DHARMA Vs. TARO AND OTHERS

JUDGEMENT

(1.) The judgment and decree dated January 24, 1976 of the Senior Subordinate Judge, Bhiwani functioning as first appellate Court, have been challenged in the second appeal by the plaintiff-appellant Bharma.

(2.) For the purpose of deciding this appeal the relevant facts are that one Surja sold the land in dispute to Phool Singh predecessor-in-interest of the respondent Nos. 1 to 8, for Rs. 6,500/- on March 25, 1970. The plaintiff-appellant Dharma brought a suit to pre-empt the sale on the plea that he is son of the vendee who was alive at the trial stage denied the alleged relationship between the appellant and the vendor and consequently pleaded that the appellant had no right to pre-empt. The trial Court on appraisal of evidence considered the relationship established and, therefore, decreed the appellant's suit. The lower appellate Court, however, reversed the finding holding that the appellant had failed to prove that he is son of the vendor. The appeal of the vendee was allowed and the appellant's suit was dismissed.

(3.) The learned appellant's counsel contended that the mutation (Exhibit P-1) and the order (Exhibit P-5) passed by the Returning Officer while framing the electoral roll amply proved that the appellant is son of the vendor Surja and his wife Smt. Ghotan. It is submitted that the lower appellate Court did not attach due weight to these documents and, therefore, arrived at a perverse finding that the appellant is not proved to be the son of the vendor. In my considered opinion the finding of fact arrived at by the lower appellate Court is unassailable in second appeal. The Court decided not to place reliance on the aforesaid documents after due consideration. Assuming that the Court returned erroneous finding of fact, it is manifest that it cannot be challenged in second appeal. While considering the scope of Section 100 of the Civil Procedure Code the Supreme Court held in Deity Pattabhiramaswamy v. S. Hanymayan and others, 1959 AIR(SC) 57, that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. It was further observed that the fact that the finding of the first appellate Court is based upon documentary evidence does not make it any the less a finding of fact and it cannot be assailed in second appeal. Similar verdict was given by a Division Bench of this Court in Sadhu v. Mst. Kishmi,1979 PunLR 577, and it was made clear that the only ground on which such an appeal can be said to be competent is where there is an error of law or procedure and not merely on an error on a question of fact.