1988 PLP 242 (CLC)

Brief facts giving rise to this J.M. application are that an application was made by the Deputy Commissioner Karachi as intervenor under section 151, C.P.C. praying that the ex parte judgment passed in this suit (No. 530 of 1978) should not be executed, in that, the Nazir should not be directed to execute the registered sale‑deed in favour of the plaintiff on the ground that the land belonged to the Government. The application was dismissed by my learned brother Mr. Justice Saeeduzzaman Siddiqui on 18‑4‑1984. An inter‑Court appeal was filed against the said order but the same was dismissed by a D.B. comprising of Mr. Justice Naimuddin Chief Justice and Mr. Justice Syed Alley Madad Shah on 20‑3‑1986. Now the Province through Secretary Board of Revenue Hyderabad has made this application under section 12(2), C.P.C. It is stated by the applicants that the land in question, according to the official record, is State land and had never been granted on occupancy rights to any one. The entire area since 1913 was kept in reserve as village site duly marked in Deh‑map. This area could be occupied by the cultivators of the concerned Deh and adjoining area after obtaining Ijazatnama and paying Malkana fee. According to the Revenue record nobody had paid malkana fee therefore none vas granted any right of occupancy or interest in the suit land. The land remained the property of the State. Somehow out of that land an area of 18‑13 acres was occupied by old residents while an area of 20.34 was encroached upon through illegal transfer of the land by the old villagers with the result that about 100 persons raised their houses who continued in illegal possession of their respective areas. The remaining area has since been brought under Khawasti Brohi Revenue Scheme which has been divided in the plots of 80 Sq. yards each, according to the standard provided by K . D . A . and duly approved by it and disposed of to the persons of low income groups under the rules by draw of lots/allotment by the applicants. It was further submitted by the applicants that when the previous application under section 151, C . P. C . was heard by this Court during the execution of the above decree, and the parties were given opportunity of leading evidence and evidence of Allahdino Senior Clerk of the Land Record was relied upon, by this Court, who stated that the certified copy of the extract of the Qaim Register produced by the plaintiff was a genuine document and that it bears signature of Hassan Ali Jokhio who was an officer authorised to issue such extract. It was stated that the said extract was a forged document and said Allahdino was charge‑sheeted for giving false evidence in another similar case. The applicant had filed only an affidavit in support of his application, besides the true copies of High Court Appeal No. 61 of 1984 and the order of the D . B . on that appeal. He did not file the extract of Revenue record referred to by him nor did he produce any other document showing that the land belonged to Government and had not been granted to any one including the applicant upto now. He also could not produce the documents showing that the land was granted to the trespasser referred to by him nor did he produce Ijazatnamas in their favour. It was admitted that the Qaim Register was maintained upto 1932 but that Qaim Register was also not produced. He alleged that Allahdino Senior Clerk had been charge‑sheeted for giving false evidence and at the same time qualifies that the charge‑sheet was for similar another case. He has alleged that about 10 days ago it was found that the certified copy of Qaim Register was forgery but that finding has also not been produced. Plaintiff Ahmedullah Khan has filed his counter‑affidavit in which he has denied all the allegations of the applicant. Counter‑affidavits have also been filed by Lal Muhammad and Zainuddin denying each and every allegation of the applicant. It may be pointed out that at no stage of this application any attempt or request whatsoever was made by the applicant for producing the above documents or leading evidence, oral or otherwise in addition to the affidavit filed in proof of allegations made by them. Admittedly the applicant did not file any appeal against the judgment of this Court in Suit No. 530 of 1976 which was based on findings of facts. His application under section 151, C.P. C. was dismissed as already mentioned, as well as High Court Appeal against the same. In 1986 C L C 747 Abdul Ghaffar v. Jamaluddin it was held by this Court that where a person challenging the judgment was not praying for production of evidence in proof of allegations as to validity of judgment, he could not complain in Revisional Jurisdiction about non‑production of evidence. It was further held that where a trial Court was disposing of the application on affidavits and arguments of the parties in the absence of a request for production of evidence, it was sufficient compliance with the requirements of procedural law. In Central Bank v. Gardian Assurance Companies reported in A I R 1937 P C 179 it was held that where an issue of fraud is involved in a case, those alleging ought to establish it by something more than grave suspicion. The same view is taken in Marainan v. Official Assignee reported in 1941 P.C. 1903 and held that fraud like any other charge of a criminal offence whether in civil or criminal proceedings must be established beyond reasonable doubt. The findings as to fraud cannot be based on suspicion and conjectures. It may be remembered that a decree whether contested or ex parte cannot be re‑opened on the ground that it was obtained by setting up of false claim or by leading perjured evidence. One who seeks to impugne a decree must know that it could not be set aside by merely inducing the Court to come to the conclusion that appreciation of the evidence or the findings in such suit were erroneous. Reference in this connection may be made to following cases: ‑ (1) Shrigawas v. Narayanoo reported in A I R 1932 Rangoon 379. (2) Commercial Syndicate v. Co‑operative Bank A I R 1926 Lah. 96. (3) Nand Kumhar Hawaldar v. Ramjeban Hawaldar 23 Indian Cases

337. I, therefore, do not find any merit in this application nor do I find any justification for setting aside the ex parte judgment of this Court, dated 25‑2‑1980 passed by my learned brother Ajmalle Mian, J. Application is, therefore, dismissed with costs. A . A . /P‑38/ K Application dismissed.