' ZAFFAR HUSSAIN MIRZA, J.-This appeal involves a dispute over title to agricultural land comprising three plots measuring 41 Acres situated in Dhera Tag Kangar, Tehsil Bela, District Lasbella, in the province of Baluchistan. On 23-9-1969, respondents Sher Khan, Usman and Mst. Shumani filed a suit claiming title to this land by way of inheritance from their common ancestor one Tayyab son of Hajji. (heir case was that the suit property was originally owned and possessed by the said Tayyab, who on his death left his surviving one son, namely, Gullu and daughter Mst. Amina, who took over possession and occupation of the land. Subsequently Gullu died leaving a widow Mst. Hagali, a sister Mst. Amina two daughters, namely, Khatto and Lakhi who succeeded to his share in the suit land. The appellant Alloo son of Ilyas was the Buzgar (cultivator) of the land on behalf of Mst.
Chagali. Thereafter, Mst. Chagali, Amina, Mst. Lakhi also died one after another. Respondent Sher Khan claimed to have succeeded to the property as a cousin of Mst. Chagali and respondent Mst.
Shumani as a sister of Mst. Chagali. Respondent Usman claimed share in the title as husband of Mst. Amina for self and on behalf of her daughter Mst. Kulsoom and son Muhammad Hassan.
Therefore, the substance of the case of the respondents was that the title in the property was acquired by them through inheritance from the original owner Tayyab and that the appellant was only a cultivator on the land having no interest in the ownership thereof. The appellant repudiated the claim of the respondents and contended that the disputed property is his ancestral property which has remained in his possession and cultivation since his forefathers.
2. On the pleadings of the parties the following issues were framed and referred for decision to the Qazi, District Lasbella, at Othal:- "(1) Whether all the three plots of land were in fact the property of Gulloo son of Tayyab on whose death the said land came under the use of his widow Chagali, his sister Amina and his two daughters Mst. Khatto and Lakhi and after death of the remaining heirs one after another in the last the said land remained in possession and use of his widow Chagali?
1. If issue No, 1 is correct then whether the plaintiffs are in fact legal heirs of Gulloo and Mst. Chagali and they become entitled to get `Sharai' share in the property left and what would be proportion of the shares?
2. Whether it is correct that the status of -defendant Alloo son of Ilyas is a mere 'Buzgar' and he has no ownership right in the land left by Mst. Chagali. If, yes, then how for his claim of ownership is correct. If the claim of the plaintiffs is found correct, then whether they are also entitled to the produce of the past period."
' The trial Court after recording the evidence of the parties decreed the suit of the respondents but on appeal by the present appellant, the decree was set aside by the Majlis-e-Shoora and the appeal was allowed remanding the case for fresh decision to the Court of Qazi, on the ground that the evidence was not sufficient on certain points of relationship as well as that the proper bundaries of the disputed property were not specified and the question of limitation was also not taken into consideration. On 4-3-1979, the Qazi of Lasbella once again decreed the suit in favour of the respondents. However, on an appeal filed by the present appellant, the Majlis-e-Shoora vide their judgment dated 5-8-1971, set aside the decree and dismissed the suit of the respondent. The matter then came up before the then High Court of Sind and Baluchistan, Karachi, in second appeal and a learned Single Judge of that Court, by judgment, dated 26-3-1973, accepted the appeal and set aside the order of the Majlis-e-Shoora, with the result that the decree passed by the Qazi of Lasbella, dated 4-3-1971, was restored.
3. Leave to appeal was granted by this Court against the judgment of the High Court on the ground that the High Court had exceeded its powers by examining the facts of the case outside the limits of the second appeal, that neither the Shariat law nor the remaining law was applied, and that the High Court wrongly rejected the evidence adduced by the appellant in support of his defence. The further question for examination was that the High Court had erred in holding that the suit was not barred by limitation.
4.Learned counsel for the appellant has mainly urged that the learned Single Judge had exceeded the limits of powers of the Court under section 100, C. P. C. In going into the findings of fact in second appeal as a Court of fact He has referred to a chain of decision by this Court holding that the findings of facts even if grossly inexcusable and wrong cannot be set aside in second appeal if there is no misreading of evidence. Relying on the principles enunciated by this Court in Pathana v.
