' MALIK MANZOOR HUSSAIN, J.---By this single and consolidated judgment, this court shall decide three petitions bearing C.M. No,234-A/2014, C.M. No, 235-A of 2014 and C. M. No,236-A of 2014 under section 12(2) of Civil Procedure Code, 1908 filed by present petitioners praying for setting aside the decrees passed in three pre-emption Suits No,51/1, 52/1 and 53/1 titled "Muhammad Aslam and others v. Abdul Qayyum, firstly by the trial Court on 13-2-1973, which were set aside by the Appellate Court vide judgment dated 11-3-1974, however, finally this Court accepted Civil Revisions Nos. 320, 321 and 322 of 1974 filed by predecessor-ininterest of respondents vide judgment dated 2-7-1978.
2. Before proceeding further, it is necessary to mention here that the honourable Supreme Court of Pakistan, while deciding Civil Petition Nos.692 & 693 of 2010, wherein, the present respondents impugned the judgments of this Court passed in Civil Revisions Nos.342/2009 and 341/2009, respectively, has finally concluded vide order dated 14-9-2011 that:-- "We have no doubt that the applications under section 12(2) C.P.C. For setting aside the judgments and decrees passed in the present suits ought to have been filed before the High Court which passed the final decrees in view of the modification made by it in the decrees of the Trial Court, and further amendment in its review jurisdiction Additionally, the resolution of the question arising in the judgments impugned in these two petitions for leave to appear are interconnected with those raised in the applications under section 12(2) C.P.C. It will be proper that all the matters be now finally decided by the High Court together. Thus, to curtain litigation for the, resolution of the controversy regarding filing of applications under section 12(2) C.P.C, we hold that it is only the High Court which can entertain the said applications.
8. In view of the above discussion, we convert these petitions into appeals and allow the same.
The impugned judgments of the High Court are set aside and cases are remanded to the High Court where Civil Revision Nos.341 and 342 of 2010 shall be deemed to be pending. The applications under section 12(2) C.P.C. Filed by the respondents against the judgments and decrees in the pre-emption suits and the execution proceedings shall be treated as having been filed before the Abbottabad Bench of the Peshawar High Court and be decided on merits alongwith Civil Revisions No, 341 & 342 of 2010."
(Emphasis provided)
3. In view of aforementioned background, it is also necessary to point out that all the three petitions under section 12(2) C.P.C. Initially filed before Civil Judge-VI, Abbottabad were consdlidated and subsequently decided vide single judgment dated 25-9-2008. The said judgment of the trial Court was impugned in Civil Revision, which was dismissed being time-barred vide order dated 14-4- 2009. However, this Court while allowing Writ Petition No,224 of 2009, set aside the said judgment and remanded the case back to the learned revisional Court below for decision afresh on merits.
After remand, the learned revisional Court below allowed the revision petition and set aside the decision of the learned trial Court dated 25-9-2008 vide judgment dated 23-11-2010. The said judgment of the Revisional Court has been impugned in Writ Petition No,101-A/2011 titled Mst. Salma Bibi and others v. Muhammad Ayaz and others, filed by the petitioners which has now become redundant and infructuous, in view of the aforementioned order/direction of the honourable Supreme Court of Pakistan dated 14-9-2011. Thereafter, the present petitions have been registered in this Court on the aforementioned numbers.
