2014 PLP 1095 (YLR)

ROOH UL AMIN KHAN, J.

This revision petition is directed against the judgment/order dated 21-4-2010 passed by learned Civil Judge-IX, Bannu, and that of learned Additional District Judge-I, Bannu, dated 21-3-2011, whereby petitioners' application under section 12(2) C.P.C. has been dismissed concurrently by both the Courts below.

2. The resume of facts forming the background of the instant revision petition is that, petitioners Mst. Bibi Khwazada etc. filed an application under section 12(2), C.P.C. challenging the judgment and decree dated 17-3-2004, in Civil Suit No.195/1 of 2002, passed in favour of the respondents, alleging the same to be the result of fraud and misrepresentation. Initially, the application was dismissed by the learned trial Court on the ground of maintainability vide order dated 16-9-2004, however, the learned revisional Court by accepting revision petition of the petitioners vide order dated 19-4-2005, set aside the order of the trial Court and remanded the matter for decision afresh, after framing issues and recording pro and contra evidence of the parties. In compliance of order of learned revisional Court, the learned trial Court, framed issues and after recording evidence of the parties, dismissed the application vide order dated 21-4-2010. Being dissatisfied with the judgment/order of the learned trial Court, the petitioners filed appeal before the learned appellate Court, which met the same fate, hence, this revision petition.

3. I have heard the exhaustive arguments of the learned counsel for the parties and perused the record with their assistance.

4. The petitioners are alleging the decree passed in Civil Suit No.195/1 of 2002 on 17-3-2004 to be the result of fraud and misrepresentation. It appears from the record that the aforesaid suit was filed by plaintiffs Habib ur Rehman and Sher Ullah Khan against defendant Muhammad Hassan for declaration and perpetual mandatory injunction claiming therein correction of the Revenue Record with regard to source of irrigation maliciously changed by the Revenue Authorities without any order of competent forum from "Vial Blikai" to "Vial Lalbagi", in respect of property fully described in the preamble of the plaint. The grievance of the petitioners is that as per Revenue Record i.e. Jamabandi for the year 1999-2000, they being owners in possession of their shares in the suit property, have intentionally not been arrayed as party by the respondents and thereby exercising fraud, obtained decree in their favours, which is ineffective upon their rights. The stance of the petitioners about their ownership in the property has been denied by the respondents by filing replication wherein they have asserted that petitioners having no nexus with the property in Suit No.195/1, were not made party in the suit.

5. Patwari Halqa has been examined as P.W.1, who produced Revenue Record for the year 1905-1906 upto 1999-2000, which shows the ownership and possession of the petitioners in Khata No.622/1742, Khasra No.1080, Khata No.685, Khasra No.1080 and Khata No.714 Khasra No.1081. ADK has been examined as P.W.2. He also produced various Jamabandies in respect of the suit property. According to his record for the year 1990-91, the petitioners are owners in possession of the property in Khata No.593, Khasra No.1080 of Moza Bhart. The moot point for determination is that whether the petitioners had knowledge about pendency of Suit No.95/1 or not and whether the respondents have practised any fraud. Petitioner No.1, who is also special attorney of rest of the petitioners has recorded his statement as P.W.3 wherein he deposed that respondents had filed a frivolous suit against her father and brothers and obtained a decree in that suit. She further deposed that she does not know as to when litigations in suit were held between her father and the respondents and that the present petition is filed by her brothers. This statement of attorney of the petitioner proves that she was in the knowledge of Suit No.195/1. On the other hand, respondent No.1 appeared as DW.1 and deposed that father and brothers of the present petitioners were parties in Suit No.95/1 and the petitioners being residing with their father and brother jointly in one house, were well aware of the proceedings in the suit but they deliberately avoided to participate in the proceedings.

6. The evidence available on record prima facie proves the knowledge of the petitioners about pendency of Suit No.195/1 because the suit was not against the strangers, but against their father and brothers, hence, it does not appeal to a prudent mind that the petitioners despite dwelling jointly in one house with their father and brothers would have no knowledge about the proceedings in the suit. Petitioner in her cross-examination has admitted that she does not know that for what purpose she has filed the instant application. The peculiar facts and circumstances of the case suggests that the instant application under section 12(2) C.P.C. has been filed at the behest of brothers of the petitioners. The decree in Suit No.195/1 is the outcome of merits which does have any adverse effect on the rights of the petitioners as it is in respect of source of irrigation of suit property i.e. from Vial Lal Baigi to Vial Balikai. As divulging from the Revenue Record of 1905-06, the source of irrigation of suit property was Vial Balikai but later on, the Revenue hierarchy without assigning any reason, changed the same to Vial Lal Baigi and decree in Suit No.95/1 has been passed in respect of correction of the said wrong entry. Not an iota of evidence has been brought on record to prove any fraud or misrepresentation on the part of the respondents in obtaining decree in the aforementioned suit.

7. Both the Courts below have exhaustively discussed each and every point by appreciating the evidence and the Revenue Record and have reached to a right conclusion by dismissing the application of the petitioners under section 12(2), C.P.C. There is no illegality or irregularity or any misreading or non-reading of evidence which may warrant interference of this Court in the concurrent findings of facts recorded by the two Courts below. Finding no merits, this revision petition is dismissed. AG/80/P Revision dismissed.