1. SAJJAD ALI SHAH, J. --- Through this revision application, the applicants have called in question order dated 9.4.2008 of 1st Additional District Judge, Mirpurkhas, whereby their application under Section 12(2) of the Code of Civil Procedure for setting aside judgment and decree dated 22.12.1992 of Suit No. 377/1979 was dismissed. Briefly the predecessor-in-interest of respondents No. 1(a) to (i) filed suit No. 377/1979 before the 1st Senior Civil Judge, Mirpurkhas against the predecessor-in-interest of respondents Nos. 2(a) to (c), claiming the possession of agricultural land bearing Survey Nos. 121/6, 6, 8, 10, 11, 12 135/6, 7, 8, 11, 136/1 to 12, 137/1 to 11, 138/1 to 11, 140/1 to 7, 9 to 16, 141/1 to 7, 9 to 16, 141/1 to 16, 142/1 to 16. 154/1 to 13, 155/1 to 16, 156/1 to 8, 157/1, 158/1, 4, 159/1, 2, admeasuring 146-16 acres situated at Deh 304 Jamesabad the ground that being legal heir of Syed Ameerullah Shah, they are entitled to the said land and further claimed mesne 2009 District Tharparker (hereinafter referred to as suit land) on profit at the rate of Rs. 30,000/- per year.
2. The suit was decreed' on 22nd December, 1992, the predecessor-in-interest of respondents. Nos.
3. 2(a) to (c) litigated upto the apex Court but could not succeed to get the said judgment and decree set aside and lastly the Executing Court handed over the possession of the said land .To the predecessor-in-interest of respondents Nos. 1(a) to (i).
4. It is further evident from record that predecessor-ininterest of respondents Nos. 2(a) to (c) has earlier filed suit No. 28/1971 against the respondent No. 1 claiming the. Said land on the basis of a gift deed allegedly executed by the daughter of Syed Ameerullah Shah wherein an issue regarding respondent No. l's status as legal heir of Syed Ameeruilah Shah was framed and decided in favour of respondent No. 1, whereas the claim of respondent No. 2 to have acquired the said land on the basis of alleged gift deed was rejected. The record reflects that again in suit No.. 377/1979, a similar issue was framed and the Trial Court decided this issue was framed and the Trial Court decided this issue in affirmative on the ground that it has already been decided in suit No. 28/1971. Now the applicants who claims to be the legal heirs of one Syed Ameer Ali Shah, alleged brother of Ameerullah Shah, have changed the judgment and decree dated 22nd December, 1992 of Suit No. 377/1979 on the ground that it has been obtained by a fraud and misrepresentation.
5. Mr. Hassan Mahmood Baig, learned counsel for the applicants has contended that predecessor- in-interest of respondents Nos. 1(a) to (i) has obtained the judgment and decree by misrepresentation and fraud to the extent that he was not the legal heir of late Ameerullah Shah or his widow Nazir Begum or daughter Razia Begum or grand-daughter Begna Begum. Learned counsel in support of his contentions has placed on record copies of death certificates of Razia Begum, Nazir Begum and Bigna Begum, produced by the predecessor-in-interest of respondent No. 1 to establish heirship with the endorsement from the issuing authority that such certificates were never issued by them. Mr. Baig consequently contended that judgment and decree obtained on the basis of such manipulated documents are liable to be set aside. Mr. Baig has placed reliance on -the judgments of Honourable Supreme Court in the case of Lal Din and another v.
6. Muhammad Ibrahim (1993 SCM R 710) as well as Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCM R 1516) and contended that in case a decree is obtained on the basis of a forged document, the same is liable to be set aside. . On the other hand, learned counsel for respondents Nos. 1 (a) to (i) has contended that late Ameerullah Shah. Had no brother at all, what to say about Ameer Ali Shah, per learned counsel, the respondents Nos. 2(a) to (c) from whom respondent No. 1 had taken possession of said and through Court has chalked out a plan in connivance of applicant to frustrate the respondent No. 1 entitlement to the said land. Learned counsel further contended that predecessor-ininterest of respondents Nos. 2(a) to (c) after unsuccessfully contesting the matter upto the apex Court, live in connivance with the applicants resorted to file this revision application. It was next contended that entitlement of the preaecessor-in-interest of respondent No. 1 as legal heir of Ameerullah Shah was not decided in the suit No, 377 of 1979 decree whereof is challenged by way of an application under Section 12(2), C.P.C. But in suit No. 28/1971, the decree whereof is still intact and has not been called in question, therefore, their application under Section 12(2), CPC was rightly rejected.
