' MAZHAR ALAM KHAN MIANKHEL, J.--- The petitioner feeling herself aggrieved of the concurrent findings of the two Courts below has impugned herein through instant revision petition the judgment and decree of the Senior Civil Judge, Charsadda dated 8-3-2007 whereby suit of the plaintiff/respondents was decreed in their favour by declaring them owners of the suit property and by setting aside the judgment and decree dated 11-4-1994 in Civil Suit No,254/1 duly incorporated in the Revenue Record vide Mutation No,6252 dated 4-3-1999 by allowing the third prayer in the suit under section 12(2), C.P.C. The appeal thereagainst of the present petitioner was dismissed by Additional District Judge-IV, Charsadda vide his judgment And decree dated 19-3- 2009.
2. The brief facts giving rise to the present controversy between the parties are that both the parties to the suit inherited their respective properties from the legacy of their predecessor Qazi Abdul Wahid alias Sher Muhammad Khan situated in village Neway Killi and Chak Charsadda, Tehsil and District Charsadda. The inheritance mutation of the village Neway Killi is 942 whereas that of Chak Charsadda is 3146, both attested on 5-11-1965. As per record of the case, Qazi Muhammad Anwar, one of the legal heir of the common predecessor namely Qazi Abdul Wahid, after receipt of his share, alienated an area of 30 Kanals through gift in favour of his daughter Mst.
Asmat Ara, the petitioner, vide registered gift deed dated 22-12-1976.
' Mst. Asmat Ara at the demise of Qazi Muhammad Anwar, her predecessor, instituted Suit No,254/1 for declaration against the other legal heirs i.e. Her brothers and sisters, by claiming herself to be the owner of the property described in the head note of the plaint situated in village Chak Charsadda on the strength of said gift-deed dated 22-12-1976. It was alleged in the plaint that their predecessor during his lifetime, had divided entire of his property amongst his legal heirs but at the time of his demise, an inheritance mutation was attested in favour of all the legal heirs by not keeping into consideration the gift deed ibid in her favour, as the said gift deed was not incorporated in the Revenue Record during his lifetime. The other legal heirs ultimately patched up the matter with the present petitioner and a consent decree was passed in favour of present petitioner on 11-4-1994. On the strength of said judgment and decree, Mutation No,6252 was attested in favour of present petitioner. The petitioner after becoming owner of the property, filed, different suits in the revenue hierarchy regarding produce and ejectment of her tenants and also an application for partition of the property which were decreed in her favour. The suits for rendition of accounts and partition application were allowed in her favour against the co-owners in the property i.e. The legal heirs of their common predecessor i.e. Qazi Abdul Wahid.
3. Then the plaintiff/respondents Mst. Rukhsana Shaheen etc. Filed a suit for declaration (the subject-matter of the present revision petition) in June, 2003 wherein they claimed to be the owners of the property situated in village Chak Charsadda on the strength of private partition through a deed dated 19-2-1966 amongst their predecessoRs, As per their claim, the property of village Chak Charsadda was given to,, the predecessor of plaintiff/respondents and the property of village Neway Killi was given to the predecessor of petitioner Qazi Muhammad Anwar. So, the legal heirs of Qazi Muhammad Anwar have got no concern whatsoever with the property situated in village Chak Charsadda and thereby challenged the inheritance mutation of Qazi Muhammad Anwar in favour of his L.Rs, and then the Mutation attested in favour of present petitioner by the other legal heirs of said Qazi Muhammad Anwar on the strength of consent decree in Suit No,254/1 dated 11-4-1994.
' The 3rd prayer in their plaint was under section 12(2) of C.P.C. Whereby they challenged judgment and decree in Suit No, 254/1 dated 11-4-1994 rendered in the case of Asmat Ara v. Muhammad Parvez Khan and others on the question of fraud and misrepresentation.