Mst. Wasai and another (1), counsel contended that the Majlis-e-Shoora could not have been held to have misread the evidence and if at all the High Court could justifiably interfere with the findings of fact, it was incumbent on it to compare the reasoning in support of the respective conclusions arrived at by the trial Court and the first appellate Court in case of variance in their findings.
5.We have examined the judgments of the trial Court, the first appellate Court and the High Court, and find force in the contentions advanced on behalf of the appellant. Learned counsel for the respondents has attempted to show that the learned Single Judge had fully considered the evidence on record and come to the conclusion that the suit was not barred by time and that the appellant was a Buzgar of the respondents and not owner of the land in dispute. He maintains that the judgment of the High Court does not suffer from any legal infirmity by way of excess of powers vesting in the Court of Second Appeal.
6.It appears to us that besides documentary evidence consisting of extracts from the revenue record, the respondents examined oral evidence consisting of witnesses Noor Muhammad, Faqir Muhammad, Mosa, Kharoo, Younas, Sher Khan and Khumo. On the other hand in rebuttal appellant produced oral evidence consisting of the testimony of witnesses Hussain, Suleman, Dost Muhammad and Ahmad. The evidence of respondents/plaintiffs' witnesses Noor Muhammad and Faqir Muhammad, as conceded by the learned counsel for the respondents, was not believed both by the Qazi and the Majlis-e-Shoora, Therefore, it had to be left out from consideration. The English rendering of the evidence of remaining witnesses of the plaintiffs and witnesses of the defendant, has been brought on record. The perusal of this evidence shows that on the one hand the oral evidence of the plaintiffs was to the effect that the land originally
(1) PLD 1965 SC 134 belonged to Tayyab and was subsequently in possession of Gullu and Mst.
Chagali, that Mst. Chagali used to receive her share of the produce, lastly that the appellant (defendant) was a Buzgar on the land. It has been also stated that the appellant was the maternal uncle of Mst. Chagali and cannot, therefore, have a share in the inheritance according to Shariat.
The appellant's witnesses, on the other hand, asserted that his father was in possession and enjoyment of the land, after whose death, the appellant was in possession of the land for the last 36 years. The documentary evidence produced at the trial has been placed on the record of this appeal.
7. The perusal of the English rendering of the Qazi's judgment shows that after recording the additional statements of the plaintiffs' witnesses in consequence to the order of remand the attorney of the defendant was given opportunity to cross-examine the witnesses but he did not avail the same. Referring to this the learned Qazi observed: "Therefore, from the evidence of both those witnesses both parts of Issue No, 1, out of the issues framed by the Tehsildar, are proved i. e. It is proved that the three plots of land in dispute were the ancestral property of Cullot son of Tayyab on whose death the said land came under the use of his Chagali and sister Mst. Amina and two daughters Lakhi and Khatta and after the death of Mst.
Amina her share remained for heirs i. e. One daughter, one son and husband and due to the death of two daughters of Gullo one after another their shares also came in possession of Mst. Chagali and it is also proved that the land in dispute, after the death of Gullo, went into the possession and use of only Mst. Chagali without other heirs and it is also proved that plaintiffs become the legal heirs of deceased Gullo, Mst. Chagali and Mst. Amina and are entitled to get `Sharai' share in the property left."
The learned Qazi then dealt with the remaining question as to the status of the possession of the appellant. He referred to two witnesses of the respondents, who had deposed that appellant was Buzgar of deceased Mst. Chagali. The learned Qazi then assessed the value of the appellant's witnesses and came to the conclusion that the ownership of the appellant was not proved from the oral testimony. In this behalf it is interesting to note that the learned Qazi rejected the testimony of appellant's witnesses Ahmad, Suleman and Dost Muhammad by giVing reasons which cast doubt on the veracity of their statements. Having rejected the said three witnesses, for the remaining witness of the appellant, namely, Hussain, the learned Qazi observed: "Now remains only Hussain who is alone and due to which course of evidence is not complete and so from his statement also the ownership cannot be proved. It was only in that case that we considered the evidence of the defendant otherwise under the `Shariat' Law the evidence of the defendant is not worth considerable, because in `Shara' there is clear law that (Arabic) which, means that only plaintiff or (Khariji) are entitled to produce evidence. The defendant is not entitled to produce any evidence, on the contrary he is entitled to only this extent that if the plaintiff could not produce the evidence and he demands for oath then he can take an oath."
