JUDGMENT SYED DEEDAR HUSSAIN SHAH, J.-- This appeal is directed against judgment dated 17.1.1996, passed by the Peshawar High Court, Circuit Bench Abbottabad in Civil Misc. Application No. 383 of 1983.
2. Respondents Nos. 1 to 3 herein filed an application under Section 12(2), CPC in the Peshawar High Court, Circuit Bench, Abbottabad, praying therein that the Award dated 2.2.1980 of the Referee Court, Haripur, allowing enhancement of compensation; the judgment dated 14.4.1981 in RFA No. 72/80 and the order dated 20.4.1982 of this Court in CPLA No. 206-R of 1981, may be set aside on the ground that the appellant and respondent No. 4 had obtained the same by fraud; that the entire estate of Village Khabbal, . Tehsil Haripur including the land comprised in Khata Nos. 427, 428, 430 and 431, etc. Was compulsorily acquired at public expense for the construction of Tarbela Dam. The compensation was awarded through Award No. 32, dated 17.11.1971, taking exception to the quantum of compensation as well as its apportionment in regard to the land comprised in the afore-mentioned Khatas. Respondent No. 2 Hikmat Khan and Col. Muhammad Jalat Khan appellant, who are brothers inter se and residents of Village Topi Tehsil Swabi, filed an Objection Petition under Section 18/30 of the Land Acquisition Act before the Collector, who referred it to the learned Additional District Judge-II, Haripur. The learned Referee Court, vide judgment dated 18.1.1977, dismissed their claim for change of classification of the acquired land in dispute and enhancement of. Its compensation in the light of the observations made in the judgment of the High Court reported as PLD 1976 Peshawar 50, but held them entitled to get compensation to the extent of 62Vz + 1-2/3 Sarsais. Feeling aggrieved, they filed Regular First Appeal No. 61/1977, on 11.4.1977, in the Circuit Bench of the Peshawar High Court, at Abbottabad, which was transferred to the Principal seat. During the pendency of the said appeal, another Reference for enhancement of the compensation of the land in dispute drawn-up on a second Objection Petition under Section 18/30 of the Land Acquisition Act filed by the appellant and respondent No. 4, on 25.12.1971, was received by the Referee Court which was answered on 2.2.1980. An Appeal (R.F.A. No. 72/80) was filed by the Land Acquisition Collector against that judgment in the High Court, but it was dismissed on 14.4.1981 and the petition for special leave to appeal was also dismissed ,by this Court in limine on 20.4.1982. Thereafter, an application under Section 12(2), CPC was made by the respondents before this Court, wherein they were directed to approach the High Court, thereafter they filed another application under Section 12(2), CPC before the High Court, as stated herein above. The allegations levelled in the application are that the first Objection Petition filed by the present appellant etc,, which contained a prayer for enhancement of compensation also, was dismissed by the Referee Court and the appeal filed by them was still awaiting disposal but in spite of that they had succeeded in getting the compensation enhanced by manipulating another Objection Petition and suppressing the factum of dismissal of their earlier objection petition and pendency of appeal at all the forums; and that the fraud committed by the appellant etc., had surfaced during the execution proceedings. The learned High Court accepted the Misc. Application with costs and set aside the judgments and decrees arising from Objection Petition No. 113/4 of 1977, vide impugned judgment dated 17.1.1996. Hence, this direct appeal.
3. Raja Muhammad Ibrahim Satti learned ASC for the appellant, inter alia, contended that the impugned judgment is against law and facts; that neither there is any proof of fraud committed by the appellant nor any loss is occurred to the respondents by the judgments in Objection Petition No. 113/4 of 1977, by which only the compensation rates per quality were one kanal of each kind of land were fixed on the uniform basis already allowed to the appellant's other co- affecters of the same village; that C.M.A. No. 383 of 1983 filed by the present respondents was not even entertainable both on facts and law; that the impugned judgment is against the principle of res judicata, whereby the appellant's former judgment is set aside instead of the latter by the learned High Court and has thereby foreclosed the possibility of any decision favouring the appellant in Objection Petition No. 341/4 of 1977, which the High Court vide its judgment dated 17.11.1995 in RFA No. 61 of 1977 remanded to the Referee Court for further evidence of the parties and afresh decision; and that the learned High Court, under Section 12(2), CPC, has no jurisdiction to set aside the final decision of this Court.
4. We have heard learned counsel for the appellant as well as Ch. Zamir Hussain, learned ASC for respondents Nos. 1 and 3. While hearing Civil Misc. Petition No. 100-R of 1983 in Civil Petition No. 206- R/81 this Court passed the following order: "As C.P.C, is not applicable to this Court, the petitioner should go to the High Court under S. 12(2) of the C.P.C, dismissed."
