' MIAN SAQIB NISAR, J.---The dispute between the parties relates to a house situated in Lakhanwal, Tehsil and District Gujrat; earlier Allah Ditta, filed a suit against Khurshid Alam, respondent No.1, claiming that the house in dispute belongs to him, which was given to Muhammad Boota, predecessor-in-interest of Khurshid Alam as licensee, who has now refused to vacate the house; this suit was decreed by the trial Court on 5-7-1986, in favour of Allah Ditta, and against Khurshid Alam. Khurshid Alam challenged this judgment and decree through an appeal, which was accepted. Allah Ditta assailed the judgment and decree of the Court of appeal through C.R.
No.1902-D of 1988, which was allowed by this Court on 30-5-1989. Khurshid Alam challenged the above in the Honourable Supreme Court but he was disallowed the leave. Thus on the strength of above judgment and decree, the petitioners/legal heirs of Allah Ditta, who by that time had died, sought the possession from Khurshid Alarn, when respondents Nos.2 to 6, who admittedly are the son and four daughters of Muhammad Boota, filed a separate suit claiming that it is they, who are in possession of the suit property along with Khurshid Alain, as the successors of Boota, but were not impleaded as a party in the earlier litigation and therefore, the above judgment and decree is, not binding upon them and that the possession of the suit property cannot be obtained from them on the strength of the decree passed only against Khurshid Alam. This suit was contested by the petitioners; one of the key objections taken by them was that the suit is barred under section 12(2), C.P.C. Anyhow, after the framing of the issue, the learned trial Court dismissed the suit vide judgment and decree dated 23-9-1992. However, on appeal of the respondents Nos.2 to 6, which was accepted, the judgment and decree of the trial Court has been set aside and the suit has been decreed.
2. Learned counsel for the petitioners contends that the suit of the respondents Nos.2 to 6, was barred under section 12(2), C.P.C. It is further submitted that in the earlier round of litigation, the High Court, in its judgment dated 30-5-1989 has clearly held that the property was given by Allah Ditta to Muhammad Boota and this judgment and decree in which even if only one of legal heirs of Muhammad Boota was impleaded and not the others, yet it was binding upon his other legal heirs as well.
3. As none appeared for the respondents, therefore, they are proceeded ex parte.
4. Heard. Ex parte arguments have been heard. As far as the bar of section 12(2), C.P.C. Is concerned, suffice it to say that the petitioners were not the party to the suit, which was filed against only Khurshid Alam, thus such judgment and decree is not binding upon them and therefore, notwithstanding seeking the setting aside of that judgment and decree, the petitioners could avoid the decree on the ground that the same is not binding upon them, as they were not the party thereto. It may be pertinent to mention here that section 12(2), C.P.C., is only attracted in the case, where the decree has been procured through fraud and misrepresentation or is bad for the want of the jurisdiction. However, of the suit filed by respondents Nos.2 to 6, such vice has not be attributed to the earlier judgment and decree, therefore, to this extent, the argument has no force.
5. As regards the submission that even if the decree was only against Khurshid Alam, yet it was binding upon the petitioners, it may be held that this argument has no force for the reason that the judgment and decree only binds that person, who is party thereto; admittedly, according to the case of the petitioners, the property was allegedly given to Muhammad Boota and not to Khurshid Alam, thus after the demise of Boota, whatever interest he had in the property, it devolved upon his legal heirs collectively and not independently and thus by omitting the other legal heirs to implead as party, the petitioners could not get the possession from them on the basis of that decree. It may, however, be stated that such decree because having attained finality against Khurshid Alam, the petitioners can take possession from him to the extent of his share, which can be in the nature of joint possession, if not physically, and they can also sue for the partition of the property as well.
' Subject to the above, this petition has no merits and the same is hereby dismissed.