1. ' JEHAN ZAIB RAHIM, J.---This revision petition is directed against the order, dated 30-1-2003 passed by the Learned Senior Civil Judge/Land Acquisition Judge whereby application under section 12(2), C.P.C. For setting aside the judgment and decree, dated 29-9-1992 passed by the learned Senior Civil Judge/Land Acquisition Judge in Objection Petition Nos.75/4 was dismissed.
2. Brief facts of the case are that land `bearing' Khasras Nos.2320 and 2330 measuring 3 Kanals, 12 Marlas (72 Marlas) situate at Mirpur, Abbottabad was acquired by respondent No.9 through Award No.49, dated 22-2-1984 and, through the same award, compensation for 150 fruit bearing trees, was also awarded to respondents Nos.1 to 8. The respondents, after vetting the list of fruit trees by the Agriculture Department, received the compensation of 150 apples trees amounting to Rs.68,850 along with the compensation of land.
3. ' The respondents, after receipt of compensation for the land and trees, prepared another list of 1126 fruit bearing trees and, on 9-7-1985, instituted objection petition, after 19 months of the award, and attached the fresh list with the objection petition. Consequently, they obtained a decree from the Court of Senior Civil Judge/Land Acquisition Judge on 29-9-1992 and, on 2-1-1993, filed execution petition for the recovery of enhanced amount of 1126 fruit bearing trees.
4. Pending execution petition, the petitioner came to know of the decree and its execution proceedings. The petitioner immediately on 21-11-1993 filed an application under section 12(2) of C.P.C. And challenged that the decree as being obtained at the back of petitioner, based on forged documents and by practising fraud and misrepresentation. The respondents raised objection to its maintainability that was overruled by the Court vide order, dated 27-4-1994.
5. ' The respondents, in the meanwhile, moved an application for the recovery of enhanced amount till the decision of application under section 12(2), C.P.C. The Senior Civil Judge, on the basis of said application, attached the accounts of petitioner vide order, dated 3-4-1999 which was later recalled on 29-7-1999 on petitioner's application. The respondents assailed the recall order in revision before the Additional District Judge which was not prevailed and the petitioner was dismissed on 22-12-1999 with direction that the enhanced amount be deposited in Court. The petitioner against the deposit order filed Writ Petition No.45 of 2000 before this Court on 30-3-1999.
6. Pending decision in the writ petition, the Senior Civil Judge decided the application under section 12(2), C.P.C. Vide his order, dated 30-1-2003. Consequently, the writ petition was dismissed as withdrawn vide order, dated 17-4-2003.
7. ' Feeling dissatisfied with the order of the Senior Civil Judge/Land Acquisition Judge, dated 30-1- 2003, the petitioner has filed the instant revision in this Court.
8. ' I have heard the learned counsel for the petitioner, learned counsel for the, respondents and have gone through, the record with their able assistance.
9. As evident from the record, the respondents had already been awarded compensation of 150 trees, which they had received without protest. The award of further compensation of 976 trees by the Senior Civil Judge could not legally and factually be justified. Sheikh Javed Ahmed (P. W. 1), Tehsildar Land Acquisition deposed that the list of trees Ex.P.W.1/1 prepared at the time of acquisition was of 150 apples trees which was duly attested by the Agricultural Officer. Another list Ex.P.W.1/2 in respect of same Khasra number was prepared by Muhammad Nawaz Patwari which was not attested by Girdawar or Tehsildar or Agriculture Department. In this list, there were cutting in the column showing number and age of trees. On the basis of this unauthenticated list, an inquiry against the said Patwari was held and he was dismissed from service on the allegations that he had produced the fictitious list of trees in the Court. Muhammad Riaz (P.W.2), Head Clerk of Acquiring Department confirmed that according to the record, original list Exh.P.W.2/2) was having 150 apples trees duly entered in Thana-e-Kaifiee for which compensation had already been paid.