4. Learned counsel for the petitioner submitted that the findings of the two Courts below are against the law and record of the case; the deed of private partition dated 19-2-1966 is a forged and fraudulent one which has not been proved on the record in accordance with law; the same was not incorporated in the Revenue Record in the lifetime of both the predecessors of the parties; so, after their death, a forty year old unregistered deed cannot be acted upon; in presence of inheritance mutation of Qazi Muhammad Anwar in village Chak Charsadda, this deed of private partition also loses its value and has got no adverse effect against the rights of the petitioner. He next contended that present plaintiff/respondents are also in possession of their respective share in village Neway Killi and this very fact has also been established from the Revenue Record available on the file which alone is sufficient to negate their Claim. The stance taken by the plaintiff/respondents is incorrect and gets no support from the record produced by them. His next contention was that the predecessor of the petitioner namely Qazi Muhammad Anwar died some where in-between 1975 to 1980 (as no specific date of his death is available on the record), so, the suit of the present plaintiff/respondents in the year 2003 regarding their claim on the basis of private partition deed of the year 1966 is hopelessly barred by law of limitation as till the time of death of Qazi Muhammad Anwar, none came forward to challenge the transaction made by him or to base their claim on the basis of the said partition deed. He further contended that plaintiff/respondents through instant suit have based their claim on the basis of partition deed ibid and have also challenged a decree of a civil Court under section 12(2) of C.P.C. Which is not maintainable in accordance with law and as such decree passed in favour of plaintiff/ respondents and upheld by the appellate Court is against the law and liable, to be set aside. The learned counsel for the petitioner placed reliance on Abdul Rehman and others v. Mst. Sahib Bibi and another (2011 SCM R 191) and Sarfaraz v. Muhammad Aslam Khan and another (2001 SCM R 1062).
5. As against that, the learned counsel for the plaintiff/respondents in support of findings of the two Courts below in their favour submitted that they have proved the execution of private partition through cogent and reliable evidence and that was rightly accepted by the Courts below. His next contention was that since their separate applications under section 12(2) of C.P.C. Was dismissed by the Court concerned in presence of present suit, so the decision made by the Courts below are in accordance with law and the judgment and decree dated 11-4-1994 in Civil Suit No,254/1 was rightly set aside by the trial Court and upheld by the appellate Court and requested for dismissal of present revision petition being against the concurrent findings of the two Courts below on facts alone and no misreading or non-reading or unlawful exercise of jurisdiction was there and placed reliance on Noorul Amin and another v. Muhammad Hashim and 27 others (1992 SCM R 1744).
6. Learned counsel for the parties were heard and record of the case was perused.
7. The record of the case would reveal that this case has got a chequered history. As stated above, both the parties became owners by inheriting the same from their common predecessor namely Qazi Abdul Wahid in two different villages of District Charsadda. The property in question is situated in village Chak Charsadda. One of the legal heirs i.e. Qazi Muhammad Anwar gifted out some 30 Kanals of land vide registered deed dated 22-12-1976 in favour of his daughter i.e. The defendant/petitioner. When her predecessor died, the same property was still in his name as the gift deed was not incorporated in the Revenue Record. Accordingly, his inheritance mutation was attested in the name of his legal heirs for which the present petitioner challenged the said inheritance mutation through Civil Suit No,254/1 which was ultimately decided in he favour vide consent decree dated 11-4-1994.
8. The present plaintiff/respondents on the strength of private partition deed dated 19-2-1966 claimed the suit property in the name of the present petitioner to be their ownership and they alleged that all the legal heirs of Qazi. Muhammad Anwar have got no concern whatsoever with the same and thereby also challenged the consent decree dated 11-4-1994 ibid under section 12(2) of C.P.C. As one of their claims in the present suit.
9. It was also brought into the notice of this Court that during the pendency of the present suit, the plaintiff/respondents also filed a separate application under section 12(2) of C.P.C. On 15-11-2005 which was dismissed one 3-1-2006 because of pendency of present suit and the said order of dismissal was also never challenged in appeal/revision before the higher forum which in a way attained finality. The findings of the trial Court dated 8-3-2007 would reveal that the claim of the plaintiff/respondents regarding section 12(2) of C.P.C. Was allowed and judgment and decree dated 11-4-1994 in Suit No, 254/1 in favour of present petitioner was set aside and the plaintiff/respondents were also declared owners of the property devolved upon the legal heirs of Qazi Muhammad Anwar in village Chak Charsadda.
