1. ' MRS, SYEDA TAHIRA SAFDAR, J.---Instant application has been filed by the applicants praying therein for setting aside of judgments and decrees dated 11-4-2002 of Qazi Sarawan and dated 19- 11-2002 of Majlis-e-Shoora Mastung and also order dated 4-8-2003 of this court, where after, they be impleaded in the suit as defendants, which is to be decided on merits thereon. It is their contention that the suit filed by respondents Nos. 1 to 11 against respondents Nos.12 to 20 was decreed in their favour, while property in question was mutated in favour of respondents Nos. 1 to 11.
2. These acts were done in connivance with each other by the respondents through fraud and misrepresentation and behind their back only in order to deprive them of their rights. They were purposely not impleaded as party despite the fact that they were also share-holders, thus owners of property in question. It is also their contention that in July, 2003 when they went to receive their share from Bazgars they came to know about the fact that property has been fraudulently entered in names of respondents. On the same they filed application under section 12(2), C.P.C. In court of Qazi Sarawan at Mastung, but the same was dismissed by the court through order dated 15-9- 2003, their appeal was also dismissed by the appellate court through order dated 22-10-2003. The revision petition filed by them was disposed of by this court through order dated 9-3-2005, whereby both the orders of the courts below were set aside, while they (applicants) were allowed to file application before competent Court, hence present application. They have contended that they being share-holders and owners of property in question were required to be made party to the suit, but the respondents through fraud and misrepresentation did not implead them as party and deprived them from their valuable rights.
3. ' Respondents Nos. 1 to 11 in their reply strongly contested the averments made by the applicants, while raised several objections on maintainability of the application. According to them present application is barred by time, as per their own contention the applicants came to know about the alleged entry in July, 2003. It is their contention that the applicants have no locus standi they never remained in possession of property in question. Further, applicants Nos.1, 2 and 3 are real brothers of respondent No,19; applicants Nos.15 and 20 are real sister and brother of respondent No,16, who was petitioner in the revision petition pending between the respondents. They denied existence of any connivance between them and respondents Nos.12 to 20, nor there is any fraud or misrepresentation. They have prayed for dismissal of the application.
4. ' Respondents Nos.12 to 19 failed to file their written reply. While respondent No,20 Tehsildar Girdgab failed to appear. Counsel for applicants and respondents No,12 to 19 argued the matter, while written arguments were filed on behalf of respondents Nos. 1 to 11. Learned counsel for the applicants contended that they being share-holders were required to be impleaded as party to the suit, but purposely they were not made party, thus deprived of their right. Further, contended that present application has been filed by them in view of order dated 9-3-2005 of this court, which is very much within time. As per learned counsel for respondents Nos.12 to 19 the present application is not maintainable rather proper remedy was required to be availed before the trial Court, who after framing of issues and calling of evidence decide the same. While as per their written arguments, respondents Nos.1 to 11 contended that the property in question was, initially entered in name of Government of Balochistan, while suit filed by respondents Nos.12 to 19 was decreed in their favour through judgment dated 11-8-1992. As they (respondents Nos.1 to 11) were also share-holders to the extent of 1/2 shares, while bear charges of litigation, it was agreed between them that on obtaining decree, respondents Nos.12 to 19 would be bound to give their share. But on their failure they (respondents Nos.1 to 11) filed suit which was decreed in their favour on basis of compromise effected between the parties. Thereafter, respondents Nos.11 to 19 in order to get illegal gain introduced new party and manage to file application under section 12(2) C.P.C., which was initially dismissed by both the courts below, while decree in their favour remained intact.
5. The applicants are lingering on the matter on one pretext or the other only to tease them. It is further contended that the applicants and respondents Nos.12 to 19 are same party, closely related to each other; they have no share in the property owned by them. Due to their close and blood relationship and residents of common houses the applicants were well aware about pendency of the suit filed by them. Plea of ignorance is without basis. They prayed for dismissal of present application.
6. ' As per record initially a suit was filed by respondents Nos.12 to 19, which was decided in their favour by the trial Court i.e, Qazi Sarawan through order dated 11-8-1992. This order was upheld to the extent of this court. Later on respondents Nos.1 to 11 filed suit in respect of their share in same property, which was matter in issue in previously instituted suit, against respondents Nos.12 to 19, which was decided through judgment dated 11-8-2002 by Qazi Sarawan on basis of compromise effected between the parties. Pursuant to the judgment and decree the respondents Nos.1 to 11 filed application for execution of the decree, whereupon the decree was satisfied, while application was consigned to record through order, dated 25-9-2002. Thereafter, respondents Nos. 12 to 19 filed appeal, which was dismissed by Majlise-Shoora through order dated 19-11-2003, while they filed revision petition, which was also dismissed by this court through order dated 4-8-2003. It is further apparent from record that meanwhile present petitioners/ applicants filed application under section 12(2) C.P.C. Challenging the decree being obtained with fraud and misrepresentation before court of Qazi Sarawan, which was rejected by the trial Court through order dated 15-9-2003.
7. The appeal preferred by them was also dismissed by the appellate court through order made on 22-10-2003. Still feeling aggrieved of the same revision petition was preferred by the petitioners, which was decided by this court -through order dated 9-3-2005 holding therein that:-- "The courts below had no jurisdiction to adjudicate upon the matter and the application was required to be filed before this court having decided the same finally.
(6) In such circumstances of the case there is no alternate but to set aside the judgments dated 15-9-2003 and 22-10-2003 passed by the learned Qazi and Majlis-e-Shoora. The petitioner is at liberty to file application before competent court of law, if he chooses to do so. The petition is allowed and disposed of in the above terms."
8. ' Thereafter, application in hand is filed.
