AYESHA A. MALIK, J.---- Through this Petition, the Petitioner has impugned order dated 27.7.2010 passed by Respondent No.6, Civil Judge, Gujranwala and judgment 8.6.2012 passed by Respondent No.5, Additional District Judge, Gujranwala.
2. The subject matter of dispute between the parties is property measuring 271 Kanals 7 Marlas situated in Qila Didar Singh, Tehsil and District Gujranwala. The facts of the case are that Respondent No.2, Syed Akhtar Ali was the original owner of the disputed property . A dispute arose between Respondent No.2 and the Petitioner which resulted in the filing of a suit for declaration with permanent injunction by Respondent No.2 against the Petitioner .
The suit was decreed ex-parte in favour of Respondent No.2 vide judgment and decree dated 5.3.1981.
Consequently Respondent No.2 became owner of the disputed property . Respondent No.2 sold the property to one Ramat Ullah the husband of Respondent No.1 Maqbool Akhtar and to Respondent No.4, Saif Ullah vide registered sale deed dated 29.4.1981 having mutation No.8580 dated 2.5.1988 and mutation No.881 1 dated 19.1.1989. The Petitioner moved an application before the civil court for setting aside ex-parte decree dated 5.3.1981. Respondent No.2 appeared in the application proceeding and made a conceding statement before the court that he has no objection if the suit is restored, as the parties have entered into a compromise. On the basis of the said statement, Civil Judge 1st Class, Gujranwala revived the suit of Respondent No.2 vide order dated 13.2.1995. Thereafter Respondent No.2 withdrew his suit on 9.12.1999. Consequently the Petitioner considered himself to be the owner of the property .
3. Respondents Nos.1 and 4 having become owners of the property were never impleaded nor was heard before passing order dated 9.12.1999, hence they moved an application under Section 12(2) Civil Procedure Code, 1908 ("C.P.C.") on 3L10.2000 for setting aside the orders dated 13.2.1995 and 9.12.1999. Reply was filed to this application by Respondents Nos.1, 2 and 4. The matter was heard, seven issues were framed, evidence was led and after hearing all the parties, Civil Judge 1st Class, Gujranwala vide order dated 27.7.2010 set aside orders dated 13.2.1995 and 9.12.1999 on the ground that the suit could not have been revived given that Respondent No.2 had no proprietary interest in the property since he had sold the property to Respondents Nos.1 and 4 in 1981. Against this order , the Petitioner filed a revision petition before the Additional District Judge, Gujranwala which was dismissed vide the impugned judgment dated 8.6.2012 upholding the order of 27.7.2010 with the finding that there appears to be collusion between the Petitioner and Respondent No.2 who had no proprietary interest in the property having sold it to Respondents Nos.1 and 4, hence the suit was deeme d pending and the Respondents were directed to implead the new owners of the property in the suit for a hearing on his application to set aside the ex-parte order .
4. Learned counsel for the Petitioner states that there was no reason to accept the application filed by Respondents Nos.1 and 4 as the matter had been settled between the Petitioner and Respondent No.2 and that Respondents Nos.1 and 4 were party in the said suit. Learned counsel further argued that in fact the sale deed in favour of Respondent No.4 has been cancelled and that the original mutation in favour of the Petitioner has never been challenged. Learned counsel further states that this is a case of mis-reading of the evidence and non- appreciation of the facts of the case.
5. C.Ms. Nos. 3/2016, 1/2017 and 2/2020 were filed under Order 1, Rule 10, C.P.C. for irnpleadment of the Applicants as Respondents which were allowed and the stated Applicants have been impleaded as Respondents Nos.10, 1 1 and 12 in the instant Petition.
6. On behalf of Respondent No.11, it is argued by the learned counsel that the Petitioner and Respondent No.2 colluded and misrepresented the facts therefore the application under Section 12(2) C.P.C. was allowed. Learned counsel stated that Respondent No.2 sold the property to Respondents Nos.1 and 4 in 1981 hence he could not have made any conceding statement before the court with respect to the restoration of the suit on 13.2.1995 and on 9.12.1999. Learned counsel further stated that at that time he had no proprietary right in the property , hence this fact should have been brought to the knowledge of the court. He further argued that this statement was made deliberately with the intent to defraud the real owners from the property , as a result whereof the application under Section 12(2), C.P.C. was accepted. Learned counsel has placed reliance on Muhammad Iqbal and others v.
Khair Din through LRs and others (2014 SCMR 33 ).
7. On behalf of Respondents Nos.10 and 12, it is argued by the learned counsel that there are concurrent findings of fact by the Civil Judge, Gujranwala as well as Additional District Judge, Gujranwala on the issue that Respondent No.2 and the Petitioner misrepresented the Facts to the court and played fraud with the court. That the concurrent findings of fact should not be interfered with in constitutional jurisdiction. Learned counsel further argued that the compromise allegedly stated before the court on 13.2.1995 and 9.12.1999 is a misrepresentation of facts by Respondent No.2 and the Petitioner as Respondent No.2 had already sold the property to Respondents Nos.1 and 4. Learned counsel further argued that the Petitioner has no grievance before this Court as the matter is now pending before the trial court and any objection that the Petitioner may have with respect to the revival of the suit of Respondent No.2 has to be raised before the trial court which will look into all the issues regarding the proprietary rights of Respondent No.2 as well as that of the Petitioner . Learned counsel has placed reliance on Malik Muhammad Hussain v. District Returning Officer and others (2008 SCMR 488), Allied Bank Limited through Manager v. Samar Abid and 8 others (2015 CLD 1749 ) and Muhammad Arif v. Additional Sessions Judge-VIII, Karachi W est and 2 others (2020 YLR 1586 ).
