Raja Saeed Akram Khan, J.-- This appeal by leave of the Court has been directed against the judgment and decree of the High Court dated 06.05.2014, whereby the appeal filed by respondent No.1, herein, has been accepted.
2. The facts necessary for disposal of this appeal are that respondent No.1, herein, filed a suit for declaration- cum-recovery of possession pertaining to land comprising survey No.133 (old), 238 (new), measuring 12 kanal 6 marla, situate at village Khun Bandway, in the Court of Civil Judge Muzaffarabad on 22.08.2003. It was averred in the plaint that the land in dispute falls in the ownership of plaintiff-respondent No.1, herein, whereas, the defendants-appellants, herein, have no concern, whatsoever with the same. The defendant-appellants, herein, in collusion with the officials of the revenue department succeeded to incorporate fabricated entries in the revenue record in the recent settlement, moreover, they also unlawfully occupied the disputed land. The defendant-appellants, herein, also filed a suit for declaration-cum- perpetual injunction in the Court of Civil Judge, Muzaffarabad, on 22.08.2003, through which they claimed that the land comprising survey No.115/169, measuring 14 kanal, situate at village Khun Bandway is a crown land while survey No.134, measuring 15 kanal, situate in the same village is a Shamlat Deh land which is in their possession. They solicited decree for perpetual injunction against respondent, Muhammad Ayub and others, with the prayer to restrain them from transferring the land and claiming the title over the same. The trial Court after necessary proceedings dismissed the suit filed by respondent No.1, herein, for want of proof, whereas, suit filed by the appellants, herein, regarding Shamlat Deh land comprising survey No.134 measuring 15 kanal was partly allowed to the extent of protection of their possession vide judgment and decree dated 25.02.2005. Feeling aggrieved, respondent No.1, herein, filed an appeal in the Court of District Judge which was dismissed vide judgment and decree dated 08.07.2008. Respondent No.1, herein, filed 2nd appeal before the High Court. The learned High Court vide impugned judgment dated 06.05.2014, accepted the appeal, hence, this appeal by leave of the Court.
3. M/s Muhammad Yaqoob Khan Mughal and Raja Ibrar Hussain, Advocates, the learned counsel for the appellants argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. They submitted that the learned High Court disturbed the concurrent findings recorded by both the Courts below without adhering to the fact that there was no misreading or non-reading of the evidence. He contended that respondent No.1, herein, filed suit for declaration-cum-possession on the basis of ownership, whereas, he failed to substantiate his claim through any cogent evidence. The trial Court after taking into account all the evidence produced by the parties dismissed the suit. The first appellate Court upheld the findings recorded by the Courts below while assigning the strong reasons as respondent No.1, has no concern with the land in dispute, thus, the question of possession does not arise. They added that in spite of the fact that the learned High Court admitted that the respondent failed to establish his ownership passed the decree in favour of the respondent only on the ground that he is real brother of Mst. Jannat Noor. In the record of rights pertaining to the year 1998-99 in the column of ownership the only name of Mst. Janat Noor was incorporated. They submitted that the learned trial Court recorded the findings on the strength of material available on record and the same were rightly upheld by the first appellate Court. They strongly submitted that Mst. Jannat Noor is alive who inherited the property from his husband, therefore, mere relationship does not give any right to respondent No.1, herein, to file suit for possession, but this aspect of the case escaped the notice of the High Court. They contended that the trial Court as well as the first appellate Court rightly observed that the respondent does not figure anywhere and he has no concern with the land in question. They lastly submitted that the appellants proved their entitlement to retain the possession of Shamilat Deh land and Khalsa land as Asami Deh Hasbe Rasad Khewat, but the learned High Court failed to appreciate the record and erroneously held that the appellants failed to prove their entitlement.
4. Conversely, Ch. Muhammad Manzoor, Advocate, the learned counsel for respondent No.1, strongly opposed the arguments advanced by the learned counsel for the appellants. He submitted that the impugned judgment is perfect and legal which is not open for interference by this Court. He contended that both the Courts below concurred with the matter without appreciating the record, therefore, the learned High Court was fully justified to disturb the findings concurrently recorded by the Courts below. During the course of arguments, when the learned counsel for respondent No.1, was confronted whether the land in dispute is owned by respondent No.1, he frankly conceded the factual position and submitted that the name of respondent No.1, is not entered in the revenue record as owner.
5. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. The perusal of the record reveals that respondent No.1, herein, filed suit for declaration-cum- possession of the land comprising survey No.133 (old), 238 (new), measuring 12 kanal 16 marla, situate at village Khun Bandway with the following prayer:- {{URDU TEXT}} The trial Court after seeking written statement from the defendant-appellants, herein, framed issues and after recording the evidence dismissed the suit for want of proof. As issue No.2 was crucial one, therefore, we deem it proper to reproduce here the same and the findings recorded by the trial Court thereof, which read as under:- {{URDU TEXT}} The learned District Judge while dismissing the appeal filed by respondent No.1, herein, has recorded the following findings upon issue No.2:- {{URDU TEXT}} After going through the findings recorded by the trial Court as well as the first appellate Court it appears that both the Courts below came to the conclusion that the plaintiff-respondent claimed possession of the suit land on the basis of ownership, whereas, in the revenue record produced by the plaintiff-respondent his name has not been entered as owner of the suit land. During the course of arguments, in this regard a query was also made to the learned counsel for the respondent; he affirmed the view expressed by the Courts below while submitting that the name of the plaintiff-respondent has not been entered as owner in the revenue record and only the name of Mst. Jannat Noor, is entered as owner of the suit land. However, while scrutinizing the record, it appeared that the situation is quite otherwise as in khasra girdawri, Exh. PB, PC, pertaining to the years 1951 to 1965, produced by the respondent, which remained un-challenged, the disputed land has been shown in ownership and possession of the respondent's father, Nawab Khan. The respondent also produced copy of khatooni, Exh.PA, in which the name of the respondent has been mentioned as owner of the suit land, whereas, the possession of the appellants has been shown as ghair mouroosi. In support of this document, the concerned Partwari, also appeared before the trial Court along with the relevant revenue record and submitted that this document has been issued in accordance with the revenue record. The trial Court even has not bothered to verify the entries made in document, Exh.PA, from the original record and dismissed the suit while recording the findings that the respondent failed to prove his ownership, in an arbitrary manner. Furthermore, a copy of misl-e-haqiat, pertaining to the year 1998-99 (available at page 21 of the reconstructed record of the trial Court) also shows that the respondent is owner of the land comprising survey No.133 (old) 238 (new), but the Courts below failed to appreciate the same. In this scenario, the findings recorded by the trial Court, affirmed by the first appellate Court that the plaintiff-respondent failed to prove his ownership are against the record. It also appears from the record that on the application of the appellants, Tehsildar Muzaffarabad was appointed as local commission. The report of the local commission is available on the trial Court's file wherein it has been mentioned that the possession of the appellants over the land in dispute is ghair mouroosi which supports the version of the respondent. The statement of the concerned Tehsildar was also recorded wherein he stated that: {{URDU TEXT}} In cross-examination, he further deposed that: {{URDU TEXT}} The appellants in rebuttal have not produced any evidence in support of their possession over the land in dispute. One of the respondents, Aurangzeb, while recording his statement has deposed that:- {{URDU TEXT}}
6. So far as, the findings of the trial Court as well as the first appellate Court that in the revenue record and the report of the local commission the disputed survey number has been shown in the ownership of Mst. Jannat Noor and others and the name of respondent has not entered in the same, is concerned, the respondent while filing the suit has categorically mentioned that during the settlement the appellants in connivance with the revenue official got the wrong entries recorded in the revenue record. The Courts below without taking into consideration the version of the respondent recorded the findings in this regard. In copy of misl-e-haqiat submitted by the local commission along with the report, the survey number 133 (old) has been mentioned in two different khewets, i.e. 13 and 14. It may be observed here that usually in one khewet there may be many survey numbers but one survey number cannot comprise of different khewats. The entries made in this misl-e- haqiat do not appeal to the prudent mind and support the version of the respondent that the appellants in connivance with the revenue official got the wrong entries recorded in the revenue record.
7. After going through the material available on record, we are of the view that the respondent has proved his ownership through reliable evidence and the judgments of the trial Court/first appellate Court are based on misreading and non-reading of evidence. Thus, the learned High Court has not committed any illegality while interfering with the concurrent findings recorded by the Courts below as it is now settled that the concurrent findings of facts recorded by the Courts below are open to attack and can be recalled if the same are based on misreading or non-reading of evidence. Reliance may be placed on a case reported as Akhtar Khan and 9 others v. Sarwar Khan and 12 others [2003 SCR 128], wherein, it has been held that: "It is by now settled proposition of law that the concurrent findings of fact are open to attack if the same are not supported by any evidence or otherwise are unreasonable or perverse."
Similarly, in another unreported judgment titled Sadiq Hussain Shah & others v. Syeda Gudo Fatima & others (civil appeal No.24 of 2010 decided on 23.04.2015) this Court has held as under:- "10. The argument of the learned counsel for the respondents that there are concurrent findings recorded by all the Courts below which cannot be disturbed, has also no substance. It is now settled that the superior Courts always reluctant to interfere with the concurrent findings recorded by the Courts below, however, in case of any misreading or non-reading of evidence by the Courts below the superior Courts have intervened."
8. So far as, the argument of the learned counsel for the appellants that the appellants proved their entitlement to retain the possession of Shamilat Deh land and Khalsa land, therefore, the findings recorded by the High Court that the appellants failed to prove their entitlement, are against record, is concerned, in this regard, we have examined the record minutely. It is spelt out from the record that no proof regarding the legal partition of Shamilat Deh land of the village has been produced by the appellants. In such situation, no decree for perpetual injunction regarding the said land can be passed in favour of the appellants; however, in the interest of justice, we deem it proper to hold that if any portion of the land whether it is crown land or Shamilat Deh land, is in possession of the appellants they cannot be dispossessed without adopting the due course of law. The observation made by the learned High Court that the appellants, herein, may approach the concerned forum for determination of their share in Shamilat Deh land as Hasbe Rasad Khewet, is in accordance with law, hence, we endorse the same. In the terms indicated above, this appeal stands dismissed with no order as to costs.