1. ' This is a second appeal by the plaintiff against a decision of the lower Appellate Court. The plaintiff originally sued for possession by redemption of the property detailed in the plaint, on payment of Rs, 5,000 as mortgage amount. In the alternative, the plaintiff claimed possession of the land on the basis of title. He also prayed for the grant of a decree for possession by pre-emption in case his prayer in respect of the first two alternative reliefs was not acceptable. The plaintiff's case was founded on the ground that he was the owner of the land while the defendant was its mortgagee on his behalf in the sum of Rs, 5,000. The defence was that the defendant was the owner of the land as having purchased the same from the plaintiff on the basis of a sale-deed dated 14th May, 1972.
2. Some more objections were also taken by the defendant in his written statement. It is unnecessary to notice here the pleadings' of the parties or the issues which were framed by the trial Court with reference to those pleadings, as the only practical issues which have survived for decision in the present appeal and on the determination of which the fate of the appeal hinges are Issues Nos. 4 and 5. These issues read :-
(4) Whether the defendant is an owner and in possession of the suit land through its purchase from the plaintiff on the strength of sale-deed dated 14-5-1972?
(5) Whether the suit land was mortgaged with the defendant for an amount of Rs, 5,000?
3. ' The defendant produced sale-deed dated the 14th of May, 1972, copy Exh. D. B., to support the contention that the land in dispute had been purchased by him from the plaintiff. The sale-deed purports to have been executed by the latter. The defendant, besides himself, examined Sher Bahadur and Muhammad Jabbar as his witnesses to prove the execution of the document by the plaintiff. They said that it was written by the plaintiff himself, was also signed by him as its executant in their presence and that they were the marginal witnesses of the same. On the close of the evidence led by the parties, the learned counsel for the parties made a verbal request to the Court to send. The sale-deed in question to the Handwriting Expert so as to ascertain if it was in the handwriting of the plaintiff. The specimen writings of the plaintiff were obtained in Court and alongwith the sale-deed were sent to the Handwriting Expert for his views. After doing all that was thought necessary, the expert came to the conclusion that the questioned writings on the sale- deed dated 14-5-1972 had been written by Suhbat Khan whose specimen writings Exh. C. A. Had been obtained in Court. According to the opinion formed by him, the questioned and specimen writings had been written by one and the same person. Upon consideration of the evidence on record, the trial Court came to the conclusion that the defendant had succeeded in proving that the land had been sold to him by the plaintiff by virtue of the sale-deed dated 14-5-1972.
4. ' The observations made in this behalf by the trial Court are pertinent and are reproduced below for facility of reference :- "Khanimullah defendant has fully proved the execution of the sale-deed dated 14-5-1972 copy Exh.
5. D. B. From the statements of Sher Bahadar (D. W. 2) and Muhammad Jabar (D. W. 3) who have specifically stated that the defendant has purchased the suit land from the plaintiff for Rs, 80,000.
6. Moreover, Mr. Zaka A. Malik, Handwriting Expert, Lahore, to whom the original sale-deed dated 14-5- 1972 copy Exh. D. B., was sent for examination, has also reported in his report dated 13-12-1978 that this deed was written by the plaintiff himself and it correctly bears his signature. The plaintiff has thus miserably failed to prove that he is the owner or that the suit land was mortgaged by him to the defendant or that he has got any right of pre-emption against the defendant while on the other hand, the defendant (Khanimullah) has fully proved that he is the owner and in possession of the suit land by purchase from the plaintiff (Haji Sohbat Khan) on payment of Rs, 80,000."
7. ' The plaintiff's suit was consequently dismissed with costs. In appeal, the plaintiff fared no better.
8. The District Judge, while dismissing his appeal, observed :- "As against the evidence of the plaintiff-appellant, the defendant-respondent led qualitative evidence in support of his assertion. He claimed to have purchased the suit land by means of deed dated 14-5-1972, photostat copy of which is Exh. D. B. The statement of the defendant-respondent that the deed was scribed by the plaintiff-appellant and that he executed it of his own free will finds great support from the statements of Sher Bahadar (D. W. 2) and Muhammad Jabbar (D. W.
9. 3), who are marginal witnesses of the deed. It may be pointed out that the plaintiff-appellant did not admit that original of Exh. D. B. Was in his handwriting and that he had signed it. At the request of the plaintiff-appellant, matter was referred to Handwriting Expert. Opinion of the Expert (Zaka A.