4. The brief and essential facts leading to the present petitions are that Muhammad Aslam, predecessor-in-interest of respondents filed Suits bearing. Nos.51/1, 52/1 and 53/1 of 1972 on 4-3- 1972 for possession through pre-emption in respect of land bearing 'Khasra'. Nos. 478, 486, 477, 479, 480, 489, 181, 488 measuring 17 'Kanals' 13 'Marlas' situated in 'Mauza Kokal' to the extent of 1/5 share alongwith share in 'Shamilat' or whatever area through Mutation No,3637 dated 15-7-2001 was proved to have been transferred on payment of Rs,200 in favour of Abdul Qayyum son of Muhammad Ismail Caste Awan, resident of village 'Kokal', Tehsil Abbottabad (Subject matter of Suit No,51/1), suit for possession through possession in respect of 'Khasra' Nos.486 measuring 4 'Marlas in colunm of cultivation, situated in 'Mauza Kokal', Tehsil Abbottabad or whatever area was proved to have been transferred through Mutation No,3599 dated 3-3-1971 on payment of Rs,4 in favour of Abdul Qayyum son of Muhammad Ismail, Caste Awan, resident of village 'Kokal',' Tehsil Abbottabad (Subject-matter of Suit No,52/1) and suit for possession through pre-emption in respect of 'Khasra'
Nos.477, 479, 480 measuring 4 'Kanals' 9 'Marlas' in the column of cultivation, through Mutation No,3596 dated 3-3-1971 and possession of land through pre-emption including share in 'Shamilat' in respect of 'Khasra' Nos.477, 486, 477, 479, 480, 489, 1381 measuring 10 'Kanals' 7 'Marlas' to the extent of 1/10 share and 'Khasra' No,488 measuring 7 'Kanals' 6 `Marlas' to the extent of 1/2 share or whatever area was proved to have been transferred through Mutation No,3597 dated 3-3-1971 on payment of Rs,1,200, situated in 'Mauza Kokal' transferred to Abdul Qayyum son of Muhammad Ismail, Caste Awan, resident of Village 'Kokal', Tehsil Abbottabad, predecessor-in-interest of the present petitioners (Subject-matter of Suit No,53/1). The said suits were contested by Abdul Qayyum by filing written statement and subsequently, all the three suits were decreed by the learned trial Court in favour of predecessor-in-interest of the respondents vide judgment and decree dated 13-2-1973. Appeals filed thereagainst on 29-5-1973 by Abdul Qayyum, predecessor petitioners were allowed and in consequence thereof all the three suits were dismissed vide judgment and decree dated 11-3-1974. Thereafter, Muhammad Aslam, the predecessor-ininterest of respondents filed. Civil Revision Petitions No,320/74, 321/74 and 322/74, which were accepted vide single judgment dated 2-7-1978 and the suits were decreed this Court passed the decrees in favour of predecessor-in-interest of respondents by holding that:- "The result is that by accepting the revision petition the findings of the lower appellate Court is set aside and the petitioner is granted a decree for pre-emption in respect of all the Khasra Nos.
Including Khasra No,488 except 1381 which shall remain with the vendee.
' It is necessary to make it clear that some additions have to be made to the sale price to be paid in the two suits 51/1 and 53/1 giving rise Revision Petitions No,322/74 and 320/74 respectively for the reason that the trial Court had dismissed the petitioner's suit respecting Khasra No,488 and had given him a decree for Khasra No,1381 in both the suits. Neither of these Khasa Nos. Involved in Suit No,52/1 giving rise to Revision Petition No,321/74. The area preempted in two Suits 51/ and 53/1 respecting Khasra No,488 is 1 Kanal 18 Marlas and the price of this area according to the five yearly average comes to about Rs,248 whereas the area of Khasa No,1381 is 15 Marlas and its price according to Aust Pansala would come to about Rs,120. In view of the acceptance of the petitions.
Of the plaintiff as indicated above the plaintiff will have to pay Rs,248 as additional sale price deducting therefrom the price of Khasra No,1381 i.e, RS.128/. Thus, the plaintiff preemptor is ordered to deposit Rs,88 in Suit No,53/1 and Rs,48/40 in. Suit No,51/1 on or before the 7th of September, 1978, failing which the suits shall stand. Dismissed. The parties shall bear their own costs."
' The said judgment and decrees of this Court were upheld by honourable Supreme Court of Pakistan as reported in "Abdul Qayyum v. Muhammad Aslam' (PLD 1979 SC 807) vide judgment dated 13-5-1979.
