KHADIM HUSSAIN M. SHAIKH, J.---- Both the captioned matters, involving the same properties between the same parties, are being decided by this common judgment. Through the captioned application MA-No.52 of 2009 under section 12(2), C.P.C., the applicants/intervenors Province of Sindh and others for setting aside the judgment dated 06.08.1995, and decree dated 5.9.1995 passed by this Court in the above Appeal No.04 of 1982 re: Khalifo Haji Muhammad Hanif v. Khalifo Haji Ghulam Hussain , whereby this Court allowed the appeal and decreed the Suit No.77 of 1979 renumbered as Suit No.62 of 1980 re: Khalifo Haji Muhammad Hanif v. Khalifo Haji Ghulam Hussain for specific performance of contract, which was dismissed vide judgment dated 26.10.1982 and decree dated 6.11.1982, passed by the learned Senior Civil Judge, Thatta, on the ground that the same were obtained by misrepresentation and fraud.
2. Briefly , the facts of the case are that the parties to the suit namely Khalifo Haji Muhammad Hanif and Khalifo Haji Ghulam Hussain, who were brothers inter se, have since died and they are now through their legal representatives.
The case of the plaintif f as averred is that he and the defendant owned 50% share each in the suit properties i.e. Shah Yaqiq Rice Mill, plots, offices, godowns and shops, situated at Chuhar Jamali, District Thatta, including machineries and good will etc. It is alleged that on 04.6.19.75 the defendant agreed to sell his 50% share of the suit properties to the plaintif f for a consideration of Rs.300,000/- and the defendant had received Rs.20,000/- and put the plaintif f in possession of his 50% share in the suit properties. It is further alleged that the defendant had received amount towards the part payment of the sale contract from the plaintif f from time to time and he received the total amount of Rs.2,31,568/- till 06.11.1978. As the defendant did not execute sale deed, hence the plaintif f filed the subject suit. The defendant filed his written statement wherein he denied the allegations and claims of the plaintif f. He specifically denied to have sold the suit properties to the plaintif f; receipt of Rs.20,000/- alleged by the plaintif f; putting the plaintif f in possession of his share in the suit properties; receipt of Rs.231,568/- alleged by the plaintif f. He has further stated that the parties being real brothers jointly owned the properties including the suit properties which were being looked after by the plaintif f being his elder brother . He further claimed to have spent Rs.1,02,000/- on account of the plaintif f in the criminal case against him and his sons which amount was not paid to him. It is further averred that the plaintif f had agreed to purchase 25 acres of agricultural land in deh Chuhar Jamali along with its water pumping machine from the defendant for which, he had paid some amount under the receipts, but later on the plaintif f backed out from that transaction and took away the water pumping machine belonging to the defendant; that the plaintif f has appropriated lac's of rupees of the share of the defendant from the joint properties looked after by him (the plaintif f), who has filed false suit in order to compel the defendant to forego his claim; and, that the power of attorney was given in good faith to the plaintif f to lease out the suit properties, which power was subsequently revoked. The defendant had denied the existence of any contract regarding the sale of the suit properties and cause of action to the plaintif f to file the subject suit.
3. On the pleadings of the parties, the learned trial Court framed the following issues:-
(1) Whether on 4.6.1975 defendant Ghula m Hussain agreed to sell Ins half share in the suit property mentioned in para 2 of the plaint, to plaintif f Muhammad Haneef for a consideration of rupees three lacs?
(2) Whether in part performance of the said agreement dated 4.6.1975 the defendant received from the plaintif f Rs.20,000/-as earnest money and put the plaintif f in possession of the share of suit property agreed to be sold?
(3) How much amount was in all paid by the plaintif f to the defendant during the period 4.6.75 to 4.10.78 and whether that amount was paid in due performance of the agreement dated 4.6.1975?
(4) Whether the defendant is liable to execute sale deed in respect of his half share in the suit land, in favour of plaintif f on receiving from him an amount of Rs.68,425/-?
(5) What should the decree be?
4. The plaintif f examined himself at Ex.35 and produced photocopies of the sale deed dated 22.12.1972 at Ex.36, chits and receipts at Exs.37 to 56, power of attorney at Ex.57, Notice at Exs.58 and 59, Envelops at Exs.60 and 61; witnesses Eddo at Ex.66, Abdul Rahim at Ex.67 and then closed his side vide statement at Ex.68.
5. The defendant examined himself at Ex.83, who produced the certificates Exs.84, 85 and 86; two receipts at Exs.87 and 88, copies of Form II at Ex.89; Village Form at Exs.90, 91 and 92; Haq Yadashat at Ex.93; village Form at Ex.94; application at Ex.95, F.I.R at Ex.96; statement showing the amount of expenditure at Ex.97; publication of threat dated 23.12.1978 at Ex.98; witnes s Sattar Dino at Ex.99; LTIs at Ex.101; and, then closed his side vide statement at Ex,102.
