' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners call in question the validity of impugned judgment dated 21-12-2012 passed by the learned Addl. District Judge, Sialkot whereby the said court while accepting the civil revision of the respondents against the judgment dated 28-9-2010 passed by the learned Senior Civil Judge, Sialkot, allowed the application of the respondents under section 12(2) of C.P.C. As a consequence whereof judgment and decree dated 5-4-1997 has been set aside.
2. Facts of the case in brief are that predecessor in interest of the petitioners namely Liaqat Ali filed a suit for declaration along with permanent injunction against one Sh. Akram Ali Khan predecessor in interest of respondents Nos.10 (a) to 10 (e) alleging therein that he is owner in possession of the properties fully described in Para No,1 of the plaint and defendant has no concern whatsoever with the disputed properties, who is denying the ownership rights of the plaintiff and interfering into his peaceful possession. He sought decree for declaration to the effect that he be declared as owner in possession of the disputed properties and as a consequential relief defendant be restrained from interfering into the possession of the plaintiff. Predecessor in interest of the aforesaid respondents i,e, 10(a) to 10(e) appeared in the Court and got recorded his statement that he has no objection in decreeing the suit and in the light of said statement, learned trial court decreed the suit vide impugned judgment and decree dated 5-4-1997.
3. Predecessor in interest of respondents Nos.l to 9 filed application under section 12(2) of C.P.C. For setting aside the aforesaid judgment and decree inter alia on the grounds that their predecessor in interest namely Muhammad Ismail was the owner of the disputed properties; that predecessor in interest of the petitioners was nephew of said Ismail who was in possession of the disputed property as licensee; that the predecessor in interest of the petitioners was a practising lawyer who in connivance with predecessor in interest of the respondents Nos.10(a) to 10(e) namely Sh. Akram Ali Khan procured the impugned decree by practising fraud; that said Sh. Akram Ali Khan has no concern with the suit property; that petitioner's predecessor by practising fraud deprived the respondents Nos.1 to 9 from the valuable property under the garb of impugned decree which is liable to be set aside.
4. The petitioners contested the said application by filing written reply raising certain preliminary as well as factual objections. Out of divergent pleadings of the parties, learned trial court framed necessary issues, recorded evidence of both the parties and dismissed the application of the respondents vide impugned judgment dated 28-9-2010. Being aggrieved respondents Nos.1 to 9 filed appeal before the learned Addl. District Judge who accepted the same vide impugned judgment dated 21-12-2012. Hence, this constitutional petition.
5. Learned counsel for the petitioners contends that the learned lower appellate court erred in law while passing impugned judgment; that the impugned judgment is based on surmises and conjectures and is result of mis-reading and non-reading of the evidence; that the petitioner's predecessor has been owner in possession of the suit property since 1983 and he raised constructions thereupon without any intervention by the predecessor in interest of respondents for a long period of 15 years; that the predecessor in interest of respondents has no concern with the disputed property; that the respondents could not produce any documentary evidence showing their predecessor in interest as owner of the suit property, whereas, the petitioners have produced chain of evidence such as bills of electricity/sui gas and receipts for payment of taxes showing their predecessor in interest as owner in possession over the suit property; that the respondents could not prove fraud or mis-representation; that the learned trial court has passed a well reasoned judgment which has illegally been set aside by the learned lower appellate court by misconstruing the evidence.
6. I have heard the arguments advanced by the learned counsel for the petitioners and gone through the record.
7., Predecessor in interest of the petitioners filed suit seeking decree for declaration to the effect that he is owner in possession of the disputed properties against the predecessor in interest of respondents Nos.10(a) to 10(e), who got recorded his conceding statement on the basis of which impugned judgment and decree was passed on 5-4-1997. Perusal of the record shows that petitioner's predecessor filed suit on 10-3-1997 which was adjourned to 16-4-1997 for service of predecessor in interest of respondents Nos.10(a) to 10(e) but prior to said date an application was moved on behalf of predecessor in interest of the petitioners alleging therein that compromise has been effected between the parties, therefore, file was requisitioned on 5-4-1997 and the learned trial court decreed the suit on the said date after recording the statement of predecessor in interest of respondents Nos.10(a) to 10(e). Apparently, petitioner's predecessor who was a practicing lawyer joined hand with the predecessor in interest of respondents Nos.10 (a) to 10 (e) in order to deprive the predecessor in interest of respondents Nos.1 to 9 from his property under the garb of consenting decree. Had it not been so as to how the predecessor in interest of respondents Nos.10(a) to 10(e) came to know about the filing of suit by the petitioner's predecessor in the absence of deposit of any process fee or issuance of any process. It is also painful to note that the learned trial court even without seeking ownership proof qua the disputed properties from the petitioner's predecessor in interest passed the impugned decree. Merely on the basis of utility bills and receipts regarding payment of taxes one cannot be termed as owner of the said property.
Reliance is placed on case reported as Muhammad Zaman v. Muhammad Jamil and 4 others (1992 CLC 873) wherein it has been laid down as under:- "It appears that both the lower Courts had taken documents relating to the Excise and Taxation Survey, electric connection and the sale agreement to be the proof of ownership of the structure.
The documents relating to the Excise and Taxation Department are at best the documents that can entitle the department to recover their taxes from occupants but can never be taken to be the evidence of ownership of a premises."
' In case reported as Muhammad Ismail v. Maqbool Ahmad and 8 others (2001. CLC 252) it has been observed that "The installation of electricity connection does not confer any right on the petitioner. Electricity is not provided to the owners only but any occupant can get the connection after fulfilling the formalities required by WAPDA".
8. So far as the contention of the petitioner's counsel that the respondents could not prove any ownership right/title qua the disputed properties is concerned, suffice it to say, that while deciding application under section 12(2) of C.P.C. Only the determining factor is whether the impugned decree or order has been passed on the back of applicant or it infringed its right to contest the claim of plaintiff and before acceptance of application under section 12(2) of C.P.C. The applicant is not bound to establish his right qua the disputed property in absolute terms. Reliance is placed on case reported as Mst. Shahana Ali v. Syed Muhammad Haris Jaffari (PLD 2010 Karachi 366).
9. The claim of respondents Nos.1 to 9 is that petitioner's predecessor in interest was nephew of their predecessor in interest and he is in possession over the disputed properties as a licensee. In the plaint the petitioner's predecessor in interest alleged to be owner in possession of two properties one of which is stated to be his office whose boundaries as per own version of the petitioner's predecessor are adjoining to the house of Muhammad Ismail predecessor in interest of respondent Nos.1 to 9 in the north which prima facie shows right of the respondents Nos.1 to 9 qua the disputed properties, who have been deprived therefrom through the impugned decree dated 5-4-1997 without even notice and bringing on record their stance. While setting aside the aforesaid decree the learned lower appellate court has not caused any miscarriage of justice to either of the parties rather left an open battlefield for both the sides to prove their rights over the disputed properties by producing their respective evidence.
10. Learned counsel for the petitioners has failed to point out any illegality or irregularity in the impugned judgment which needs no interference by this Court in its Constitutional jurisdiction.
Resultantly, this petition being without any substance is dismissed in limine. in limine