2010 M L D 1959
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
FAIZULLAH and 2 others ---Applicants
Versus
ATTA MUHAMMAD and 2 others ---Respondents
Civil Miscellaneous Application No. 404 of 2005, decided on 5th August, 2010.
Civil Procedure Code (V of 1908) ---
----Ss. 12(2) & 151 ---Petitioner's application under S.12(2), C.P.C. for setting aside the
decree in favour of respondents was dismissed by the Trial Court ---Appellate Court
dismissed the appeal ---Petitioners/ appli cants contended that they were shareholders and
owners of the property in question but were not impleaded as necessary party by the
respondents who obtained the decree through. fraud and misrepresentation in collusive suit --
-Validity ---Petitioners and one set of respondents were closely related to each other and
were sharing common houses ---Petitioners' contention that they came to know about the
mutation when their bazgars refused to pay their share, in circumstances, could not be
believed ---Petitioners' r equest for remand of the case for establishing fraud and
misrepresentation after recording of evidence could only be accepted after they had
established prima facie case by showing evidence or source of their title to the property and
justifying their igno rance of the pending proceedings ---Petitioners/applicants having failed to
produce any. specific documents to prove their title ---Petitioners could not disclose even
names of their bazgars or the extent of their share in the produce etc. ---Nothing was brou ght
on record to show applicant's share in the land ---Petitioners/applicants failed to establish the
plea of fraud and misrepresentation ---Application was dismissed in circumstances.
Miss Sarwat Hina 1'br Applicants.
Rauf Hashmi for Respondents Nos. 12 to 19.
Atta Muhammad in person and for Respondents Nos.2 to 11.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J .---Instant application has been filed by the applicants
praying therein for setting aside of judgments and decrees dated 11 -4-2002 of Qazi Sarawan
and dated I9 -11-2002 of Majlis -e-Shoora Mastung and also order dated 4 -8-2003 of this
court, whereafter, they be impleaded in the suit as defendants, which is to be decided on
merits thereon. It is their contention that the suit filed by respondents Nos. 1 to 11 against
respondents Nos.12 to 20 was decreed in their favour, while property in question was mutated
in favour of respondents Nos. 1 to 11. These acts were done in connivance with each other by
the respondents through fraud and misrepresentation an d behind their back only in order to
deprive them of their rights. They were purposely not impleaded as party despite the fact that
they were also share -holders, thus owners of property in question. It is also their contention
that in July, 2003 when they went to receive their share from Bazgars they came to know
about the fact that property has been fraudulently entered in names of respondents. On the
same they filed application under section 12(2), C.P.C. in court of Qazi Sarawan at Mastung,
but the same was dismissed by the court through order dated 15 -9-2003, their appeal was also
dismissed by the appellate court through order dated 22 -10-2003. The revision petition filed
by them was disposed of by this court through order dated 9 -3-2005, whereby both th e orders
of the courts below were set aside, while they (applicants) were allowed to file application
before competent Court, hence present application. They have contended that they being
share -holders and owners of property in question were required to b e made party to the suit,
but the respondents through fraud and misrepresentation did not implead them as party and
deprived them from their valuable rights.
Respondents Nos. 1 to 11 in their reply strongly contested the averments made by the
applicants, while raised several objections on maintainability of the application. According to
them present application is barred by time, as per their own contention the applicants came to
know about the alleged entry in July, 2003. It is their contention that the applicants have no
locus standi they never remained in possession of property in question. Further, applicants
Nos.1, 2 and 3 are real brothers of respondent No.19; applicants Nos.15 and 20 are real sister
and brother of respondent No.16, who was petitione r in the revision petition pending between
the respondents. They denied existence of any connivance between them and respondents
Nos. 12 to 20, nor there is any fraud or misrepresentation. They have prayed for dismissal of
the application.