10. Anwar Khan (P.W.3), Agriculture Inspector stated that as per agricultural expert only 35 trees at the most can be grown in one Kanal and in 3 Kanals, 12 Marlas only 150 threes can be grown in maximum and, if there were more than this number, than under the rules, these would fall in the category of nursery for which no payment can be allowed. Muhammad Daud Khan (P.W.4).
11. Superintendent Ayub Teaching Hospital deposed that he had seen the Wakalatnama of Malik Ghulam Mustafa Awan in the main objection petition on which the stamp of Project Director, Ayub Medical College is available along with the signatures but the same was not the signatures of the then Project Director, Mian Abdul Rehman. Further, rfo subordinate was allowed to sign Wakalatnama and there was no sign and date of the Presiding Officer of the Court on the same.
12. The minutes of 53rd Project Planning Committee Meeting (Exh . P. W.4/D-1) showed Muhammad Rafique Awan as concerned legal advisor from 1-10-1985 to 12-5-1988 whereas the objection petition was filed on 9-7-1985 and decided on 29-9-1992. The then Project Director was authorized person to engage the legal advisors, pay their professional fees, issue Wakalatnamas directly and no joint Wakalatnama signed by the Land Acquisition Collector was executed. Abdul Nasim Khan (P.W.5) Project Director, AMC deposed that there were 150 apples trees in the acquired area for which compensation for land and trees were paid to the affected persons. The decree-holders, on the basis of fictitious list prepared with the collusion of Revenue Officials, filed the objection petition, in which Project Director was not impleaded as party so that fraud/misrepresentation could not be detected brought to the notice of the Court. Salah-ud-Din. Advocate (R.W.1) deposed that there were 1126 apples trees over the age of five years on the acquired area. He further stated that 1000 trees could be grown on the acquired land of 72 Marlas and at the time of acquisition of his land there were trees planted at a distance of 7/8 feet.
13. ' This Court has already held in the case Government of Pakistan v. Sardar Muhammad Sami PLD 1987 Pesh.77 that there could at least be a distance of 25/30 feet between two trees in an orchard and as such one, fruit bearing three would occupy one Marla in an orchard and one Marla is about 272 sq. Ft. Similarly, this Court in the case of Pakistan v. Nizakat Shah 1987 CLC 1844 (DB) has held that the acquisition Judge has committed illegality in allowing objectors to amend the objection petition and claim excess number of fruit bearing trees on acquired land and their enhanced compensation.
14. The objection petition was filed on 9-7-1985 after 19 months of the award. Under section 18 of the Land Acquisition Act the prescribed period of filing objection petition is six months. No application for condonation of delay is available on the record. The trial Court, has not sought any explanation from the objectors, despite the fact that the objection petition was barred by time and, being not maintainable under the law, was accepted and allowed compensation for the extra trees, which could not possibly be planted at a distance as provided by R.W. 1 in the acquired land.
15. The respondents admittedly had not made petitioner/the acquiring department as party in the objection petition whereas the petitioner under the law, was required to have been made party in the objection petition. Further, section 20 of the Land Acquisition Act, 1894 provides that the acquisition Court was also required to have served notice upon the acquiring department specifying the day on which the Court will proceed to determine the objection and have directed their appearance before the Court on that day. Under the law, the notice should haye been given to the acquiring, department and, therefore, the judgment and decree passed at the back of petitioner was a nullity in the eye of law.
16. The petitioner being not a party in the objection petition was affected by the decree of the Court passed at his back and also being a person as visualized by subsection (2) of section 12, C.P.C. Has a legal right to challenge the decree on the grounds provided therein. The petitioner through evidence has succeeded to prove that the decree was obtained by fraud and misrepresentation from the Court and also by use of forged and tampered documents with the collusion of Revenue Officials.
17. For the foregoing reasons, this Court is of the considered view that the learned Court has failed to exercise jurisdiction vested in it under section 12(2), C.P.C. He has totally misread or non-read the evidence brought on record and thus committed illegality and while exercising jurisdiction under the said provision law.
18. Consequently, the instant revision petition is accepted and judgment and decree of the learned Court below, dated 29-5-1992 passed in objection petition No.74/4 are set aside. The shall be no order as to costs.