1. ' SHAHID ANWAR BAJWA, J.--- Factual context of Revision Application No,136/2002 is that a civil suit was filed in 1982 by the present respondents against the Province of Sindh and Divisional Forest Officer. It was pleaded in the plaint that agricultural land comprising of Survey Nos.106, 108 half of Survey Nos.111, 112, 113, 114, 335 and 1-20 acres from Survey No,336 in Deh Bhopi Taluka Khipro, was in possession of the complainant. On 24-5-1982 authorized Guard of Khipro Wildlife registered F.I.R.
2. No,23/1982 under sections 353/147/148/34 P.P.C. At Police Station Khipro against the plaintiff and his brother and thereby caused harassment to the plaintiff. While plaintiff was running here and there to get his bail in the afore-stated Criminal case, subordinates of Divisional Forest Officer Sanghar, the present applicant No,2 unlawfully occupied the suit-land and posted a number of authorized guards there. The plaintiff stated that he made application to various authorities and eventually the Deputy Commissioner Sanghar constituted a team of Revenue authorities for carrying out measurement and demarcation and according to their measurement and demarcation the suit- land was held to be belonging to the plaintiff and was held to be in unauthorized occupation of defendant No,2. Thereafter suit was filed with the following prayers: "(a) Declaration that the plaintiff is owner of the suit-land and defendants have no right whatsoever to dispossess the plaintiff and occupy the suit-land.
(b) The defendants be ordered to vacate the suit-land and handed over its possession to the plaintiff and in case of their failure to do so, the Honourable Court shall get the unauthorized occupation of defendants removed from the suit-land through its officer and hand over possession to the plaintiff.
(c) Mesne profits be determined from the date of unauthorized occupation of suit-land by the defendant till the date of handing over possession to the plaintiff and the same may be awarded to the plaintiff.
(d) Injunction be issued against the defendants restraining them from growing trees over the suit- land and converting it into forest ad also from damaging the suit-land in any manner personally or through subordinates.
(e) Award costs of the suit to the plaintiff.
(f) Grant any other relief to which the plaintiff may be found entitled.
3. ' Written statement was filed to Divisional Forest Officer. Lodgment of F.I.R. Was admitted. It was claimed that the suit-land belonged to the Forest Department.
4. ' The trial Court held that the plaintiff before it was owner of the suit-land and that defendant No,5 had encroached upon land of the plaintiff. Consequently it decreed the suit vide judgment dated March 4, 1985 and decree dated 21-3-1985. Appeal was filed against this decree, which was dismissed. Revision was filed in the High Court which revision application was also dismissed. The High Court observed as under:- "In any event the aforesaid two documents relied upon by the learned counsel for the applicant to nullify the effect of Exh.31, the reports of the Mukhtiarkar, are of no avail. Even if the aforesaid report of the Mukhtiarkar is overlooked and kept out of consideration, so far as Exh.39 and 40 are concerned, that is the report submitted by the team constituted by the Director of Settlement, Revenue & Land Records and the sketch of the land, remain in the field and confirm that the applicants are in possession of lands belonging to the respondents.
5. ' Bashir Ahmed in his cross-examination admitted there is no difference between the two reports except that in the later sketch the land has been marked on green colour. It is also to be noted that the applicants did not give any evidence to show that the Forest Department was not associated with the aforesaid demarcation proceedings. It, therefore, cannot be said that the Courts below have noted in the manner prejudicial to the applicants."
6. ' The matter was taken to the Honourable Supreme Court and the Supreme Court vide order dated 27-4-1992 dismissed the civil appeal, by holding as under:-- "3 Mr. A.G. Mangi, the learned. A.A.-G, contended that there is a misreading of evidence as the land is in occupation of the appellants who have sold the trees and also the reminents of old trees cut by them are available. Be that as it may, the questions of facts involved have concurrently been found by all the three Courts below against the appellants. The appellants have not been able to point out how in exercise of revisional jurisdiction the learned Judge in Chamber has acted illegally or in an irregular manner which may call for interference with the impugned judgment. We find no force in the appeals dismissed with no order as to cost."
7. ' Matter thus attained finality. Execution application was filed. Objections to execution were dismissed by the trial Court, the appellate Court and the High Court thereafter in Execution application, application under section 12(2), C.P.C. Was filed. In the application it was pleaded as under:-- "The manipulation done by Haji Gul Muhammad in Form-A was by inserting an additional fictitious Survey No,1/3 after Survey No,151. The perusal of record further reveals that the plaintiff made another manipulation in the A-Form issued to Jawhar Mal by cutting out (through type-writer) the original Survey numbers 131 to 135, 142 to 143 and instead showed the same area of 27 Acres, 6 Ghuntas against the forged and manipulated entry of Survey No,1/3 by breaking-up the same as, 1/3 admeasuring 6 acres, 1/3 admeasuring 10 acres and 1/3 admeasuring 11 acres, 6 Ghuntas (Total 27 Acres, 6 Ghuntas)."
8. ' And thereafter it was prayed as under:--- PRAYER "The applicant in these circumstances, prays that this Honourable Court may be pleased to stay the above execution proceedings and suspend the judgment and decree dated 4-3-1985 passed in Suit No,75/1982 and after hearing the parties be pleased to set aside the aforesaid judgment and decree and/or pass such orders as this Honourable Court deems fit in the circumstances."