5. In pursuance of the above order, the High Court scanned the entire record available and found that the appellant actually played a fraud on the Court by concealing the relevant facts. It is borne out from the record that the appellant filed two Objection Petitions,, but in order to substantiate his claim he stated that both the petitions were different in nature, inasmuch as first petition was filed under Section 18/30 of the Land Acquisition Act, which pertained to the area for which his tide was disputed, whereas the second Objection Petition was filed under Section 18 of the Land Acquisition Act, which related to the undisputed area owned by him. This plea of the appellant is not supported by the record available, because it is crustal clear that both the Objection Petitions were quite identical in substance and merits qua the question of enhancement of compensation of the acquired land. Enhancement of compensation of the same acquired property was sought in both the Objection Petitions. It is strange to note that the record of RFA No. 61/1977 shows that a prayer of enhancement of compensation was made by the appellant in addition to the prayer for apportionment of compensation. These glaring facts were suppressed by the appellant during the second round and the fraud was intentionally committed. It is also borne out from the record that the first Objection Petition No. 341/4 was filed by appellant before the Collector Tarbela Dam on 28.12.1971, which also bears the seal of the office of the Land Acquisition Collector-I and Diary No. 2524, dated 28.12.1971, which was subsequently forwarded to the learned Additional District Judge, Haripur by the then Land Acquisition Collector-1, Tarbela Dam Resettlement Organization, through letter No. TRO/LAC/2 (42)/72- 2739, dated 16.11.1972, who as per Office Order No. RST/PO-116/E' had relinquished the charge of his post on 19.1.1973. It is also astonishing to note that second Objection Petition No. 113/4, dated 25.12.1971 neither bears the seal of the office of the Land Acquisition Collector-I nor it bears diary number, It also does not reveal that on which date it was received by the Collector. Actually it was addressed to the Additional District judge, Haripur through Collector and not to the Collector. The covering letter neither bears the signature of Abdul Hafiz Asar, nor the date as to when the Objection Petition was referred to the learned Additional District judge, Haripur, but it was received in the Court of A. D.j. Haripur on 17.6.1977. It also does not appeal to mind that the Collector had kept it in his office for a period of five and a half years, which is also very alarming aspect of the case. It clearly shows that the same was antedated and smuggled in the Court through the back door in order to undo the natural affects of the dismissal of the first Objection Petition.
6. In view of the overwhelming documentary evidence, which clearly shows that the fraud was actually committed by the appellant, and the respondents in fact came to know about it when the appellant approached the Executing Court for execution of the decree. The learned High Court has dealt with the case on the direction given by this Court in C.P.L.A. No. 206-R of 1981, which was dismissed on 20.4.1982, wherein neither sufficient material was placed before this Court nor plea of fraud was raised by the respondents because by that time it was not in their knowledge. The learned judges of the High Court have very carefully examined/analysed the available record, oral evidence as well as the documentary evidence adduced by the parties before the Referee Court. It would be advantageous to refer here the relevant paragraphs of the impugned judgment, which read as under:- "13.There is no force in the contention raised by the learned counsel for the respondents that the petitioners had no cause of action to file this application in the face of the findings of the learned Referee Court on Issue No. 3 that the objection petition had been referred by a competent Collector. Much can be said about the findings of the learned Referee Court but to say the least- the Referee Court not only overlooked the aforementioned intriguing circumstances reflecting on the authenticity of the Objection petition but also the admissions contained in the statement of Raja Muhammad Aslam, on which the findings were based, that he had not put any date under his signatures on the covering letter and the statement under Section 19 of the Land Acquisition Act and that he was compulsorily retired from service in the year 1976. Be that as it may, the findings of the Referee Court being restricted to the maintainability of the Objection Petition can have no bearing on the main question agitated in this application that the respondents had committed fraud by filing two Objection Petitions for enhancement of compensation of one and the same acquired and and concealing the fact that the Objection Petition filed by them earlier was dismissed. Needless to mention that this element of fraud is by itself sufficient for setting aside the impugned judgments on the ground of fraud.
In the result this application is accepted with costs and the impugned judgments and decrees arising from objection petition No. 113/4 of 1977 are set aside with a direction to the respondents to refund the enhanced compensation, if received."
7. In view of the above material available, the contentions raised by the learned counsel for the appellant, in our humble opinion, are not tenable. The impugned judgment is based on the proper appreciation of available material, which is not open to exception. Further we do not find misreading or non-reading of the material evidence. There is no misconstruction of facts and law.
8. Resultantly, for what has been stated above, the instant appeal being without any merit is hereby dismissed with no order as to costs.