1990CLC17 (PLP)

Nemo for Respondents. Date of hearing: 21st October, 1989. Petitioners have filed this revision as they feel dissatisfied with the judgment of the learned Additional District Judge, dated 22‑7‑1989, whereby the application of the Collector Land Acquisition under section 12 (2) C.P.C. was accepted and consequently the judgment and decree in favour of the petitioners in an objection petition instituted under section 18 of the Land Acquisition Act, were set aside and they were ordered to refund the compensation amount.

2. Certain land owned by Abdus Salam, the predecessor of the petitioners was acquired under Award No.3/1.AC‑Ill dated 20‑12‑1967 in connection with the construction of Tarbela Dam. Against this award Abdus Salam approached the Collector to refer his objection to the Acquisition Judge and this objective petition was registered in the later Court as 38/4 and was ultimately decided on 24‑4‑1969. Subsequently the said Abdus Salam again submitted a second objection petition regarding the same award and the same land without disclosing the fact of the decision of the earlier objection petition and this on jection petition was allotted No.32/4 and was decided on 4‑4‑1977. The Collector Land Acquisition when detected the factum of the second objection petition approached the Acquisition Judge under section 12(2) for declaring the judgment and decree obtained in the second objection as fraudulent and ineffective. Accordingly, the said Judge through the impugned order accepted the application and resultantly set aside the judgment and decree in the second Objection Petition No.32/ 4 decided on 4‑7‑1977.

3. The learned counsel arguing this petition submitted that the application under section 12(2.) was filed much after 3 years which is provided as period of limitation for such an application. He next stressed that no issue in the trial of the application was framed and that at the most his claim in the second objection petition ,pan be termed as res judicata and not fraudulent. 4. 1 considered the submissions of the learned counsel in the light of the documents placed on the file of the revision in this Court.

5. It is obvious that the learned counsel could not deny the fact that the second objection petition was regarding the same award and in respect of the sane land as the first one and that the factum of the decision of the earlier objection petition was not disclosed in the later objection petition. The predecessor of the petitioners obtained the favourable order in the subsequent .A objection petition through fraud and intentional concealment of necessary relevant facts as he consciously concealed the disclosure of his earlier objection petition in order to gain undue monetary benefits. Once it was proved by the applicant‑respondent that the ascendant of .the petitioners obtained the impeached judgment through fraud then on account of lire accumulative effect of section 18 and Article 95 of the Limitation Act the onus shifted to the petitioners to prove when the applicant had the knowledge. The petitioners have not been able to point out the time when the respondents came to know of the fraud practised on them and, therefore, they failed to discharge the onus they were bound in law to clear. The forerunner of the petitioners got the enhanced amount of compensation to which he was not legally entitled, therefore, he should have known that no length of time would either concede him or his successors the fruit of his dishonesty and in case they are allowed concession from a claim although belated then that will clearly amount placing premium on their dishonesty. The second contention of the learned counsel regarding non‑framing of issues in the case is equally devoid of substance as they fully knew the case of either side and there was not even a remote chance of their being misled in any way or prejudiced in any manner in their defence on account of the non‑framing of the issues in the case, In absence of any prejudice on this score to the petitioners they would not be able to derive any advantage on account of this plea. The claim of the petitioners in the second objection petition was also res judicata as in a way conceded by the learned counsel for the respondents and, therefore, on this score too the impugned fined judgment was liable to be set aside: ‑

6. In these circumstances, this revision petition is without any merit and is accordingly dismissed in limine. A.A./907/P Revision dismissed.