6. On the conclusion of the trial and after hearing the parties, the Court of Senior Civil Judge, Thatta vide judgment dated 26.10.1982 and decree dated 6.11.1982, dismissed the suit of the plaintif f/appellant. The penultimate paragraph of the said judgment dated 26.10.1982, passed by the learned trial Court, which is relevant, is reproduced here for the sake of convenience: "From the perusal of details mentioned in the above document it would appear that it does not speak a word about the suit property as claimed by the plaintif f, on the contrary it is obvious from this receipt that Rs.12000/- are said to have been paid towards the price of machine and Rs.8000/-is share of sale proceeds of papitas. This document cannot be termed as sale agreement amounting to a contract regarding right to a relief capable of being enforced as contemplated under section 53-A of Transfer of Property Act. Indeed to take benefit of doctrine of part performance the plaintif f must prove the existence of valid contract in writing which the plaintif f has failed to bring on record and therefore is not entitled to the relief as claimed by him. I am therefore, of the considered view that defendant did not agree to sale of share in the suit property on 4.6.1975 to the plaintif f for a consideration of Rs.3,00,000/- nor the amount Rs.20,000/- paid on the day was earnest money and claimed by the plaintif f. The defendant have been getting his share of the rent from shops etc and half of the lease amount of Rs.22000/-yearly from Narian Das, this fact has been admitted by the plaintif f in his cross examination, none of the parties is in the physical possession neither the plaintif f or defendant. Both are admittedly in constructive possession of the suit property according to 50% share. Hence I am also of the view that at no stage the plaintif f came into exclusive possession of the suit property . The receipts Exs.37 and 48 speak about only payment of amount by plaintif f to the defendant whereas Ex.37 is already discussed, similarly receipt No.48 further qualifies the amount to have been paid towards sale price of machine as claimed by the defendant that he had agree d to sale agricultural land along with water pumping machine from which agreement the plaintif f went back and in consideration of the amounts paid took away water pumping machine to me it appears that the plaintif f has tried to misuse the receipts executed by the defendant towards payment of the price of the machine (Water pumping Machine situated in agricultural land), which the plaintif f had agreed to purchase for a sum of Rs.300,000 and also the share from the sale proceeds of the agriculture products jointly owned by the parties and managed and looked after by the plaintif f and therefore, the plaintif f had not come with clean hands. Under the circumstances, it would be futile to calculate the amounts paid from 4.6.1975 to 4.10.1978 since the amounts were not paid towards performance of an agreement as claimed by the plaintif f. As such the defendant is not liable to execute sale deed in respect of his half share in suit land in favour of plaintif f, and the question of receiving the balance amount alleged by the plaintif f does not arise."
7. Being aggrieved by the aforesaid judgment and decree passed by learned trial court, the plaintif f/appellant preferred the captioned appeal, which was allowed and the judgment and decree passed by the learned trial Court were set-aside and the suit filed by the plaintif f/appellant was decreed with costs subject to deposit of balance amount of Rs.1,15,900/- within a period of thirty (30) days from the date of decree vide impugned judgment dated 6.8.1995, passed by this Court.
8. It is, inter alia, contended by the learned Addl. A.G. that the judgment dated 06.08.1995 and decree dated 5.9.1995, passed by this Court were obtained by misrepresentation and fraud by concealing the real and material facts, per him, both the parties i.e. the plaintif f and the defendant had no right and title over the subject properties namely the Rice Mill admeasuring 142000 sq. ft, eight shops, twelve godowns and open plot admeasuring about 51000 sq. ft. and sikni survey Nos.76, 79 and 80 admeasuring 426888 sq. ft etc. which are the government properties; that neither the Province of Sindh nor any government functionary was party to the suit and the appeal as well, therefore, impugned judgment and decree are not binding upon the applicants/ interveners Province of Sindh and others, which were even not in knowledge of the applicants/interv eners; that sikni land bearing S.Nos.76, 79, 80 in the subject suit along with S. Nos. 75, 77 and 93 situated in deh Chouhar Jamali being the State land was reserved for expansion of town Chouhar Jamali by the Government of Sindh since 1940-41; that plaintif f Khalifo Haji Muhammad Haneef, defendant Khalifo Haji Ghulam Hussain and one Teekumdas in connivance of the revenue staff got prepared bogus and forged entry and they then fraudulently prepared the sale deed dated 22.12.1972, purportedly executed by Teekumdas for self and on behalf of Harendar Kumar and Aneel Kumar as their attorney , in favour of the plaintif f and the defendant, showing their equal shares in the properties.