10. The moot question involved in the case would be as to whether a decree of a Court could be challenged through a separate suit after addition of subsection (2) of section 12 of C.P.C. The provision of subsection (2) of section 12 of C.P.C. Became part of the Code vide Ordinance No,X of 1980. Before entering into the merits of the case, it would be worthwhile to reproduce the same, which reads as under:--- "12. Bar to further suit.-- ' Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
' A look at the above provision of law makes it very much clear that whenever anybody feels himself aggrieved of a judgment and decree on the ground of fraud, misrepresentation or want of jurisdiction has to file an application before the Court who passed the final judgment and decree or order. The above provision of law then also bars filing of a separate suit in this regard. The bare perusal of the plaint of the plaintiff/ respondents would reveal that they based their claim of ownership on the basis of a private partition deed and then also challenged the decree of 1994 ibid in favour of petitioner under section 12(2) of C.P.C. In presence of above provision of law, it is very much clear that a decree IB cannot be challenged through a civil suit. Similar view was taken by the apex Court of the country in the cases of Abdul Rehman and Sarfaraz supra. Yet another aspect of converting a suit into an application under section 12(2) of C.P.C. Was considered by their lordships in the case of Noorul Amin and another vs. Muhammad Hashim and 27 others (1992 SCM R 1744) and it was held that it would be in the competence of the Court to convert a plaint into an application under section 12(2) of C.P.C. Yes, it is within the competence of a Court to convert the nature of proceedings) into another one for the ends of justice but for such an exercise, facts and circumstances of a case has to be seen and considered. In Noorul Amin's case (supra), a decree of civil Court was challenged through a civil suit in the year 1983 and it was held that since this new amendment was not in the notice of plaintiff of that case so, he filed a suit to challenge a decree under the practice prevailing prior to addition of subsection (2) of section 12 of C.P.C. And the plaint of said suit was converted into an application under section; 12(2) of C.P.C. In the facts and circumstances of the present case, the plaintiff/respondents cannot take refuge in the judgment rendered in the case of Noorul Amin supra. This Court is unable to understand that why the decision against dismissal of application under section 12(2) of C.P.C. Was left half way and how the two Courts below shut their eyes regarding the above provision of law which bars the challenge of judgment and decree on the above referred ground through a separate suit which, on the face of it, is patently illegal and unlawful. By no stretch of imagination, facts and circumstances of present case would warrant setting aside of the decree of 1994 through present suit. So, findings of the two Courts below in this regard are not worth to be maintained. Hence set aside.
11. As far as the merits of the instant case are concerned, the plaintiff/respondents failed to establish the genuineness of the partition deed which was forty year old at the time of filing of suit.
There is nothing on the record which could suggest that what were those unavoidable circumstances which precluded the predecessors of both the parties to act upon the said partition deed in their lifetime. The plaintiffs of present suit were in possession of the said deed of partition then what were those compelling circumstances which led them to a deep slumber till the filing of present suit in the year 2003. This aspect of the case has wrongly been considered by the Courts below. Their suit in the circumstances was hopelessly barred by law of limitation. The burden to prove the genuineness and authenticity of the partition deed was upon the plaintiffs as the same was in their possession and they had based their claim on the strength of this deed. It was for them to explain the failure of their predecessor to act upon the deed and what was the reason which precluded them to file the suit within the prescribed timeframe. This, on the face of it, reflects that filing of instant suit was an act based on mala fide to preclude the petitioner to take benefits of decree of rendition of accounts and to get her property separated through proper partition.
12. So, what has been discussed above, makes it clear that the findings of the two Courts below were based on unlawful and irregular exercise of jurisdiction by them which has resulted into illegality. Thus in this view of the matter, this Court has no option but to allow instant revision petition by setting aside the judgments and decree of both the Courts below with costs throughout. 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.