This judgment shall also decide Civil Revision No,128-D of 1991, Civil Revision No,129-D of 1991 and Civil Revision No,130-D of 1991 as the same question of law and facts is involved in all these cases.
2. Brief facts are that originally the suit property belonged to one Noor Ahmed Shah the predecessor-in-interest of the respondents who owned 50 Acres, 1 Kanal and 3 Marlas of land in Mouza Trinda Soyay Khan in Tehsil and District Rahim Yar Khan. According to the material on the record the said Noor Ahmed Shah alienated 11 Kanals, 10 Marlas out of the aforesaid land in favour of Syed Safdar Ali Shah respondent No,5. However, before the mutation could be sanctioned the said Noor Ahmed Shah died on 29-5-1963. On 10-11-1963 the Assistant Collector II, observed that since 50 Acres of land is minimum economic holding only 1 Kanal and 3 Marlas could be mutated in favour of Safdar Ali Shah. This order of sanction of mutation dated 10-11-1963 was challenged in, an appeal before the Collector by respondent No,l. However, this appeal was dismissed vide order dated 4-6-1964. The revision was filed and the case was remanded on 26-6-1964 for fresh decision. After the remand the appeal was again dismissed by the Collector vide order dated 20- 10-1964. Safdar Ali Shah filed a revision petition which was accepted on 3-12-1964. A further revision filed by Ahmed Raza etc. was dismissed by the Member Board of Revenue on 27-6-1967. Ahmed Raza etc. respondents challenged the order of the Member Board of Revenue dated 27-6-1967 by means of W.P. No,1835 of 1967. It may here be mentioned that after the purchase of 11 Kanals, 10 Marlas out of the total holding of Noor Ahmed Shah, Safdar Ali Shah respondent No,5 alienated different parcels of land. In C.R.No,127-D of 1991, one Kanal, 10 Marlas situated in Khata No,27/39 was transferred in favour of Fazal Din petitioner vide Mutation No,395. In C.R. No,128-D of 1991 land measuring 16 Marlas was transferred by respondent No,5 in favour of Muhammad Ismail petitioner vide Mutation No,560. In C.R. No,129-D of 1991 land measuring 10 Marlas was alienated by respondent No,5 in favour of the petitioner Abdul Hamid vide Mutation No,395. In C.R. No,130-D of 1991 land measuring 16 Marlas was alienated by respondent No,5 in favour of Muhammad Bux vide Mutation No,395. All These mutations in favour of respective petitioners were made and attested on the basis of the judgment of the Additional Commissioner, Bahawalpur dated 3-12-1964. It may here be mentioned that before the learned Additional Commissioner, Ahmed Raza respondent No,1 had admitted the transaction between respondent No,5 and his deceased father namely. Noor Ahmed Shah.
3. All these orders on the Revenue side as mentioned above were challenged by Mst. Jamila, Khatoon etc. through W.P.No,1835 of 1967. The said writ petition was heard and decided by my learned brother Abdul Shakoor-us-Salam, J.-vide judgment dated 24-11-1975. By the said judgment the orders of the learned Additional Commissioner dated 26-10-1964 and 3-12-1964 and the order of the Member Board of Revenue dated 27-6-1967 were declared to be without lawful authority and of no legal effect. Subsequently on 26-5-1977 Mutation No,947 was attested in which the earlier mutation was reviewed. Aggrieved of the aforesaid, the petitioner filed a suit for declaration to the effect that he was the owner in possession of the land which he had purchased from respondent No,5 and that Mutation No,947 dated 26-5-1977 was ineffective upon the rights of the petitioners. In the said suit he challenged the orders culminating in the final order of the High Court in W.P.No,1835 on the contention that he was not impleaded as a party in those proceedings and was thus not bound by the said judgment. The suit was resisted by respondents Nos,1 and 2 on the one hand and respondents Nos,3 and 4 on the other. Separate written statements were filed. It was contended therein that as the final order was passed by the High Court in W.P.No,1835, the same could not be challenged in the civil Court. The learned trial Court vide judgment and decree dated 27-1-1990 dismissed the suit of the petitioner mainly on issue No,2. The trial Court upon the said issue came to the conclusion that the final judgment with respect to the controversy between the parties was made by the High Court vide its judgment dated 24-11-1975 passed in W.P.No,1835 of 1967. It was held that after the incorporation of section 12(2), C.P.C. on 26-3-1980, the petitioner should have availed of the remedy under section 12(2), C.P.C. by moving an appropriate application before the High Court. It was held upon the strength of Mst. Afroz Jehan v. Mst. Noor Jehan and others 1988 CLC 1318 that although the petitioner was not a party before the High Court in those proceedings, he can still invoke the provision of section 12(2), C.P.C. notwithstanding being a stranger to the proceedings. The petitioner preferred an appeal against the said judgment and decree. The said appeal was dismissed vide judgment and decree dated 6-4-1991 passed by the Additional District Judge, Rahim Yar Khan. The learned Appellate Court also came to the conclusion that in presence of the judgment dated 24-11-1975 passed by the High Court in W.P.No,1835 of 1967 the civil Court has no jurisdiction.
4. Mr. A.R. Tayyab, Advocate, learned counsel for the petitioner relied upon the case of Subedar Muhammad Hussain v. Mst. Shah Begum and others (1990 M LD 2100), wherein, it was held that section 12(2), C.P.C. is not applicable against a judgment passed by the High Courtin exercise of its writ jurisdiction.
5. On the other hand, Sardar Muhammad Hussain Khan, Advocate learned counsel for the respondents stated that view canvassed by the learned counsel for the petitioner has been departed from by the rule laid down by the Supreme Court of Pakistan. He referred to Secretary Ministry of Religious Affairs & Minorities and 2 others v. Syed Abdul Majid (1993 SCM R 1171) and Mst.
Safia Bibi v. Mst. Aisha Bibi (1982 SCM R 494) to contend that the provisions of section 12(2), C.P.C. are squarely applicable to a final judgment passed by the High Court or Supreme Court. In the case of Secretary Ministry of Religious Affairs & Minorities and 2 others v. Syed Abdul Majid (1993 SCM R 1171) it was held by their Lordships of the Supreme Court that section 12(2), C.P.C. shall apply to Constitution petition's filed in the High Court. Similarly in Mst. Safia Bibi v. Mst. Aisha Bibi (1982 SCM R 494) it was held that order of the High Court passed in writ petition alleged to be based on fraud and misrepresentation, has to be challenged by application before the High Court under section 12(2), C.P.C. and not by a separate suit. The rule laid down in Ghulam Muhammad v. M.
Ahmad Khan etc. (1993 SCM R 662) reiterate that section 12(2), C.P.C. is fully applicable in respect of a judgment passed by the High Court. It was held therein that persons not party to suit can also file application under section 12(2), C.P.C.
6. The upshot of the above discussion is that if the petitioner was aggrieved of the final judgment passed in Writ Petition No,1835 of 1967 the appropriate remedy available to him was to approach the High Court under section 12(2), C.P.C. if he fulfilled the requirements of the said provisions of law.
Both the learned lower Courts were correct in holding that in view of the judgment of the. High Court dated 24-11-1975 it was not possible for the lower Courts either entertain or adjudicate upon the matter which has already been finally decided by this Court.
7. In view of the above, this civil revision has no merit and is hereby dismissed. Before parting with this judgment it is observed that if an application under section 12(2), C.P.C. is preferred by the petitioner in the proper forum he may be entitled to a sympathetic consideration regarding the period of limitation. Parties to bear their own costs.