Learned Addl. A.G., referring to the contents of the photocopy of the said sale deed, produced before trial Court at Ex.36 and mutation entry No.534/80 in the revenue record, submits that the sale deed is also a tampered document, wherein by interpretations sikni S.Nos.76 and 79 etc were inserted later on with different ink; that Haji Muhammad Haneef filed the subject suit for Specific Performance of Contrac t against Khalifo Haji Ghulam Hussain, which was dismissed by the learned trial Court, as there was no existence of agreement of sale in respect of the properties in suit; that while passing the impugned judgment dated 6.8.1995 and decree dated 05.9.1995, by this Court, allowing the appeal and decreeing the suit, the aforesaid aspects relating to the tampering in the sale deed and unfounded mutation entry and claim of ownership of the parties to the suit and appeal, were neither brought on the record nor were pin pointe d or pleaded by the parties purposely; that the applicants/interveners first time came to know about the learned judgment and decree when the summons in suit being F.C. Suit No. 13 of 2006 re: Nazir Ahmed and others, (the legal heirs of Khalifo Ghulam Hussain) v. Province of Sindh and others including Ahmed and others, (the legal representatives of Khalifo Haji Muhammad Haneef ) along with the copies of the plaint etc. were received in their offices. And after having come to know about it, the applicants/interveners i.e. the Province of Sindh and its concerned officers, have filed this application under section 12(2), C.P.C. on 06.10.2008 within two years of gaining the knowledge, which per him, is well within time as the period of filing such application for a person, who was not party to the proceedings, is three years from the date of gaining knowledge of the impugned judgment, order or decree , as the case may be, under Article 181 of Limitation Act. He, therefore, prays that the impugned judgment and decree obtained by misrepresentation and fraud without any valid title document in respect of the subject properties, may be set aside. Learned Addl: A.G. has placed his reliance on the cases of 1993 SCMR 662, 1993 SCMR 2096 , 1994 SCMR 782, 1994 CLC Lahore 1135, 2015 CLC (Sindh) 1157, 2015 CLC Peshawar 931, 1984 SCMR 586, 1993 SCMR 662, PLD 1989 SC 532, PLD 2012 Sindh 293, PLD 1989 SC 687, PLD 2001 Lahore 149, PLD 2010 SC 745, 2007 SCMR 459, 2007 SCMR 729, PLD 1963 SC 09, PLD 1985 SC 345, PLD 2002 Karachi 511, PLD 2010 Karachi 261, PLD 2006 Karachi 444, PLD 2012 Karachi 293- 473, PLD 2017 Karachi 678, 2013 SCMR 338 , 2012 CLC 4 , 2001 SCMR 396 and 1989 SCMR 640 .
9. Conversely , Mr. Jhamat Jethanand, learned advocate for the petitioners in the petition/the LRs of the deceased appellant Khalifo Haji Muhammad Hanif in the appeal, has mainly contended that Government has no concern with the suit properties; that prior to 1947 Heeman Das Karmal Karani Rice Mill Chouhar Jamali constructed over plot admeasuring 1,42,000, a plot 51000 sq. feet and the adjoining sikini land bearing S.Nos. 76, 79 and 80 all situated in Deh Chouhar Jamali, were owned by Teekamdas, Hirandar Kumar and Aneel Kumar , who executed registered sale deed dated 22.12.1972 in favour of appellant/plaintif f Khalifo Haji Muhammad Hanif and the respondent/defendant Khalifo Haji Ghula m Hussain for consideration, putting them in possession of the said properties and then the record of rights was mutated vide entry No.534/180 in Deh Form-II in their favour; and, that the application filed by the applicants/ Interveners is time barred. He has further contended that FC suit No.13 of 2006 filed by Nazir Ahmed and others, the legal representatives of deceased Khalifo Haji Ghulam Hussain, is hit by principle of res judicata as the plaint of the earlier suit bearing F.C. Suit No.28 of 2005 filed by them was rejected by the learned trial court; and, that the said suit is also time barred, but the learned trial court as well as Revisional Court without considering such aspects of the case have dismissed the application under Order VII, Rule 11, C.P.C. and the civil revision application, both filed by the petitioners/LRs of the appellant, vide order dated 23.8.2006 and order 16.8.2008 respectively , which have been impugned in the captioned petition. He prays that the application under section 12(2), C.P.C. filed in the appeal may be dismissed and the impugned orders passed by the trial court and the Revisional Court, declining the rejection of the plaint of F.C, Suit No.13' of 2006 may be set aside and the plaint of the said suit may be rejected, by allowing the captioned petition. He has placed his reliance on the case of Muhammad Nawaz v. Additional District Judge and others (2002 MLD 507), Mst. Hajiani Khatija Bai and 8 others v.
Haji Dawood and 11 others (2003 MLD 828), Mst. Hameeda Shamim v. Deputy Commissioner , Karachi South, Karachi and 7 others (2003 CLC 53), Lahore Improvement Trust Lahore through its Chairman v. The Custodian, Evacuee Property , West Pakistan, Lahore and 4 others (PLD 1971 SC 811), Divisional Forest Officer , Afforestation Division, Sanghar at Khipro v. Khan through Legal Heirs and 10 others (2008 SCMR 442), S.M. Sohail v. Mst.
Sitara Kabir -ud-Din and others (PLD 2009 SC 397), Abdul Qadoos and others v. Additional District Judge, Rawalpindi and others (2005 SCMR 1428 ), Sardar Hussain v. Muhammad Azam Khan (PLD 2009 Lahore 347) and Muhammad Ali and others v . Province of Punjab and others (2009 SCMR 1079 ).