10. Malik) went against him and for this very reason he did not summon him in the lower Court.
11. Appellant contended that since the Expert was not examined, therefore, his report was entirely inadmissible. At page 621 of Principles and Digests of Law of Evidence, 4th Edition there is reference to case of Dil Muhammad v. Sabi Das AIR 1927 Lah. 396, wherein it was held that if a Tarty had called for the report of Expert, the report would be admissible against him, even if he had not examined the Expert as a witness in proof of the report. After going through the evidence on record, I am satisfied that the findings of learned trial Court are perfectly correct."
12. ' In this Court two points have been urged, namely, the evidence produced was not sufficient to prove the execution of the sale-deed by the plaintiff, and the two Courts below erred in taking into consideration the report of the Handwriting Expert who was not called as a witness to give evidence.
13. ' As regards the first point, it has been argued that the evidence produced in the Vial Court consisting of the testimony of Sher Bahadar and Muhammad Jabbar D. Ws. Was not sufficient to prove the execution of the sale-deed in question by the plaintiff and the two Courts below had misread and misinterpreted the evidence. This contention has no force. I have gone through the entire evidence on the record and it appears to me that Sher Bahadar and Muhammad Jabbar D.
14. Ws. Were truthful witnesses and their evidence as marginal witnesses that the sale-deed had been written, and signed as executant, by the plaintiff rings true in the circumstances of the case. The present was neither a case of misreading of evidence nor that of misinterpretation of evidence. The Courts below were, in my view, perfectly justified in coming to the conclusion that the plaintiff was the executant of the sale-deed whereby he had sold the suit land to the defendant and that the plea that the land was under mortgage with the defendant was wholly devoid of truth.
15. ' Apart from what has been stated above, the appellant is confronted with a further difficulty, and a formidable difficulty indeed, arising out of the legal provisions dealing with second appeals. It can hardly be doubted that the question whether the sale-deed dated 14-5-1972 was executed by the plaintiff is a pure question of fact. There are concurrent findings arrived at by the two Courts below that the sale-deed had been executed by the plaintiff. In arriving at this conclusion, the oral evidence given by the defendant and his two witnesses named above was considered sufficient.
16. The appellant in this second appeal seeks to challenge the concurrent findings of fact arrived at by the two Courts below. It may be stated that section 101 of the Code of Civil Procedure provides that no second appeal shall lie except on grounds mentioned under section 100. A reference to section 100 would show that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to it, on any of the following grounds, namely :-
(a) the decision being contrary to law or to some usage having the force of law ;
(b) the decision having failed to determine some material issue of law or usage having the force of law ; and
(c) a substantial error or defect in the procedure provided by the Civil Procedure Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits.
17. ' Nothing can be clearer than the declaration in the Civil Procedure Code that no second appeal shall lie except on the grounds specified in section 100. A Court of first appeal is un-doutedly competent to enter into question of fact, and decide whether the findings' of facts by the lower Court are, or not, erroneous. But a Court of second appeal is not competent to entertain questions as to the soundness of the findings of fact by the Court below. In the instant case, even if it were assumed for the sake of arguments that there was an erroneous finding of fact by the two Courts below, this Court C would not be competent to interfere. It is well settled that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. No doubt, second appeal does lie where there is substantial error or defect in procedure but an erroneous finding" of fact is a different thing from an error or defect in procedure. Where there is no error or defect in 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 mere fact that the High Court would have upon the evidence placed before the Court of first appellate come to a different conclusion is no ground for a second appeal. It is precisely this revision of evidence which is excluded by the limited character of a second appeal. In the present case, however, no question of an error or defect procedure is involved. On this score alone, therefore, the present appeal would be liable to dismissal.
18. ' It is not in the least necessary to enquire into the correctness of the second point urged before me.
19. 1 must say that its determination in this appeal is unnecessary, because even if the report of the Handwriting Expert is ruled out of consideration, it will make no material difference as the other evidence produced by the defendant and referred to above in support of the execution of the sale deed by the appellant, has been regarded as sufficient evidence.
20. ' It follows from what has been stated above that there is no force in this appeal. I am, therefore, not persuaded to issue notice to the opposite-party and Would dismiss the appeal in limine.