' Coupled with the oral evidence the learned Qazi also referred to tha documentary evidence. On all this evidence the learned Qazi came to the conclusion that the status of the appellant was that of a Buzgar. He, therefore, granted a decree for possession in favour of the respondent against the appellant vide judgment dated 4-3-1971.
8. Majlis-e-Shoora in their judgment in appeal referred to the statement of the attorney of the respondents and held that there was conflict between his previous and subsequent statement with regard to two of the plots in dispute regarding which an admission was said to have been made by him that share belonged to the appellant. While recording their conclusions the learned Members of the Majlis-e-Shoora observed that there was no conformity between the evidence of the witnesses and the claim of the plaintiffs and, therefore, the claim did not stand proved. In their opinion except plaintiffs' witness Khairo no other witnesses has given evidence that the property originally belonged to Tayyab. The evidence of the remaining witnesses of the plaintiffs was held to be useless and without support. The learned Members further held that no material improvements had been made by the additional evidence of the plaintiffs recorded after the remand and therefore. As previously held by them, the position remained the same with the result that the plaintiffs' claim was not established. Specific reference was made to Khatoni Nos. 79 and 80 and it was observed that the land was now property of the Government according to this record. On the basis of these Khatonies it was held that the claim to ownership of the plaintiffs was negatived.
Finally reference was also made to the oral evidence of the appellant's witnesses, namely, Ahmad, Hussain, Suleman and Dost Muhammad, who testified to the possession of the appellant for the last 36 years and from this it was held that the suit was time-barred according to the law and Shariat.
9. The resume of the judgments of the two forums below reproduced above sufficiently demonstrates that each forum while coming to conclusions on questions of fact and law had adopted certain rational process from the facts established on the record according to their respective B findings. It seems to us that the learned Judge without comparing the reasoning adopted by the two Courts below, mainly considered the judgment of Majlis-e-Shoora. As pointed out two of the important documents produced in support of their claim by the respondents have been taken into consideration by Majlis-e-Shoora. Indeed even before the High Court from the documentary evidence main reliance by the respondents was placed on these two documents, namely, Khatoni Nos. 79 and 80. It would have been proper for the High Court to have considered the effect of the Majlis-e-Shoora omitting from consideration any documentary evidence by referring to their evidentiary value before holding that the judgment suffered from omission to consider material evidence. Instead the learned Judge in the High Court merely recorded an observation that the Majlis-e-Shoora had passed "a sweeping judgment that the woman has no right in the circumstances of this case even as the Maroosi Bugzar by operation of law." The treatment of the judgment passed by the Qazi was also in general terms without discussing the detailed reasons that prevailed with the learned Qazi to arrive at the findings in favour of the respondents.
10.On an overall examination of the impugned judgment of the High Court we are satisfied that the learned Judge in upsetting the judgment of the Majlis-e-Shoora did not proceed in accordance with the principles and provisions of section 100, C. P. C. In Madan Gopal and others v. Maran Bepari and others (1), two principles, in this behalf were postulated the first principle was that concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless an error or defect discovered is of a substantial character pertaining to the procedure which may have possible produced an error or defect in the decision of the case upon its merits. This principle is not attracted in the present case as the findings given by the two Courts below were conflicting. The second principle laid down which is directly attracted in the present case, is that if the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would no possess the same value or sanctity as a concurrent finding.
Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on record and I supported by logical reasons duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, it was observed, the two will naturally come in for comparison for their comparative merit in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. The view expressed by this Court in Madan Gopal's case was reiterated in a recent case of this Court reported as Allah Din v. Habib (2).
11. Learned counsel for the respondents was unable to meet this objection raised by the appellant and has merely emphasised that the evidence produced by them was sufficient to support their claim of ownership. However, as the judgment of the High Court is not sustainable on the preliminary legal ground we would not like to enter into reassess-Emend of the evidence ourselves.
The best course, in our view is to remand the case to the High Court for a fresh decision of the appeal in the light of what has been stated in this judgment.
12.The result is that the present appeal is allowed. The judgment of the High Court is set aside and the case is remanded to the High Court for fresh decision of the second appeal filed by the respondents. In view of the fact that the case has been pending decision for a long time, we would request the High Court to dispose of the appeal expeditiously. There will, however, be no order as to costs.
(1) PLD 1969 SC 617 (2) PLD 1982 SC 465