' Applicants claimed to be owners of the Khasra Nos.2169, 2170, 2171, 1342, 1343, 1344, 1337, 1338, 1339, 1334 and 1341 situated in Hill Halkall Gali Tehsil and District, Batagram. There arose a dispute in the year 1974 between the owners of Battal (who claimed to be owners of Bhalega) and late Barrister Jumma Khan over distribution of ownership of trees situated on boundary line of two Sub-divisions, i,e,, Mansehra and Batagram. Barrister Jumma Khan (late) and Col. Yar Muhammad Khan entered into an agreement dated 13-11-1974. They agreed and decided to admit the ownership of each other over immovable property valuing millions of rupees which according to applicants did not belong to them. Both of them had shown themselves to be representatives of owners of both Sub- Divisions adjoining each other but in fact Barrister Jumma Khan was not authorized to 'transfer or admit the ownership or acknowledge the rights of Khans of Battal over the immovable property even on Bhalga Batera, Khola, Malkal Gali and other villagers of Batagram. The said agreement executed by and between Barrister Jumma Khan and Col. Yar Muhammad Khan on 13-11-1974 was for the first time placed before the Court of Civil Judge, Mansehra as Exh.P.W.1/1 by Col: Yar Muhammad Khan and on the basis of the said agreement a fraudulent decree was obtained from Civil Judge, Mansehra on 16-9-1991. On the part of the Barrister Jumma Khan his L.Rs, filed appeal in the Court of learned Additional District Judge, Mansehra which was dismissed on 25-1-1992.
Thereafter, the matter was brought into this Court through Revision Petition No,94 of 1992. The said revision petition was also dismissed vide judgment, dated 23-1-1996. The applicants have now filed application in hand under section 12(2), C.P.C. Praying that all the judgments and decrees are based on fraud, result of collusion and based on fraudulent evidence, therefore, be set aside.
2. Mr. Muhammad Hussain Lughmani, Advocate the learned counsel representing the applicants argued that the controversy raised in the application cannot be decided without allowing the opportunity to the parties to lead evidence, therefore, issues be framed, evidence of the parties be recorded and then the application be decided on merits in accordance with law.
3. On the other hand, Mr. Sajjad Hussain Shah, Advocate, the learned counsel representing the respondents argued that the application filed by the applicants has no substance at all and it did not fulfill the requirements of section 12(2), C.P.C. The contents of the application shows that no fraud is constituted within the meaning of seetion 12(2), C.P.C. And to insist upon the inquiry would be to insist upon an exercise in futility. Moreover, the grounds on which the judgments and decree are based shall operate as res judicata.
4. I have heard the learned counsel for the parties and perused the record.
5. On 13-11-1974 Barrister Jumma Khan and Col. (Retd.) Yar Muhammad Khan executed an agreement whereby it was agreed to have the area demarcated between them for the purpose of apportionment of proceeds from the timber extracted from Compartments Nos.3 and 4 Hill Range Hazara Tribal Division. The original agreement was handed over to the Conservator. It was on 12-10- 1976 that Leut. Col. (Retd.) Yar Muhammad Khan in a representative capacity on behalf of the owners of Bhalega Tehsil and District Mansehra filed Suit No, 412/1 of 1976 in the court of Senior Civil Judge against Jumma Khan in person and as representative of owners of Xhola and Malkal Gali, Tehsil Batagram now District Batagram. The suit was for declaration and permanent injunction in which the plaintiffs claimed that they are owners of trees marked in Compartments Nos.3 and 4 Hill Range Hazara Tribal Division, Batagram consisting of Khasra Nos. 106 to 195, 203 to 208, 213 to 226 situated in village Bhalega Tehsil Mansehra. They denied the claim of defendants to the trees in view of agreement dated 13-11-1974 executed between plaintiffs and defendants whereby it was agreed to have the area demarcated between them for the purpose of apportionment proceeds extracted from the two compartments. The plaintiffs prayed that till the determination of the rights of ownership-over the trees marked for felling through demarcation no proceeds from the timber be disbursed to defendants. Barrister Jumma Khan filed written statement in representative capacity thereby denying the claim of plaintiffs and pleaded that the compartments in question do not fall in the lands owned by plaintiffs. The representative of forest department, who were also arrayed as defendants filed separate written statement taking the plea that the marked trees were located in Hill area of Tehsil Batagram as identified by the Revenue Staff. After recording pro and contra evidence of the parties, the learned Senior Civil Judge decreed the suit in favour of plaintiffs to the extent of 1/3rd share in suit compartment -No,3 and 3/4th share in compartment- No,4.
Remaining claim of plaintiff regarding compartments Nos.3 and 4 was dismissed vide judgment and decree dated 16-9-1991. The L.Rs, of Barrister Jumma Khan filed Appeal No,68/13 of 1991 but the said appeal was dismissed vide Judgment and dated 25-1-1992. The L.Rs, of Jumma Khan filed Civil Revision No,94 of 1992 in this Court which too was dismissed on 23-12-1996.
