1. QAISAR KHAN, J.-Mir Abdullah was the owner of 23/24th share of 23 kanals and 5 marlas of land bearing Khasra Nos. 1275, 1276 and 127-1 situated in village Mir Pur of the Abbottabad Tehsil. The remaining 1/24th share belonged to his son Hayatullah. On the 19th of May 1965 the Patwari got mutation No. 5563 entered regarding the sale of this land from Mir Abdullah and Hayatullah in favour of one Sultan Khan. On the Ist of June 19b5 the Revenue Officer recorded a note on this mutation at Abbottabad to the effect that Mir Abdullah and Hayatullah appeared before him and admitted the sale and the receipt of the sale consideration of Rs. 23,000. Later on the said Revenue Officer attested the said mutation on the 10th of June 1965 at Mir Pur on the strength of his note dated the1 ofJune 1965 in the absence of Mir Abdullah and Hayatullah.
2. On the 21st of July 1965 Mir Abdullah instituted a suit against Sultan Khan for a declaration to the effect that he was the owner of 23/24th share of the three Khasra numbers, that he had never sold the land to Sultan Khan and that the attestation of the mutation was a fraud practised on him by Sultan Khan. In the alternative he also claimed possession of the land. Hayatullah was also impleaded as a defendant. Since Sultan Khan had agreed to sell the lard to Muhammad A.I, Muhammad A.I too was therefore impleaded as a defendant, It may be mentioned here that during the pendency of the suit mutation of sale bearing No. 5607 was attested on the 29th of July 1965 in favour of Muhammad A.I on behalf of Sultan Khan.
3. Sultan Khan and Muhammad A.I contested the suit while Hayatullah was placed ex pane: On the pleas of the contesting parties the learned Senior Civil Judge who tried the suit framed the following issues :----
(1) Whether the plaintiff had a cause of action ?st
(2) Whether the plaintiff had sold the suit land to defendant No. I through Mutation No. 5563 attested on the 10th of June 1965 ?
(3) Whether the plaintiff had consented to the attestation of the mutation before the Revenue Officer with disposing mind ?
(4) In case issues Nos. 2 and 3 were proved whether the attestation of mutation in question was the result of fraud and collusion and was without consideration ?
(5) Whether the attestation o-- mutation No. 5563 was wrong and inopera--tive on the grounds mentioned in paras. 2 and 3 of the plaint ?
(6) Whether the plaintiff was not bound by the sale of the land by defendant No: 1 in favour of Muhammad A.I defendant No. 3 ?
(7) Whether the suit was collusive ?
4. After recording such evidence of the parties as they wished to adduce the learned Senior Civil Judge by his order elated the 10th of January 1967 heir that the plaintiff had a cause of action that the plaintiff had not sold the land to defendant No. 1, that the plaintiff never appeared before the Revenue Officer, that the mutation was attested by practising fraud on the plaintiff, that the plaintiff was not bound by the mutation, that he was not bound by the sale in favour of defendant No, 3 and that the suit was not collusive. As a result thereof he decreed the suit with casts.
5. Sultan Khan and Muhammad A.I both filed a joint appeal in the Court of the District Judge against the aforesaid judgment and decree of the learned Senior Civil Judge. The learned Additional District Judge who heard the appeal by his carrier dated tile 24th of May 1967 after discussing the whole of the evidence agreed with the findings arrived at by tile learned lower court and dismissed the appeal with costs. In the last Paragraph of his judgment the learned Additional District Judge very much criticized the conduct of the Patwari and the Revenue Officer and directed that a copy of the judgment be sent to the Commissioner for taking action against them.
6. Sultan Khan and Muhammad A.I went up in second appeal to the High Court against the aforesaid judgment and decree of the learned Additional District Judge and a learned Single Judge of the Peshawar High Court by his order dated the 22nd of December 1967 reversed tie concurrent findings .Of the two lower Courts on all the issues holding that the land had been validly sold by Mir Abdullah in favour of Sultan Khan after the receipt of proper consideration. He therefore accepted the appeal set aside the judgments and decrees of the Courts below sad dismissed the plaintiff's suit with casts throughout. Mir Adullah filed a petition in this Court for special leave to appeal against the aforesaid judgment and decree of the High Court arid leave to appeal was granted to him by this Court on the l8th of March 1968 especially to see as to whether the appeal before the High Court was competent ire view of section 100 of the Code of Civil Procedure.
7. After hearing the learned counsel for the parties and going through the record we have come to the conclusion that the learned Judge of the High Court had no jurisdiction to bear the appeal in view of the provisions of section 100 of the Code of Civil Procedure read with section 101 of the Codes of Civil Procedure. Both the trial Court and the lower appellate Court had taken into consideration the whole of tine evidence on file and had discussed it in detail. The findings of fact arrived at by them even if erroneous could not be the subject of second appeal. The contention of the learned counsel for the respondents that some evidence had not been taken into consideration by the lower 'Courts has no substance in it as the judgment of the learned Additional District Judge shows that he had taken into consideration the statement of each and every witness produced on either side. The decisions arrived at by both the lower Courts were neither contrary to law nor had failed to determine any material issue. There was also no substantial error or defect in the procedure followed by them an under the circumstances their judgments and decrees were therefore not open to appeal under section 101 of the Code of Civil Procedure read with section 101 of the Code of Civil Procedure. Even on merits the appellant's case is on very firm grounds but without going into the m-'its of the case we are of the opinion test under the circumstances of the case the appeal before the learned Single Judge was not competent at all. Consequently we accept this appeal, set aside the judgment and decree of the learned Single Judge and restore those of the trial Court and lower appellate Court with costs throughout.