10. Learned counsel for the private respondents in the captioned petition/the L.Rs of deceased Khalifo Ghulam Hussain defendant / respondent in the appeal, has mainly contended that the private parties are joint owners of the properties in the suit and the petition, by way of inheritance from their respective predecessors-in-interest namely Khalifo Haji Muhammad Hanif and Khalifo Haji Ghulam Hussain, who had purchased the said properties from Teekamdas and others in the year 1972; that the principle of res-judicata is not applicable to the instant case, per him, the rejection of the plaint of earlier suit would not come in the way of the respondents/plaintif fs to file the fresh suit in view of Order VII, Rule 13, C.P.C; and, that the suit filed by Nazir Ahmed and others is also not time barred as the period of filing such suit is 6 years under Article 120 of the Limitation Act. He went on to argue that there was no agreement of sale between private respondents predecessor in interest name ly Khalifo Haji Ghulam Hussain and the petitioners' predecessor in interest namely Khalif Haji Muhammad Hanif; and, that the petitioners in connivance of the staff of Revenue department, have maneuvered Entry No.741 dated 19.02.2002 of Deh Form-H fraudulently as the said entry is entered in the Revenue record falsely showing the decision of the Hon'ble Supreme Court of Pakistan, which gave cause of action to the legal representatives of deceased Khalifo Haji Ghulam Hussain/the private respondents in the petition, who have filed the subject suit for declaration and permanent injunction.
11. Learned Additional Advocate General Sindh has contended that the learned trial Court as well as Revisional Court by declining the rejection of the plaint, have not committed any illegality .
12. We have considered the submissions of the learned Addl: A.G. Sindh and the learned counsel for the parties and have gone through the material available on the record.
13. From a perusal of the record it would be seen that the Government of Sindh has claimed the subject properties to be the State properties; the parties to the suit for specific performance of contract were related interse in that plaintif f Khalifo Muhammad Haneef was real brother of defendant Khalifo Ghulam Hussain; the properties in suit are the huge commercial and residential properties comprising of Rice Mills, seve ral shops, Godowns, open plots etc. measuring more than 650000 sq. ft. situated in Chuhar Jamali Town and are of the potential values; the plaintif f and defendant, who were the members of one and the same family , allegedly in connivance of Teekumdas and Revenue Staff got prepared bogus and forged entries in the Revenue record in their favour fraudulently . A perusal of a photocopy of sale deed dated 22.12.1 972, produced in evidence as Ex.36 available in R&Ps of the subject suit would reveal that the said sale deed, purportedly executed by Teekamdas for self and on behalf of Harendar Kumar and Aneel Kumar , who was shown minor aged 12 years, on the basis of a power of attorney shown to have been attested by Munawar Ali Khan Notari Public Karachi on 20.2.1971, in favour of Khalifo Haji Muhammad Hanif son of Khalifo Muhammad and Khalifo Haji Ghulam Hussain son of Khalifo Haji Muhammad, seems to be a tampered document, for survey Nos.76 and 79 and plot etc appear to have been inserted in the said alleged sale deed dated 22.12.1972 afterwards with different ink and different hand and very small size of words than all the other words of the said sale-deed, and that too without any authentication and/or signatures of the parties of the alleged transaction thereon. It further reveals that a photocopy of entry No.534 of deh Form-II, which is shown to have been kept on the basis of aforesaid alleged sale deed dated 22.12.1972, shows that rice mill, constructed over an area of 1,42000 sq ft, eight Paka shops, one shop located in Bazar on rent, 12 Godowns, one plot admeasuring 51000 sq ft on northern side near Agricultural land, sikini survey Nos.76, 79 and 80 admeasuring 4,26,888 sq ft were entered therein in the names of the plaintif f and the defendant, which is manif estly not in consonance with the said sale deed dated 22.12.1972, for the specific areas etc shown in the entry discussed above are not spelt out from the contents of registered sale deed dated 22.12.1972. Patently , both the parties namely plaintif f Khalifo Muhammad Hanif and defendant Khalifo Ghulam Hussain were beneficiaries of the aforesaid interpolations in the registered sale deed and the aforesaid properties shown in the alleged entry No.534 in deh Form-II, having claimed themselves to be the owners of the said properties in equal shares by way of purchase through the aforesaid tampered sale deed dated 22.12.1972 and none among them had pin pointed or pleaded such material variations and defects in the documents produced in evidence. Record further reveals that no title document of alleged Hindu sellers namely Teekamdas. Harendar Kumar and Aneel Kumar in respect of the aforesaid properties was produced in evidence; certified copy of the Entry No.60 of the Revenue Record, produced by the applicants/intervenors i.e. Province of Sindh and others along with the application filed as Annexure-F , available at pages 57-58 reveals that sikni land/plots bearing survey Nos.93, 75, 76, 77, 79 and 80 situated in deh Chuhar Jamali Tapo Chuhar Jamali Taluka Shah Bunder being State Land were reserved for expansion of Chuhar Jamali town from the year 1940/41.
