2017 PLP 114 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners have challenged the judgment and decree dated 04.07.2003 passed by the learned Additional District Judge, Alipur District Muzaffargarh, whereby the appeal filed by them has been dismissed and the judgment and decree dated 19.06.2000 passed by the learned-Civil Judge, Alipur District Muzaffargarh, whereby through the consolidated judgment the suit for declaration filed by the plaintiff/respondent No.1 was decreed and the application moved under section 12(2) of the C.P.C. was also accepted.

2. The brief facts are that the plaintiff/respondent No.1 Naik Muhammad on 22.06.1995 filed a suit for declaration that he is owner of 109-kanals 16-marlas land fully described in the head note of the plaint and the decree in suit No.560 titled "Abdul Karim and others v. Mehndi Khan and others" dated 15.12.1993 is nullity in the eye of law, based on fraud and against the rights of the plaintiff and in continuation of the decree the attestation of mutation No.4449 attested on 09.07.1994 is also against the law and based on fraud and misrepresentation and has no adverse effect against the rights of the plaintiff. The case as pleaded by the plaintiff was that defendants Nos.4 to 11 were owner of suit property. Defendant No.4 being, real brother of defendants Nos.5 to 11 and the general attorney of said defendants entered into an agreement to sell of the suit property with the plaintiff for a consideration of Rs.400,000/-. After receipt of the consideration amount he got the mutation No.3979 entered and the same was attested in his favour on 27.06.1991. Afterwards the defendants with the connivance of Patwari Halqa got the attested mutation removed from the record and it was shown in the record that the mutation has been cancelled and defendants Nos.1 and 2 were able to get the mutation No.4449 sanctioned in their favour, therefore, the suit.

3. The written statement was filed by defendants Nos.1 to 3 and 5 to 10 and suit was contested in which it was mentioned that the plaintiff also filed an application under section 12(2) of the C.P.C. which is pending, therefore, the suit is not competent. Defendant No.4 filed his separate written statement, whereby he denied any agreement with the plaintiff and also denied that he was attorney of defendants Nos.5 to 11.

4. The other limb of the litigation is that the plaintiff on 18.08.1994 filed an application under section 12(2) of the C.P.C. against the judgment and decree dated 15.12.1993 passed in suit No.560 titled "Abdul Karim and others v. Mehndi Khan and others". The reply was filed by the respondents. Learned trial court consolidated the suit and the application under section 12(2) of the C.P.C. and framed the consolidated issues. After the completion of trial vide consolidated judgment and decree dated 19.06.2000 the suit was decreed by the learned trial court and the application under section 12(2) of the C.P.C. was also accepted, whereby the consent judgment and decree dated 15.12.1993 were set aside. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate court, which was dismissed vide judgment and decree dated 04.07.2003. Hence, this civil revision.

5. Learned counsel for the petitioners argues that action of the court with regard to consolidation of the suit with the proceedings of application under section 12(2) of the C.P.C. is absolutely against the law, therefore, the proceedings are nullity in the eye of law and as such the judgments and decrees passed by both the courts below as well as the findings are not sustainable. On merits argues that admittedly the plaintiff/respondent No.1 failed to establish that mutation No.3979 was ever attested by the revenue officials. States that at the most the plaintiff/respondent No.1 could prove that the mutation was entered and nothing more, therefore, the findings of both the courts below are absolutely against the record, result of misreading and non-reading of evidence available on the file, therefore, both the courts below fell in error while decreeing the suit and dismissing the appeal.

6. On the other hand, learned counsel for respondent No.2 appeared only. Though all the respondents are represented but no one appeared on behalf of rest of the respondents despite the fact that the name of their learned counsel is notified in the cause list. Therefore, respondents Nos.1, 3 to 10 are proceeded against ex parte.

7. Learned counsel for respondent No.2 argues that the claim of plaintiff/respondent No.1 was that he was attorney of defendants Nos.5 to 11, was absolutely wrong and he never got mutation No.3979 entered, hence no question of attestation of mutation.

8. I have heard the learned counsel for the parties at full length and also gone through the record as well as the findings recorded by two courts below.

