' SHAH JEHAN KHAN AKHUNDZADA, J.---Mst. Roshan Ara Begum, petitioner herein seeking a decree for declaration and possession in respect of Mutation No.7096 attested on 15-5-1985 vide which her own land measuring 763-kanals 1 marla situated in Mauza Gojar Garhi District Mardan fully described in the heading of the plaint had been alienated by way of gift in favour of her minor daughte Mst. Rabia Begum. In the plaint, she denied the factum of attestation of the said mutation.
The suit was contested by Mst. Rabia Begum through one Muhammad Ali, as her special attorney by filing written statement. On 6-5-2004, learned counsel for the petitioner then plaintiff submitted an application/compromise deed to the effect that the matter has been patched up privately between the parties and that the defendant has no objection if the suit is decreed in favour of plaintiff against the defendant as per compromise between the parties. Joint statement of Noor Zada, attorney for the plaintiff (petitioner herein) and Muhammad Ali, attorney for the defendant (Mst. Rabia Begum) was recorded on the back of the said compromise deed and on the basis of it the suit was decreed in favour of plaintiff (petitioner herein) against the defendant (Mst.Rabia Begum) vide judgment and decree of the learned Civil Judge, Mardan dated 6-5-2004.
2. Subsequently, Mst.Rabia Begum due to cancer expired in Al-Shifa Hospital, Islamabad on 8-8- 2009 and thereafter on 24-10-2009 Syed Javed Ali husband of Mst.Rabia Begum and her two sons (respondents Nos.1 to 2 herein) filed an application under section 12(2) C.P.C. For setting aside judgment and decree dated 6-5-2004 passed in civil Suit No.145/1 on the ground of fraud and misrepresentation. The said application was resisted by the petitioner. In the light of the divergent pleadings of the parties, the learned trial Court framed as many as eleven issues including the relief. After recording pro and contra evidence and hearing of the learned counsel for the parties, the learned Civil Judge-I, Mardan vide his. Judgment and decree dated 26-3-2012 granted the following relief:- "In light of my above issue-wise discussion, the impugned judgment/decree dated 6-5-2004, is hereby set aside. The subsequent Mutation No. 1981 in favour of respondent No.1 on the strength of impugned judgment is also set aside with the direction to the Revenue Authorities to restore the subject property in the name of late Mst.Rabia Begum daughter Of Muhammad Arif Khan.
Application in hand stands accepted accordingly. Suit No. 145/1 is restored, however, as late Rabia Begum is now dead and the plaintiff Mst. Roshan Ara Begum of Suit No.145/I as well as Muhammad Arif Khan being mother and father while the present petitioner No.1 as husband while petitioners Nos.2 and 3 as children also qualifies as legal heirs of late Mst. Rabia Begum, therefore, after such changing of legal status of the parties it is desirable that plaintiff Mst. Roshan Ara Begum be allowed to file a fresh suit with the opportunity to implead all the necessary parties and that whether she claims any relief as legal heir of Mst. Rabia Begum (late) as alternative relief or not, so that, for the end of justice the matter in controversy between the parties should be resolved once for all, Suit No.145/1 also is hereby dismissed as withdrawn with the permission to file fresh suit. Copy of this judgment be placed on file No.145/1 for ready reference. Parties are left to bear their own costs. File be consigned to record room after its completion."
3. Feeling aggrieved of the above judgment and .Decree of the learned trial Court, the petitioner filed an Appeal bearing No.39/13 of 2012 and vide judgment and decree dated 29-5-2013 the learned Addl. District Judge-VII, Mardan dismissed the appeal with certain modifications in the following manner:- "Resultantly, the appeal in hand is dismissed as being without any force and the impugned judgment and order is kept maintained with the modification that suit of the appellant/plaintiff shall be deemed pending on file of the learned trial Court and the appellant/plaintiff shall file amended plaint, by impleading all the legal heirs/ representatives of the deceased defendant (Mst. Rabia Begum and the learned trial Court shall proceed with the same in accordance with law. Parties are, left to bear their own costs."
4. Now, the petitioner has challenged the concurrent findings of both the courts below through the instant revision petition.
5. I have heard the learned counsel for the petitioners at some length and have perused the available record.
6. Perusal of the' impugned judgments and orders of both the courts below reveals that Mst.Roshan Ara Begum is the mother of Mst.Rabia Begum, while defendant Case No.145/1 filed by petitioner is plaintiff. There is nothing on the record to show that Mst. Rabia Begum had ever been served personally in the above suit, though a_ written statement has been filed by her attorney Muhammad Ali who was the servant of the present petitioner. Later on, a written compromise Exh.PA was presented by the petitioner through her attorney Noor Zada as well as Muhammad Ali, attorney for Mst. Rabia Begum and on the back of the said compromise deed joint statement of both the special attorney was recorded and on the basis of said statement the suit was decreed in favour of the present petitioner. The petitioner has not produced the said Muhammad Ali, special attorney of Mst. Rabia Begum to confirm his thumb-impression on the compromise deed as well as on the statement recorded thereon. Noor Zada, respondent No.6 has appeared as RW-1 and has shown himself as special attorney for the petitioner as well as Muhammad Ali respondent No.4. He has categorically admitted in his cross-examination that he cannot produce any witness to prove that Mst. Rabia Begum had signed the power of attorney or that she had any knowledge of pendency of the said suit against her. He further stated that he cannot produce any person to prove the signature of Mst.Rabia Begum on the special power of attorney. Furthermore, neither .The scribe, marginal witnesses nor the attester (oath commissioner) have been produced by the petitioner to prove the special power of attorney in favour of Muhammad Ali by Mst. Rabia Begum.
' In the light of the above materials placed on file, it is clear that Mst. Rabia Begum has not been personally served in the previous suit and she has also no knowledge about its pendency and she has A never given any power of attorney to Muhammad Ali, the alleged attorney, therefore, the judgment and decree, dated 6-5-2004 passed on the basis of compromise in favour of the petitioner against Mst. Rabia Begum is the result of fraud and misrepresentation on the part of the petitioner and the same was rightly set aside by the two courts below. Learned counsel for the petitioner has failed during the course of arguments to point out any illegality or irregularity in the concurrent findings of both the learned Courts below. Both the learned lower Courts below have neither exercised its jurisdiction not vested in it by law nor have failed to exercise jurisdiction so vested in it by law nor in the exercise of jurisdiction have acted illegally or with material irregularity, therefore, in view of the above discussion, I find that the judgments and decrees of both the learned Courts below are well-founded and thus needs no interference of this Court in exercise of its revisional jurisdiction, because judgments of both the courts'below neither suffer from miscarriage of justice nor are the result of misreading or non-reading of evidence on record.
Hence, revision petition in hand, being devoid of force, is dismissed in limine with C.M. No.727-P of 2013.