' CH. IJAZ AHMAD, J.--- The petitioners have sought leave to appeal against the judgment of the learned High Court Multan Bench dated 12-9-2006, wherein civil revision filed by the petitioners was dismissed. The necessary facts out of which the present petition arises are that respondents/plaintiffs filed a suit for declaration against the petitioners in the Court of Civil Judge 1st Class Muzaffargarh on 23-12-1997. The contents of the plaint reveal that a piece of land measuring 200 Kanals, 9 Marlas was owned by Mst. Hajran and Mst. Sairan Bibi daughter of Sultan Ahmad Shah. Muhammad Nawaz son of Mian Allah Bakhsh/predecessor in interest of the petitioners was owner of land measuring 3 Kanals, 2 Marlas. The original owner of the land namely Muhammad Nawaz made an exchange of his land with the original owners of the aforesaid land namely Mst. Hajran and Mst. Sairan on 6-12-1966. Exchange deed was executed in black and white on 21-2-1968. The said exchange deed dated 21-2-1968 was presented before the Registrar Multan for attestation of registration but on refusal of Mst. Hajran and Mst. Sairan, Sub-Registrar refused to register the same and thereafter Muhammad Nawaz filed an application for compulsory registration which was dismissed on 26-11-1969. Thereafter Muhammad Nawaz filed a suit before a civil court under section 77 of the Registration Act at Multan and ex parte decree was secured by him on 21-6-1976. The sale-deed was got registered on 22-7-1976 on the basis of the aforesaid decree dated 21-6-1976. In view of aforesaid registered exchange deed, Mutation No,81 dated 18-9- 1976 was sanctioned. The contents of the plaint further reveal that the exchange deed dated 21-2- 1968, registered deed dated 22-7-1976, decree dated 21-6-1978 and Mutation No,81 are all illegal, ultra vices, void and ineffective upon the rights of the respondents/plaintiffs on the following grounds:--
(i) Muhammad Nawaz/predecessor in interest of the petitioners/ defendants was well aware at the time of making the exchange that his land had been acquired under the Town Improvement Act, 1922 by Multan Improvement Trust for Development Scheme namely Walayat Abad. Two notices under section 36 and 38 of the Town Improvement Act had already been issued to him but with mala fide intention suppressed the same and executed exchange deed with plaintiffs/respondents.
(ii) Muhammad Nawaz was not owner of the land when he had executed exchange deed with the respondents/plaintiffs.
(iii) The land in question was under mortgage with the Agricultural Development Bank of Pakistan and still continues to be so.
(iv) Both the ladies were uneducated, Pardanasheen and illiterate.
(v) Muhammad Nawaz did not deliver the possession of his land under the exchange to the respondents/plaintiffs.
(vi) Respondents/plaintiffs had prayed for declaration to the effect that they are owners of the suit-land.
2. Petitioners/defendants filed written statement, controverted the allegations levelled in the plaint.
Out of the pleadings of the parties, the trial court framed 13 issues and after recording the evidence, decreed the suit of the respondents/plaintiffs vide judgment and decree dated 14-6- 1994. Petitioners/defendants being aggrieved filed appeal in the court of Additional District Judge, Muzaffargarh who dismissed the same vide judgment dated 31-5-1997. Thereafter the petitioners filed aforesaid revision petition in the Lahore High Court, Multan Bench which was dismissed vide impugned judgment as mentioned above. Hence, this petition for leave to appeal.
3. The learned counsel for the petitioners submits that all the courts below had erred in law to decree the suit of the respondents/plaintiffs by misreading and non-reading of the record. He further maintains that respondents had taken possession of the land of the petitioners in view of exchange deed but the respondents had failed to hand over the possession of their land in terms of exchange deed to the petitioners. He further urges that respondents had malafidely did not hand over the possession of their land to the petitioners and this fact was not considered by all the courts below in its true perspective. He further urges that the land originally owned by petitioners and transferred to the respondents by way of exchange had never been acquired by the Multan Improvement Trust or its successor body Multan Development Authority. He further submits that petitioners had no objection if the exchange transaction between the parties was annulled as decreed by the High Court as well as by the courts below in the suit filed by the respondents provided the possession over the properties was also restored as before. He further maintains that respondents had failed to place on record copy of the award and only produced copies of the notices under the provisions of Town Improvement Act, 1922 Exhs.P.9 and P.11. The said documents were not sufficient to prove that the land of the petitioners was acquired under the provisions of Town Improvement Act, 1922.
4. The learned counsel for the respondents has supported the impugned judgment. He urges that land of the petitioners was acquired for the purpose of housing scheme namely Walayatabad. The Land Acquisition Collector after completing the legal formalities had announced the award on 16- 8-1975. Copy of the same was also placed on record and was also handed over to the petitioner.
He has also produced on record, list of awardees who had received the compensation. Name of Muhammad Nawaz predecessor in interest of the petitioners appeared at serial No,40 along with the application submitted by the said Nawaz to the Assistant Commissioner for the payment of the compensation of the land in question and some other documents. The copies of the same as mentioned above were handed over to the learned counsel for the petitioners. He further maintains that all the Courts below had given concurrent findings of fact against the petitioners that petitioners malafidely executed exchange deed with the ladies who were illiterate and Pardanasheen by concealing the fact that the land in question in possession of Muhammad Nawaz had already been acquired.
5. The learned counsel for the petitioners in rebuttal submits under instructions that documents produced by the learned counsel for the respondents are forged one except the copy of the award.