Moreover , Entry No.741 of the Revenue Record, a copy whereof filed by the Judgment debtor along with his reply/objections, shows that the aforesaid properties were mutated in favour of the legal heirs of Haji Muhammad Hanif in pursuance of the decision of Hon'ble Supreme Court of Pakistan vide Order No.1035 dated 18.10.2001, but the matter of fact is that Civil Miscellaneous Application No.1035/01, filed in Civil Appeal No.1628 of 1995, seeking restoration of the said civil appeal, which was dismissed for non-prosecution on 24.01.2008, was dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 18.10.2001. Both the orders of the Hon'ble Supreme Court of Pakistan are reproduced here for the sake of convenience:- Date of hearing: 24.01.2001
"It is now 12:55 p.m. Case called thrice. None present for and on behalf of the appellant.
The appeal stands dismissed for non-prosecution.
Date of hearing: 18.10.2001
"It is contended that on 23.1.2001 both, the learned ASC and the learned AOR for the applicant/ appellant, failed to obtain air tickets from Karachi to Islamabad/Rawalpindi. He (Mr. Mazhur Ali B. Chowhan) sent a telegram to the of fice in the evening.
2. We have seen the copy of the receipt appended to this application and regret our inability to agree with the learned counsel that as no arrangements could be finalized for reaching the Court on 23.1.2001 he did not appear in the case on that accoun t. It is not even so much as alleged that there was any person duly advised by him to make a request in relation to the above- failure on his part to enter in the case on 24.1.2001. The case was called out thrice before the close of working hour on that day .
3. There is no force in this application. The same is dismissed."
14. Patently , there were only orders of the Hon'ble Supreme Court of Pakistan for dismissal of the aforesaid Civil Appeal for non-prosecution and dismissal of application seeking restoration thereof. On a query , the learned counsel for the appellant/ petitioner/decree holder has conceded that there was no decision of the Hon'ble Supreme Court of Pakistan in pursuance whereof the mutation was carried out in the Revenue record in favour of legal heirs of decree holder Khalifo Muhammad Hanif, but he states that since the mutation was carried out in the Revenue record, therefore, the execution application filed by the decree holder Khalifo Haji Muhammad Hanif through his legal heirs was disposed of with the observation that the decree passed by this court was satisfied.
When the learned counsel was asked as to how a mutation in the record could be carried out even on the basis of judgment and decree passed in a suit for specific performance of contract, seeking execution of a registered sale deed as part performance of alleged agreement of sale arrived at between the parties namely vendor and vendee without a registered sale deed and as to why the sale deed was not got executed, the learned counsel for the appellant/petitioner/decree holder has stated that the decree holder got the mutation carried out, therefore, he did not wish to get the sale deed executed. We are unable to subscribe ourselve s to such a misconceived and untenable contentions of the learned counsel, for the transferor could not enforce any right in respect of the properties of which a sale agreement was executed between the transferor and transferee except such right which a transferor is entitled to enforce by virtue of contract, for only a valid subsisting contract could be enforced by establishing and proving through the evidence of the nature, the clear title and right of the vendor over the, properties under sale; there is mark distinction between agreement of sale and sale deed, for, agreement of sale would require a promise to do something or would contain some provisions for compliance of the certain acts in future, and the agreement of sale would not create any vested right in favour of the vendee and whereas a sale deed completes the transaction, which if is of more than Rs.100, would be compulsorily registrable, for provisions of section 17 of The Registration Act, 1908 and section 54 of The Transfer of Property Act, 1882 postulate that transfer of the property under sale, having value of Rs.100 and upwards can be made only by a registered instrument. It is also well settled law that things required to be done in a particular manner the same are to be done in that manner and if, anything is done contrary to that, the same shall be deemed to have not been done at all.
And, thus the decree holder on the basis of alleged agreement of sale would not acquire any right or interest in the subject properties unless sale deed was executed in his favour by the vendee or by the court on behalf of the judgment debtor in execution of decree for specific performance of contract and that too subject to latter's clear and valid title over the subject properties. It is reiterated that mutation entry is not a document of title, which by itself does not confer any right, title or interest and the burden of proof lies upon the person, in whose favour it was mutated to establish the genuineness of transfer in his (their) favour and once a mutation is challenged, the party making reliance on that mutation is bound to revert to the original transaction and to prove such transaction, which resulted into the entry or decision of such mutation that was struck somewhere prior to the entry of mutation, and, thus in our humble view, the parties to the suit claiming their title on the basis of mutation entry No.534 of Deh Form-II, which is not in consonance with the alleged sale deed, containing manipulations and interpolations with insertion of Sikni Survey Nos. 76 and 79 and a big plot in the subject sale deed dated 22.12.1972, without any authentication thereof and/or the signatures of the parties of the said transactions have reverted back to their alleged original transactions. Reliance in this context is placed on case of Muhammad Akram and another v. Altaf Ahmad [PLD 2003 SC 688 ], wherein the Hon'ble Supreme Court of Pakistan has held that: "It is a settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmed has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the trial Court realized it".