' It is to be worth mentioning here that the decree holder/pre-emptor in pursuance to the direction of this Court deposited partial amount of Rs,40 instead of Rs,.48.40 in Suit No,51/1 and Rs,80 instead of Rs,88 in Suit No,53/1. The total amount deposited was Rs,120.
5. Thereafter, the pre-emptor/decrce holder filed Civil Review Petitions Nos.20, 21 and 22 of 1978 before this Court on 17-9-1978 for review of order dated 2-7-1978 passed in Revision Petitions No,320/74, 321/74 and 322/74 to the extent of modification in the area of 'Khasra' No,488 from 1 'Kanal' 10 'Marlas' to 5 'Kanals'. 2 'Marlas' and deposit of enhanced amount on the excess area.
Subsequently, in the said. Review Petitions, three applications dated 27-10-1979 were filed for compromise shown to be signed by Muhammad Aslam, pre-emptor/decree holder and Haji Abdul Jalil son of Haji Abdur Rehman, General attorney on behalf of Abdul Qayyum vendee/judgment debtor on the ground that physical possession of the disputed land as decreed by this Court vide judgment dated 2-7-1978, was handed over to the decree holder by the judgment debtor. In view of the statement of the parties and the compromise between them, the said review petitions were accepted vide order dated 24-11-1979.
6. The decree holder filed Execution Petitions Nos.16/10, 17/10 and 18/10 of 1980 on 15-4-1980 only to record satisfaction of the decree, as the possession of the disputed land had already been taken over by the decree holder from the judgment debtor. Thus, on the basis of a compromise statement dated 26-5-1980 the execution petitions were filed being fully satisfied.
7. Abdul Qayyum died in the year 1988. The present petitioners being legal heirs of Abdul Qayyum, judgment debtor filed the present three applications under section 12(2) C.P.C. Against Muhammad Aslam, predecessor-in-interest of the respondents, for setting aside the said decrees and execution petitions on the grounds that neither judgment debtor nor any of his general attorney namely Abdul Jalil were appeared before the Court on 26-5-1980 and the entire execution proceedings were based on fraud, misrepresentation, collusion on the strength of a fictitious, forged and fraudulent power of attorney which was never executed by Abdul Qayyum in favour of Abdul Jalil and that two orders passed on 26-5-1980 in the execution petitions were not signed by the presiding officer and lastly that the decree holder/pre-emptor failed to deposit the decretal amount before the target date fixed by this Court, therefore, the suit stand dismissed and the decrees become infructuous and no entry on the basis of said execution proceedings was made in the Revenue Record in favour of the decree holder.
8. The said petitions were contested by Muhammad Aslam, by filing written reply dated 14-11-1994 thereto. Based on the contesting pleadings of the parties, the following consolidated issues were also framed:- Whether the petitioners have got a cause of action?
' Whether the petition under section 12(2), C. P.C. In the three consolidated suits are within time?
' Whether the alleged power of attorney on the basis of which compromise was effected between the parties during the Course of execution proceedings, is a forged one?
(1)
(2)
(3)
(4) Relief."
9. Both the parties produced their evidence in support of their respective contentions.
10. Learned counsel for the petitioners contended that though pre-emptions suits were decreed in favour of Muhammad Aslam, predecessor-in-interest of respondents but the said pre- emptor/decree holder failed to deposit the amount as per direction of this Court before the date fixed i.e, 7-9-1978. It was further contended that deposit of amount as per direction of this Court was mandatory, failing which the suit of the pre-emptor stand dismissed. It was further contended that when the decree holder realized the ground reality, he preferred execution petitions and a fake attorney on behalf of predecessor-in-interest of the petitioners was introduced in order to protect the decrees already passed. The order sheets dated 17-5-1980, 26-5-1980 and the second order sheet of the same date also support the contention of the petitioners. It was further argued that on noticing the fraud, the petitioners being legal heirs of Abdul Qayyum deceased challenged the said decrees by, filing the present petitions under section 12(2), C.P.C.
