1. ' This is a second appeal against the judgment and decree passed by the learned Additional District Judge, Poonch at Bagh whereby the learned first appellate Court has upheld the decree passed by the learned Sub-Judge, Haveli on 8-8-1977.
2. This appeal has arisen out of the following facts:-
(1) Munshi Fateh Muhammad Khan and Abdul Latif Khan sons of Faqir Khan, Caste Mangral residents of Kote, Tehsil Haveli, instituted a declaratory suit on the basis of title and adverse possession against Sher Muhammad and Faqir Khan, defendants Caste Gujjar on 26-2-1974 before the learned Sub-Judge, Haveli. During the trial, Munshi Fateh Muhammad Khan Plaintiff died and his legal representatives, Mst. Alam Bi and others, were impleaded as legal representatives on 29- 3-1975. One pro forma-defendant, Ghulam Hussain Khan was transposed as a plaintiff under the order of the trial Court passed on 27-3-1974. The suit land is Survey No.144 measuring 13 Kanals and 15 Marlas situate in village Kate, Tehsil Haveli.
(2) The defendants resisted the suit and denied the title and the claim for adverse possession of the plaintiffs in their written statement filed on 13-4-4974. The learned Sub-Judge framed the following issues on 13-4-1974:-
(a) Whether the plaintiffs had obtained a decree in a declaratory suit on the basis of adverse possession against the defendants during the Dogra Regime in 2003 Bk. If yes, what is its effect upon the suit? O.P.P.
(b) If the issue No.1 is not proved, then whether the plaintiffs are in continuous possession of the suit land for more than 12 years from the institution of the suit and as such they are entitled to get a decree about the suit land on the basis of adverse possession. If so, how? O.P.P.
(c) Whether the plaintiffs had obtained the suit land from the defendants under an oral agreement to sell. If yes. What is its effect upon the suit? O.P.P.
(d) Relief.
(3) The learned Sub-Judge, Haveli dismissed the suit of the plaintiffs on 8-8-1977.
(4) Dissatisfied with the decree passed by the learned Sub-Judge, Haveli, the plaintiffs went up on appeal before the learned Additional District Judge Poonch (Bagh) on 29-3-1984, but failed to get a decree because the learned Additional District Judge, Poonch (Bagh) rejected their appeal on 29-3-1984 and upheld the judgment and decree passed by the trial Court.
3. ' Aggrieved by the decree of the learned Additional District Judge, Poonch (Bagh), dated 29-3-1983, the plaintiffs have come up in second appeal before the High Court.
4. ' The learned counsel for the appellant, Raja Sher Muhamad Khan, has raised the following points:-
(i) That, of course, he is facing the concurrent findings of fact of both the Courts below but this is a case of misreading and non-reading of evidence and as such the plaintiffs are entitled to get a decree;
(ii) That there are certain certified documents which show that the plaintiffs had obtained the suit land during the Dogra Regime. The documents are not forged ones as held by both the Courts below. Therefore, these documents are to be relied upon; and
(iii) That if the title of the plaintiffs is not established on the basis of the certified copies of the decree obtained during the Dogra Regime. Then the plaintiffs are entitled to succeed on the basis of their adverse possession.
5. On the other hand, Mr.Sardar Khan, the learned counsel for the respondents has raised the following points:-
(i) That there are concurrent findings of fact of both the Courts below and as such they cannot be upset in the second appeal. He has cited 1980 CLC 99, 1980 CLC 604, 1980 CLC 159 and 1980 CLC 1625;
(ii) That the so-called certified copies produced by the plaintiffs before the trial Court were forged documents and were rightly disbelieved by the two Courts below;
(iii) That the plaintiffs are at the best tenants and cannot set up a claim for adverse possession. In this respect, he has produced an unreported ruling of our High Court, Civil Appeals Nos. 83 and 105 of 1979 decided by Justice Sardar Said Muhammad Khan, J. (as then he was) on 22-4-1981;
(iv) That although the fake and forged documents have been admitted by the trial Court yet it matters little if no objection was raised before the trial Court because the Court has to see whether the documents are genuine or forged ones. He has referred to 1981 CLC 1055 and the document Exh. P.A. is the attested copy of `Jamabandi of village Kote, Tehsil Haveli, prepared in 1971-72 A.C.
6. This document Exh.P.A. was produced by the plaintiff-appellants. The argument of Mr. Sardar Khan, Advocate is that in this document, Fateh Alam Khan, Abdul Latif and Ghulam Hussain Khan sons of Faqir Khan have been shown as tenants on behalf of Faqir Khan co-sharer. This document pertains to Survey No.144 measuring 13 Kanals and 15 Marlas situate in village Kote, Tehsil Haven. The suit land is also regarding the Survey No.144 measuring 13 Kanals and 15 Marlas situate in village Kote, Tehsil Haveli. Mr. Sardar Khan, Advocate has argued that this document has got a presumption of truth under section 44 of the Punjab Land Revenue Act, which is applicable in Azad Jammu and Kashmir. He cited PLD 1975 SC 369 in support of his view.
7. ' I have anxiously considered the arguments addressed at the Bar and have also perused the record and carefully gone through the documents Exh.P.2 at page 32 Exh.P.1 at page 33 of the file of the trial Court.
