NA TH U KHAN vs MUHAMMAD RAFIQ and others

ORDER

' Briefly stated the facts of this case are that Isab Ali vide registered sale-deed dated 1-1-1979, sold land measuring 24 Kanals to I am Din. Two suits: one by Nathu Khan and the other by Muhammad Rafiq were filed to pre-empt the said sale. Out of the rival pre-emptors, it was held that Muhammad Rafiq had prior right to pre-empt the sale. His suit was, therefore, decreed by learned Civil Judge, Okara, vide judgment dated 30-11-1981. On the same day, the suit of Nathu Khan was dismissed. It is stated at the Bar that no further proceedings by way of appeal etc. Were held in the matter.

2. Nathu Khan on 21-10-1982, filed an application under section 12 (2), C.P.C. Alleging therein that after the decree dated 30-11-1981, Muhammad Rafiq rival pre-emptor exchanged his land with Ham Din vendee vide registered deed dated 14-9-1982. He, therefore, contended that the decree in favour of Muhammad Rafiq having been obtained by fraud and misrepresentation, be set aside.

This application was resisted by Muhammad Rafiq. The learned Civil Judge after recording evidence of the parties, vide order dated 10-4-1986, dismissed the petition under section 12 (2)

C.P.C. This order was challenged by Nathu Khan in appeal before learned District Judge, Okara, who dismissed the same vide impugned order dated 16-6-1986. Hence this revision.

3. I have heard the learned counsel for the petitioner and have also perused various documents which form part of this petition.It is conceded at the Bar by learned counsel that in the suit for pre- emption, a specific issue regarding collusiveness between Muhammad Rafiq and the vendee was framed and that the said issue was decided in favour of Muhammad Rafiq and against Nathu Khan petitioner. Muhammad Rafiq after decree in his favour had become full owner of the property and was, therefore, entitled to dispose it of in any manner he likes. He could alienate or exchange the said property with any one including Ilam Din vendee in the pre-emption suit. Muhammad Rafiq allegedly A exchanged his land with Ilam Din on 14-9-1982, i.e. After many months of the decree in his favour. Nathu Khan petitioner in his petition has not alleged any fraud or misrepresentation by Muhammad Rafiq during proceedings of the pre-emption suit. The provisions of section 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 the suit. As a matter of fact, the exchange of land between Muhammad Rafiq and Ilam Din cannot be considered as fraud or misrepresentation within the meaning of section 12 (2), C.P.C.

' There is another aspect of this case as well. The petition under section 12 (2), C.P.C. Was dismissed by learned Civil Judge vide order dated 10-4-1986. This order was not a decree within the meaning of section 2(2), C.P.C., and therefore, as held in Munir Ahmad Khan and others v. Samiullah Khan and others 1982 CLC 625, not appealable.

4. In view of the above discussion, I find no merits in this revision which is accordingly dismissed in limine.