11. Conversely, the learned counsel for respondents contended that power of attorney was duly executed by Abdul Qayyum, judgment debtor in favour of Abdul Jalil and the same has not been denied by said Abdul Jalil during his Court statement and only evasive denial was made, which amounts to admission of fact. It was further contended that date of getting knowledge of alleged fraud has not been given in the petition, as the decree was finally satisfied on 26-5-1980 and the present petition under section 12(2), C.P.C. Was filed on 14-2-1990 which was hopelessly time barred and lastly was vehemently concluded that the respondents have built up a school on the disputed property and were in possession thereof and with regard to payment of partial preemption amount, it was contended that the outstanding amount was paid outside the Court, therefore, the respondent/decree holder was not a defaulter.
12. Valuable arguments of learned counsel for the parties heard and the entire record thoroughly considered with their able assistance.
13. Perusal of record would reveal that petitioners in support of their claim produced Abdul Jalil (alleged attorney) as P.W.1 SOK Raja Zahoor as P.W.2, Patwari Halqa as P.W.3, Mushtaq Ahmed Muharir Mohafiz Khana General as P.W.4 and Abdul Baqi one of the petitioners as P.W.5.
14. The respondents in support of their contention examined Record-keeper of education department as R.W.1, Assistant. Lineman WAPDA as R.W.2, Patwari Halqa as R.W.3 and Muhammad Afzal special attorney as R.W.4. One Duryaman, Civil Nazir, Senior Civil Judge, Abbottabad was examined in rebuttal and his statement was recorded as APW.1.
15. First we take up issue No,3. In order to prove this issue the petitioners produced Abdul Jalil in whose favour alleged power of attorney was executed. This witness categorically denied existence of any power of attorney in his favour and also his appearance as attorney in the execution proceedings. The power of attorney is available on the file. Perusal of the same reveals that the original stamp paper bearing No,1508 dated 6-7-1978 was not purchased by Abdul Qayyum son of Muhammad Ismail but it appears from the entry that it was purchased by someone else and later on through cutting the name of Abdul Qayyum son of Molvi Ishaq was substituted. Here it is pertinent to note that the name of original vendee/judgment debtor was Abdul Qayyum son of Muhammad Ismail and not Abdul Qayyum son of Molvi Ishaq. Similarly, the signature of Abdul Qayyum appearing on this power Dr attorney does not tally with the admitted signatures of Abdul Qayyum appearing on summons dated 17-4-1978 (Exh. P. W . 5/12) in the original suit as well as the signature appearing on 'Acknowledgment Due Card' (Exh.P.W.5/14) exhibited in the original trial.
Same is the position of the signature of judgment debtor appearing on 'Vakalatnama', placed on the original file as (Exh.P.W.5/13). The difference is so much apparent that there is no need to send the same for expert opinion.
16. The attested copies of order sheets of Original Execution. Petitions bearing No,16/10, 17/10 and 18/10 filed on 15-4-1980 are available on file, which reveal that on the same date notices were issued to the judgment debtor for 17-5-1980. On 17-5-1980 it was Note Reader, however, the case was adjourned to 26-5-1980. It appears that 16-6-180 was changed by overwriting into 26-5-1980.
The said order sheets and execution petitions are available on record as. 'Annexure-O'. On 26-5- 1980, in the first instance, counsel for the decree 'holder was present and the judgment debtor was reported to be employed at Lahore. The decree holder was directed to submit correct address of the judgment debtor within three days and case was adjourned to 21-6-1980. However, in the subsequent second order sheet of the same date i.e, 26-5-1980, presence of the Decree Holder and the Attorney of Judgment Debtor was marked and all the execution petitions were shown to have fully satisfied after recording statement of Decree Holder and Attorney of Judgment Debtor. The said order sheet was not in the handwriting of the learned Presiding Officer and also does not bear the signature of Presiding Officer. The date of said order sheet also appears to be over written.