7. From a perusal of application under Section 12(2). CPC filed by the applicant it appears to be an 'admitted position that Amirullah Shah was the original undisputed owner of the "said property", and on his death 'said property" had devolved upon his widow Nazir Begum and daughter Razia Begum. Nazir Begum died in the Year 1940 and thereafter the entire property was mutated in the name of Mst. Razia Begum, who also died in the year 1947-48. It is also admitted by the applicant in the said application that the predecessor-in-interest of respondents Nos. 2(a) to (c) in the suit bearing No. 27/1971 claimed the said land on the basis of gift deed allegedly executed by Mst. Razia Begum in his favour and got the mutation effected in the records of Mukhtiarkar, which was challenged before the Deputy Commissioner, but could not be set aside for want of pendency of.
8. Suit No. 27/1971. It is also admitted by the applicant that the predecessor-in-interest of respondent Nos. 1(a) to (i) in the said suit was declared to be the sole legal heirs of Mst. Razia Begum on the basis of certain documentary evidence produced by him,- which is now claimed by the applicant through their application under Section 12(2), CPC as forged and manipulated. The record further reflects that Suit No. 28/1971, in which the predecessor-in-interest of respondents Nos. 1(a) to (i) was declared as sole legal heir of Mst. Razia Begum was decreed on 31.5.1983, which decree till date has not been questioned.
9. It appears that the applicant wants the setting aside of the finding on the issue of heirship decided in the year 1983 in Suit No. 27 of 1971 through their application under Section 12(2), CPC in Suit No. 377 of 1979, which is not permissible for the simple reason that the judgment and decree in Suit No. 27/1971 has not been challenged and it still intact. It is also a matter of record that no findings as to the status of respondents Nos. 1(a) to (i) as legal heirs of late .Ameerullah Shah were given in Suit No. 377 of 1979 independently or upon discharge of buyrden, in fact such issue was answered in affirmative on the ground that it stand decided in Suit No. 28/1971 and cannot be re-agitated, therefore, setting aside of decree in the instant suit would amount to setting aside of decree in Suit No. 27/1971. The other important aspect, which Mr.. Baig totally failed to address, is the delay in filing the application under Section 12(2), CPC. The record reflects that decree in Suit i.e. No. 377 of 1979 which is sought to be set aside was passed on 22.12.1992 whereas the application under. Section 12(2), CPC was filed on'1.12.2005 i.e. After 13 years and to bring the application within the ambit of Article 181 of the Limitation Act it was asserted in Para 2 of the affidavit that "the' applicant learnt about the fraud in the last week of June, 2004."
10. No explanation whatsoever is available on record to explain as to how and from which source the application has learnt about the fraud in June, 2004 and further that since the applicant claims to be the legal heir of the brother of original owner Amirullah Shah, therefore, if their assertions are taken as true then their right to claim the suit land and accrued upon the death of Amirullah Shah in the year 193132, therefore,, they were further required to explain as to why they kept quiet for 73 long years.
11. The very admission of the applicant that after death of Amirullah Shah the suit land was mutated in the name of his were and daughter and after the death of his were,the entire property stood mutated in the name of his daughter and the applicants kept mum speaks volume about the veracity of their claim. The applicants were under the obligation to explain as to why they did not claim the "said land" right after the death of Amirullah Shah in the year 1931-32 or after the death ,of his were nor daughter in the year 1940 and 1947 respectively and failure on their party to explain such delay/non-action further cast much heavy burden upon them to explain the delay of 13 years in moving application under Section 12(2), CPC and a simple bold statement that the applicant acquired knowledge of such fraud in the year 2004 would not discharge such burden for the purpose of competency of their application under Section 12(2), CPC.
12. No case for interference is made out Revision is dismissed.