' SARDAR MUHAMMAD ARAM, J.---Petitioner-defendant is seeking leave to appeal from the Judgment dated 16-5-2007 passed by a learned Judge-in-Chamber of Peshawar High Court, Abbottabad Bench, dismissing his C.M. Nos.1 and 208 of 2004.
2. The predecessor of the respondents {Lt. Col. (Retd) Mustafa Anwar}, instituted a suit for possession through ejectment against the petitioner in regard to land bearing Khasra No,555/1 measuring 2-Marla, Khasra No,554/1 measuring 5-Marla, and against Mst. Tahira Begum, Mst.
Waheed Kachlo, Mst. Safia Kachlo and Dr. Alaf Khan, in respect of land bearing Khasra No, 554/2 measuring 1-Marla, located at Nawan Shehr, Abbottabad. Petitioner, and other defendants contested the suit. Issues were framed, parties produced their respective evidence. Local commission was appointed to conduct demarcation of the land-in-dispute, who submitted his report Exh.0 .W.1/1.
3. Learned trial Court on 2-4-1997, passed judgment and decree in favour of the plaintiff granting him possession with regard to 4-Marla of land, against defendant-petitioner and 1-Marla of land against defendants No .2-5 .
2.(sic.) Three appeals were filed against the judgment dated 2-4-1997 before the Appellate Court, first by the plaintiff, second by defendant No,1-petitioner, and third one by defendants No,2-5. All the appeals came up for hearing before learned District Judge, Abbottabad, who vide his Judgment dated 22-2-1999, dismissed the appeals of defendants Nos.2 to 5 and maintained the decree to their extent. However, appeal of the petitioner-defendant was accepted and decree of the trial Court, qua him was set aside. This judgment was assailed by the plaintiff through C.R.
No,42 of 1999. A learned Judge-in-Chamber of the Peshawar High Court, Abbottabad Bench accepted the revision by setting aside the judgment of the First Appellate Court, and restoring that of the trial Court. Learned Revisional Court recorded the following reasons in para 7 of its judgment granting decree to the extent of 4-Marlas instead of 6-Marlas:-- "7. The trial Court found that if the six marlas found to have been encroached upon by respondent No,1 was given to the petitioner he would be in excess of the 3 kanals, 1 marla purchased by him and, therefore, instead of 6 marlas a decree for 4 marlas was granted in favour of the plaintiff against defendant/respondent No,
1. This finding of the trial Court was not assailed at the hearing of the petition".
3.(sic.) The plaintiff dissatisfied with the finding recorded in the C.R. Filed a review petition claiming that the petitioner was entitled to the decree of 6-Marla against defendant-petitioner. This, too, came up for hearing before the same learned Judge-in-Chamber of Peshawar High Court, who accepted the review petition and modified the judgment and decree of the trial Court and granted possession of additional 2-Marla of land to the plaintiff against the defendant-petitioner in Khasra No,555/1, and Khasra No,554/1.
4. Neither Judgment passed in C.R. Nor in Review was assailed before this Court. Instead, petitioner approached the learned Revisional Court through C.M. No,1 of 2004 for setting aside the ex parte order and C.M. No,208 of 2004 for condoning the delay in filing of C.M. No,1 of 2004. The learned Judge-in-Chamber heard these petitions and directed dismissal vide his judgment dated 16-5- 2007, giving rise to this petition.
5. Learned counsel for the petitioner argued that there was no error apparent on the face of record warranting interference in exercise of review jurisdiction; that the petitioner was not served with a notice of review petition, hence condemned unheard and a wrong decision cannot be corrected in review jurisdiction.
6. We have heard learned counsel for the petitioner at quite some length, perused the Judgment and evidence available on the record.
7. The petitioner-defendant did not challenge the Judgment passed by a learned Judge-in- Chamber dated 8-6-2001, which had attained finality to the extent of decree for possession of 4- Marla of land against the defendant-petitioner. Similarly, review judgment passed in Review Petition No,4 of 2001 dated 2-7-2003, was not assailed before this Court granting decree for possession of additional 2-Maria of land to the plaintiff against defendant-petitioner. Report of the Commission, who A conducted demarcation at the spot, in presence of the parties, was though objected to before the trial Court, yet the same was accepted by not questioning its authenticity/correctness at least after Judgment of Revisional Court. Demarcation report Exh.C.W.1/1 indicates encroachment made by defendant on the suit-land owned by the plaintiff.
After accepting the decree to the tune of 4-Marla on the basis of said Commission's report cannot question and defend successfully the encroachment to the extent of remaining 2-Marla.
8. A learned Judge-in-Chamber while allowing review petition, held in para 4 as follows:-- "In the judgment under review, this Court had accepted the report of the Commission (Exh.C.W.1/1) in which it was reported that defendant No,1 had encroached upon 6 marlas of land however, the petitioner was granted 4 marlas instead, as the judgment under review reveals that the findings of the trial Court were not assailed at the hearing of the petition. Be that as it may, since in the revision petition the judgment and decree of the trial Court is also assailed and the error does appear on the face of the judgment of the trial Court as well as in the judgment under review, this review petition is allowed. The judgment and decree of the trial Court is modified to the extent that the petitioner is held entitled to possession of additional two marlas of land from defendant No,1 in Khasra Nos.555/1 and 554/1"
9. The above finding indicates that an error had crept on the face of record and was rightly corrected in exercise of review jurisdiction.
10. The petitioner-defendant in his petition (C.M. No,1 of 2004) pleaded that the plaintiff wilfully mentioned wrong address of the petitioner-defendant in the review application to seek favourable order in his absence, resulting into fraud and misrepresentation. The review judgment was, thus, liable to be set aside on this score. This argument is devoid of any force. The plaintiff sought execution of the decree, after passing of judgment in review. Petitioner-defendant entered appearance through Syed Mehboob Ahmad Shah, Advocate, on 3-6-2004, before the executing Court. He filed the petition on 22-10-2004, on acclaimed knowledge of review judgment on 22-9- 2004. After having appeared on 3-6-2004, through his counsel, he must have acquired knowledge of the decree passed in review judgment, yet filed belated application on 22-10-2004 for setting aside order in review. His claim to treat his petition under section 12(2), C.P.C. On the ground that wrong address was deliberately furnished in the review petition, by concealment of facts, has no force in it for the reason that address of the petitioner in the civil suit, in the civil revision and the review petition, are one and the same. The petitioner came with the changed address for the first time in his C.M.No,1 of 2004. Substituted service through publication was effected, but defendant failed to turn up. He has, thus, to blame himself for non-appearance in Court to defend review petition.
11. Demarcation was conducted by an Extra Assistant Commissioner, a senior official of Revenue Department, under the orders of the Court in presence of the parties. Demarcation was made from three fixed points mentioned as A, B, C in the map indicating encroachment. Defendant has no case on merits on his acceptance of the report of demarcation and conceding decree of 4-Marlas.
The report of the Demarcation is not divisible. Petitioner-defendant cannot blow hot D and cold in one and the same breath.
12. For what has been discussed above, we do not find any force in this petition which is dismissed by declining leave.