Respondents No s.12 to 19 failed to file their written reply. While respondent No.20 Tehsildar
Girdgab failed to appear. Counsel for applicants and respondents No.12 to 19 argued the
matter, while written arguments were filed on behalf of respondents Nos. 1 to 11. Learne d
counsel for the applicants contended that they being share -holders were required to be
impleaded as party to the suit, but purposely they were not made party, thus deprived of their
right. Further, contended that present application has been filed by the m in view of order
dated 9 -3-2005 of this court, which is very much within time. As per learned counsel for
respondents Nos.12 to 19 the present application is not maintainable rather proper remedy
was required to be availed before the trial Court, who aft er framing of issues and calling of
evidence decide the same. While as per their written arguments, respondents Nos. 1 to 11
contended that the property in question was, initially entered in name of Government of
Balochistan, while suit filed by respondent s Nos.12 to 19 was decreed in their favour through
judgment dated 11 -8-1992. As they (respondents Nos.1 to 11) were also share -holders to the
extent of 1/2 shares, while bear charges of litigation, it was agreed between them that on
obtaining decree, respo ndents Nos.12 to 19 would be bound to give their share. But on their
failure they (respondents Nos.1 to 11) filed suit which was decreed in their favour on basis of
compromise effected between the parties. Thereafter, respondents Nos.11 to 19 in order to g et
illegal gain introduced new party and manage to file application under section 12(2) C.P.C.,
which was initially dismissed by both the courts below, while decree in their favour remained
intact. The applicants are lingering on the matter on one pretext or the other only to tease
them. It is further contended that the applicants and respondents Nos.12 to 19 are same party,
closely related to each other; they have no share in the property owned by them. Due to their
close and blood relationship and residen ts of common houses the applicants were well aware
about pendency of the suit filed by them. Plea of ignorance is without basis. They prayed for
dismissal of present application.
As per record initially a suit was filed by respondents Nos.12 to 19, which was decided in
their favour by the trial Court i.e. Qazi Sarawan through order dated 11 -8-1992. This order
was upheld to the extent of this court. Later on respondents Nos.1 to 11 filed suit in respect of
their share in same property, which was matter in issue in previously instituted suit, against
respondents Nos.12 to 19, which was decided through judgment dated 11 -8-2002 by Qazi
Sarawan on basis of compromise effected between the' parties. Pursuant to the judgment and
decree the respondents Nos.1 to 11 filed application for execution of the decree, whereupon
the decree was satisfied, while application was consigned to record through order, dated 25 -
9-2002. Thereafter, respondents Nos. 12 to 19 filed appeal, which was dismissed by Majlis -e-
Shoora through order dated 19 -11-2003, while they filed revision petition, which was also
dismissed by this court through order dated 4 -8-2003. It is further apparent from record that
meanwhile present petitioners/ applicants filed application under section 12(2) C.P.C.
challenging the decree being obtained with fraud and misrepresentation before court of Qazi
Sarawan, which was rejected by the trial Court through order dated 15 -9-2003. The appeal
preferred by them was also dismissed by the appellate court through order made on 22 -10-
2003. Still feeling aggrieved of the same revision petition was preferred by the petitioners,
which was decided by this court through order dated 9 -3-2005 holding therein that: --
"The courts below had no jurisdiction to adjudicate upon the matter and the
application was required to be filed before this court having decided the same finally.
(6) In such circumstances of the case there is no alternate but to set aside the
judgments dated 15 -9-2003 and 22 -10-2003 passed by the learned Qazi an d Majlis -e-
Shoora. The petitioner is at liberty to file application before competent court of law, if
he chooses to do so. The petition is allowed and disposed of in the above terms."
Thereafter, application in hand is filed.
The applicants claimed the mselves to be owners and share -holders of property in question
with averments that land bearing Khasra Nos.26, 28, 30, 36, 80 and 82, 12 Kitaz measuring
411 acres, 0 rod 2 poles situated at Mouza Gabri Tappa Sub -Tehsil Gridgab District Mastung
is owned by them along with the respondents. It is their contention that the respondents have
got entered the property in question in their own names fraudulently on basis of decree
obtained by them through fraud and misrepresentation behind their back. While for the very
first time they came to know about the same in July, 2003, when they visited the land and
their bazgars refused to pay their share. Though the applicants claimed themselves to be
owners of property in question being share -holders with the respondents. They for the very
first time came into the picture in 2003 when the revision filed by respondents Nos.12 to 19
was dismissed by this court being time -barred through order, dated 4 -8-2003. Though as per
Article 181 of Limitation Act three years time is pro vided for filing of application for which
no period is provided, while time is to be computed from the date when the right to apply
accrues. In present case the date of knowledge would be relevant, as plea of fraud and
misrepresentation has been taken. As per petitioners they came to know about the fact of
effecting of mutations in 2003, thus the time would be computed from year, 2003. The
present application has been filed on 17 -3-2005, thus the application is filed well within time,
thus maintainable.
As plea of fraud and misrepresentation has been taken, thus the burden lies upon the
applicants to establish their plea of ignorance and coming into knowledge of the same in
2003. Though it is contention of B the counsel for the applicants and respondents N os.12 to
19 that the matter be remanded to the trial court for decision after recording of the evidence.
