RAJA SAEED AKRAM KHAN, J.---This appeal, by leave of the Court, has been filed against the judgment and decree passed by the High Court on 21.11.2009, whereby Civil Appeal No, 170 of 2005 has been dismissed.
2. The precise facts culminating into this appeal are that Said Muhammad Khan, predecessor-in- interest of respondents Nos.1 to 3 (hereinafter shall be called the plaintiff-respondents) filed a suit for declaration in the Court of Sub-Judge, Rawalakot on 9.6.1990 in respect of land measuring 23 kanals, 14 marlas, situate in village Mutyal Mera, alleging therein that the land was in his ownership.
The defendants-appellants with the connivance of the Revenue Authorities got entered in their favour the ownership of land comprising survey No, 712/126. The plaintiff-respondents also challenged the compromise decree dated 8th April, 1952 being contrary and against law. During the pendency of suit the fire incident took place in Rawalakot District Courts and the record was burnt. The record was reconstructed with the help of the counsel for the parties. Therefore, the trial Court after necessary proceedings decreed the suit filed by the plaintiff-respondents on 22.5.2002.
The appeal filed by the defendant-appellants was dismissed by the District Judge on 12.'9.2005.
The defendant-appellants filed Appeal No,170 in the High Court. The High Court dismissed the appeal vide impugned judgment and decree on 21.11.2009, which is the subject-matter of this appeal.
3. Mr. Muhammad Asif Kiyani, the learned counsel for the defendant-appellants, argued that the judgments and decrees passed by the Courts below are against law and facts of the case. He argued that the Courts below have not taken into consideration the record made available while passing the impugned judgments and decrees which are liable to be set aside. He submitted that all the three Courts erred in law while not taking into consideration that no revenue record was produced by the plaintiff-respondents in respect of survey No, 712/126 and they failed to substantiate that they are the owners of the land bearing survey No, 712/126. He averred that the High Court has not attended the controversy involved in the case in its true perspective while observing that the second appeal was not competent before the High Court, whereas no such reasons have been assigned in this regard. He contended that the High Court also erred in law while not attending the real issues involved in the case, which is a grave illegality on the part of the High Court. He further contended that the trial Court has dismissed the defendant appellants' claim of ownership of the property, whereas the plaintiff-respondents have admitted the entry of ownership in favour of defendant-appellants, however, without any proof, it was held that the entry made in the record is fake, therefore, the finding of all the three Courts below are based on presumptions and imaginations which is not warranted under law. He further argued that the High Court badly failed to take into consideration that the presumption of correctness is attached with the Jamabandi. The Jamabandi pertaining to year 2002 BK was made part of the record, which is more than 30 years' old document and under the provisions of Qanun-e-Shahadat Order, 1984, the presumption of truth is attached with 30 years' old document. He submitted that the case of the plaintiff-respondents was for the correction of the revenue record for which the proper forum was revenue authorities but instead of approaching the proper forum, they filed a civil suit which was not competent and this aspect of the case has totally been ignored by all the Courts below which is misreading and non-reading of evidence on the part of all the three Courts below, therefore, in such like case, this Court always interfered with. He further argued that a compromise decree was passed on 8.4.1952 but the same was challenged for its revocation in 1990 after a lapse of considerable time, therefore, the suit was otherwise barred by limitation. The learned counsel for the defendant-appellants submitted that the appeal before the Commissioner, Rawalakot was pending, therefore, the civil Court was not justified to decide the suit till disposal of appeal by the Commissioner. He lastly argued that all the three Courts below have not attended this important aspect of the case.
4. On the other hand, Sardar Javied Nisar, Advocate, the learned counsel for the respondents, has strongly opposed the arguments advanced by the learned counsel for the defendant-appellants while arguing that the judgment and decree passed by the High Court are well reasoned and have been passed after due application of mind, therefore, no interference is called for by this Court. He argued that there are concurrent findings of three Courts below which do not require any indulgence by this Court as there is no misreading or non-reading of evidence. He submitted that all the three Courts below have attended the controversial issues in a comprehensive manner and resolved the same after assigning the cogent reasons. He further submitted that it is a case for correction of record and all the three Courts are consistent on the point that the decree passed on 8.4.1952 was obtained by way of collusion, therefore, the same was nullity in the eye of law. He argued that the land in question remained throughout in possession of the plaintiff-respondents and till now the same is in their possession. No efforts or measures were adopted to seek the ejectment which itself shows that the claim of the defendant-appellants was based on forged record.
5. We have considered the arguments of the learned counsel for the parties and also perused the record along with the impugned judgment and decree of the High Court with the able assistance of both the learned counsel.
