2010 PLP 2825 (YLR)

CH. MUHAMMAD TARIQ, J.

Through this writ petition, the petitioner assails the judgment dated 19-4-2010 passed by learned Additional District Judge, Pind Dadan Khan whereby the appeal of the petitioner was dismissed and the judgment dated 16-9-2009 passed by the learned Civil Judge, Pind Dadan Khan was upheld.

2. Brief facts of the case as narrated in the plaint are that the petitioner purchased the land measuring 20 Kanals 13 Marlas, fully described in para 2 of the plaint for a total consideration of Rs.196,000 vide Mutation No.525, dated 13-1-2000 and took over the possession of the suit-land. Since then, the petitioner has been enjoying the possession of the same without any interference from any quarter along with respondents Nos. 1 to

9. Respondents Nos.1 to 3, who are the real sisters and niece of respondent No.4, have transferred the said land in the name of respondent No.4 through Mutation No.482, thereafter, respondent No.4 sold the said land to respondent No.5 from whom, the petitioner purchased the suit-land against valuable consideration.

3. Respondents Nos. 1 to 3 filed a suit for declaration titled as "Mst. Siftan Bibi etc. v. Bashir Ahmed etc." in the Civil Court of Pind Daden Khan whereby respondents Nos.1 to 3 challenged the Mutations Nos.482 and 483 against the respondents Nos.4 to 9 on the ground of fraud and misrepresentation. The suit was contested by respondent No.4 and others who filed written statements. The learned trial Court framed issues. Respondents Nos.1 to 3 produced their evidence while respondents Nos.4 to 5 had showed no interest in the said land. Ultimately, the suit was decreed vide judgment dated 10-11-2008, passed by Mr.Tanvir Ahmed learned Civil Judge Pind Dadan Khan, District Jhelum. On 4-12-2008, the petitioner came to know about the said judgment and decree dated 10-11-2008 when respondents Nos.1 to 3 disclosed in the village that a decree has been passed in their favour. Thereafter, the petitioner filed an application under section 12(2), C.P.C. contending therein that the petitioner is bona fide purchaser of the suit-land who has purchased the suit-land after payment of consideration price, but on 16-9-2009, the learned Civil Judge dismissed the application. Feeling aggrieved, the petitioner challenged the order of the learned trial Court before the appellate court/respondent No.10 but the learned Appellate Court also dismissed the appeal vide judgment and decree dated 19-4-2010. Hence this writ petition.

4. Learned counsel for the petitioner contends that both the learned Courts below have failed to appreciate the real controversy between the parties and the impugned judgments passed by the learned lower Courts are the result of misreading and non-reading of evidence and misconception of law and facts. He further contends that the petitioner is the bona fide purchaser with consideration, therefore, the writ petition be allowed, the impugned judgments passed by both the learned Courts below be set aside and the petitioner's application filed under section 12(2), C.P.C. be accepted.

5. On the other hand, learned counsel for the respondents has vehemently opposed this writ petition and has contended that after the dismissal of civil revision, the writ petition is not allowed. He has further contended that the petitioner has failed to point out any illegality or jurisdictional error in the impugned judgment, therefore, the writ petition be dismissed. In support of his arguments, he has relied upon 2005 CLC 197 and 2004 YLR 1113.

6. Arguments heard. Record perused.

7. Admittedly, the Mutations Nos.482 and 483 were challenged in a suit for declaration titled "Siftan Bibi etc. v. Bashir Ahmed etc." which remained pending before the learned trial Court of Pind Daden Khan. The perusal of the record confirms that the petitioner was well aware of the pendency of the suit in the year 1997 but he never applied under Order I, Rule 10, C.P.C. to the concerned Court that the petitioner is a necessary and proper party, therefore, he be impleaded as a party in the suit. Rather, he kept waiting for passing of the decree and after the final judgment of the learned trial Court, the petitioner filed an application under section 12(2), C.P.C. without disclosing the ground of misrepresentation or fraud committed either with the petitioner or the learned Court. The application under section 12(2), C.P.C. was filed after about 12 years which is hopelessly barred by time. Learned counsel for the petitioner has also failed to point out any illegality or jurisdictional error in the impugned judgments. Further the contention of the petitioner that application under section 12(2), C.P.C. could not be decided without framing of issues has no force because in appropriate cases, the learned Court can determine the controversy just with a simple inquiry without framing of issues.

8. Resultantly, this writ petition is devoid of any merit, the same is dismissed. M.H./I-37/L Petition dismissed.