8. Heard and record perused. The basic facts are not disputed in this case being that Respondent No.2 filed a suit for declaration with permanent injunction against the Petitioner wherein he essentially prayed that mutation No.3659 dated 29.3.1972 is illegal and void and that a declaration may be given that he is 'the owner in possession of the property . As the Petitioner did not, appear in the suit it was decided ex-pane on 5.3.1981. Consequently Respondent No.2 became owner of the disputed property . Respondent No.2 then sold the property to Respondents Nos.1 and 4 vide sale deed dated 29.4.1981 and Mutation No.8580 dated 2.5.1988 and mutation No.881 1 dated 19.1.1989. However the Petitioner moved an application for setting aside the ex-parte decree of 5.3.1981 which was allowed vide order date 13.2.1995 by the Civil Judge, Gujranwala. The ex-parte decree was set aside on the basis of a statement by Respondent No.2 that the matter has been compromised between the parties, he has no objection to the same. The case was heard on 9.12.1999 whereby Respondent No.2 withdrew the suit.
Consequently Respondent No.2 who was initially declared owner of the property was no longer the owner of the property and instead the Petitioner became the owner of the property . In this regar d, it is noted that the suit filed by Respondent No.2 was for cancellation of mutation No.3659 dated 29.3.1972 in favour of the Petitioner . By withdrawing the suit Respondent No.2 informed the court that he was no longer contesting the said mutation in favour of the Petitioner , hence the Petitioner became owner 'of the disputed property . At this point it is important to note that as per the record, Respondent No.2 was not the owner of the disputed property which he had sold vide sale deed dated 29.4.1981 having mutation No.8580 dated 2.5.1988 and Muta tion No.881 1 dated 19.1.1989.
Hence the question is that whether he could have made a statement before the court to have the ex-parte decree set aside and to withdraw his suit given that he had no proprietary rights in the property .
9. When the fact of the setting aside of the ex-parte decree and withdrawal of the suit came to the knowledge of Respondents Nos.1 and 4, Respondent No.1 filed an application under Section 12(2), C.P.C. on 31.10.2000 in which seven issues were framed out of which the most relevant issues are Issues Nos.1 and 2 that is whether the order dated 13.2.1995 and judgment dated 9.12.1999 have been procured by fraud and misrepresentation. Both the issues were heard and decided together by the Civil Court. The court conclud ed that Respondent No.2 could not have made any conceding statement before the court on 13.2.1995 or 9.12.1999 as registered sale deed in favour of Respondent No.1 and Respondent No.4 were produced before the court as Ex.A13 and Ex.A14 along with mutation as Ex.A15 and attested copy of suit for declaration titled Syed Akhtar Ali Shah v. Syed Ishfaq Ali Shah and others. as Ex.A16 which established the case of Respondents Nos.1 and 4. The court concluded that Respondent No.2 is not competent to claim any interest in the property yet despite the same he made a statement before the court that he has no objection to setting aside the ex-parte decree dated 5.3.1981 whereas at this point Respondent No.2 had no proprietary rights on the basis of which the suit already decreed could have been revived.
The court also concluded that the new owners of the property being Respondents Nos.1 and 4 had neither been impleaded at the time when the suit was filed nor was the sale brought to the notice of the court. As the Petitioner was not able to bring any cogent evidence before the court in his defence, the application under Section 12(2) Civil Procedure Code, 1908 was allowed and the order dated 13.2.1995 and 9.12.1999 were set aside vide order dated 27.7.2010 and the suit was deemed to be pending where the respondents were directed to implead the relevant parties allowing the matter to be decided on its merits. Against this order , revision petition was filed by the Petitioner . The revision petition was heard in great detail and the court also concluded that Respondent No.2 was not owner of the property in 1995 and 1999 at which point he could not have made any statement in favour of the Petitioner . The court also concluded that this is a collusive effort by Respondent No.2 and the Petitioner , hence the application under Section 12(2), C.P .C. was rightly allowed.
10. Although learned counsel for the Petitioner has argued the case at great length, there is no denying fact that Respondent No.2 had sold the property to Respondent No.1 and respondent No.4 , therefore Respondent No.2 as per the record did not have any proprietary rights at the time when he made a conceding statement before the court on 13.2.1995 and 9.12.1999. Both the Courts below have duly considered the record and the evidence from which the element of fraud is evident. Learned counsel for the Petitioner has not been able to refute the contentions of the Respondents' counsel or , rebut what is evident from the record.
11. Under the circumstances, no case for interference is made out the instant Petition is dismissed.