' This is an appeal against a decision of the Additional District Judge, Charsadda dated the 29th June, 1978, whereby he dismissed the appeal of Mumtaz and 6 others and confirmed the order of ejectment passed by the Rent Controller, Charsadda, against them, on the 9th February, 1978.
' The facts of the case are these :--On the 14th of April, 1977, Jehanzeb submitted an application to the Rent Controller, Charsadda, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for the ejectment of Mumtaz and 6 others from a house, as detailed in the heading of the application and situate in the Abadi of Village, Tangi Nusratzai. The ejectment was sought on the grounds, firstly that the respondents-tenants had made default in the payment of rent, secondly that they committed acts resulting in impairing the value of the house, and lastly that the petitioner required the house for his own personal use. The respondents, in their joint written reply, raised several objections, one of them being that there was no relationship of landlord and tenants between the parties. In view of the denial of the relationship of landlord and tenant by the respondents, the, Rent Controller did not deem it necessary to frame issues arising out of the other objections raised by the respondents, and contented himself with the framing of only one issue, namely, whether the relationship of landlord and tenant exists between the parties.
' Both the parties led evidence in support of their respective contentions. On consideration of the evidence so produced, the Rent Controller came to the conclusion that the relationship of landlord and tenant existed between the parties and that the denial of such relationship by the tenants rendered them liable to ejectment. Consequently, he passed an order on the 9th of February, 1978, requiring the respondents to vacate the. House 'within four weeks. On appeal, the Additional District Judge -maintained this order of ejectment except that he allowed a period of one month commencing from the order of dismissal of appeal, to the tenants to vacate the premises. This decision is now being impugned before me.
' It may at the outset be stated that the case set up by the petitioner before the Rent Controller was that the house in question was originally owned by one Mst. Sabz Pari who sold the same to him by virtue of an unregistered sale deed dated 10th of March, 1976. After this sale transaction, the petitioner wanted to eject respondents 1 and 4 who were then in exclusive possession of the house.
The matter was, however, settled through a Jirga and the said respondents verbally agreed to remain in possession as tenants under the petitioner on payment of monthly Rent of Rs, 50.
Afterward, the aforesaid respondents allowed the other respondents to put up with them in the house.
' The petitioner, Jehanzeb, appeared as his own witness before the Rent Controller and was examined as P. W.
3. He produced 6 more witnesses, namely, Siraj Muhammad, P. W. 1, Abdul Hanan, P. W. 2, Qasim Jan, p. W.
4. Ahmad Yar, P. W. 5, Haji Abdul Malik, P. W. 6 and Niamatullah P. W. 7 (wrongly shown as P. W. 6 by the Rent Controller). The petitioner, in his own statement, supported the case set up by him in the application for ejectment. P. W. 1 Siraj Muhammad is the son of Mst. Sabz Pari from whom Jehanzeb petitioner claims to have purchased the house in dispute. He stated that he was a marginal witness of the sale deed, copy Exh. P. W. 1/1, by which his mother sold the house to Jehanzeb. He added, that he signed the deed as a marginal witness while his mother put her thumb-impression there on after admit, ting it as correct. He said further that at the time of sale, Mumtaz respondent No, I and Azizuddin respondent No, 4 were in occupation of the house as tenants. P. W. 2 was the Secretary, Town Committee, Tangi, within the limits of which the house in dispute is situate. He produced original lists of voters, Copies Exh. P. W. 2/1 and Exh. P. W. 2/2, according to which, Azizuddin respondent No, 4 and his wife were entered as voters in Kandi Nandokhel, Tangi Barazai, Qasim Jan P. W. 4 is the father of the petitioner Jehanzeb. His statement, in short,.Is to the effect that the petitioner was the vendee of the house ; that respondents 1 and 4 were then occupying the house under Mst. Sabz Pari; the vendor; that the vendee (Jehanzeb) wanted to eject the said respondents but they brought a Jirga and on the intervention of the Jirga, the dispute was settled and the respondents agreed to pay monthly rent of Rs, 50 as tenants under the petitioner. Ahmad Yar P. W. 5, Haji Abdul Malik P. W. 6, and Niamatullah P. W. 7, claimed to have gone in Jirga to the petitioner on the request of the respondents and stated that the latter had agreed to live in the house as tenants under the petitioner on payment of Rs, 50 as monthly rent. The evidence produced by the respondents before the Rent Controller consists of the testimony of one of them, namely, Mumtaz and two others i. e. Saifoor P. W. 2, and Fazal-i-Manan R. W.
