Through this petition filed under Article 44 of the Azad Jammu & Kashmir, Interim Constitution, 1974, the petitioners are seeking annulment of the decision of the learned District Judge Haveli dated 30.09.2020 as well as judgments and decrees of the learned Civil Judge Haveli dated 05.03.2020 and 31.10.2013.
2. Facts necessary for disposal of the captioned writ petition are that petitioners, herein, filed a suit for declaration in respect of the land comprising Survey Nos. 762, 764, 1171, 1172, 763 measuring 6 kanal 4 marlas and the land bearing Survey Nos. 763, 765, 766 land measuring 5 kanal 11 marlas total land measuring 11 kanal 16 marlas situated at Mozia Khurshidabad, however, the learned Civil Judge Haveli Kahutta decreed the suit in plaintiffs/petitioners favour to the extent of land Measuring 5 kanal 11 marlas having survey Nos. 762, 763, and 1171 and dismissed the suit to the extent of the remaining survey numbers and against the judgment and decree of the trial Court, the petitioners, herein, filed an appeal before the learned District Judge Haveli Kahutta who remanded the case to the trial Court to implead the necessary party through decision dated 09.07.2014 but the learned Civil Judge Haveli Kahutta through judgment and decree dated 27.02.2015 dismissed the suit and against the said judgment and decree, petitioners preferred an appeal before the learned District Judge Haveli Kahutta which was accepted and the Education Department was ordered to pay the compensation of the land but when the same was not paid to the petitioners, they filed an application for execution of the decree before the learned Civil Judge.
As per contents of petition, private respondents filed a baseless declaratory suit m ala-fidely without impleading the petitioners as party just to receive the compensation of the land, however, the petitioners filed an application for impleading them as party which was dismissed in their presence, hence, the suit was decreed in favour of private respondents on 31.10.2013 and the petitioners, herein, filed an appeal before the learned District Judge Haveli Kahutta against the decision which was dismissed on 09.07.2014. It has further been alleged that in order to challenge the decision dated 09.07.2014, the petitioners filed an application U/s. 12(2), CPC which was also dismissed on 05.03.2020. Against the order dated 05.03.2020, the petitioners preferred an appeal before learned District Judge Haveli Kahutta who while treating the same as revision petition dismissed on 30.09.2020, hence, this petition.
3. The learned counsel for the parties in compliance of the Court order filed written arguments. In the written arguments filed on behalf of the petitioners, the grounds raised in the writ petition have mostly been reiterated, therefore, the same needs not to be repeated. In the written arguments filed on behalf of respondents, it has been stated that the application filed by the petitioners under Section 12 (2), CPC, for cancellation of the decree, the respondents by contesting the same produced revenue record and the learned Court below in light of the amiable record and evidence, rightly rejected the application. It has further been alleged that petitioners' suit for perpetual injunction was decided in the manner that within one year the award pertaining to the suit land should have been issued in favour of the owners of the land otherwise the land might be returned to the owners. It has also been averred that the petitioners do not come within the definition of an aggrieved person because in petitioners inherited land his name has been entered in the revenue record and the petitioners have no nexus with the respondents' gift deed and the writ petition has been filed just to suffer the respondents, therefore, while maintaining the judgments and decrees of the learned Courts below the writ petition may be dismissed.
4. I have gone through the written arguments as well a record of the case.
5. Civil lis between the parties rotates around the consent decree dated 31.10.2013. The said decree was attacked on the basis of alleged fraud by preferring an application under Section 12(2). CPC by the present petitioners. The trial Court entertained the same invited objections and thereafter framed the four issues as infra:
6. A perusal of record reveals that the petitioners, herein, have failed to prove their case through cogent evidence. Petitioners themselves have portrayed a case that consent decree was obtained on the basis of wrongful entries in the revenue record, seemingly in this sense, the proper recourse in such like eventuality was assail the revenue record at the relevant fora. Issue No. 1 was of the vital importance which was dealt with by the trial Court amicably.
7. Grounds of attack mentioned in the Section 12(2), CPC are fraud, misrepresentation and want of jurisdiction. The petitioners have only taken a plea of fraud but they have failed to establish the factum of fraud by any way. Facts are primarily alleged disclosed and pleaded with clarity in the pleadings and secondly established through a cogent evidence. The petitioners neither pleaded the factum of fraud nor proved the same as per required standards of evidence. Required standard of evidence in civil cases is to be judged and viewed through the lens of doctrine of preponderance of probability of evidence, meaning thereby that party in the lis who brought weighty evidence in his favour rather than the rival party is likely to succeed. Findings concurrently given by both the Courts below require no indulgence at all, that too, in exercise of the extraordinary writ jurisdiction conferred under Article 44 of the Interim Constitution.
Petition is bereft of merit and fails indulgence declined. Writ petition at hand is dismissed, parties shall bear their own costs. File shall be consigned to record.