15. Admittedly , the impugned judgment and decree passed by this Court are in a suit for specific performance of contract and the decree has never been executed, for a conveyance deed in pursu ance of the impugned judgment and decree, passed by this Court, has not been executed till date; moreover in the wake of specific denial and dispute over the title of the properties in the mutation entries, the impugned judgment and decree ineffective qua the rights of the State being not party to that is in-executable. It is a well settled law that the mutation entry , which is not based on any valid order or document cannot pass or confer title in favour of the person(s) in whose names the entry is made without any valid order or document; the impugned judgment and decree passed by this Court are not binding upon the Province of Sindh and its any functionary being no party to the proceedings, more particularly , in view of asserting right of the State over the subject properties. It is also well settled that if the foundation is illegal and defective the entire structure built on such foundation having no value in the eye of law, would fall on the ground. It further reveals that Entry No.741 dated 19.12.2002, wherein such huge properties comprising of commercial and residential areas of potential value is shown to have been kept in the revenue record in favour of the decree holders on the basis of a decision of Hon'ble Supreme Court of Pakistan is patently fraudulent one, for admittedly there is no decision of the Hon'ble Supreme Court of Pakistan in pursuance whereof it was kept in Revenue Record as discussed above.
According to the Black's Law Dictionary Fifth Addition, the definition of collusion is:- "Collusion"
"An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose"
According to the Black's Laws Dictionary Fifth Addition, the definition of fraud is:- "Fraud"
"A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury . A generic tern, embracing all multifarious means which human ingenuity can devise, and which are reported to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated"
And According to the Black's Laws Dictionary Fifth Addition, the word misrepresentation is defined as:- "Misrepresentation"
"Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or fale representation. That which, if accepted, leads the mind to an apprehens ion of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead."
16. Subsection (2) of Section 12-was made the part of Code of Civil Procedure [C.P.C.] by withdrawing the right of the suit of the aggrieved party challenging the decree on the ground of fraud in the year, 1980 by Ordinance X of 1980. Subsection (2) of Section 12 of the code ibid, for the sake of connivance is reproduced here:- Section 12(2), C.P.C.--- "where a person challenges validity of the judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making any application to the Court which pass the final judgment, decree or order and not by a separate suit'.
In the ease of Allah Wasaya and S others v. Irshad Ahmad and 4 others [1992 SCMR 2184 ], the Honourable Supreme Court of Pakistan has observed that:- "Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; and the active concealment of a fact by one having knowledge or belief of the fact."
17. From the above it would reveal that if order or judgment and / or decree obtained by practicing fraud and misrepresentation, the aggrieved person is left with no other remedy except the remedy provided under section 12(2), C.P.C. and it is for the Court to see whether the facts and circumstances of the case require, further probe into the allegations or not and where the Court finds that further inquiry is required, it would frame issue(s) and record evidence of the parties and if it is of the opinion that no inquiry is required, it can proceed to decide the application, and thus, it is not incumbent on the Court to frame issue(s) in each and every case, but it depends upon the facts and circumstances of each case. In view of the above discussion, misrepresentation and fraud in obtaining the impugned judgment and decree is so apparent that it needs no evidence to be adduced in the case one in hand; moreover collusiveness of the parties to the suit and the appeal, who claim themselves to be the owners of the subject properties in equal shares, is apparent from the face of record, which itself is a species of fraud. It is also a well settled law that fraud cannot be directly proved, it has to be inferred from the surrounding circumstances and conduct of the parties. In the wake of above discussions, we do not hesitate in holding that all the ingredients of collusion, misrepresentation and fraud are proved in the case one in hand, therefore, the controversy involved in this application can be decided without framing the issues as laid down by the Honourable Supreme Court of Pakistan, in the case of Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010 SCMR 1097 ), wherein the Hon'able Supreme of Pakistan has held that:- "application under S.12(2), C. P.C. can, be decided in summary manner without framing of issues, if the circumstances so warrant."
18. It needs no reiteration that if any order or judgment or decree had been procured without impleading a party(ies) whose rights were involved, such a decree could not be allowed to remain in field if it had injured the right of any person, who was not a party to that proceedings and that a person (s) can file application under section 12(2), C.P.C. Reliance in this context is placed on the case of Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586) wherein Hon'ble Supreme Court of Pakistan has observed that "persons not party to the suit can also file application under section 12(2), C.P . C".
19. It is also by now well settled law that the fraud vitiates even the I most solemn proceedings. Reliance in this context can be placed on the cases of (i) Talab Hussain and others v. Member Board of Revenue and others 2003 SCMR 549, (ii) Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and (iii) Chief Settlement Commissioner Lahore v. Raja Muhamm ad Fazil Khan and others PLD 1975 SC 331 and Government of Sindh through the Chief Secretary and others v . Khalil Ahmed and others (1994 SCMR 782 ).
