SOM NATH AND ANOTHER Vs. BARKAT RAM

JUDGEMENT

(1.) In this second appeal by the defendants against the decree passed for injunction restraining them from interfering with the plaintiff-respondent's possession over the suit land, the only question is : whether the sale deed, Exhibit P-1, dated June 8, 1967, which is the source of plaintiff title, includes the suit land ? While the plaintiff-respondent claimed to have purchased this land from one Munshi along with Khola, the defendants-appellants claimed to have purchased the same from one Kartara. The trial Court dismissed the suit, but the lower appellate Court held that the sale deed, Exhibit P. 1, embraces the suit land as well. Such a finding has been arrived at after due appreciation of evidence and being essentially a finding of fact, is not liable to be interfered with in this appeal.

(2.) The learned counsel for the appellants, however, urged that in the light of the decision of the Full Bench of this court in Ganpat Vs. Ram Devi ILR (1978) 1 Punjab and Haryana 151, a second appeal shall be governed by the provisions of section 41 of the Punjab Courts Act, 1918, and not by section 100 of the Code of Civil Procedure , as it stands amended by the Code of Civil Procedure (Amendment) Act (104 of 1976). Indeed, the above-said Full Bench decision holds that section 4(1) of the Code of Civil Procedural, 1908, saves the provisions of the Punjab Courts Act, 1918 in general and the specific provisions of section 41 thereof in particular, from being in any way overridden or affected by the general provisions of the said Code. It has further been held that the provisions of section-41 of the Punjab Courts Act, are in no way affected or curtailed by the amended provisions of section 100 of the Code of Civil Procedure . It has been ruled consequently, that C.M. No. 844-C of 1979 in the jurisdiction to which the Punjab Courts Act extends, the admission and adjudication of second appeals would be governed by section 41 of the Punjab Courts Act to the exclusion of the general provisions of section 100 of the Code of Civil Procedure . At the same time, in paragraph 6 of the report, the observations are that section 41 of the Punjab Courts Act is virtually in pari materia with the unamended provisions of section 100 of the Code of Civil Procedure and because of this virtual identity in these two provisions, the second appeals within the areas to which the Punjab Courts Act extends, have continued to be governed and regulated thereby. That being so, the law as to the scope of section 100 of the Code of Civil Procedure , is well settled. The Supreme Court has repeatedly held that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross the error may seem to be. In Deity Pattabhirama Swamy Vs. S. Hanymayya, A.I.R. 1969 Supreme Court 57, the observations are that a finding of the first appellate Court even if based on some documentary evidence is still a finding of fact and a Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the finding of fact given by the first appellate Court based ort appreciation of relevant evidence.

(3.) The aforesaid being the scope of interference with a finding of fact recorded by the Court below on appreciation of the evidence, in second appeal by this Court, it will be difficult to interfere with the finding of fact arrived at by the lower appellate court on appreciation of oral and documentary evidence including the sale deed, Exhibit P. 1., that the suit land forms part of the land of the plaintiff-respondent under the sale deed, Exhibit E1.