It may be true that the fact of fraud and misrepresentation can only be established after
recording of evidence, but before the same the applicants hav e to establish their case prima
facie, whereafter, step ahead can be taken. At the first instance they have to show their legal
title and right vested in them in respect of property in question, thereafter, their ignorance
about the proceedings pending in respect of the same and adverse orders affecting their
rights. In their application the applicants though claimed themselves to be necessary party
required to be impleaded in the suit, which has been decreed in favour of respondents Nos.1
to 11, while at r elevant time they have no knowledge about pendency of the proceedings
before the courts. Apart from mere assertion the fact is required to be proved. In order to
establish their title the applicants have filed a photo copy of some deed written in respect o f
some land and water. This document can hardly be read and difficult to understand, the
petitioners may have filed better copy of the same or its authenticated translation to make the
Court understand it, but they failed. The perusal of the same reveals t hat the date mentioned
therein is to be read as 9th Shaban 1202 (1202 ﻧﻬﻡﺸﻌﺑﺎﻦﺍﻠﻌﻆﻢ ,)this means the document has
been executed more then two decades, but this document does not disclose that it pertains to
which property, nor the applicants or their counsel tried to relate the same with property in
dispute. The family tree (ﺸﺠﺮﻩﻧﺴﺐ )and map of land in question is also of less help, as in
their application they have not disclosed that the alleged right in respect of land in question is
accrued in their favour from whom, the source of their title is not disclosed by them.
As far as their contention of lack of knowledge about pending of proceedings and effecting of
mutation entries are concerned. The burden to establish the same lies on the applicants. Apart
from mere assertion they have to file specific documents to prove the ir title, but they failed to
file any document in support of their contention. As per respondents Nos.1 to 11, the
applicants are closely related with respondents Nos.12 to 20. According to them applicants
Nos.1, 2 and 3 are real brothers of respondent No. 19, applicants Nos. 4, 5 and 6 are first
cousins of respondent No.18 and residing in same house, while applicants Nos.7 and 8 are
real cousins of respondents No.16 and residing in common house. In addition applicants
Nos.9 and 10 are also real cousins of r espondent No.19 and residing in same house,
applicants Nos.11, 12 and 19 are also real cousins of respondent No.14, while applicants
Nos.15 and 20 are real brother and sister of respondent No.16. Applicants Nos.13 and 14 are
first cousins of respondents No s. 14 and 19 and residing in one house, while applicant No.16
is real sister of respondent No.17 and also residing in one house. As far as applicants Nos. 17
and 18 are concerned, they are legal sons of respondent No.14 and residing with him in same
house. This contention raised by the respondents Nos.1 to 11 in their written reply and also in
their written arguments, but neither the applicants, nor respondents Nos.12 to 19 controverted
the same, rather they remained silent to this effect.
In present case litigation was started prior to year 1992 between respondents Nos.12 to 19
and Government of Balochistan, which was decided in their favour up till level of this court.
While second round of litigation was held between respondents Nos.1 to 11 and responde nts
Nos.12 to 19, which was finalized in year, 2003. As result of the same the mutations were
effected in favour of both the parties for their respective shares. On finalization of the
proceedings between the parties/ respondents in present case, the appli cants come into the
picture claiming them to be share -holders in property in question. They being closely related
to respondents Nos.12 to 19, while residents of the same area, but after lapse of so many
years come forward and claimed their right in respec t of property in question. It seems some
how unbelievable that they remained ignorant about pending of litigation between the 1
respondents. Though the applicants referred about their some bazgars to whom they
approached for receiving their shares in 2003, then they came to know about effecting of
mutation entries. They failed to disclose the names of the persons, who were their bazgars on
said lands. They also failed to disclose the extent of share to which they were entitled to
receive from the produce of land in question. No receipts or any other document from which
this fact can be disclosed that share was ever paid to them in all these years. Nothing has been
placed on record from which it can be ascertained that how much share of land in question
devol ved upon the applicants and in whose name the same is entered and presently in whose
possession. They are completely silent to this effect.
In view of above discussion it is apparent that the applicants being closely related to
respondents Nos.12 to 19, while residing in same area sharing them in their houses, thus it
seems to be reasonably not possible that they were unaware of pendency of the suit between
the respondents for such a long span of time. Apart from their knowledge they have also
failed to d isclose their respective share and interest in property in question, which devolves
on them from which they have been deprived through fraud and misrepresentation. The
applicants have failed to establish the plea of fraud and misrepresentation. They have f ailed
to make out any case in their favour in the circumstances.
The application is dismissed being without merits.
A.R.K./95/Q Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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