CH. MUHAMMAD IQBAL, J. Through this application under section 12(2), C.P.C. the applicant has assailed the order dated 07.11.2018 whereby the titled Writ Petition [No. 33665/2015] was dismissed by this Court.
2. Brief facts of the case are that respondents Nos.4 to 6 filed application for partition of joint Khata measuring 7832-Kanals 02-Marlas comprising Khewat No.6, Khatooni Nos.82 to 142 situated in Mouza Mashrala, Tehsil and District Nankana Sahib. Assistant Collector-I/ Tehsildar, Nankana Sahib accepted the application vide order dated 21.02.2013. Respondents Nos.2 and 3 challenged the said order through an appeal, which was dismissed by the Additional District Collector, Nankana Sahib vide order dated 03.12.2013. They filed revision petition under section 164 of the West Pakistan Land Revenue Act, 1967 which was allowed by the Additional Commissioner (Rev.) Lahore Division, Lahore (Camp at Nankana Sahib) by setting aside order dated 03.12.2013 passed by the Additional District Collector, Nankana Sahib vide order dated 10.03.2014. Against the said order, respondent No. 1/Muhammad Mohsin and others filed ROR Nos.489/2014, 703/2014 and 704 of 2014 which were dismissed by the Member (Judicial-I), Board of Revenue, Punjab vide Order dated 14.09.2015.
Muhammad Mohsin etc assailed the said orders through Writ Petition No.33665/2015 which was dismissed by this Court vide order dated 07.11.2018. Hence, the present application.
3. Learned counsel for the petitioner submits that the petitioner is owner of land measuring 12 Acre in joint khata with respondents; that the petitioner is resident of Finland; that in March, 2019 he came to know about the passing of the order dated 07.11.2018 passed in Writ Petition No.33665/2015; that the father of the petitioner namely, Nadeem Ashraf was arrayed as respondent No.22 before the Tehsildar/Collector; that Nadeem Ashraf expired on 13.11.1998, as such fraud was committed by the respondents by not arraying legal heirs of Nadeem Ashraf Mann in the petition for partition.
Learned counsel lastly submits that all the proceedings may be set aside and the case in hand may be remanded to the Tehsildar/Collector for fresh decision.
4. Learned counsel for the respondents have requested for dismissal of instant application.
5. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.
6. In this case, at first it is appropriate to pour a summary glance at the objective of enactment and creation of the remedy under section 12(2), C.P.C. The provision of section 12(2), C.P.C. was inserted in statute book through Ordinance X of 1980 with the purpose to provide a short-cause remedy to the aggrieved party as well as to save the party from the vagaries of further litigation by conferring a legal right to a party to challenge the final judgment, decree or order obtained through practicing fraud, misrepresentation or without jurisdiction within the same proceedings or forum through an application under section 12(2), C.P.C. instead of filing a separate independent civil suit.
For ready reference section 12, C.P.C is reproduced as under:-
12. (1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation at want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment; decree or order and not by a separate suit."
Although the second suit or second-application on the sane cause of action between the same parties is barred under section 12(1), C.P.C. with exception that such a final judgment, decree or order can be challenged through an application under section 12(2), C.P.C. having indispensable ingredients such as fraud, misrepresentation and want of jurisdiction. The words "fraud", "misrepresentation" and "want of jurisdiction" have not been defined in Code of Civil Procedure, 1908 so it is appropriate to borrow its plain meaning from sister law as well as the relevant dictionaries to serve the purpose.
7. The word "Fraud" has been defined in section 17 of the Contract Act, 1872 as under:- Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- 1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2) the active concealment of a fact by one having knowledge or belief of the fact; 3) a promise made without any intention of performing it; 4) any other act fitted to deceive; 5) any such act or omission as the law specially declares to be fraudulent.
Similarly in Black's Law Dictionary the word "fraud" means "an intentional perversion of truth for the purpose of inducing another in reliance upon it party with some valuable thing belonging to him or to surrender a legal right. 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. Anything calculated to deceive, Whether by a single act or combination or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture. A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted 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."