6. The perusal of agreement dated 13-11-1974 shows that the same was executed between Jumma Khan (Late) and Col. Yar Muhammad Khan much before filing of Suit No,412/1 (filed on 12-10-1976).
7. The argument of the learned counsel for the applicants that agreement dated 13-1-1974 which was later on placed on the case file as Exh.P.W.1/1 is based on fraud and misrepresentation, hence the decree procured on the basis of said document is based on fraud and has no force at all. The agreement Exh. P.W.1/1, as mentioned above, was executed outside the Court two years prior to the initiation of lis between the parties so the provisions of section 12(2), C.P.C. Would not be applicable.
If at all any fraud has been committed at the time of execution of the said agreement, the same was not committed in connection with proceedings of the suit. In a case "Nathu Khan v.
Muhammad Rafique" 1987 CLC 1501, wherein it was held:- "The provisions of 12(2), C.P.C. As held in "Rehmatullah v. Ali Muhammad" 1983 SCMR 1064 would not apply in the present case as the alleged fraud or misrepresentation was not committed in connection with the proceedings of suit. As a matter of fact the exchange of land between Muhammad Rafique and Elam Din cannot be considered as fraud or misrepresentation within the meaning of section 12(2), C.P.C."
' Likewise in another case "Begum Anwari Alam Shaikh v. M/s. Passcon (Pvt.) Ltd. And another" 1993 MLD 155 it was held:-- "As regard the plea taken by the learned counsel for defendantsthat since the provisions of 12(2), C.P.C. Are invoked, therefore, it is incumbent upon the Court to frame issues and hold inquiry. It may observed that these provisions apply where a fraud is played or misrepresentation is made during the proceedings of the suit in the Court and not anything done outside the Court."
8. The other argument of the learned counsel for the applicants that the issues be framed, evidence be recorded and then the application be decided has no force at all. The perusal of application filed by the applicants under section 12(2), C.P.C. Shows that fraud has not been specifically alleged in the said application and there exists no prima facie case or reasonable grounds for setting aside the decree in question and to insist upon inquiry would be to insist to an exercise in futility. In a very recent judgment "Mrs Amina Bibi through General Attorney v. Nasrullah and others" 2000 SCMR 296 it was held by the August Supreme Court of Pakistan, "Be that as it may, while dealing with the allegation under section 12(2), C.P.C. It is not incumbent upon the Court that it must in all circumstances fame issues, record evidence and follow the procedure described for decision of the suit as held in 'Amiran Bibi v. Muhammad Ramzan' 1999 SCMR 1334. In the instant case we have gone through the application under section 12 (2) moved by petitioner and material available on record. In view of the facts and circumstances of case and the judicial orders passed upto this Court during the protracted litigation, the application filed by the petitioner under section 12(2), C.P.C. Was liable to be dismissed without formulating issues and recording evidence of the parties. Resultantly the petition fails and is hereby dismissed. Leave is refused."
' Likewise in case "Mst. Ume Kalsoom v. Zahid Bashir through legal heirs and another" 1999 SCMR 1696, it was held;-- "The learned trial Court dismissed the application of the petitioner moved under section 12(2), C.P.C., after taking into consideration all the relevant factors and giving cogent reasons in support thereof. Since the learned trial Court was satisfied that there was absolutely no element of fraud or misrepresentation, and no prima facie case or reasonable grounds existed for setting aside the decree in question, it had rightly declined to frame any issue or record evidence on the application made under section 12(2), C.P.C."
' Similarly in "Zar Wali v. Muhammad Ilyas" NLR 1996 Civil 234 it was held:-- "In the circumstances, the learned District Judge with reference to merits of the case had rightly dismissed the petition under section 12 (2) of the C.P.C. Summarily. The revision petition is hereby dismissed with no order as to costs."
' In "Lal Din and another v. Muhammad Ibrahim" PLD 1988 Lahore 398 it was held:-- "Learned counsel for the petitioners also argued that the learned Additional District Judge was not competent to dismiss the petition without recording evidence and for that purpose, he relied upon Mst. Safia Bibi v. Mst. Afsha Bibi 1982 SCMR 494. Indeed, no inquiry is necessary where the ground of fraud is available. But where, as here, the facts alleged do not amount to fraud within the meaning of section 12 (2) of the C.P.C. To insist upon an inquiry is to insist upon an exercise in futility."
9. Keeping in view the above discussion, I am of the view that the applicants have not specifically alleged fraud played upon them during the litigation, the agreement dated 13-11-1974 was executed outside the Court much before the lis was initiated by Col. (Retd.) Yar Muhammad Khan The provisions of section 12(2), C.P.C. Would not be attracted in such-like situation, the bare reading of the application filed by the applicants under section 12(2), C.P.C. Do not make out a primafacie case and no reasonable ground exists to set aside the decree in question. The application in hand No,1 of 1998 is, therefore, dismissed with no order as to costs.