' Muhammad Din, a land owner died on 26-8-1975, issueless and without a widow. Mutation No, 102 (Exh. P. 3) was entered up to decide his inheritance, in the course of its inquiry, Muhammad Akbar, one of the appellants, produced a will (Exh. P. 1), dated 13-12-1973, purporting to have been executed by Muhammad Din deceased to bequeath 2/3rds of his land in favour of the plaintiff- appellants and the remaining 1/3rd in favour of Shera and Ghulam Qadir, who are the sons of Muhammad Yar respondent. Revenue Officer was not satisfied with the genuineness of the will, therefore, he proceeded to decide the mutation of inheritance in favour of Muhammad Yar respondent, the nearest reversionary heir of the deceased. This mutation was also challenged in an appeal which came to be dismissed on 1-7-1976 (Exh. D. 3).
2. In the meanwhile, on 20-10-1975, appellants had also filed the present civil suit against the respondent Muhammad Yar to claim 2/3rd share of the property of the deceased on the basis of the will. Suit was contested and set down for trial on five issues arising out of the pleadings of the parties whereof first three relate to the genuineness and validity of the will. By its judgment dated 25-5-1978, trial Court upheld the will to decree 18 Kanals of land in favour of the plaintiffs and the remaining 9 Kanals in favour of Shera and Ghulam Qadir who do not appear to have been joint.: as parties to the proceedings at any stage Respondent's appeal thereagainst has been accepted by a learned Additional District Judge who took note of the fact that the document is unregistered, written on a plain paper and had come from the custody of plaintiffs themselves and whereas the deceased was an old illiterate and issueless villager ; he did not have an occasion in his life to affirm or deny the execution thereof and because a will diverts the normal course of succession, therefore, there lay a heavy duty upon the plaintiffs to prove the will in their favour. Consequently, upon a reappraisal of the evidence, he came to the conclusion that Exh. P. 1 was not executed by the deceased Muhammad Din.
3. With regard to the decrees passed by the two Courts below, it is to be recalled that the will (Exh.
P. 1) purported to be for 2/3rd share in favour of the plaintiffs and to the extent of 1/3rd share in favour of Shera and Ghulam Qadir who are sons of the defendant but still they were not arrayed in the suit and they had also not even otherwise supported the will and in spite thereof the trial Court declared them entitled to get 9 Kanals of land. However, the counsel for parties agreed before the appellate Court below that such findings in favour of Sbera and Ghulam Qadir were not lawful, therefore, upon accepting the defendant's appeal learned Additional District Judge should have ordered the suit of the plaintiffs to be dismissed but inadvertently, in his judgment dated 27-9-1983, he proceeded to order, "decree as prayed for is hereby granted in favour of the appellant as against the respondents with costs throughout." However, by his order dated 13-10-1983, in exercise of his power under sections 152 and 153 of the C. P. C. Learned Additional District Judge directed that the foraging may be read as having been corrected into, 'Wand the suit filed by the defendant-respondents is hereby dismissed with costs". Therein he committed yet another mistake of inadvertence in so far as there could not be "the suit filed by the defendant-respondents" because there was only one defendant in the suit who was appellant before him and hence not merely the description "defendant-respondents" is incorrect but also there could not be a suit filed by some defendant. The suit can be filed by a plaintiff and in this case the plaintiffs were the respondents before him, therefore, he should have corrected his judgment into saying, "the suit filed by the plaintiff-respondents is dismissed". This error is, however, inconsequential because it is clear that he accepted the appeal and reversed the trial Court's decree to dismiss the suit of the plaintiffs who have now filed this Second Appeal there against.
4. Learned counsel took exception to the examination of a finger print expert at the appeal stage and argued that even though additional evidence may have been taken to decide the appeal but it could not be taken for discrediting the evidence of a witness. He also argued that it is established on the record that the will was executed by Muhammad Din deceased of his own free will and learned Additional District Judge has wrongly concluded the contrary. Records or the two Courts below were summoned to appreciate his contentions. They have been received and perused with his assistance. There is no merit in either of the foregoing contentions. No valid objection can be taken to the additional evidence recorded in the appeal in exercise' of the power vested in the learned Judge under Order XLI, rule 27 of the C. P. C. I do not see how may the question of appreciation of evidence of a witness be anywise distinct or different from deciding the appeal itself ? Actually, former is only a step in the process of deciding the appeal. Be that as it may, learned appellate Judge has given sound reasons for recording additional evidence and he also provided an opportunity to the plaintiffs to produce evidence in rebuttal of the additional evidence but their counsel declined to avail of the facility. There is no error or irregularity involved in the proceedings taken in the appeal below and hence no prejudice can be said to have been caused thereby. ##T##Contention of the learned counsel is repelled with reference to section 99 of the C.
P. C. Which provides :- "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."
5. Second contention of the learned counsel is also untenable because) the question, as to whether or not a document was executed by the person from whom it purports to be, is always one of pure fact and the finding c justified on the record, reached by the learned Additional District Judge with regard to Exh. P. 1, is not open to be re-considered in this second appeal which really stands concluded thereby. In Abdul Majid and others v. Khalil Ahmad (1) it has been held:-- ' The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which. May possibly have produced an error or defect in the decision of the case on the merits."
Questions of pure fact are for the first appellate Court to decide and so long as its decision thereabout is based on the evidence existing' on the record it cannot be re-opened for consideration in a second appeal on the ground that another conclusion may also be possible to be reached on the same evidence. In Pathana v. Mst. Wasai and another (2) it was held that the matters of inference from evidence duly considered by the lower appellate Court do not furnish ground for second appeal and where evidence is equally capable of two interpretations, lower appellate Court cannot be deemed to have misdirected itself by adopting one of them.
6. No other point has been argued.
7. There is no case made out within the scope of section 100 of the C. P. C. Hence, dismissed in limine.
(I) PLD 1955 FC 38 (2) PLD 1965 C 134