JEHAN ZAIB RAHIM, J.--- This revision petition is directed against the order, dated 13-3-2004 passed by the learned District Judge, Abbottabad whereby application under section 12(2), C.P.C.
Was dismissed.
2. Brief facts of the case are that one Abdul Latif son of Sharif (predecessor of petitioners) had sold his property measuring 2 Kanals,
17. Marlas in Khasra No.388 in Village Richh Behn vide sale receipt dated 7-5-1959 to one Dilawar Khan (respondent No.1) for a sum of Rs. 1,600.
3. The respondent in 1990 brought a suit for declaration that he was owner in possession of the suit-land and he had approached Patwari Halqa for correction of Revenue Record but he had failed to enter the mutation. The vendor, Abdul Latif had died and his legal heirs had refused to transfer the suit-land in his favour. The petitioners, despite service of summons, did not appear in Court and as a result ex parte proceedings were initiated against them on 12-11-1989. The respondent accordingly appeared as P.W.1 and produced sale receipt as Exh.P.W.I/1, vide which he had purchased the suit-land. He also produced two marginal witnesses of the sale receipt namely, Aslam and Taj Muhammad as P.W.2 and P.W.3 respectively. The trial Court vide judgment and decree dated 6-5-1990 dismissed the suit as being time-barred and the sale receipt being on simple piece of paper was not sufficient to prove the sale transaction.
4. The respondent on 21-6-1990 preferred appeal in the Court of District Judge, Abbottabad. The petitioners, despite service of summons, did not turn up and accordingly proceeded ex parte in the appeal as well. The learned Judge vide judgment and decree dated 25-4-1992 accepted the appeal on the grounds that the Transfer of Property Act was not applicable to N.-W.F.P. And the sale of landed property could be entered into even orally. The receipt Exh.P.W.1/2 was a valid piece of evidence qua the sale and could not be ignored when the ex parte evidence was not rebutted and Khasra Girdawari Exh.P.W.1/3 proved respondent in possession of the suit-land. The respondent, on the basis of the said decree entered his name as owner of the suit property in the Revenue Record and got the Mutation No.2389 attested on 8-9-1992 in public gathering.
5. The petitioners on 4-7-2001, after nine years of the decree and attestation of mutation, filed application under section 12(2), C.P.C. To the District Judge seeking reversal of the judgment and decree A dated 25-4-1992 on the grounds of fraud and misrepresentation. The respondent contested the application. The District Judge, after hearing arguments of both the parties, dismissed the application vide order, dated 31-5-2002.
6. The petitioners thereafter approached to this Court in Civil Revision No.71 of 2002, which on 29-4- 2003 was accepted the order of District Judge was set aside and the application was remanded to the District Judge with direction to frame issues and decide the same afresh after recording evidence of the parties.
7. The District Judge, after remand, from the pleadings of parties, framed following issues:--
(1) Whether petitioners have got a cause of action?
(2)Whether petition is Benami?
(3)Whether petition is not competent in its present form?
(4)Whether petition is based on mala fide and this Court has got no jurisdiction?
(5)Whether petition is time-barred?
(6)Whether the possession of land is with the respondents and the petitioners had knowledge of ex parte decree earlier?
(7)Whether the addresses of the petitioners in -Suit No.82/1 and Appeal No.51/13 were correct and they had not appeared despite knowledge of the proceedings?
(8)Whether the witnesses in Case No.182/1 decided on 6-5-1990 and duly recorded their statements?
(9)Whether proceedings under sections 107/151, C.P.C. Were also conducted between the parties?
(10)Whether ex parte decree in Appeal No.51/13 filed on 21-6-1990 and decided on 25-4-1992 titled Dilawar v. Abdul Jalil was obtained through fraud and misrepresentation and liable to be set aside on the acceptance of petition under section 12(2), C.P.C. As prayed for by the petitioners?
(11)Relief.
8. The petitioners in support of their case produced Muhammad Asghar Bailiff(A.W.1), Muhammad Firdaus Khan, Patwari Halqa (A.W.2), Muhammad Riaz (A.W.3), Raja Gohar Rehman's (.A.W.4) and Ali Bahadur (A.W.5). Similarly, the respondent produced Abdul Rehman's Execution Moharrir (R.W.1), Muhammad Sharif Bailiff (R.W.2) Khadi Khan (R.W.3), Muhammad Javed, Secretary Union Council (R.W.4) and Liaquat, Naib Moharrir, Police Station Sherwan (R.W.5). The District Judge, after appraising the entire evidence and hearing both the parties, dismissed the application with costs as being time-barred and without any inerit.
9. Feeling dissatisfied with the order of District Judge, the petitioners have come up to this Court in the instant petition.
10. I have heard the learned counsel for the petitioners, learned counsel for the respondent and have gone through the entire record with their able assistance.
11. As evident from the record, the respondent had purchased the suit property vide Exh.P.W.I/1 in the presence of marginal witnesses of the sale receipt P.W.2 and P.W.3 and had taken its physical possession vide Khasra Girdawari Exh.P.W.1/3. The Revenue Record, after the decree, dated 25-4- 1992, was accordingly corrected and respondent was entered as owner of the suit property vide Mutation No.2389 attested on 8-9-1992.
12. The petitioners' application under section 12(2), C.P.C. Was badly time-barred as period of limitation provided by Article 181 of the Limitation Act is three years. The petitioners have challenged the decree, dated 25-4-1992 on 4-7-2001 and for which they had no plausible explanation.
13. The evidence produced at the trial of application has further strengthened the respondent's case. According to Firdaus Khan (A.W.2), Mir Afzal (respondent No.8) was owner of the suit-land.
The Mutation No.2389 was attested on 8-9-1992 in favour of respondent on the basis of the Court decree. The Khasra Girdawari was prepared, after spot inspection, which proved respondent's possession over the suit-land. As per Muhammad Asghar Bailiff (A.W.I.) the original summons issued by the Civil Judge and the District Judge were entrusted to him for service on petitioners on which he had reported that petitioners had refused to receive and sign the summons. The petitioners and their predecessors were served but they deliberately did not come to the Court and as a result ex parte decree was passed against them. Abdul Jalil, Mir Afzal and Mir Hassan (respondents Nos.3, 4 and 8) were at Karachi but their services were effected through newspaper.
The petitioners were served on the same addresses as were given in the suit, memo. Of appeal and even in the application under section 12(2), C.P.C.
14. Further, Noor Muhammad (petitioner No.6) and Mir Afzal (respondent No.8), who were admittedly alive, did not appear in Court to support the claim of Mst. Sakina Bibi, etc. Petitioner No. 1, Mir Hassan died on 3-6-1999. Muhammad Riaz petitioner was not a validly appointed special attorney of Mir Afzal. The respondent, as admitted by Muhammad Riaz (petitioner No.3), has been in possession of the suit-land for the last 15 years. According to Liaquat, Moharrir (P.W.S) the parties were residents of one village and, due to their dispute over possession of suit-land, they were bound down under section 107, Cr.P.C. In the year 1989, just before the institution of suit.
15. From the above facts and circumstances, the learned counsel for petitioners has failed to point out any misreading or non-reading of evidence by the learned District Judge. He could not prove that the respondent had obtained the decree by fraud and misrepresentation.
16. This Court also finds no jurisdictional error or illegality or material irregularity in the judgment of the learned District Judge and sees no legal justification to interfere in his findings.
17. Consequently, the petition having no merit is hereby dismissed. There shall be no order as to costs.