9. ' Learned trial Court on 20-2-2002 dismissed the application and held as under:-
10. "Heard Malik Muhammad Ashraf DDA for the applicant and also I have perused the R&Ps of F.C. Suit which have already been decided by the learned Senior Civil Judge, Sanghar., on 4-3-1985, in favour of plaintiff on merits.
11. ' The judgment and decree passed in the suit have already been maintained/upheld upto the level of Honourable Supreme Court of Pakistan. It is important to mention here that on the basis of above referred decree, the execution application filed by plaintiff/Decree Holder against the judgment-debtors, in which the present applicant is one of the J.D. And the same was allowed on 4-5-2000 and thereafter, the J.D./present applicant challenged the said order upto Honourable High Court, but order of this Court dated 4-5-2000 could not be set aside by the appellate Court, and till today, the partly decree stands satisfied.
12. ' Under such situation, the present application deserves no merits, and thereby dismissed in limini accordingly."
13. ' Being aggrieved by this order this revision application has been filed.
14. ' In Revision Application No,137 of 2002 while rest of the sequence is identical, the only difference is that Survey numbers were 393 to 405. to para. 4 of the application under section 12(2), C.P.C. He also relied upon various case law in this regard.
15. ' Mr. Naraindas C. Motiani, submitted that all aspects have been considered by the Court below.
16. The matter has already attained finality and has been decided by the Honourable Supreme Court.
17. ' Since question was raised as to which is the Court, in which application under section 12(2), C.P.C.
18. Is to be filed. Reference was made to Shabbir Hussain v. Mst. Anwar Sultan through 3 Legal Heirs, 1986 CLC 903. In this case order of ejectment was passed by the Rent Controller. High Court dismissed the appeal and Honourable Supreme Court had dismissed C. P. L.A. Thereafter application under section 12(2), C.P.C. Was filed. It was held that it could only be made before the Court which passed the final judgment, decree or order. It was held that application under section 12(2), C.P.C. Before the Rent Controller was not maintainable after ejectment order had been upheld by the High Court and C.P.L.A had been dismissed by the Supreme Court. Learned Judge in this case relied upon Muhammad Yaqub v. Mst. Noran, 1983 CLC 1948, in which case suit for possession was filed. It was decreed. Appeal was dismissed and regular second appeal was also dismissed. Thereafter C.P.L.A was also dismissed. Application under section 12(2) C.P.C. Was filed before the Civil Judge, which application was dismissed and matter came to the High Court and High Court held: "it is an established proposition of law that the lower Court's judgment merges into the judgment of the Appellate Court and thus the appellate Court's judgment is to be treated as final judgment. It is therefore amply clear that in the circumstances of this case application under section 12(2) of the Code of Civil Procedure was not competent before the Court of Civil Judge, Chunian, but the same could be filed only before the Supreme Court of Pakistan."
19. ' On the other hand is Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid, 1993 SCM R 1171: The suit in that case was in respect of plot of land. The Chairman, Evacuee Trust Property Board declared the property to be Evacuee Trust Property and further declared its transfer to private person as illegal and ordered eviction of-the respondent. A Constitutional Petition was filed in the High Court which succeeded. From the judgment of the High Court a Petition for Leave to Appeal was filed in the Supreme Court which was dismissed.
20. Thereafter an application under section 12(2), C.P.C. Was filed in the High Court. This application was dismissed by the High Court. The Supreme Court held as under:-- "4. It is well-settled that the provisions of the Code of Civil Procedure are applicable to constitutional petitions filed in the High Court, section 12(2), C.P.C. Being apart of it will be applicable. In this connection the next point for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. Could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad PLD 1991 SC 197, such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and therefore the application filed by the appellants there was competent."
21. ' There is more elaborate and a lucid judgment by the Honourable Supreme Court in Khawaja Muhammad Yousaf v. Federal Government Through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCM R 1516.
22. ' Observations are as under:-- "If this Court merely reaffirms a judgment or order of a High Court by refusing leave, the final judgment in terms of subsection (2) of section 12, C.P.C. Will be of the High Court and not of the Supreme Court. However, if the Supreme Court, reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purpose of subsection (2) of section 12, C.P.C. In this view of the matter, the final judgment in the case in hand was of High Court as it reversed the findings recorded by the forums provided under the Settlement law."
23. Since in this case the original order was passed by the Senior Civil Judge and this order was maintained by the Appellate Court, by the High Court and by the A Supreme Court, application under section 12(2), C.P.C. Filed before the Senior Civil Judge was competently filed.
24. Judgment in this matter was passed, as stated above, by the trial Court on 4-3-1985 and decree was passed on 21-3-1985. Final order was passed by the Supreme Court on 27-4-1992. Application under section 12(2) C.P.C. Was filed on 20-2-2000, after lapse of almost ten years. Even otherwise contentions made do not indicate that any fraud or misrepresentation has been perpetuated on the Court below. In the first round of litigation, the evidence has been considered by the Courts.
25. Therefore these revision applications are dismissed.