In the wake of challenge to the ownersh ip of the parties to the suit and appeal with specific claim of the subject properties being State land, the Petitioner s instead of contesting the matter ought to have conceded to the grant of the instant application and sought amendments in the suit for removal of the clouds on their claimed ownership and title over the subject properties by establishing and proving it through the evidence of the nature and thus it would rather be in favour of the parties to allow them opportunities to remove clouds over their claimed ownership and title by suitably amending the plaint before the trial Court in accordance with the law by adducing the evidence of the nature oral as well as documentary evidence.
21. As far as, the question of limitation for filing the application under Section 12(2), C.P.C. as was asserted by the learned counsel for the decree holder/LR s of the deceased appellant/the petition ers in the captioned petition, is concerned, no period is provided for such challenge, therefore, Article 181 of the Limitation Act would be attracted in this case, which provides the period of three [03] years for filing of such application from the date of accrual of cause of action. Reliance is placed on the cases of Abdul Aziz and 6 others v. The Member , Board of Revenue and 15 others [1998 SCMR 1078 ], Javed Akhtar and another v. Sher Muhammad and others [1998 SCMR 292]; and Sarfaraz v. Muhammad Aslam Khan and another [2001 SCMR 1062 ], wherein, it was observed that "Article 181 of the Limitation Act, 1908 has provided three years period for filing the petition under Section 12(2), C.P.C. This period should be counted from the date of cause of action accrued. If the aggrieve d person(s) is / are not party to the proceedings, the period will start from the date he / they came into knowledge of the impugned judgment or order and / or decree as the case may be; admittedly , the Province of Sindh was not party to the proceedings before the learned trial Court and the Appellate Court as well and it is specifically stated in the application under Section 12(2), C.P.C. that in F.C. Suit No.13 of 2006, filed by the private respondents against the petitioners, the Province of Sindh and the Revenue functionaries on receiving the summons from the learned trial Court, first time came into knowledge about the passing of the impugned judgment and decree by this Court and the instant application, which was filed on 06.10.200 8, is patently within time. And thus, in our humble view, the contentions of the learned counsel for the LRs of the appellant/the petitioners in the captioned appeal and petition that the application is time barred are untenable. The case law quoted at bar by the learned counsel for the petitioners/LRs of the appellant is not helpful for him as none of the cited cases involved the facts and circumstances as are involved in the case one in hand as discussed above.
22. So far the captioned petition is concerned, through this petition, petitioners Ahmed son of Khalifo Haji Muhammad Hanif and others have called in question order dated 23.08.2006, passed by the court of Senior Civil Judge Sajawal, District Thatta, whereby the application under Order VII, Rule 11, C.P.C. filed by the petitioner/defendant in F.C.S.No.13 of 2006 re-Nazir Ahmed and others v. Province of Sindh and others including the petitioner was dismissed and order dated 16.10.2018, passed by the learned Court of IInd Additional District Judge, Thatta in civil Revision No.19 of 2006 re-Ahmed and others (petitioner) v. Nazir Ahmed and others filed against aforesaid order dated 23.08.2006, passed by the Court of Senior Civil Judge Sajawal, was dismissed.
23. Briefly the facts of the case are that the respondents Nos.1 to 3 have filed a suit being F.C.S.No.13 of 2006 before the Court of Senior Civil Judge, Sajawal for declaration, cancellation of entry and permanent injunction with the following prayers:-
(a) DECLARA TION that the plaintiff's are the bonafide and lawful owners of the suit properties plot 50,000 sq.ft, sikni plot area 2,13,444 sq.ft created out of survey No.80 area 1-12 acres and 2-0 acres out of survey No.79 (4-0 acres) in village Chuhar Jamali and the mutation entry No. 741 dated 19.12.2002 in the names of the defendants Nos. 5 to 12 caused in respect of properties in collusion and in connivance of the defendant No.4 and his lower staff is null, ab initio void, illegal, unlawful, mala fide, without any lawful authority , forged, fraudulent, manipulated and managed, of no legal effect and not binding on the plaintiffs.
(b) CANCELLA TION OF ENTR Y that this Honourable Court may cancel the Entry No.741 dated 19.12.2002 in the names of the defendants Nos.5 to 12 caused in respect of properties in collusion and in connivance of the defendant No.4 and his lower staff.
(c) PERMANENT INJUNCTION restraining the defendants Nos. 5 to 12, their agents, servants, legal representatives, associates, assignees or any person or persons claiming through them in any way directly or indirectly from interfering in the peaceful possession of the plaintiffs in the suit properties, from selling, gifting, mortgaging, alienating or transferring the suit properties, from creating the encum brances in the suit properties, from dispossessing or attempting to dispossess the plaintiffs from the suit properties or from issuing the serious threats to the plaintiffs and their tenants of their forcible dispossession and of creating the encumbrances in the suit properties illegally , unlawfully and malafidely and/or doing any act/thing prejudicial to the interests of the plaintiff in any manners without due course of law .