17. All the above mentioned facts are more than sufficient to hold that neither the stamp paper, whereupon the alleged power of attorney was scribed, was purchased by Abdul Qayyum son of Muhammad Ismail nor said Abdul Qayyum judgment debtor put his signature thereon, therefore, when the same were denied by even Abdul Jalil, the alleged attorney holder, the burden of proof was shifted to the beneficiary of the same, which the respondents failed to rebut through cogent and reliable evidence. Not a single witness has been produced by the respondents in order to prove the authenticity of alleged power of attorney and in absence of the same no authenticity could be attached to the same. Similar is the case with the order sheets of execution petitions. The order sheets of the execution petitions not only reflect the fact that there were cutting and missing of signatures of presiding officer on the final order sheets, whereby compromise was shown to have been effected between the parties but the cutting in the dates of hearing also supports the version of petitioners about the authenticity of compromise. In view of what has been discussed above, this issue is decided in affirmative in favour of petitioners and against the respondents.
18. Now we take up issue No,2 with regard to the question of limitation in respect of applications filed under section 12(2), C.P.C. There is no denial of the fact that Abdul Qayyum was residing at Lahore for earning of his livelihood and he died there in the year 1988. After his death his inheritance devolved upon the petitioners and from the record of deceased it transpired that some decrees were passed in favour of Muhammad Aslam/pre-emptor and some suits were also pending against Abdul Qayyum deceased. P.W.5 Abdul Baqi was the person who inquired the matter from Courts and Patwari Halqa and got knowledge about the decree and its execution.
Though no Specific date has been given in the applications or in the statement of Abdul Baqi but on one point the statement of this witness is consistent and un-rebutted that all the queries were made after the death of Abdul Qayyum and after procuring the record, they immediately filed application under section 12(2), C.P.C.
19. To challenge the decree under section 12(2), C.P.C. There is no specific provision in the Limitation Act or in C.P.C. Wherefrom the period of limitation to challenge the decree could be ascertained. It is consistent view of superior Courts that the residue Article 181 of Limitation Act was made applicable in such B like cases. It is also consistent view of this Court as well as that of apex Court that fraud vitiates even solemn proceedings and the period of limitation to challenge the decree starts from the date of knowledge. Reliance can be placed on the famous judgment reported in the case titled 'Allah Bakhsh and others v. Mst. Irshad Begum and others' (1986 SCM R 1496). Wherein the apex Court has held as follows:-- "The petitioners have now come to this Court seeking leave to appeal against the impugned order on the grounds that the application of the respondents under section 12(2), C.P.C. Was barred by time In normal condition, Article 14 of Limitation Act would apply which prescribes one year period for setting aside decree but according to 1983 CLC 1590 and PLD 1985 Peshawar 23, residue Article 181 of the Limitation Act has been made applicable wherein a period of three years has been prescribed for proceedings under section 12(2) C.P.C. ... It had been found as regards issue No,4 that the said decree was secured by the petitioners through fraud and misrepresentation and this finding is not exceptionable. This being so the limitation would start running from the date when the fraud became known to the respondents as provided in section 18 of the Limitation Act."
20. It is an undisputed fact that Abdul Qayyum died in May, 1988 and if the alleged fraud was surfaced in the year 1988 then the application under section 12(2), C.P.C. Could have been filed within three years. As per record the petition was filed after one year and ten months of death of Abdul Qayyum and the same was well within time.
21. Since, the petitioners are the legal heirs of Abdul Qayyum and are direct affectees of alleged fraud made through compromise in execution petitions, therefore, they have got a cause of action and their applications filed under section 12(2), C.P.C. Are maintainable.
