1987 PLP 618 (SCMR)

SAAD SAOOD JAN, J‑‑This is a petition for special leave to appeal from the order, dated 13‑1‑1987 of the Peshawar High Court dismissing the constitutional petition of the petitioners against the order of the District Judge, Peshawar.

2. The property in dispute is a house bearing number 29, situate on the Mall, Peshawar. It was owned by Qazi Mahmood Jan. On his death it was inherited by his sons Qazi Abdul Majid and Qazi Abdul Hamid. By a private agreement to two brothers partitioned the house between them. After the death of Qazi Abdul Hamid his heirs who are the petitioners before us filed a declaratory suit that they were sole owners in possession of the part of the house by virtue of the private partition effected by Qazi Abdul Hamid and Qazi Abdul Majid. Together with the plaint they filed a plan of the house in which the shares allocated to Qazi Abdul Majid and Qazi Abdul Hamid were shown in different colours. Qazi Abdul Majid filed a written statement conceding y' the averments made in the plaint. He also made a statement confessing judgment. Accordingly, by an order, dated 3‑10‑1981 the trial Court decreed the suit of the petitioners.

3. Sometimes after the decree was passed, Qazi Abdul Majid also died. He had married twice in lifetime. The respondents are his heirs from the two wives. On 20‑7‑1983 respondents Nos.1 to 7 filed a suit against respondents Nos.8 to 16 essentially for partition of the property left by Qazi Abdul Majid. One of the properties mentioned in the plaint was the whole of the house in dispute. They did not make the petitioners a party to the suit nor. did they disclose that the house had already been partitioned. The trial Court passed a preliminary decree on 5‑3‑1984 and then a final decree for the partition of the house on 24‑2‑1985 in accordance with the report of a local commissioner.

4. The petitioners found their portion of the house had also been included in the final decree of 24‑2‑1985. On 8‑4‑1985 they moved an application under section 12(2) of the Code of Civil Procedure for setting aside the preliminary and the final decrees on the ground that the respondents had purposely concealed the factum of private partition and had by misrepresenting that the whole of the house was the property of Qazi Abdul Majid obtained the said decrees. This application was rejected by the trial Court on the ground that there had, been no misrepresentation and that in any event the petitioners were not necessary parties to the suit filed by the respondents. His findings were affirmed by the learned Additional District Judge in the civil revision. The petitioners then invoked the constitutional jurisdiction of the High Court without any success. Then they seek leave to appeal from this Court.

5. In support of this petition, the petitioners contend that consequent upon the private partition between them and predecessor‑in?-interest of the respondents a specific portion of the house had fallen to their share. Respondents Nos.l to 7 purposely concealed this fact when they filed the suit against respondents Nos.8 to

16. As a result, the portion which belonged to them by virtue of the private partition was also divided among the respondents. It was thus a clear case where the preliminary and final decrees were obtained by the respondents by concealing the true facts and by misrepresenting that the whole of the house was part of the property left by Qazi Abdul Majid. It was thus a case which fell under section 12 (2) of the Code of Civil Procedure.

6. The contention ‑raised on behalf of the petitioners requires consideration. Leave to appeal is granted. Security in the sum of Rs.2,

500. The appeal should be made ready on the present record. Status‑quo meanwhile. M.I./M‑16/S??????????????????????????????????????????????????????????????????????????? Leave granted.