1. ' Sher Zamin son of Musafir, purchased one kanal, 13 marlas of land specified in the plaint by a sale deed dated the 15th February, 1977, for an ostensible sum of Rs, 8300. Nowsherwan Khan plaintiff- appellant pre-empted the sale on the ground of his being a co-sharer in the property sold as well as being an owner of contiguous property. The vendee resisted the plaintiff's claim on various grounds, one of them being that the transaction was not pre-emptible by virtue of section 5 (c) of the North-West Frontier Province Pre-emption Act, 1950 (hereinafter referred to as the Act), he having purchased the land for the construction of a house as he had neither a house nor a vacant site in the village where the land sold was situate and of which he was a resident. This contention found favour with the Civil Judge who dismissed the suit with costs, vide judgment and decree dated 23rd November, 1978.
2. ' Aggrieved by the decision of the trial Court, the plaintiff appealed to the District Judge. In appeal, the District Judge concurred in the findings of the trial Court that the sale was exempt from pre- emption by virtue of section 5 of the Act and consequently by his judgment dated 25th April, 1979, dismissed the appeal with costs.
3. ' The plaintiff lodged a second appeal in this Court calling in question the decisions of the two Courts below. The only point for determination, and on the decision of which the fate of this appeal hinges whether the vendee was entitled to the benefit of section 5 (c) of the Act which reads :- "5. No right of pre-emption shall exists in respect of the sale of, or the foreclosure of, a right to redeem :- ' Agricultural land or village immovable property, consisting of an area measuring not more than two kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for constructing a house for his own occupation."
4. ' Upon consideration of the evidence on record, both the Courts below found that the vendee was a resident of the village where the suit land is situate and that he purchased the land for the construction of a house because he neither owned a house nor a vacant site in the village.
5. Ongoing through the judgment of these Courts, it appears that the Courts believed the evidence produced by the vendee and came to the conclusion contained in the findings referred to above. It can hardly be doubted that the questions-
(i) Whether the vendee was a resident of the village where the suit land was situate ;
(ii) Whether he did not own a house or a vacant site in that village ; and ' Whether the suit land had been purchased by him for construction of a house for his own occupation, were all questions of fact, pure and simple, and were before the two Courts below for consideration and were decided by them in favour of the vendee. 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.
6. ' Nothing is clearer than the declaration in the Civil Procedure Code that 1:10 second appeal shall lie except on the grounds specified in section 100.
7. 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 is not competent to entertain questions 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 present case, I have gone through the judgment of the Courts below and found that the findings of the two Courts on the points formulated above are well-founded. But even if it be assumed for the sake of arguments that there were erroneous findings of facts by the two Courts below, this Court would not 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 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 appeal come to a different conclusion is no ground for a second appeal.
8. ' The position that emerges from the discussion given above is that the findings of the two Courts below on questions of facts indicated above are based on cogent evidence and are well founded.
9. Assuming, however, for the sake of argument that the findings of facts given by the said Courts on the points were erroneous, the appellant is faced with a further difficulty, and a formidable difficulty indeed, arising out of the provisions contained in sections 100 and 101 of the Code of Civil Procedure, according to which the finding of the first appellate Court upon a question of fact would be final and the High Court will not entertain a second appeal on this ground.
10. ' In the result the appeal fails and is accordingly dismissed in limine.