9. The plaintiff on one hand has challenged the judgment and decree dated 15.12.11993 through an application filed under section 12(2) of the C.P.C. on 18.08.1994 and thereafter opted to file a suit for declaration on 22.06.1995 to challenge the judgment and decree dated 15.12.1993 as well as the attestation of mutation No.4449 attested on 07.09.1994 on the basis of said decree and further pressed his right and sought a declaration that he be declared the owner of suit property on the basis of attestation of mutation No.3979 stating that the same was attested on 27.06.1991 pleading that defendant No.4 got his statement recorded and entered into an agreement of sale on the basis of power of attorney on behalf of his brothers and sisters i.e. defendants Nos.5 to

11. I am of the view that the court was not competent to consolidate the application under section 12(2) of the C.P.C. filed by the plaintiff with the suit, which was also filed by the plaintiff/respondent No.

1. The argument of learned counsel for the petitioners has weight that when the application under section 12(2) of the C.P.C. was accepted, the natural result should have been that the suit in which a decree on the basis of compromise was passed in favour of petitioners/defendants should have been restored for further proceedings in the suit in accordance with law. Through the impugned judgment and decree dated 19.06.2000 passed by the learned trial court the application filed under section 12(2) of the C.P.C. was accepted, whereby the judgment and decree dated 15.12.1993 challenged through the application under section 12(2) of the C.P.C. were set aside but no further proceedings in that suit have been ordered. Therefore, the decision of learned courts below while passing the consolidated judgment by the learned trial court and order of dismissal of appeal by the learned first appellate court to this limb of litigation is absolutely wrong and against the law, therefore, not sustainable.

10. Now I dilate upon the other limb of litigation i.e. the suit for declaration filed by the laintiff/respondent No.1. When there was a decree in existence in favour of petitioners-defendants and the plaintiff filed an application under section 12(2) of the C.P.C. to challenge that decree, filing of the suit for, declaration was not competent. In my view, where the judgment and decree procured through misrepresentation and fraud or want of jurisdiction are in the way of a person who has yet to establish his right or interest in the property, in that situation whether a composite suit to establish his right as well as to challenge the previous decree is competent. I am clear in my mind that the amendment introduced in section 12 of the C.P.C. by adding subsection (2) was intended to shorten the litigation and not to enhance the same. If a person who has yet to establish his right is asked to first establish his right by filing a suit and subsequently after establishing his right, challenge a previous decree under section 12(2) of the C.P.C. will be against the spirit of law.

11. If the merits of case are dilated upon, the case of plaintiff as pleaded was that defendant No.4 being attorney of defendants Nos.5 to 11 entered into an agreement to sell of suit property and got mutation No.3979 entered and the same was sanctioned on 27.06.1991 and thereafter the defendants with the connivance of Patwari Halqa got removed the sanctioned mutation and it was shown in the record that the mutation has been cancelled. Not a single point has been proved by the plaintiff qua the cancellation of mutation or otherwise through the evidence. The alleged power of attorney on behalf of defendants Nos.5 to 11 in favour of defendant No.4 is not on the record. Defendant No.4 has denied from any such power of attorney in his favour. There is no evidence on the record that mutation No.3979 was ever attested. PW-2 Patwari Halqa has been produced, who has categorically stated in the examination in chief that mutation No.3979 was not attested on 27.06.1991. This statement is binding upon the plaintiff, as he himself produced the Patwari Halqa. As I have noted supra the plaintiff failed to prove the case pleaded by him and the findings recorded otherwise by the courts below are absolutely against the law, therefore, are not sustainable.

12. As there is a technical defect of consolidating the two proceedings, therefore, there is one easy solution with this court to set aside both the judgments and decrees passed by two courts below and remand the matter to decide afresh independently the application filed under section 12(2) of the C.P.C. and then to decide the maintainability of the suit and proceed in accordance with law but I am conscious of the fact that the parties are under litigation since the year 1994 i.e. for a period of last 22 years. Therefore, in the interest of justice it was felt necessary that the matter be decided finally. When the plaintiff failed to establish the attestation of mutation No.3979 as claimed by him, then he had no right to challenge the decree dated 15.12.1993 passed with the consent of the parties to the suit under challenge through application under section 12(2) of the C.P.C. and the attestation of mutation on the basis of that decree, therefore, he was having no locus standi to file the application under section 12(2) of the C.P.C.

13. The resume of above discussion is that this civil revision is allowed and the impugned judgments and decrees passed by both the learned courts below are set aside. The result would be the application filed under section 12(2) of the C.P.C. as well as the suit for declaration filed by the plaintiff/respondent No.1 stand dismissed with no order as to cost. ZC/A-37/L Revision allowed.