(d) The defendants shall bear the costs of the suit.
(e) Any other relief, which this Honourable Court may deem fit and proper , be granted to the plaintiff.
24. On service of summons the advocate for the defendant No.6 filed application under Order VII, Rule 11, C.P.C., seeking rejection of the plaint. The learned trial Court after considering the contentions of learned counsel for the parties and having gone through the pleadings and the material of earlier suit i.e. F.C. Suit No.28 of 2005 and the subject suit i.e. F.C. Suit No.13 of 2006 dismissed the said application being meritless vide order dated 23.08.2006.
The learned Revisional Court i.e. the Court of IInd Additional District Judge Thatta after hearing the parties counsel and having gone through the material placed before it has passed the impugned order dated 16.10.2008, dismissing the Civil Revision Application filed against the aforesaid order 23.08.2006 of the learned Trial Court. The relevant paragraph of the said order dated 16.10.2008, is reproduced here:- "It is admitted by the private respondents in Para No.15 of the plaint of above suit that they by mistake prayed for declaration, cancellation of entry and permanent injunction in respect of the property of Rice Mill in Chuhar Jamali measuring 42000/- sq.feet, office eight R.C.0 rooms. 12 godowns. 51000/- sq: feet, plots, eight godowns six shops shown in entry No.545 dated 15.10.1973 were also included in the table of subject Suit No.51/2005 whose plaint was rejected. The judgment in earlier suit are for property of Shah Yaqeeq Rice Mill and not in respect of the property in the present suit. It has been admitted by the respondents that the earlier suit was improperly formed hence the plaint was rejected. In my humble view that the plaintif f can file fresh suit after removing defects in the earlier suit. It is also settled principle of law that for the purpose of rejection of plaint only averments of the plaint are to be looked into. It appears that the suit property disclosed in the plaint is different from that of the Suit No.62/1980. Furthermore, the matter required examination of witnesses and detailed scrutiny of documents as the suit is based on two entries whose genuineness is denied by the applicants therefore, it can be determined after recording evidence that whether the entries on which the suit is based are genuine or otherwise. In my humble view resjudicata does not attract to the facts of the case. The revision application merits no considerations which is dismissed. The parties are in litigation since 1979 therefore, the learned trial is directed to conclude the trial within the period of six months of the receipt of this order . Order accordingly .
25. Admittedly , the plaint of earlier suit was rejected under Order VII, Rule 11, C.P.C. The relevant provisions of law to dealt with the controversy involved in this case would be Rule 13 of Order VII of the Code of Civil Procedure Act V of 1908 and section 1 1 of the Code ibid, which are reproduced here for the sake of convenience:-
13. Where rejection of plaint does not preclude presentation of fresh.---The rejection of the plaint on any of the grounds herein-before mentioned shall not of its own force preclude the plaintif f from presenting a fresh plaint in respect of the same cause of action."
11. Res Judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
26. From the plain reading of the above provisions of law, it would reveal that the rejection of a plaint of earlier suit under Order VII, Rule 11 of the Code of Civil Procedure Act-(v), 1908 does not bar the plaintif f from instituting a fresh suit on the same cause of action and, in our humble view, the rejection of a plaint does not amount to an adjudication, therefore, the principle of res-judicata is not applicable to the instant case; it needs no reiteration that the matters are always decided on merits after providing full opportunities to the parties to adduce their evidence for and against their respective claims and pleadings. Since the matter is involving the aforesaid huge commercial and residential properties measuring more than 6,50000/- sq. ft. claimed by the private parties to be their properties and the government of Sindh to be the state properties, having potential value, therefore, in our humble view, the subject suit deserves to be decided on merits after allowing full opportunity to the parties including the government to adduce their respective evidence. In such view of the matter orders passed by the learned Courts below suffering from no illegality , or infirmity or any jurisdictional defect, do not call for any interference in exercise of jurisdiction by this Court under the provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel for the petitioner has also not been able to point out any illegality or jurisdictional defect in the said orders.
27. In view what has been discussed above, we are of the considered view that the impugned judgment and decree passed in the captioned appeal were obtained by misrepresentation and fraud. Accordingly , the instant application C.M.A. 52 of 2009 is allowed, the impugned judgment and decree are set aside and the case is remanded to the learned trial Court by setting aside the judgment and decree dated 26.10.1982 passed by the trial Court whereby the Suit No. 77 of 1979 renumbered as Suit No.62 of 1980 re: Khalifo Haji Muhammad Hanif v.
Khalifo Haji Ghulam Hussain was dismissed. The learned trial Court is directed to join the applicants/interven ors Province of Sindh and others as defendants in the subject suit and allow the newly defendants to file their written statement and then to decide the case by providing the parties full opportunity to lead their evidence after framing of the additional issue(s), if any, in view of the pleadings of the parties in accordance with law. The captioned petition, which is devoid of merit as discu ssed above, is dismissed with no order as to costs. Let the R&Ps of the subject suit be sent to the learned trial Court.