A second appeal can only be entertained on the ground of an error in law or procedure, and not merely on an error on a question of fact.

I.S.TIWANA, J.

1. The following facts have given rise to this letters patent appeal.

2. Punjaba (since dead) and Sadhu appellants instituted a suit against Smt. Kishni with the allegations that her husband Fateh Singh having died, she had entered into a karewa marriage with one Hari Singh of Sherpur about 10 or 11 years prior to the institution of the suit, and on the performance of the said Karewa marriage, she forfeited all her rights and title to the property left by her deceased husband, Fateh Singh. They further claimed ownership of the property. The suit was contested by Smt. Kishni. It led to the framing of the following issues :-

1. Whether the suit is maintainable in the present form ?

2. Whether the defendant performed Karewa marriage with Hari Singh ? If so, to what effect ?

3. Whether the defendant was in possession of the suit land as widow of Sh. Fateh Singh deceased at the commencement of the Hindu Succession Act, 1956 ? If so, to what effect ?

4. Whether the daughter and daughter s son of Sh. Fateh Singh are in existence ? If so, its effect ?

5. Are the plaintiffs estopped from filing this suit ?

After recording evidence, the trial Court decreed the suit on merits leaving the parties to bear their own costs. Smt. Kishni challenged this judgement and decree in appeal before the District Judge, Ambala, who on Feb. 11, 1963, on reappraisal of the evidence, affirmed the findings of the trial court and more particularly the finding on issue No. 2. Still feeling dissatisfied, Smt. Kishni filed a regular second appeal in this court which was allowed by P.C. Jain, J., on July 22, 1975.

3. The solitary argument now raised by Mr. H.L. Sarin, Senior Advocate for the appellants is that the learned single Judge committed an error of law in setting aside the concurrent findings of fact recorded by the two lower courts on issue No. 2 and thus acted without jurisdiction. To us he appears to be wholly right. To appreciate his argument, a reference to certain parts of the judgement of the learned single Judge becomes necessary.

4. Right in the opening part of the judgement, when the counsel for the appellants (then counsel for the respondents before the learned single Judge) raised this very contention that the finding of the learned District Judge on issue No. 2 being a pure finding of fact, howsoever erroneous that may be it could not be reversed in second appeal, the learned single Judge has observed as follows :-

"Apparently the finding of the learned District Judge on this issue appears to be a finding of fact and is usually not disturbed in second appeal, but in order to test the correctness of the contention of the learned counsel for the appellant, I with the help of the learned counsel for the parties, perused the entire oral and documentary evidence and find that the submission of Mr. Jain has considerable force." (It may be mentioned here that Mr. S.K. Jain was the counsel for the defendant-appellant before the learned single Judge).

This observation of the learned single Judge itself makes it more than clear that while hearing the regular second appeal, he has gone into reappraisal of the evidence recorded in the case and has then come to his own conclusion, upsetting the findings of the lower courts, so far as the all important issue, that is Issue No. 2 is concerned. Further, after referring to the oral evidence recorded in the case and more particularly the evidence of Sadhu Ram P.W. 1; Joti Ram P.W. 2; Bishna P.W. 3 and Punjaba Plaintiff, P.W. 6, he recorded the following finding :-

"The evidence clearly shows that the Karewa, if at all, took place in the year 1937; but in the plaint the karswa is alleged to have been performed 10/11 years prior to 1961. Thus, the oral evidence completely belies and contradicts the allegation in the plaint and does not prove the case set up by the plaintiffs."

He also disagreed with the observations of the District Judge that such a mistake with regard to the year of the