' SAID MAROOF KHAN, J.--- On 9-2-1962 one Saifullah Khan alias Saifal the predecessor of Akbar Ali respondent No,3 instituted a Civil Suit No,24/1 against Khair Muhammad, Ghulam Jan the predecessor of the petitioners and 38 other defendants for declaration to the effect that he had matured his title to the suit-land measuring 168 Kanals, 8 Marla situate in the limits of village Jabu Khel, Lakki Marwat by prescription for having remained in its possession for a period of more than sixty years and that the entries in the Revenue Record were liable to be corrected in his favour.
2. The defendants in the suit were summoned but only one of them, namely, Sanabat Khan appeared and contested the suit. All other defendants including the predecessors of the present petitioners remained absent, therefore, they were placed ex parte. Subsequently on 5-5-1964 defendant No,1 did not make appearance and as such he was also placed ex parte. Patwari Halqa was examined in the case as P.W.1 while plaintiff Saifullah Khan alias Saifal got recorded his statement as P.W.2. Keeping in view the entries in the Revenue Record including the mortgage Mutation No,427 attested on 4-3-1900, copy Exit P.B., and the oral evidence of the plaintiff, the then learned Civil Judge, Lakki Marwat came to the conclusion that the property in suit had remained under mortgage for a continuous period of more than sixty years and that the plaintiff Saifullah being its mortgagee had matured his title thereto and accordingly the suit was decreed in favour of the plaintiff vide judgment and decree dated 5-5-1964.
3. After about thirty-two years, in the year 1996, Khairullah and Ghulam Jan predecessors of the present petitioners, who were impleaded as respondents Nos.22 and 37 in Civil Suit No,24/1 of 1962, submitted an application under section 12(2), C.P.C., in the Court of Civil Judge, Lakki, for setting aside the judgment and decree dated 5-5-1964 on the ground that the summons was not served upon them and that the decree was obtained as a result of collusion and fraud.
4. The respondent Akbar Ali, the son of deceased Saifullah alias Saifal, submitted his written reply and contested the application. The issues were framed and the parties produced their evidence.
After recording the evidence of the parties and hearing the arguments the learned Civil Judge, Lakki Marwat dismissed the application of the petitioners vide judgment, dated 15-9-2001. Their appeal also met the same fate and was dismissed by the learned Additional District Judge, Lakki Marwat on 24-5-2004. Feeling aggrieved the petitioners filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging the validity of the above judgments.
5. We have heard Mr. Salimullah Khan Ranazai learned counsel for the petitioners and Mr. Rustam Khan Kundi learned counsel for respondent No,3 and perused the available record with their assistance.
6. In the application under section 12(2), C.P.C. The predecessors of petitioners had alleged that due to collusion and fraud of Saifal the predecessor of respondent No,3 the summons was not served upon them and that in this way they were precluded from attending the Court and Saifal had fraudulently succeeded in obtaining the ex parte decree dated 5-5-1964 against them. The learned trial Court dismissed their application by holding that they had the knowledge of the suit instituted against them had deliberately not joined the proceedings and that their application was also time-barred and these findings were upheld by the learned Additional District Judge.
7. The learned counsel for the petitioners submitted that the petitioners' predecessors had no knowledge of the suit instituted against them and others as the summons was not personally served upon them due to active connivance and collusion of the predecessor of respondent No,3 with the Process Serving Agency. The contention of the learned counsel is, however, baseless because on the record there is absolutely no evidence suggesting any collusion, connivance or fraud on the part of predecessor of respondent No,3. Had it been his intention to preclude the defendants from contesting the case and to get an ex parte decree then he would have also managed the non-service of summons of Sanabat Khan defendant. No,1 who had appeared in Court and contested the case for a considerable long time. Sanabat Khan defendant was one of the co-owners of the suit property and also a co-villager of the petitioners who had contested the suit and defended the interest of other defendants including the predecessors of the petitioners for more than a year and as such the stance of the petitioners that they had no knowledge of the suit is unbelievable.
8. The claim of the predecessor of respondent No,3-plaintiff in Suit No,24/1 of 1962 was bona fide.
The Court was not misled by any of his acts or omissions. The decree was passed in his favour on consideration of the documentary evidence available on the record . The allegation of fraud and collusion against him is not established on record . If the defendants-petitioners were aggrieved from ex parte decree they should have filed an application under Order IX, rule 13, C.P.C. But instead of filing such-like application they had submitted the application under section 12(2), C.P.C. Which was not at all maintainable because the non-service of summons or improper service could not be considered to be a D valid ground for filing application under section 12(2), C.P.C.
9. The predecessor of respondent No,3 had instituted the suit on 9-2-1962 and it was decreed in his favour on 5-5-1964. Subsequently, there had been a second and third round of litigation between the predecessor of respondent No,3 and Baitullah one of the defendants in the former suit. The subsequent two suits were also decided in favour of Saifal the predecessor of respondent No,3.
Throughout the proceedings in all the three suits the petitioners remained silent and after the judgment delivered in the case of Maqbool Ahmad v. Government of Pakistan reported as 1991 SCM R 2063, declaring section 28, Limitation Act as repugnant to the Injunctions of Islam, they submitted the application under section 12(2), C.P.C. For setting aside the impugned decree dated 5-5-1964. The application having been filed after 32 years of passing of the decree was hopelessly time-barred and it was rightly dismissed.
10. The concurrent findings recorded by the two Courts below cannot be interfered with in exercise of writ jurisdiction particularly when no misreading or non-reading of evidence or illegality in the impugned judgments has been pointed out by the learned counsel for the petitioner. Resultantly this writ petition is dismissed.