VITHOO PUNJAJI Vs. THAKURDAS KUNJILAL

JUDGEMENT

(1.) THE appellant purchased survey-No. 152/2 of mauza Danapur, taluq Akot, district Akola, for Rs. 1,900 from one Mt. Bana Bai. The respondent Thakurdas claiming to be an occupant of survey No. 152/1 brought this suit to enforce his right of pre-emption. His suit was decreed by the trial Court and the appeal therefrom was dismissed by the learned Additional District Judge, Akola. Hence this appeal by the defendant Vithu.

(2.) WITH the leave of the Court the learned Counsel for the appellant added the following ground to his memorandum of appeal on the day of the hearing of this appeal: The lower appellate Court should have held that the plaintiff was estopped from claiming possession and. dismissed the suit.

(3.) THE learned Counsel for the appellant drew my attention to the following statement made by Maniklal (P.W. 7) in his evidence. Defendant or Kaehiram had come to me to say that I should buy the field as I am a co-sharer. I had said that I did not want it. This at the most means that the finding of fact which has become final was erroneous, but their Lordships of the Privy Council held in Durga Chowdharani v. Jewahir Singh Chowdhri 18 Cal. 23 that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. An erroneous finding of fact is different thing from an error or defect in procedure. Where there is no error or defect in the procedure, the finding of the first appellate Court upon a question of fact is final, if that Court had before it evidence proper for its consideration in support of the finding. The trial Court had evidence of three witnesses on the point before it. It discussed it and held it to be improbable, inconsistent and contradictory. This finding was not challenged in the argument in the Court of first appeal. So it, has become final. There is, therefore, no basis of fact on which the question of estoppel can be raised.