3. Their evidence, in nutshell, is in denial of the relationship of landlord and tenant and is also to the effect that no jirga was ever sent to the petitioner.
' The Rent Controller as well as the lower Appellate Court believed the evidence produced by Jehanzeb petitioner and came to the conclusion that the relationship of landlord and tenant did exist between the parties and that the respondents who are now appellants before me, had agreed to remain in occupation of the house as tenants on payment of Rs, 50 as monthly rent to the landlord. The Rent Controller and the lower appellate Court also held that the house was originally owned by Mst. Sab4 Pali and bad been sold by her to the Petitioner Jehanzeb, ' The learned counsel for the appellants strenuously contended that the question of ownership determined by the Rent Controller and the lower appellate Court in favour of the respondent, Jehanzeb, was irrelevant inasmuch as the present was not a suit for possession but was simply an application for ejectment in which the only question that required determination was whether the relationship of landlord and tenant did exist between the parties. He next contended that the Rent Controller and the lower appellate Court were in error in relying on the evidence produced by the petitioner at the trial and that their findings were erroneous It is true that the question of ownership with regard to the house in dispute was not relevant for the purpose of determining the relationship of landlord and tenant between the parties. However, determination of that point by the Rent Controller and the lower appellate Court could make no material difference. All that had to be found out was whether the relationship of landlord and tenant did or did not exist between the parties. It can hardly be doubted that the question whether the relationship of landlord and tenant existed between the parties, was a question of fact, pure and simple. It is also an admitted fact that the petitioner, besides himself, produced three witnesses, namely, Ahmad Yar, P. W. 5, Haji Abdul Malik, P. W. 6 and Niamatullah P. W. 7 to support his contention that a Jirga consisting of these persons was sent by the appellants to Jehanzeb respondent and on the intervention of this Jirga, the appellants had agreed to remain in occupation of the house as tenants under the respondent on payment of Rs, 50 as monthly rent. It is further clear that testimony of these witnesses was accepted as true by the Rent Controller as well as by the lower appellate Court. The appellants have come in second appeal to this Court assailing the decisions of the Rent Controller and the Additional District Judge. It may be stated that section 101 of the Code of Civil Procedure provides that no second appeal shall lie except on grounds mentioned in 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 a High Court, 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 ;
(c) a substantial error or defect in the procedure provided by this 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 the merits.
' Nothing can be clearer than the declaration in the Civil Procedure Code that no second appeal shall lie except on the ground specified in section 100. A Court of first appeal is undoubtedly competent to enter into question of fact, and decide whether the findings of facts by the lower Court are, or are not, erroneous. But a Court of second appeal A is not competent to entertain question as to the soundness of a finding of fact by the Court below. A second appeal can only lie on one or other of the grounds specified in section 100. In the instant case, as far as I can gather from the evidence on record is, that the finding of fact by the gent controller and the lower Appellate Court that relationship oil ' landlord and tenant exists between the parties is well founded and is based on cogent and reliable evidence produced before the Rent Controller. But even if it be assumed for the sake of arguments that there was an erroneous finding of fact by the Rent Controller or for that matter by the lower appellate Court, this Court would not be competent to interfere. It is well settled that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact. No doubt, a second appeal does lie where there is a substantial error or defect in procedure, but an erroneous finding of fact is a different thing from an error o 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 appeal 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.
' The position that emerges from the discussion given above is that the lower appellate Court in this case had ample evidence before it to hold that there existed the relationship of landlord and tenant between the parties. Assuming, however, for the sake of argument that the finding of fact given by that Court oil the point was erroneous, the appellants are faced with a further difficulty, and a formidable difficulty indeed, arising out of the provisions contained in sections 100 and 10 of the Code of Civil Procedure, according to which the finding of the first appellate Court upon this question of fact would be final and the High Court will have no jurisdiction to entertain a second appeal on this ground.
' In the result, the appeal fails 410 is hereby dismissed with costs.