8. 'I agree with the learned counsel for the respondents that there are concurrent findings of fact which cannot be upset by this Court. I would only refer to 1980 CLC 1625 the case of Sakhi Muhammad v. Sawar and others, paras. 7 and 8 wherein Raja Muhammad Khurshid Khan, J. (now the Chief Justice) has observed.-- "(7)Ordinarily concurrent finding of fact cannot be re-opened by the High Court unless the finding is perverse for its being based on misreading or non-reading of the evidence or on some other grounds akin to non-reading or misreading of the evidence. Here in this case the revenue record (documents P.A, P.B. and P.C.), as held by the learned Judge in the High Court, Prove that Kamoo was the owner of the land sold to Sawar and the plea of Sakhi Muhammad that the land in suit was not sold by Kamoo is unfounded especially when Kamoo himself admits to have sold the land to Sawar vendee-respondent. It admits of no doubt that as held in Sree Meenakashi Mills Ltd.
9. Madural v. Commissioner of Income-tax, Madras PLD 1957 SC (Ind.) 188 a finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence, or if it is unreasonable and perverse, but that where there is evidence to consider, the decision of the Tribunal is final even though the Court might not, on the materials, have come to the same conclusion if it had the power to substitute its own judgment.
(8) In the case of Sultan Ahmad v. Mostafa Khatun and 3 others 1968 SCMR 209 it was held that the finding by the first Court of appeal was not in any manner vitiated such as, by misreading of evidence or was based on surmises and conjectures the view taken by the High Court regarding the scope of the appeal preferred by the petitioner was in the circumstances quite correct."
10. ' I have seen the documents which are at pages 32 and 33 of the trial Court's file and shown as Exhs.P.1 and P.2. These documents are apparently forged documents. The document Exh. P/2 does not tally with the document Exh.P/1 because the judgment is alleged to have been written by Sardar Muhammad Ayub Khan. The then Sub-Judge, 'Poonch' but the decree Exh.P.2 was passed by the Sub-Judge, 'HaveIL Therefore, the documents Exh.P.1 and Exh.P.2 contradict each other and cannot be relied upon . Both the documents have been rightly disbelieved by the two Courts below.
11. Therefore, the plaintiffs do notrB get any title on the basis of these forged documents.
12. ' Now, I would like to discuss the other claim of the plaintiffs that they are in adverse possession of the suit land. The question of adverse possession is a mixed question of law and fact and its require ments are mentioned in PLD 1957 SC (Ind.) 251, 1973 SCM R 284, PLD 1975 Lah. 855 and PLD 1975 Kar.
13. 786.
14. ' A person claiming to be in adverse possession must show that he is in possession of the property owned by another person in exercise of his own right and denying the right of the rightful owner openly and adversely for a period of 12 years or more.
15. ' The onus of proof of the adverse possession is on the person who claims it. In this connection reference is made to the following authorities:-
(1) PLD 1957 S cand.)251.
(2) 1968 SC, M R 131.
(3) 1975 SCMR 250.
(4) 1979 SCMR 481.
(5) 1980 SC MR 364.
16. ' Exh.P.A. is the copy of the annual record pertaining to the village Kote, Tehsil Haveli prepared in 1971-72. This copy of the 'Jamabandi' has got a presumption of truth under section 44 of the Punjab Land Revenue Act which is applicable in Azad Jammu and Kashmir PLD 1975 SC 369, PLD 1975 SC 169 is an authority which says that there is a presumption of truth attached to the last 'Jamabandi'.
17. In the trial Court's file, this copy of the 'Jamabandi' appears to have been obtained from the last 'Jamabandi' of village Kote, Tehsil Haveli. Had the plaintiffs been in adverse possession of the suit land, it would have been mentioned so in columns No.5 and 8 of the 'Jamabandi' but the three sons of Faqir Khan are entered as tenants and not as persons in adverse possession of the suit land.
18. 'It is the settled law that a tenant and a co--sharer cannot put up the claim of adverse possession unless there is a complete ouster. In this case, no such ouster has been proved by the appellants.
19. ' On a question from the Court, Mr.Sardar Khan, Advocate replied that no objection was made to the admission of forged documents before the trial Court. His argument is that even if his clients have failed to raise any objection against the admission of these documents, the Court is not precluded from going into and determining the validity and authenticity of these documents after they had been received or admitted in evidence. I reproduce the relevant portion from 1981 CLC 1055.
20. "It is contended on behalf of the appellant that this document having been admitted in evidence as Exh.47 is not open to challenge for all practical purposes but he has failed to show any provision of law or legal authority in support of his contention that the Court is precluded from going into and determining the validity of authenticity of that document after it has been received or admitted in evidence. Particularly when the document is so important that the whole dispute between the parties depends upon its validity or otherwise. Even if no objection was taken by the other side when the document was exhibited, the Court is not prevented from adjudicating its true nature, whether it is valid or not or whether it is fake or not."
21. 'Therefore, the mere admission of these two-forged documents does not adversely effect the case of the defendants respodents.
22. ' The upshot of the above discussion is that there is no force in this second appeal which is hereby dismissed with costs.