6. We have considered the submissions made by counsel for the parties and have perused the record. It is better and appropriate to reproduce the basic facts mentioned in the award qua the acquisition of land of the petitioners. The operative part is reproduced hereunder:- "The Chairman, Multan Improvement Trust vide his memo. No,2835/A-VI-114/MIT dated 6-6-1966 made a proposal to acquire piece of land measuring 247 Kanals and 16 Marlas situated in village Taraf Daira and Sadhu Hisam Tehsil Multan for the said purpose. The area in question was sanctioned and notified by the Government in the Gazette No,SOV-7-87/63 Vol.II dated 18-9-1970.
' The necessary proclamation and formalities were duly gone through at appropriate stages. The following three items are essential for the purpose of award.
(i) Notices under section 36 of MIT were issued on 6-7-1962.
(ii) Notices under section 9 of the L.A. Act 1894 were issued on 25-10-1974, 31-10-1974 and 1-11-1974 which were duly served through Tehsildar Multan.
(iii) The Government of the Punjab accorded sanction to this scheme vide Govt. Notification as quoted Multan.
(iv) The parties entered into agreement to exchange their land on 6-12-1966. Formal exchange deed was executed on 30-12-1968 .Which was presented before the Sub-Registrar for registration on 21-2-1968 who refused to register the same. Predecessor in interest of the petitioners being aggrieved filed appeal before the Registrar who dismissed the same on 26-11-1967. Thereafter the predecessor in interest of the petitioners filed a suit under section 77 of the Registration Act before a civil Court and secure ex parte decree on 21-6-1976. Thereafter the exchange deed was registered in terms of the decree and mutation was also sanctioned in terms of the decree which was challenged by the respondents in their suit."
7. In case the aforesaid facts are put in a juxtaposition, then it is crystal clear that Muhammad Nawaz, predecessor in interest of the petitioners was not owner of the land in question in view of the notification dated 6-6-1966 mentioned in the authority coupled with'the fact that notices were issued by the competent authority to the predecessor in interest of the petitioners under sections 36 and 38 of the A Town Improvement Act, 1922 on 2-8-1962 and possession of the land in question had already been taken in terms of the acquisition proceedings, therefore, all the Courts below were justified to come to the conclusion that petitioners were not owner of the property in question to execute the exchange deed with the respondents. This fact was duly considered by the trial Court and came to the conclusion that predecessor in interest of the petitioners had no right over the land in question to execute exchange deed with the respondent ladies. It is a settled law that fraud vitiates B solemn actions and deed as law laid down by this Court in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331. It is pertinent to mention here that all the issues were decided by the trial Court in favour of the plaintiffs/ respondents. The material issues are Issues Nos.3 and 4. The trial Court after appreciation of evidence on record had decided the issues Nos.3 and 4 in favour of the respondents/plaintiffs in the following terms:-- "From perusal of the record I am of the considered opinion that Muhammad Nawaz was well aware of the acquisition of the property but even then he fraudulently made an, agreement of exchange with Mst. Hajran and Mst. Sairan by suppressing the fact of acquisition. According to PLD 1993 Lah.
706 "Fraud is a multi-dimension concept, broadly speaking it is a deceitful act exposing someone to actual loss of risk of possible loss, and an active concealment of fact by anyone having knowledge of the same would constitute fraud---"
' The First Appellate Court after reappraisal of evidence reaffirmed the findings of the trial Court on Issues Nos.3 and 4 in the following term:-- "The oral as well as documentary evidence as referred to above was sufficient to demonstrate that the title of Muhammad Nawaz regarding his own property situated in Mauza Taraf Saddo Hasam Tehsil and District Multan was not perfect but despite it he fraudulently made an exchange of his property; that the suit-land belonged to the plaintiffs and this fact very much entitled the successors of Mst. Hajran and Mst. Sairan to sue Muhammad Nawaz and his successors-in-interest for the cancellation of the exchange deed in question and the mutation of exchange based on issues Nos.3 and 4 regarding factum of exchange relied on citation of Punjab Chief Court title Salabat v. Abdullah Rehman (29th January, 1917) and Law Notes 1969 Peshawar 20. For the foregoing reasons, the findings of the lower Court on Issues Nos.3 and 4 being based on sound reasoning require no interference".
8. The concurrent conclusions arrived at by the Courts below i,e, the trial Court and the first appellate Court were again upheld by the learned High Court after re-examination of the record under section 115 of C.P.C. It is a settled law that learned High Court has very limited jurisdiction to interfere in the findings recorded by the Courts below while exercising power under section 115 of C.P.C. As law laid down in N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26, which is to the following effect:-- "This section empowers the High Court to satisfy itself upon three matters; (i) that the order of the subordinate Court is within its jurisdiction; (ii) that the case is one in which the Court ought to exercise jurisdiction; and (iii) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
9. It is an admitted fact that all the Courts below have reappraised the evidence and concurrently come to the conclusion that predecessor in interest of the petitioners had played a foil and committed fraud with the innocent ladies for the purpose to grab their land without giving them his own land in exchange. In the interest of justice and fairplay, we have also re-examined the evidence and do not find any infirmity or illegality committed by the Courts below while rendering findings against the petitioners. It is a settled law that this Court, does not, normally, go behind the concurrent findings of fact recorded by the Courts below unless it can be shown that the findings are on the basis of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating the grave miscarriage of justice or if there has been any misapplication of principle relating to appreciation of evidence, or, finally, if the findings could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil matters the burden lies rather heavily on the petitioners to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us.
The learned counsel for the petitioners has failed to bring the case within the aforesaid pare- meters prescribed by this Court in various pronouncements. It is a settled law that constitutional jurisdiction is discretionary in character. We are not inclined to exercise our discretion in favour of the petitioners in view of their conduct as law laid down by this Court in various pronouncements.
See Haji Saifullah's case PLD 1989 SC 166; Nawab Syed Raunak Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR 1462.
10. For what has been discussed above, we do not find any merit in this petition which is dismissed.
Leave refused.