22. The judgment passed by this Court whereby the suit for pre-emption decreed in favour of Muhammad Aslam was maintained up to worthy Supreme Court would have been effective only when the decree holder have deposited the amount on or before the date fixed i.e, 7-9-1978, failing which, as per order of this Court the suit shall stand dismissed. There is no denial of the fact that the decree holder failed to deposit the entire amount fixed by this Court rather he has deposited a deficit amount as mentioned hereinbefore. It is by now well settled that in pre-emption cases, if the .Decree holder failed to deposit the amount fixed by the Court, the suit would be dismissed and there left no power with the Court passing the decree to amend the order regarding deposit of amount or to allow the decree holder to make the deficiency good after the target date. There are more than one cases, wherein the decree was set aside on the basis of failure to deposit of total amount. In the reported case of 'Muzaffar v. Ali Khan and 3 others' (1989 CLC 2342) only 4 paisa was short deposited and in consequence thereof suit was dismissed. In the said judgment, it was held by this Court that:- "In support of his arguments the learned counsel for the respondents "produced 80 Indian Cases 416 wherein Broadway, J. Of the Lahore High Court in. Wali Mohammad and others v. Kapuria Mal and others took the view that where after the pre-emptor/decreeholder had obtained possession of the pre-empted property, it was discovered that pre-emption money had been short paid by one rupee, the vendee was found entitled to the restoration of the property. In taking this view, his Lordship relied on a decision of this Court in Kanhaya Lal v. Muhammad Shaft Khan 141 P.L.R. 1913, wherein pre-emption price was short paid by one arena only and the Court had ruled that it was not a full payment and the possession of the land was restored to the vendee. This view of the Court was further approved in Rehmat Khan and others v. Nawab Khan. AIR 1925 Lahore 91.
In the present case as observed above the petitioner/decree-holder had deposited Rs,2,368/12 instead of Rs,2,368/16, therefore, he 'had not complied with the order of the learned trial Court and his suit was rightly dismissed by the learned Civil Judge vide is order dated 5-5-1983. The petitioner knew full amount and it was his duty to have deposited the full amount. The learned Civil Judge, no doubt, had passed the order for the deposit of Rs,368/12 instead of Rs,368/16 but it was on the report of the Moharrir Civil Court and it was a bona fide mistake on the part of the learned Civil Judge and the petitioner cannot take benefit out of it. Besides it the petitioner did not make any attempt by filing an application for permission of the Court to deposit the small amount of four paisa no he has applied for the condonation of delay. In view of the authority cited above I find myself in complete agreement with the learned Judges below. Their judgments besides being legal are also just. No interference is called for. In result civil revision fails and is dismissed with no orders as to costs."
' In the case in hand, as mentioned hereinbefore, in Suit No,53/1 direction was issued to the decree holder to deposit a sum of Rs,88 before the target date, whereas he deposited only Rs,80 and in the second Suit No,51/1 the direction was issued to deposit Rs,48.40 but only Rs,40 were deposited. The register of deposit was produced in Court by Duriyaman, Civil Nazar (RW-1) and was exhibited as Exh.RW1/1, wherein only Rs,80 plus 40 were deposited and in the column of total, an amount Rs,120 was shown deposited as 'Zar-e-Shuffa' . As the decree holder has failed to deposit the total amount before the target date therefore, all the suits decreed in favour of the predecessor of the respondents stand dismissed. No doubt, the decree passed in favour of decree holder was maintained by the apex Court but the same lost its effectiveness due to the fault of decree holder himself. Though the decree holder was smart enough to coop up, with the situation through procuring the power of attorney and thereafter filing an execution proceeding but a man can tell lie and not the document. The record of executing Court and particularly the order sheets does not support his version.
23. In the light what has been observed above, the applications filed under section 12(2), C.P.C. Are allowed and in consequence thereto the decrees passed in Suit Nos.51/1, 52/1 and 53/1 and Civil Revision No,320/1974, Civil Revision :10.321 of 1974 and Civil Revision No,322/1974 and the execution proceedings in question are set as do the pre-emption suits filed y Muhammad Aslam, 'predecessor-in-interest' of the present respondents stand dismissed. Parties are however left to bear their own costs.
24. Office is directed, to send copy of this detailed judgment along with copies of all the three petitions and short orders in the connected petitions to the Record Room of the lower Court for the purpose of record, as earlier the files of all the petitions were consigned there by giving them General Number etc.