9. ' The applicants claimed themselves to be owners and shareholders of property in question with averments that land bearing Khasra Nos.26, 28, 30, 36, 80 and 82, 12 Kitaz measuring 411 acres, 0 rod 2 poles situated at Mouza Gabri Tappa Sub-Tehsil Gridgab District Mastung is owned by them along with the respondents. It is their contention that the respondents haVe got entered the property in question in their own names fraudulently on basis of decree obtained by them through fraud and misrepresentation behind their back. While for the very first time they came to know about the same in July, 2003, when A they visited the land and their bazgars refused to pay their share. Though the applicants claimed themselves to be owners of property in question being share-holders with the respondents. They for the very first time came into the picture in 2003 when the revision filed by respondents Nos.12 to 19 was dismissed by this court being time-barred through order, dated 4-8-2003. Though as per Article 181 of Limitation Act three years time is provided for filing of application for which no period is provided, while time is to be computed from the date when the right to apply accrues. In present case the date of knowledge would be relevant, as plea of fraud and misrepresentation has been taken. As per petitioners they came to know about the fact of effecting of mutations in 2003, thus the time would be computed from year, 2003.
10. The present application has been filed on 17-3-2005, thus the application is filed well within time, thus maintainable.
11. As plea of fraud and misrepresentation has been taken, thus the burden lies upon the applicants to establish their plea of ignorance and coming into knowledge of the same in 2003. Though it is contention of the counsel for the applicants and respondents Nos.12 to 19 that the matter be remanded to the trial court for decision after recording of the evidence. It may be true that the fact of fraud and misrepresentation can only be established after recording of evidence, but before the same the applicants have to establish their case prima facie, where after, step ahead can be taken. At the first instance they have to show their legal title and right vested in them in respect of property in question, thereafter, their ignorance about the proceedings pending in respect of the same and adverse orders affecting their rights. In their application the applicants though claimed themselves to be necessary party required to be impleaded in the suit, which has been decreed in favour of respondents Nos.1 to 11, while at relevant time they have no knowledge about pendency of the proceedings before the courts. Apart from mere assertion the fact is required to be proved. In order to establish their title the applicants have filed a photo copy of some deed written in respect of some land and water. This document can hardly be read and difficult to understand, the petitioners may have filed better copy of the same or its authenticated translation to make the Court understand it, but they failed. The perusal of the same reveals that the date mentioned therein is to be read as 9th Shaban 1202 this means the document has been executed more than two decades, but this document does not disclose that it pertains to which property, nor the applicants or their counsel tried to relate the same with property in dispute. The family tree and map of land in question is also of less help, as in their application they have not disclosed that the alleged right in respect of land in question is accrued in their favour from whom, the source of their title is not disclosed by them.
12. As far as their contention of lack of knowledge about pending of proceedings and effecting of mutation entries are concerned. The burden to establish the same lies on the applicants. Apart from mere assertion they have to file specific documents to prove their title, but they failed to file any document in support of their contention. As per respondents Nos.1 to 11, the applicants are closely related with respondents Nos.12 to 20. According to them applicants Nos.1, 2 and 3 are real brothers of respondent No,19, applicants Nos. 4, 5 and 6 are first cousins of respondent No,18 and residing in same house, while applicants Nos.7 and 8 are real cousins of respondents No,16 and residing in common house. In addition applicants Nos.9 and 10 are also real cousins of respondent No,19 and residing in same house, applicants Nos.11, 12 and 19 are also real cousins of respondent No,14, while applicants Nos.15 and 20 are real brother and sister of respondent No,16. Applicants Nos.13 and 14 are first cousins of respondents Nos. 14 and 19 and residing in one house, while applicant No,16 is real sister of respondent No,17 and also residing in one house. As far as applicants Nos. 17 and 18 are concerned, they are legal sons of respondent No,14 and residing with him in same house. This contention raised by the respondents Nos.1 to 11 in their written reply and also in their written arguments, but neither the applicants, nor respondents Nos.12 to 19 controverted the same, rather they remained silent to this effect.
13. ' In present case litigation was started prior to year 1992 between respondents Nos.12 to 19 and Government of Balochistan, which was decided in their favour up till level of this court. While second round of litigation was held between respondents Nos.1 to 11 and respondents Nos.12 to 19, which was finalized in year, 2003. As result of the same the mutations were effected in favour of both the parties for their respective shares. On finalization of the proceedings between the parties/ respondents in present case, the applicants come into the picture claiming them to be share- holders in property in question. They being closely related to respondents Nos.12 to 19, while residents of the same area, but after lapse of so many years come forward and claimed their right in respect of property in question. It seems somehow unbelievable that they remained ignorant about pending of litigation between the respondents. Though the applicants referred about their some bazgars to whom they approached for receiving their shares in 2003, then they came to know about effecting of mutation entries. They failed to disclose the names of the persons, who were their bazgars on said lands. They also failed to disclose the extent of share to which they were entitled to receive from the produce of land in question. No receipts or any other document from which this fact can be disclosed that share was ever paid to them in all these years, Nothing has been placed on record from which it can be ascertained that how much share of land in question devolved upon the applicants and in whose name the same is entered and presently in whose possession. They are completely silent to this effect.
14. ' In view of above discussion it is apparent that the applicants being closely related to respondents Nos.12 to 19, while residing in same area sharing them in their houses, thus it seems to be reasonably not possible that they were unaware of pendency of the suit between the respondents for such a long span of time. Apart from their knowledge they have also failed to disclose their respective share and interest in property in question, which devolves on them from which they have been deprived through fraud and misrepresentation. The applicants have failed to establish the plea of fraud and misrepresentation. They have failed to make out any case in their favour in the circumstances.
15. ' The application is dismissed being without merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.