2021 PLP 1867 (YLR)

ABDUL HAMEED BALOCH, J.

The applicants filed application under section 12(2) read with section 151 Civil Procedure Code (C.P.C.) for setting aside of the judgment and decree dated 24th March, 1998 passed by Qazi Sarawan at Mastung, judgment and decree passed by Majlis-e-Shoora Kalat Division dated 28th August, 1998 and judgment passed by this Court dated 1st July, 1999, whereby the suit filed by respondents Nos. 2 to 7 was decreed and upheld up-to this Court.

2. The plaintiffs filed a suit for declaration, permanent injunction and cancellation of mutation entries tilted as Haji Mir Aziz Khan Kurd and others v. Muhammad Noor and others, stating therein that the plaintiffs are owners in possession of property bearing khewat/ khatooni No. 1/1, khasra Nos. 1032, 1036, 1047, 1057, 1058, 819, 820 and 824 situated in Mohal Hasni, Tehsil Dasht. The said property was entered in the names of plaintiffs in the settlement of 1962-65. It was further averred that the land adjacent to the above land was left unmeasured by settlement authorities and the plaintiffs were informed that the same would be carried out later on. In 1993 the plaintiffs came to know that the defendants in connivance with official defendants have entered the land under khasra Nos.1172/2, 1182/2, 1186, 1189, 1190, 1192, 1194. 1196 to 1201 Mohal Hasni Sharqi. Tehsil Dasht in their names. It was averred that the plaintiffs approached official respondents for correction of revenue entries, but of no avail, hence suit was filed.

3. The defendant No. 1 contested the suit on legal as well as factual grounds by filing written statement and prayed for dismissal of the suit, whereas the defendants Nos. 2 and 3 were proceeded against ex-parte.

4. After receiving pleadings of the parties the learned trial court framed issues, on which the plaintiffs and defendant No. 1 produced their respective evidence. The trial court vide judgment and decree dated 31st July 1995 dismissed the suit of the plaintiffs. Whereas the learned appellate court i.e. Majlis-e-Shoora Kalat vide judgment and decree dated 24th September, 1996 accepted the appeal by setting aside the judgment and decree dated 31st July, 1995 of the trial court and remanded the matter to the trial court with direction to decide the suit afresh.

5. The learned trial court after remand vide judgment and decree dated 24th March, 1998 decreed the suit of the plaintiffs. The appellate court vide judgment and decree dated 26th August, 1998 dismissed the appeal and upheld the judgment and decree of the trial court. The defendant No. 1 being aggrieved filed Civil Revision Petition No. 295 of 1998 before this court. The same was dismissed vide judgment dated 10th July, 1999. Being aggrieved of the same the defendant No. 1 filed civil petition before Honorable Supreme Court of Pakistan which was dismissed by Honorable Supreme Court vide order dated 23rd June, 2000.

6. The applicants filed application under section 12(2), C.P.C. with the prayer: "In view of above, it is, therefore, respectfully prayed that the judgment/decree dated 24.03.1998 passed by Qazi Sarawan, judgment/decree dated 26.08.1998 passed by Majlis-e-Shoora Kalat Division at Mastung and judgment dated 01.07.1999 passed by this Hon'ble Court may kindly be set aside being obtained through fraud, misrepresentation and concealment of facts and further be pleased to remand the case to trial court for de novo trial by impleading the applicants as necessary party, and giving them chance to defend the protect their vested legal rights, with any other relief in the interest of justice."

7. Learned counsel for the interveners/applicants contended that the judgments and decrees have been obtained by the respondents Nos. 2 to 7 by fraud and misrepresentation without arraying the interveners/applicants as party. The interveners/applicants had no knowledge about the settlement conducted by the Revenue authority in 1985. In the year 1993 the respondents Nos. 2 to 7 with the connivance of official respondents mutated the land in their names in the record of rights. The private respondents have no right over the property in question. The property is in possession of interveners/applicants from forefathers. The predecessor of interveners/applicants has purchased the land from Noor Ahmed and others and have document (Sanad). The interveners/applicants are necessary party, as such prayed for setting aside of the judgments and decrees and order for their impleadment as party.

8. Heard and perused the record. The suit filed by respondent No. 2 and others on 21st April, 1993 against the respondent No. 1 for declaration, cancellation and correction of mutation entries. The said suit was contested by the respondent No. 1, whereafter the trial curt decreed the suit of plaintiff vide judgment and decree dated 24th March, 1998, which was upheld by the Honorable Supreme Court of Pakistan vide order dated 23rd June, 2000. The plaintiffs/ respondents Nos. 2 to 7 challenged the mutation entries in 1993 before the trial court, meaning thereby the measurement and final attestation was completed before 1993. The Revenue authority had mutated the land in question in the name of respondent No. 1 in the record of right.

9. The applicants filed the instant application by contending that the judgments and decrees were obtained by fraud and misrepresentation and behind the back of the applicants with the connivance of each other. It would be appropriate to reproduce section 12(2), C.P.C.: "Where a person challenges the validity of a judgment decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the court which passed the final judgment, decree or order and not by a separate suit."

10. The scope of section 12(2), C.P.C. had to restrict only to decide the matter of misrepresentation and fraud. The application under section 12(2), C.P.C. must plead and proved that misrepresentation and fraud was committed by the parties to the suit while obtaining the impugned judgment and decree. The fraud and misrepresentation define as under: "Fraud: means untrue statement by a person who did not believe the same to be true and active concealment of facts" Misrepresentation: The statement of an untruth. A misstatement of fact which if accepted leads the mind to an apprehension of a condition other and different from that which exerts distinction between fraud and misrepre-sentation is one of the knowledge and intention."

11. The applicants claimed themselves to be the owners of the property in question. The applicants stated that the respondents with the connivance of each other obtained the decree through fraud and misrepresentation. The applicants had got knowledge of the decree first time when they filed suit for declaration and correction of entries in 2017. The burden lies upon the applicants to prove the plea of fraud and misrepresentation. The applicants have to show their legal title and right vested in them in respect of the property in question. Subsequently the applicants filed some documents but the said documents do not disclose that it pertain to which property.

12. The litigation was started in 1993 between the respondent No. 1 (defendant) and respondents Nos. 2 to 7 (plaintiffs), which was decreed by the trial Court in 1998 and same upheld up-to Honorable Supreme Court of Pakistan in June, 2000. The applicants claimed their right after more than 24 years after institution of the suit by respondents Nos. 2 to 7 (plaintiffs). It seems how the applicants remained ignorant about pending litigation between respondent No. 1 and respondents Nos. 2 to

7. Reliance is placed on the reported case of this court Faizullah v. Atta Muhammad 2010 MLD 1959. In view of the above the application under section 12(2), C.P.C. filed by the applicants is dismissed. MH/203/Bal. Application dismissed.