P L D 1966 (W (PLP)

There is a broad distinction between the scope of first appeal and that of second appeal in that the former is not limited to any particular grounds of appeal, but in the case of latter it can be allowed only on any of the three grounds specified in section 100 of the Civil Procedure Code, 1908. The provision restricting the grounds that may be taken in Second Appeal is on the ground of public policy expressed in the maxim interest reipublicaeut sit finis litium it concerns the State that there be an end to litigation. To entertain second appeal, any of the three conditions mentioned in section 100 of the Code must, therefore, be strictly fulfilled. As long as there is legal evidence, however meagre it might be to sustain the finding of the first appellate Court and however erroneous it might appear to the High Court, it cannot be called into question in that erroneous finding of fact is a different thing from an error or defect in the procedure. Venkata Kumara Mahipaty Muryarao Bahadur Garu v. Secy. of State A I R 1929 P C 152 and Mst. Durga Choudrain v. Jawahir Singh Choudhri 17 I A 22 ref. S. Haider Shah for Appellant. The learned counsel for the appellant argued that the first appellate Court had committed a "substantial error or defect in procedure" within the purview of clause (c) of section 100, C. P. C. in reversing the finding of the trial Court without adverting to all the evidence on which the trial Court held in favour of the appellant that Waris and Mst. Shakran, respectively son and widow of Mehr Khan, were Shias and not Sunnis.

2. The question which arises in the case is whether the firs appellate Court is under any obligation to refer to every portion of the evidence. The question, in my view, admits of a short answer and against the appellant in that it is not incumbent on the first appellate authority to refer to each and every piece of evidence relied upon by the trial Court in support of its finding, provided the material evidence had been considered. At times it would be impossible and frequently it will be intolerable and always very inconvenient if the Courts were compelled to state every piece of evidence in the case and arrive at a particular finding upon such evidence. What is essential is that the Court should consider the relevant evidence and having done so the finding of the first appellate Court is conclusive unless it is shown that the finding suffers from any of the infirmities referred to in section 100.

3. The sole question which fell for decision was whether Mehr Khan, the last full owner of the property in suit was a Shiah or Sunni. The trial Court held in favour of the plaintiff, but on appeal after considering the material evidence the Appellate Court reversed the finding. Since the question whether a party is Sunni or Shia is purely a question of fact, the finding cannot be assailed. The judgment of the learned Appellate Court would show that it discussed at some length the material evidence for and against and reached the conclusion that the parties were Sunnis. It is important to observe here that there is initial presumption that a Muslim is governed by Hanfi Law unless contrary is established by reliable evidence. This initial presumption taken along with the evidence produced by the respondent entitled the Appellate Court to set aside the finding of the trial Court and that finding cannot be assailed in second appeal.

4. The learned counsel tried to argue that the weight of evidence was in favour of the view reached by the trial Court. Assuming without holding that this is so and even conceding that I may be persuaded to agree with the finding of the trial Court in preference to the one recorded by the Appellate Court, but this would not bring the case of the appellant within the purview of section 100 so as to give the High Court the jurisdiction to canvass the finding of fact recorded by the first Appellate Court. There is a broad distinction between the scope of first appeal and that of second appeal in that the former is not limited to any particular grounds of appeal, but in the case of latter second appeal can be allowed on any of the three grounds specified therein. The provision restricting the grounds that may be taken in second appeal is on the ground of public policy expressed in the maxim interest reipublicaeut sit finis litfun it concerns the State that there be an end to litigation. To entertain second appeal, any of the three conditions mentioned in section 10 must, therefore, be strictly fulfilled.

5. As long as there is legal evidence, however, meagre it might be to sustain the finding of the first Appellate Court and, however, erroneous it might appear to the High Court, it cannot be called into question in that erroneous finding of fact is a different thing from an error or defect in the procedure. I am fortified in this view by the high authority of the Privy Council reported in Venkata Kumata Mahipaty Muryarao Bahadur Garu v. Secy. of State (A I R 1929 P C 152), wherein Lord Tomlin, speaking for the Board at page 155, after holding that "under the Civil Procedure Code no second appeal will lie except on the grounds specified in Section 100", borrowed the following observations of Lord Macnaghten in Mst. Durga Choudrain v. Jawahir Singh Choudhri (17 I A 122):‑-- "It is enough in the present case 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". (The underlined* is mine).

6. In the result, the appeal fails and is dismissed in limine. K. B.A. Appeal dismissed.