The respondents Nos.3 to 5 [petitioners in partition application] filed application for partition on 17.10.2005 and stated therein that they are owners of land measuring 487 Kanal 11 Marla in a joint khata but they are not in possession of the same. They further stated that the respondents in the said application are enjoying the possession and fruits of land owned by them, as such the joint khata may be partitioned. In the said application, notices were issued for the service of the respondents but nobody appeared and when no one appeared despite publication in, the newspaper, ex-parte proceedings were initiated against them. Thereafter, Naqsha Alif, Bay, Jeem were prepared and the joint khata measuring 7832 Kanal 02 Marla was divided into two wanda- jats; one of land owned by respondents Nos.3 to 5 [petitioners in partition application] and other of the remaining land owned by different persons including the present petitioners. The said application was accepted vide order dated 21.02.2013. Out of all the co-owners in the khata, only Muhammad Shafiq and Taimoor Sultan challenged the order 21.02.2013 through an appeal which was dismissed by the Additional District Collector, Nankana Sahib vide order dated 03.12.2013, however, some modification was made in Naqsha Jeem. Muhammad Shafiq and Taimoor Sultan assailed the said order through a revision petition under section 164 of the West Pakistan Land Revenue Act, 1967. In the said proceedings, a compromise was affected between the parties on which, basis the revision petition was accepted on 10.03.2014 and the order dated 03.12.2013 was set aside. Against the above decision, Muhammad Mohsin, Fida Mohsin wife of Muhammad Mohsin, Minal Mohsin (minor), Ali Haider alias Haider Ali son of Muhammad Ashiq filed ROR No.489/2014, Gul Abbas filed ROR No.703/2014, whereas Sabeel Tariq filed ROR No.704/2014 which were dismissed by the Member, Board of Revenue, Punjab vide consolidated order dated 14.09.2015 with the observation that the respondents in the partition application are in possession of excess land than that of their share. The detail of excess land as mentioned by the Member, Board of Revenue in order dated 14.09.2015 is charted below: Name of Owner OwnershipPossession Excess area in possession Haider Ali and Family 785-K 19-M980-K 5-M194-K 6-M Mohammad Shafique and Family672-K 7-M827-K 0-M155-M 13-M Mohammad Mohsin and Family760-K 0-M761-K 1-M 0-K 19-M
8. As per the stance of the petitioner, his predecessor namely, Nadeem Ashraf Mann died in 1998 but his inheritance mutation was got entered in the revenue record in the year 2008. The partition application was filed in 2005 by arraying the name of all the co-sharers of joint khata as per revenue record, including said Nadeem Ashraf Mann as party in the said application. Accordingly, wandajats were prepared in 2013 and the legal heirs of Nadeem Ashraf enjoy possession of their respective shares as shown from Khasra Girdawari for the, year 2015. The petitioner failed to bring on record that at the time of filing the application for partition, the names of the legal heirs of Nadeem Ashraf were available in revenue record. Even Mohsin and Muhammad Shafiq are in possession of excess land than their share. They filed a civil suit in which their application for interim relief was dismissed and appeal thereof was also dismissed. Thus, it can safely be observed that the petitioner has miserably failed to establish any element of fraud committed by the respondents.
9. The word "misrepresentation" has been defined in section 18 of the Contract Act, 1872 as under:- Misrepresentation:- means and includes-
(1) The positive assertion in a manner, not warranted by the information of the person making it, of that which is not true, though he believes it to be true:-
(2) Any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) Causing, however innocently, a party to an agreement to make a. mistake as to the substance of the thing which is the subject of the agreement.
In the Black's Law Dictionary the word "misrepresentation" is defined as 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 false representation.
That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists.
10. Under the partition proceeding the respective shares and possession whereof was delivered to the owners including Nadeem Ashraf Mann, father of the petitioner, who was survived by Nighat Robina (widow), Zeenat and Hadia Nadeem (daughters) and petitioner/Hastam Ashraf Mann (son) but out of above owners only the petitioner has filed application under section 12(2), C.P.C. whereas rest of the legal heirs have not assailed the decision of the partition application before any forum.
When the question confronted to learned counsel for the applicant that whether after partition of the land in question, the share of Nadeem Ashraf Mann was reduced or any loss caused to the right of said land owner, he learned counsel has not referred any document in this regard rather only urged that the applicant has been given land of inferior quality.
11. So far as the stance taken by learned counsel for the petitioner that land of inferior quality has been given to the petitioner, suffice it to say that other legal heirs of Nadeem Ashraf Mann enjoy the possession of their respective shares and they never raised any such objection before any forum. The petitioner and other legal heirs of Nadeem Ashraf Mann have been given their respective due share as per law from the joint khata and they are in possession of the same. The petitioner has merely raised oral allegation that land given to him in partition is of inferior quality but in this regard no documentary evidence has been brought on record.
12. As per available record the petitioner has come up with instant application under section 12(2), C.P.C. without disclosing therein the mandatory ingredients regarding the existence of fraud, misrepresentation and want of jurisdiction. Whereas non-mentioning the said mandatory prerequisite of the above provision, dismantle the substratum of the petition. Further, mere raising of cursory/illusory allegation of fraud and misrepresentation does not bring the petition within the ambit of section 12(2), C.P.C., rather such allegation shall specifically be mentioned in detail as required under Order VI, Rule 4, C.P.C. but even by applying microscopic scanning the averments/pleas taken in application, the same do not qualify the standard requirements of the aforesaid provisions of law, which constitutes the noncompliance of the above plain provision, and this flaw is considered fatal, which dismantles the very foundation of the application. Reliance is placed on case cited as Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi (PLD 2002 SC 500) and Sain v. Government of NWFP through Secretary, Auqaf and 2 others (2007 SCMR 1848).
13. Moreover, the Court while determining application under section 12(2), C.P.C. does not enjoy the jurisdiction to sit as a Court of appeal rather it has to restrict itself to the extent of allegation of fraud, misrepresentation or jurisdictional defects only without going into the reappraisal of evidence on merit of the case. Reliance is placed on the cases reported as Khairpur Textile Mills Ltd. and 7 others v. National Bank of Pakistan and another (2003 CLD 326), Messrs Ilyas Marine and Associates v. Muhammad Amin Lasania and another (2004 MLD 1008) and Masjid Ahl-e- Hadees through President and General Secretary v. Mst. Karam Noor and others (2009 CLC 1421).
14. Learned counsel for the petitioner has not pressed the ground of want of jurisdiction, as such there is no need to discuss or render any finding on the same.
15. Even otherwise, the respondents filed application for partition of joint Khata in 2005 which was accepted on 21.02.2013 but due to pendency of the matter before revenue hierarchy as well as before this Court, they are still waiting to avail the benefits of their respective share. Further, the applicant has failed to point out any prejudice caused to him by the decision dated 07.11.2018 passed by this Court, as such no case for interference has been made out warranting any interference the judgment in question.
16. Resultantly, this application being devoid of any merits is hereby dismissed.