BASHIR AHMED and 6 others vs ALLAH JAWAI and others

ORDER

' SH. RIAZ AHMED, J.---Leave to appeal is sought against the judgment and order dated 15-11-1999 delivered by a learned Single Judge of the Lahore High Court whereby a revision petition filed by the petitioners was dismissed.

2. The litigation has a chequered history and a reference to that would be essential for the disposal of this petition. In the first round of litigation the ' petitioners instituted a suit challenging Mutation No,1732 dated 30-7-1962 on the ground that the same was violative of MLR-64 and had been obtained and sanctioned through fraud and misrepresentation. The suit was decreed by the learned trial Court holding that the mutation was violative of the MLR, but repelled the contention as to the fraud and misrepresentation. The respondents then instituted an appeal against the aforesaid order, which was dismissed by the learned Additional District Judge vide judgment and order dated 10-2-1973 holding that the mutation was violative of the MLR. However, the Appellate Court affirmed the findings of the Civil Court that no fraud or misrepresentation had been committed or had taken place while obtaining the aforesaid mutation. The Appellate Court held that no evidence was brought on the record to prove fraud and misrepresentation and therefore the plaintiffs-petitioners had failed to prove the issue. Against this judgment of the Appellate Court an appeal was taken to the High Court, which was allowed on the limited question of limitation being violative of the MLR and the High Court observed as under:-- "For these reasons, I am of the view that the learned Courts below were wrong in holding that the order, or for that matter the mutation, of partition, anyway signed against the provisions of MLR-64, paragraph 23. Consequently, the appeal is accepted, the judgments and decrees of the Courts below are set aside and the suit of Rahim Baldish, plaintiff, respondent herein is dismissed with costs throughout."

' Against these findings, no cross-appeal or objections were filed and a petition seeking leave to appeal was filed before this Court, which was dismissed vide judgment reported as Nasir Ahmed Khan v. Mst. Ismat Jehan Begum (1963 SCMR 667). After the dismissal of the petition seeking leave to appeal, jurisdiction of the Chief Land Commissioner was invoked for the determination of the mutation on the touchstone of the MLR, but the said petition was rejected by the Chief Land Commissioner against which a writ petition was filed, but the same was withdrawn on 30-6-1998.

After the withdrawal of the writ petition, the petitioners then instituted a suit, which was contested by the respondents and the trial Court framed issues as to the competency and jurisdiction of the Court for adjudicating the controversy. After appraising the evidence, the learned trial Court dismissed the suit vide judgment and decree dated 8-4-1989 deciding both the issues against the petitioners. The said judgment was then assailed through an appeal, which also met the same fate. Thereafter, the revisional jurisdiction of the High Court was invoked, but the revision petition was dismissed vide order impugned.

3. As in the High Court, once again the question of fraud and misrepresentation was agitated, but unfortunately in the first round of litigation the petitioners had miserably failed to prove fraud and misrepresentation. So much so no cross-objection or appeal was filed. In this view of the matter, the petitioners at this stage cannot dare out to re-agitate the plea which they ought to have proved in the first round of litigation. In this view of the matter, we are of the view that the judgments delivered by the Courts below are in accordance with law and no case has been made out for interference by this Court. Hence this petition is dismissed and leave to appeal is refused.