Mst. Shaban and another, petitioners herein, filed an application under section 12(2), C.P.0 in the Court of learned District Judge Swabi on 29-3-2000. The said application was resisted by the respondent/plaintiff by filing written reply. The learned Appellate Court after hearing the learned counsel for the parties dismissed the application vide judgment/order dated 12-9-2002. Feeling aggrieved with the said judgment/order, the petitioners/defendants filed the revision petition in hand.
2. Arbab Muhammad Usman Khan, the learned counsel representing the petitioners, argued that mutation No,15094 attested on 16-1-1971 whereby the property in dispute was allegedly gifted in favour of Abdul Manan respondent/plaintiff by the predecessor of parties, namely, Shahi Randan, was in fact redemption of mortgage mutation and was not gift mutation. When this fact came to the knowledge of the petitioners, she filed an application under section 12(2), C.P.C, therefore, it was incumbent upon the learned Court below to have recorded evidence to see as to whether the said mutation was gift mutation or redemption mutation but the said exercise was not done.
3. On the other hand, Mr.Amjad Ali, the learned counsel representing the respondent/plaintiff argued that the question of mutation No, 15094 being based on fraud has already been resolved up to this hence as per section 11, C.P.0 the same cannot be re-opened through an application under section 12(2), C.P.C. Reliance in this regard has been placed on 1985 SCMR 1272, PLD 1982 SC 146; PLD 1988 Lahore 398, 1992 CLC 2430 and 1993 SCMR 710.
4. I have heard the arguments of the learned counsel for the parties at length and perused the record of the case.
5. The admitted position in the case in hand is that Abdul Manan respondent filed Suit No,156/1 against the present petitioners and others in the Court of learned Senior Civil Judge Swabi seeking declaration to the effect that he was owner of land measuring 12, Kanals 17 Marlas on the basis of mutation No,15094 attested on 16-1-1971 and that inheritance mutation No,15218 attested on 28-4- 1971 was wrong and incorrect, hence was ineffective upon his rights. Perpetual injunction restraining the petitioners/defendants in the said suit was also prayed for. The said suit was resisted by the defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties, decreed the suit in favour of respondent/plaintiff Abdul Manan vide judgment and decree dated 9-10-1995. It is worth-mentioning that the learned trail Court had framed Issue No,5 to the effect: "Whether the mutation No,15094 attested on 16-6-1971 is fraudulent, collusive and void?" and while giving its detailed findings on the said issue, it was held that Tamleek Mutation No,15094 was validly attested in favour of plaintiff Abdul Manan on 16-6-1971. The said issue thus was decided in negative. Being not satisfied with the said judgment and decree, the petitioners filed civil appeal (No,40/13 of 1995) in the Court of learned District Judge Swabi but the same was dismissed vide judgment and decree dated 11-7-1997. Being not contented with the judgments and decrees passed by the learned Courts below, the petitioners filed Revision Petition No,607 of 1997 in this Court which was also dismissed in limine vide judgment and order dated 6-4-1998 thus the findings of the learned trial Court to the effect that mutation No,15094 was validly attested in favour of Abdul Manan respondent/plaintiff attained finality.
6. The argument of the learned counsel for the petitioners that mutation No,15094 attested on 16-6- 1971 was redemption mutation, therefore, having acquired the said knowledge, the petitioners filed an application under section 12(2), C.P.0 and evidence to that effect should have been recorded, has no substance because voluminous Revenue Record had been exhibited on record in Suit No,156/1. The Jamabandi for the year, 1966-1967 was also placed on record as Exh.P.W. 1/1 according to which Mutation No,15094 was Tamleek Mutation and not redemption mutation. The said Jamabandi is available on record of the said case file form pages 68 to 71. The petitioners themselves have placed copy of mutation No,15094 available at page-74 of the file in hand which also shows that the said mutation was Tamleek mutation.
7. As per provision of section 11, C.P.0 the learned Court below could not proceed further on the application filed by the petitioners under section 12(2), C.P.0 because the issue with regard to mutation No,15094 had been directly in issue in Suit No,156/1 between the same parties and the Court of competent jurisdiction had after recording evidence and hearing the parties, finally decided the same. In this regard, Explanation IV of section 11, C.P.0 is more clear which is reproduced hereunder for convenience:-- "Any matter which might and ought to have been made ground of defence or in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
The objection now raised by the petitioners should have been made the ground of defence in the previous Suit No,156/1 which was not done but vague and general objection was raised by the petitioners in their written statement that mutation No,15094 was based on fraud. It is by now settled that resort to civil action for re-opening the matter finally decided up to the level of highest Court in the country was not proper even on a new ground of fraud which ground being available was not taken in the earlier round. This view was taken by august Supreme Court of Pakistan in:--
(1) Abdul Majid and others v. Abdul Ghafoor Khan and others (PLD 1982 SC 146),
(2) Asif Jan Siddiqi v. Government of Sindh and others (PLD 1983 SC 46),
(3) Muhammad Shafique and others v. Atta Muhammad and others (1985 SCMR 1272) and
(4) Lal Din and another vs. Muhammad Ibrahim (1993 SCMR 710).
The learned Court below has rightly dismissed the application filed by the petitioners under section 12(2) C.P.C. I have not been able to find out any material irregularity or any jurisdictional error or defect warranting interference in the impugned judgment/order passed by the learned Court below. Resultantly, the revision petition in hand is dismissed with no order as to costs.