SAIN vs GOVERNMENT OF N.-W.F.P. through Secretary, Auqaf and 2 others

' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been preferred against the judgment, dated 14-5-2002 passed by learned Single Judge of Peshawar High Court, Abbottabad Bench, in an application moved by the petitioner under section 12(2), C.P.C.

2. Initially, the petitioner filed a suit seeking declaration that he was owner in possession of suit property originally owned by Auqaf Department (N.-W.F.P.) in the Jamabandi for the year 1926-1927 and on rejection of plaint on the ground that Civil Court had no jurisdiction to adjudicate the matter, he filed a petition under section 11 of N.-W.F.P. Waqf Properties Ordinance (Ordinance No,I of 1979) before the District Judge exercising the power of Tribunal under the (ibid) Ordinance. The petition was contested by the Administrator, Auqaf Department Government of N.-W.F.P. And ultimately, it was dismissed by the Tribunal. The petitioner filed an appeal before the High Court which also met the same fate and was dismissed. The petitioner then filed a petition under section 12(2), C.P.C. Before the High Court on the ground that since an area of 14 Kanals, 18 Marlas forming part of the property-in his possession was included in Muslim Waqf Properties vide Mutation dated 12-1-1942 through fraud and the verdict obtained by the respondents from the Tribunal and from High Court in appeal was result of misrepresentation. The learned Judge in the High Court, having made detail scrutiny of facts, held that property was exclusively owned by Auqaf Department and the claim of petitioner was without any foundation. The application under section 12(2),. C.P.C. Was thus, dismissed with following observations:-- "(6) After approaching the Tribunal under Ordinance I of 1979 and failing to get relief also availed his right of appeal before this Court which was also dismissed now the petitioner has changed his stance by saying that correction Mutation No,8281 attested on 12-1-1942 respecting 14 Kanals, 18 Marlas in fraudulent, collusive based on misrepresentation and ineffective upon the rights of applicant. Under section 12(2) of the C.P.C. a relief can only be sought if a judgment is obtained on fraud or misrepresentation but the applicant has miserably been failed that any fraud or misrepresentation was played with the Tribunal functioning under Ordinance I of 1979 or with this Court while rejecting appeal of the applicant. The applicant cannot bifurcate 14 Kanals, 18 Marlas of land from the total Waqf property measuring 22 Kanals, 7 Marlas as recorded in the Revenue record from the very first settlement and most particularly after 1942. The applicant is estopped to deny the relationship of lessor and lessee with the Auqaf Department as in 1950 the applicant himself has acquired the suit land on lease after admitting Auqaf Department as lessor."

3. Learned counsel for the petitioner has contended that learned Single Judge in the High Court has failed to appreciate that respondents through misrepresentation of the factual position, misled the Tribunal and the High Court and that notwithstanding the fact that fraud was not committed during the proceedings before the Tribunal or in appeal before the High Court, the mutation which was basis of the claim of respondents, was sanctioned through fraud which would vitiate the subsequent proceedings and in that the case would squarely be covered by the provisions of section 12(2), C.P.C.

4. We having heard the learned counsel for the petitioner at length and also perused the record with his assistance, find that neither any fraud was committed in respect of the proceedings before the Tribunal or in appeal before the High Court nor the judgments were obtained through misrepresentation. The question of title of the property, subject-matter of dispute, was decided on the basis of evidence brought on record and the petitioner, despite having the knowledge of the character of property and the attestation of mutation and also the subsequent entries in the Revenue Record, did not raise such an objection to challenge the genuineness of mutation or correctness of the entries made in the Revenue Record on the basis of said mutation at any stage.

The plea of misrepresentation taken in application under section 12(2), C.P.C. Is not supported by any direct A or circumstantial evidence and the learned counsel for the petitioner has also not been able to show us from record any material suggesting misrepresentation before Tribunal or in the High Court.

5. For the reasons given above, this petition is dismissed and leave is refused.##TE