissioner recorded at the trial, shows that the rain water from Khasras Nos. 1596, 1597, 1600 and 1601 flows into Khasra No. 1592, which goes into Khasra No. 1603, belonging to the plaintiff‑respondent. He further stated that the slope of the disputed land was towards the west and from the `Shajra Kishtwar', it appears that the land, belonging to the respondent, is to the west of the land in dispute. The witnesses examined by the plaintiff in support of her contention, have also stated that the rain water from the suit land flows into her land. It follows that Khasra No. 1603 belonging to the respondent is a servient tenement, as it receives water from the disputed land through Khasra No. 1592, which is a `kasi (channel) and is also in dispute, and thus the adjoining suit Khasra Nos. have the right to discharge the rain water on to the land belonging to the respondent comprised in Khasra No. 1603. In support of his contention that the plaintiff ‑respondent, the owner of the servient tenement, had a superior right of pre‑emption in respect of the suit land, which is a dominant tenement, learned counsel for the respondent relied upon Allah Bakhsh v. Muhammad Abdullah (P L D 1961 Pesh. 92) at pages 96‑97, in paras. 14‑15, his Lordship observed : "

14. The next contention of the vendee was that the appendage of the right to discharge water mentioned in section 12 of the North‑West Frontier Province Pre‑emption Act confers right of pre‑emption upon the owner of the dominant tenement. The owner of the servient tenement derives no right of pre- emption at all. The plaintiff pre‑emptor is the owner of the servient tenement and has no right of pre‑emption in respect of the sale of the dominant tenement. For this proposition he relied on Abdur Rahman v. Muhammad Ismail and Karim v. Piyo Lal Bose.

15. These authorities no doubt concede to the owner of the dominant tenement a right of pre‑emption ‑in respect of the servient tenement and on the language of the law that should no doubt be so, because the owner of the dominant tenement is a participator in the appendage with the owner of the servient tenement. But there is nothing in these authorities to show that the owner of the servient tenement is precluded from claiming such a right in respect of the dominant tenement. As against that, there is a clear authority in I L R 24 Born. 414 for the view that, the owner of the servient tenement has a right of pre‑emption in respect of the dominant tenement. In that case right of pre‑emption was conceded to the owner of servient tenement in respect of sale of the dominant tenement."

7. The evidence examined by the respondent read with the report of the Commissioner clearly shows that the disputed land discharges the rain water on to the land belonging to the A respondent, and so, in view of the above‑mentioned authority, the right of pre‑emption is available to the owner of the servientr tenement in respect of the sale of a dominent tenement.

8. Learned counsel for the appellants, however, urged that the disputed land did not discharge the rain water on to the land of the plaintiff‑respondent but in fact, her land received rain water, from the suit land and thus the receipt of water was not the same as discharge. In support of his contention, he relied upon First Civil Appeal No. 118/59 "Haji Abdul Aziz v. Shah Afzal, decided by this Court on 11‑5‑

61. In para. 7 of the judgment it was observed by their Lordships ; "This is of course now settled, but the learned District Judge does not appear to have considered the assential point, namely, that a right of irrigation does not fall within the definition of "a right to discharge water", being rather a right to receive water. The expression as used in the second clause of section 12 of the Act clearly means that the owner of the dominant heritage has a right to discharge water onto and through the servient heritage . . . . . . ." He also relied upon Civil Revision No. 199/57, "Muhammad Nawaz v Aghajan", decided on 7‑3‑62, where it was held: "It is, therefore, clear that one of the examples given in section 12 (secondly) of the Pre‑emption Act of 1950 is the right to discharge water and not a right to receive water. The provisions of section 12 (secondly) are exhaustive on the point of `Khuleet' and it is clear that the Muslim Law applicable to the `Khuleet' is governed by the words "the right of way or a right to discharge water". In this view of the matter the participators in immunities and appendages will not include the right of irrigation from a Common water channel." The above‑mentioned two authorities are riot applicable and are distinguishable. In the first case,, it was held that a right of irrigation does not fall within the definition of a right to discharge water; and in the second case it was held that the participators in immunities and appendages will not include the right of irrigation from a common water channel. In the instant case, however, the rain water from the disputed Khasra Nos. flows into Khasra= No. 1592 (which is also in dispute) and is discharged on to the plaintiff's land comprised‑ in Khasra No. 1603, and thus the authority reported as Allah Bakhsh v. Muhammad Abdullah is applicable.

9. Learned counsel for the appellants next urged that according to the report of the Commissioner, rain water from Khasras Nos. 1595, 1596, 1600 and 1601 is discharged on to the land belonging to the plaintiff through Khasra No. 1592. It follows that only rain water from five out of the nine Khasra Nos. in suit is discharged on to the land of the plaintiff, and thus the remaining four Khasras Nos., viz. 1587, 1588, 1590 and 1591 do not discharge the rain water on to the plaintiff's land. I do not find much force in this contention, because the Commissioner, when examined, stated that the slope of the suit land was towards the west and the land belonging to the plaintiff is to the west, of the suit property. Furthermore, the witnesses examined by the plaintiff, have stated that the water from all the Khasras Nos. in dispute was discharged on to the land belonging to her:

10. Learned counsel for the appellants attacked the statements of the witnesses on the ground that they were related to the plaintiff, but this does not amount to misreading of evidence. Learned counsel for the respondents urged that although the B witnesses examined by the plaintiff‑respondent were related to her but there was no misreading of evidence and no appeal lies on the ground of erroneous finding. In support of his contention, he referred to National Bank of India Ltd. v. Dost Muhammad & Bros. (P L D 1957 Lah. 420) where it was observed at page 427, first line: "It is now well‑settled that no second appeal lies on the ground of erroneous finding of fact, however gross the error may seem to be." In Abdul Majid v. Khalil Ahmad (P L D 1955 F C 38) it was held: "The High Court has no jurisdiction 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. A fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal." The same view was taken in Nadir Shah v. Lal Shah (P L D 1954 Lah. 447), where it was held: "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. 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."

11. A careful examination of the record would show that the land belonging to the plaintiff respondent comprised in Khasra No. 1603 being the servient tenement receives the rain water from the disputed property, which is a dominant tenement, and so the learned District Judge was perfectly right in coming to the conclusion that the plaintiff being owner of the servient tenement, had superior right of pre‑emption in respect of the land sold, and I, therefore, maintain his finding, uphold his judgment and the decree and dismiss the appeal with costs. K. B. A. Appeal dismissed.