ZIA MAHMOOD MIRZA, J. ---Petitioners have filed this petition to seek leave to appeal against an order of a learned Judge of Lahore High Court dated 5-12-1994 dismissing their writ petition filed against the orders of the Courts below dismissing their application under section 12 (2), C.P.C.
2. Facts relevant for the disposal of this petition, briefly stated, are that Muhammad Sharif respondent No.1 brought a suit against Kaloo, the predecessor-in-interest of the present petitioners, for specific performance of an agreement to sell dated 27-1-1983 said to have been executed by the said Kaloo through his attorney Muhammad Latif in respect of 15 acres of land in Lot No.28 situate in Chak No.32/ML, Tehsil Kalurkot, District Bhakkar. The suit was instituted on 27-7- 1985. Kaloo defendant submitted concessional written statement on 30-7-1985 and he also made a statement in Court admitting the claim of the plaintiff. Thereafter, the case was taken up on 18-9- 1985 when the learned Civil Judge, Bhakkar decreed the suit with the direction that Kaloo defendant after obtaining the proprietary rights in the suit land shall execute the sale-deed in favour of the plaintiff and in case of his failure to do so, the plaintiff would be at liberty to get the name executed through Court.
3. Ghulam Muhammad, father of petitioners Nos.1 to 4 and Muhammad Shaft petitioner No.5 claiming to be the collaterals of Kaloo moved an application under section 12 (2), C.P.C. On 11-2- 1987 seeking cancellation of the consent decree dated 18-9-1985 on the ground that it had been secured through fraud and misrepresentation with a view to deprive them of their right to inherit the tenancy which would have devolved upon them after the death of Kaloo. They alleged that Kaloo never agreed to sell the suit land to the plaintiff nor did he receive any consideration and that he neither ever appeared in the Court nor made any concessional statement. The application was resisted by the respondents who controverted the allegations made therein.
4. Learned trial Court after framing the necessary issues and recording the evidence adduced by the parties dismissed the application under section 12(2), C.P.C., on 31-3-1991. Revision petition filed by the petitioners also met no better fate and was dismissed by the learned Additional District Judge on 26-4-1993. Petitioners then invoked Constitutional jurisdiction of the High Court but with no success as the learned Judge in Chamber by his order dated 5-12-1994 dismissed their writ petition holding that "the to Courts below have appreciated the evidence brought by the parties in minute detail which is on record that the said Kaloo appeared alongwith his learned counsel and got his statement recorded admitting the claim of respondent No.1 in the suit for specific performance. Apart from bringing his identity card on record he was also properly identified by his learned counsel. The agreement to sell on the basis of which that decree was passed has also been established on record through the production of evidence. It is very much on record that Kaloo sold the disputed land through general attorney to respondent Muhammad Sharif. The question of fact as to whether Kaloo entered into an agreement and subsequently admitted the claim of respondent No.1 has been appreciated by the to Courts below. Even otherwise, no jurisdictional defect has been pointed out by the learned counsel for the petitioners".
5. We have heard the learned counsel for the petitioners. He has not denied that the Court which passed the consent decree on the basis of concessional statement bf Kaloo had the jurisdiction to pass it. As regards the allegation of the petitioners that the decree was obtained by the respondent through fraud and misrepresentation, had suffice it to observe that -as per the findings of the to Courts below, the decree was passed on the basis of the concessional , written statement filed by Kaloo defendant and his statement recorded in Court admitting the claim of the respondent.
Learned Single Judge has taken note of the evidence brought on the record-to the effect that Kaloo had appeared in Court alongwith his counsel who had properly identified him and that a conceding written statement was filed by Kaloo and he had also made the' statement in Court admitting the claim of the plaintiff. In the face of this evidence, no legitimate exception could be taken to the finding recorded by the Courts below that the allegation of the fraud and misrepresentation was not established on record. Learned counsel appearing for the petitioners has not pointed out to us any infirmity in the appreciation of evidence by the Courts below. That being so, the finding of the trial Court and that of the revisional Court was not open to any exception more so in Constitutional Jurisdiction of the High Court.
6. Learned counsel next contended that the document described as an Agreement to sell in fact reflected a complete sale and it was, therefore, hit by section 19 of the Colonization of Government Lands (Punjab). Act, 1912. Assuming without holding that the argument as raised has some substance, it does not bring the petitioners' case within the purview of section 12(2), C.P.C. Be that it may, learned counsel on our query has quite frankly admitted that the point now being raised was not taken by the petitioners in their application under section 12(2), C.P.C., nor was it agitated in revision or in the High Court. That being so, it cannot be allowed to be raised at this stage.
7. Upshot of the above discussion is that we find no merit in this petition which is accordingly dismissed and the leave sought refused.