1. ' The subject-matter of the litigation which has culminated in this Second Appeal is a double- storeyed shop, bearing No, 226-C and situate in Mansehra Town on Mansehra-Shinkiari Road. The facts in this case are sufficiently detailed in the judgment of the Court below. They may, however, be stated here thus quite shortly so that there is no difficulty in understanding the factual position.
2. ' The shop in question was formerly an evacuee property. It was put to open auction by the Settlement Authority and was eventually transferred to Chaudhry Imam Din (now dead and represented by Mohammad Sharif and others who are respondents before me in this Second Appeal), and Mst. Hashmat. A provisional transfer order was also issued in their favour on the 25th of November, 1960.
3. ' In the year 1972, late Chaudri Imam Din submitted an application under section 13, West Pakistan Rent Restriction Ordinance, 1959, to the Rent Controller, Mansehra, for the eviction of Dilbar appellant from the shop on the ground of default in the payment of rent. A compromise was, however, arrived at between the parties during the pendency of that application whereby Dilbar admitted his tenancy under Chaudri Imam Din and undertook to pay him the rent at the rate of Rs, 20 per mensem. As a result of the compromise, the application for ejectment was dismissed.
4. ' On the 10th July, 1973, Chaudri Imam Din filed another application for the eviction of Dilbar from the shop on the grounds firstly that the latter had made default in the payment of rent, secondly that he had committed certain acts resulting in impairing the utility of the shop, and lastly that shop was in good faith required by the landlord for reconstruction for which he had already obtained the necessary sanction from the Town Committee, Mansehra. The appellant denied the relationship of landlord and tenant as a result of which the Rent Controller, on the 30th November, 1973, proceeded to frame a preliminary issue about the existence of such relationship between the parties. Some evidence was also recorded on the preliminary issue but before the evidence could be concluded, the petitioner Chaudhry Imam Din died in consequence whereof an amended application was put in impleading his Legal Representatives as petitioners in his place. In view of the amended application and reply of Dilbar thereto, the Rent Controller on the 23rd November, 1973, framed the following issues:
(1) Whether the petitioners have got a cause of action?
(2) Whether the relationship of landlord and tenant exists between the parties?
(3) Whether the application is bad for misjoinder and non-joinder of necessary parties?
(4) Whether the amended plaint is not in conformity with the order of the Court, if so, its effect?
(5) Whether the suit property, Shop No, 226-C is the property of the petitioners and in their possession, if so, its effect?
(6) Whether respondent No. 1 is a defaulter and liable to pay Rs, 120 as an arrears to the petitioner and hence liable to be ejected?
(7) Whether the petition is in time ?
(8) Whether the application is maintainable in its present form?
5. ' By his order of the same date, the Rent Controller treated Issues Nos. 2 and 5 as preliminary issues and directed the parties to adduce their evidence on these issues. Both the parties led evidence in compliance with the said directions. Upon consideration of the evidence so produced the Rent Controller, on the 12th Margit, 1979, found preliminary Issue No, 2 in favour of the petitioners and in consequence thereof directed the tenant to put the landlords in possession of the shop by 20th April, 1979.
6. ' Dissatisfied with the order of the Rent Controller, Dilbar preferred an appeal before the District Judge, Mansehra. There too, he fared no better and his appeal was dismissed on the first of July, 1979. This decision is now being complained of before me.
7. 'I heard the learned counsel for the appellant at some length and have gone through the impugned decision of the Rent Controller and the appellate authority.
8. ' The controversy in essence falls in a narrow compass, namely, whether the relationship of landlord and tenant exists between the parties in respect of the shop in dispute. The Rent Controller as well as the appellate authority in this case found that the shop in question was in possession of the appellant as a tenant under the petitioners-respondents and as such, the relationship of landlord and tenant exists between them. There can be no doubt that this was a question of fact, pure and simple, and was for decision before the Rent Controller as well as the appellate authority and was found by both of them in favour of the petitioners landlords. It requires no authority that a Court of first appeal is competent to enter into question of fact and decide whether the findings of fact 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 a finding of fact by the Court below. There is no doubt that a second appeal lies where there is a substantial error or defect in procedure but an erroneous finding of fact is a different thing from an error or defect' in procedure. In the case in hand, the learned counsel for the appellant, appearing before me was not in a position to refer to any fact or circumstance to show that there had been any substantial error or defect in procedure, to justify this Court to disturb the concurrent finding of fact by the Rent Controller and the appellate authority. He, however, endeavoured hard to persuade me not to accept the evidence produced by the landlords before the Rent, Controller as a gospel truth. This argument loses sight of the fact that a decision as to the credibility of witnesses is neither an error of law nor of procedure and cannot furnish a ground for second appeal. Since in the present case the finding is one fact and the Rent Controller and appellate authority have concurred in it, it is binding now and cannot be disturbed in second appeal.
9. ' But there was, in my view, also ample evidence in support of that finding. In the first place, there was a compromise in the former proceedings for ejectment whereby the appellant, Dilbar, admitted his tenancy under Chaudri Imam Din and undertook to pay the rent at the rate of Rs, 20 per mensem to the latter. Nothing has been shown to suggest that after the said compromise, the appellant actually vacated the shop and made over its possession to the landlord. In the second place, the evidence produced by the petitioners that the appellant continued to be in possession of the shop received added support from the circumstance that the appellant had opposed the application for his ejectment, to the extent he could. I think, in the given circumstances, the concurrent finding has an anchorage in facts and evidence.
10. The learned Rent Controller and the Appellate Authority have come to a concurrent finding that the appellant was occupying the shop as a tenant 3 under Chaudri Imam Din and after his death under his legal heirs. That finding has foundation in evidence. In view of that concurrent finding, this second appeal cannot be entertained as being without any substance. I am, therefore, not persuaded to issue notice to the respondents. The appeal is accordingly dismissed in limine.