P L D 1978 Lahore 1134 (PLP)

Sh. Khurshid 1qbal for Appellants Syed Faqir Hussain for Respondent. Date of hearing : 22nd January, 1977. The facts giving rise to the second appeal are that respondent-plaintiff, filed a suit for possession through partition of the property in dispute. The claim of the respondent, in the suit, was based on the fact that he had become the owner of 25/64 share of the 1hatain dispute measuring 6 marlas 6 sersahis through two mutations of Sales No. 463/464 dated the 1st of July, 1961. The remaining portion of the lhata was owned by the appellants who were in possession of the same and were not prepared to surrender possession of his share and that the appellants-defendants were unlawfully in possession of the same Ihata. The appellants-defendants in their written statement admitted the factum of sale but it was alleged that the super structure on the 1hata belongs to them and vender had no concern with it. They prayed for the dismissal of the suit. The pleadings of the parties gave rise to the following issues : (i) Whether Khewat No. 56, Khatauni Nos. 91 and 92 has been partitioned into lhatas Nos. 132/1 and 132/2, if so, its effect upon the suit ? (a) Whether the malba of the Ihata No. 132/2 is only of the defendants and the sellers to plaintiff had no share in it, if so, what is its value ?

2. As the factum of sale is not disputed, the only question involved in the present appeal is, as to whether, the superstructure belong to the vendor or to the present appellants. It is submitted by learned counsel for the appellants that both the Courts below were not justified to have discarded the oral evidence, which goes a long way to prove that the superstructure belongs to the appellants. With the assistance of the learned counsel, 1 have gone through the evidence and am unable to agree with the contention of the learned counsel. Both the Courts below have relied on the documentary evidence i. e. Exhs. P. 1, P. 2 and P. 3 which are copies of Jamabandis and mutations which clearly prove that there was an old construction. In the presence of this documentary evidence it cannot be said that the superstructure which was standing on the land in dispute was not sold to the respondents. The concurrent finding of both the Courts below is based on careful and elaborate consideration of the documentary evidence and supported by the oral evidence produced by the plaintiff. From the documentary evidence produced by the plaintiff it is sufficiently established that the superstructure is an old one and formed part of the sale transaction.

3. No. doubt a second appeal lies where there is a substantial error or defect in the procedure put an erroneous finding of fact is different from an error or defect in procedure. Where there is no error or defect in the procedure the finding of fact of the Courts below upon a question of fact, i if the Courts had before them evidence proper for their consideration, is final. In second appeal High Court will not be justified to reverse the same by re-assessing the evidence or by giving weight to the testimony of any particular witness. The finding of both the Courts below is based on documentary evidence and needs no interference in second appeal.

4. In view of the discussion made above this appeal has no force and is accordingly dismissed. The parties are, however left to bear their own costs. S. A. H. Appeal dismissed.