6. From the record, it reveals that defendant-appellants failed to substantiate their case through any document that the land in question remained in their ownership. In this regard, no entry is available on the record from which it can be ascertained that they ever remained owner in possession of the suit land, therefore, the finding of the High Court that a person who never remained the owner of the land, how he can enter into compromise with other person, seems to be correct. This fact supports the version of the plaintiff-respondents that all the entries which were made in absence of the plaintiff-respondents on the basis of compromise decree were fictitious in nature as the same were incorporated with the connivance of the revenue authorities. The way in which the compromise decree has been passed itself negates the act of the defendant-appellants who succeeded to get a collusive compromise decree as all the proceedings of the Court were completed within one day, which itself is a unique example. Moreover, the question which clicks our mind is that even for the sake of argument, if it is presumed that the decree was rightly passed, then why the defendant-appellants remained mum for a pretty long time and have not taken any measures/steps to get the possession of the suit land. All the three. Courts below have attended this aspect of the case and decided the same with cogent reasons. We are also convinced that the compromise decree which was passed on 8.4.1952 was nullity in the eye of law as the same was based on the document which has no authenticity in the eye of law.
7. The argument of the learned counsel for the defendant-appellants that the suit was not maintainable as the same was filed on 8.7.1990, whereas the impugned compromise decree was passed on 8.4.1952, therefore, the suit was hopelessly time-barred. As we have observed in the preceding paragraphs that the defendant-appellants had obtained the compromise decree in the year 1952 by committing fraud and in collusion with the officials of Revenue Department, therefore, the question of limitation does not arise. It is well settled law that fraud vitiates the most solemn proceedings. If any transaction is made through fraud, that has no foundation to stand. It may also be observed that once it is proved from the record that fraud has been committed then the question of limitation does not arise at all. In this respect, reliance can be placed on an unreported case of this Court titled Muhammad Younis Khan and others v. Development Authority and others (Civil Appeal No,37 of 2007 decided on 13.6.2012), in which it has been observed as under-- "6.... The High Court, while deciding the writ petition, has taken care of this fact and we fully agree with the finding of the High Court that the possession of the appellants at the relevant time on the land was a condition precedent for the allotment. We also agree that the allotment was procured by way of fraud and misrepresentation and we do not feel any hesitation in holding that the same was done with the collusion of the officials of the Revenue Department and the Development Authority, Muzaffar-abad. Since, the Government decided to compensate the persons who were in possession of some land situate in Muhallah Shah Sultan, Muzaffarabad, and allotted the alternative plots to the affected persons, the appellants cleverly moved an application on which the same was processed in the office of the Development Authority and ultimately, they were succeeded in getting the allotment chits."
8. Moreover, the plaintiff-respondents while filing suit for revocation of compromise decree furnished sufficient reasons for filing suit at belated stage as admittedly, they remained in Pakistan and during this period forged entries were made in the revenue record on the basis of said collusive decree. The plaintiff-respondents came to know about such entries when they applied for the certified copies of the record pertaining to the land in question. As we have observed that the compromise decree was collusive and defendant-appellants procured the same by way of fraud, therefore, the question of limitation does not arise. The defendant-appellants failed to substantiate their claim before any Court even before this Court that the defendant-appellants ever remained the owners of the suit land or the same remained in their possession. Therefore, a person who has no legal right over a property, how he can enter into a compromise. In view of the above, the argument of the learned counsel for the defendants-appellants has no force and is hereby repelled.
9. There are concurrent findings of three Courts below who have given due attention while appreciating the record made available and came to the conclusion that compromise decree was obtained by way of fraud and collusion and the defendant-appellants on the basis of this decree were succeeded to incorporate their names in the revenue record as owners. It is universally celebrated principle of law that the concurrent findings can only be interfered with if there is misreading or non-reading of evidence. The defendant-appellants badly failed to bring on the record any such non-reading or misreading of evidence. In our estimation, all the three Courts below have appreciated the evidence/record in the light of the settled norms of justice; therefore, in such like situation, this Court has always been reluctant to interfere with in the findings concurrently recorded by the Courts below. There is plethora of authorities on this point, some of which are as under:-- In a case titled Mst. Bibi Jan v. Qutab Din and 3 others [2003 SCR 28], it has been observed by this Court as under:-- "After hearing the learned counsel for the parties and perusing the record, I am of the view that it is a case of concurrent findings of fact recorded by the Courts below and confirmed by the High Court. Even if a different opinion is possible, this Court is not entitled to interfere in the concurrent findings recorded by the Courts below. In these circumstances, the petition for leave to appeal merits no consideration which stands rejected."
This Court recently in a case titled Ejaz Ahmed Mir v. Collector Land Acquisition and others (Civil Appeal No,96 of 2008 decided on 25.3.2013) has been observed as under:-- "7. We have heard the arguments of the learned counsel for the parties advanced at Bar and also gone through the record made available. Admittedly in this appeal the Reference Judge as well as the High Court has recorded findings on the question of facts concurrently, thus the principle of law incorporated in the statutory provisions as well as enunciated by the superior Courts regarding the concurrent findings is fully attracted in this case. It is now almost settled principle of law that concurrently recorded findings are not normally disturbed in the second appeal unless there is any departure from the law or any serious injustice has been caused. In view of what has been discussed above we are of the consistent view that all the Courts below have attended the controversial questions involved in the case in a comprehensive manner and we do not find, any illegality or infirmity in the judgments and decrees passed by the Courts below, therefore, we are not inclined to interfere in the concurrent findings recorded by three Courts below. The defendant-appellants failed to point out any gross illegality in the judgments and decrees passed by the Courts below. Resultantly this appeal having no force, the same is dismissed with no order as to costs.