2016 Y L R 452

2016 Y L R 452

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Sher BAZ KHAN and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 3 others---Respondents

Writ Petition No.10336 of 2010, decided on 29th July, 2015.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Application for setting aside judgment---Locus standi to file application---Concurrent orders passed by two courts below---Scope of constitutional petition---Petitioners assailed judgment and decree passed on the basis of compromise between both the parties---Trial Court as well as Lower Appellate Court declined to set aside the consent judgment and decree---Validity---Predecessor in interest of petitioners was alive till the year, 1997, but he neither objected to decree in question nor filed any application under S.12(2), C.P.C., during his lifetime when it was fully in his knowledge---Petitioners who are legal heirs had no locus standi to file application under S. 12(2), C.P.C.---Advocate who appeared on behalf of predecessor in interest of petitioners and got the statement recorded, was not pleaded as party to the application under S.12(2), C.P.C., filed by the petitioners---Scope of constitutional petition had become very limited in case of concurrent findings of courts below---Both the decisions of courts below were concurrently against petitioners and the same were immune from interference by High Court in its constitutional jurisdiction unless some gross illegality, irregularity, jurisdictional defect or misreading and non-reading of evidence was floating on surface but the same was not pointed out by petitioners---High Court declined to interfere in concurrent orders passed by two courts below---Petition was dismissed in circumstances.

            Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12; Muhammad Nawaz alias Nawaz and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Khuram Shafi v. Mst. Inayat Bibi and others 2005 SCMR 766; Muhammad Saleem v. Muhammad Tariq 2009 CLC 1295; Ilahi Bakhsh v. Sheikh Muhammad Sadiq and 2 others 2005 CLC 1704; Fazal Hussain Shah through Legal Heirs and others v. Rustam through Legal Heirs 2010 YLR 297; Sardar Din v. Mst. Khatoon and others 2004 SCMR 1102; Jam Hussain Shah and others v. Additional District Judge and others 2014 YLR 749; Ameer Umar and another v. Additional District Judge, Dera Ghazi Khan and others 2010 SCMR 780; Sultan Ahmad and others v. Mehr Din and others 1994 MLD 1671; Muhammad Yar and another v. Allah Ditta and others 2008 CLC 795; Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58; Mrs. Alia Khalid and others v. Nazir Ahmad and others 2005 SCMR 1273; Muhammad Hanif through Legal Representatives v. Province of Punjab through District Collector, Vehari and others 2005 YLR 3331; Gul Sher and 5 others v. Province of Punjab through E.D.O.R Toba Tek Singh and 8 others 2008 YLR 2277; Allah Bakhsh and 10 others v. Abdul Rahim and 23 others 2005 CLC 1643; Mst. Mehr Bhari and 5 others v. Province of Punjab through Collector Chakwal and another 2003 YLR 603; Muhammad Razzaq v. Faqir Hussain and another 2010 CLC 170; Mrs. Sher Bano v. Kamil Muhammad Khan PLD 2012 Sindh 293 and Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345 distinguished.

            Saifa Bibi and 5 others v. Hidayat and 4 others 2007 MLD 1167; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Chief Engineer, N.A.P.W.D Gilgit and 4 others v. Late Shaheen Khan, Contractor through Legal Representative and others 2008 CLC 1385; Nawab Din v. Abdul Khaliq and another 2004 MLD 827; Khan Gul, and others v. Azim Shah, and others PLD 1994 Pesh. 204; Muhammad Nawaz v. Barkat Ali PLD 2004 Lah. 21; Nizar Ali v. Noorabad Cooperative Housing Society Ltd and others PLD 1987 Kar. 676; Abdul Jabbar through L.Rs. and others v. Abdullah through L.Rs. and others 2006 SCMR 1541; Abdul Razzaq and 3 others v. Sultan Mahmood Akbar and 3 others 1998 SCMR 2428 and Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424 ref.

            Muhammad Ashraf v. Kashif Iqbal through Mst. Fakhar-un-Nisa and another 2014 MLD 109; Javed Iqbal v. Abdul Aziz and another PLD 2006 SC 66; Raja Muhammad Arshad v. Raja Rabnawaz 2015 SCMR 615; Sh. Abdur Rashid v. Sh. Mubarak Ali and others 1994 CLC 1617; Nanjegowda and another v. Gangamma and others 2012 SCMR 1246; Abdul Jabbar and others v. Mst. Maqbool Jan and others 2012 SCMR 947; Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others 2008 YLR 2309; Hafiz Muhammad Sharaf-Ud-Din v. District Judge, Khushab and others 2015 MLD 1081; Manzar Shah alias Manzar Hussain Naqvi v. Ch. Shafquat Hussain and 2 others 2015 YLR 595 and Sadruddin v. Aslam Madad Ali and others PLD 2008 Kar. 2005 rel.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Judgment, setting aside of---Plea of fraud---Proof---Petitioners did not give particulars of fraud in their application moved under S. 12(2), C.P.C., or in their evidence---Even witnesses produced by petitioners did not say anything about commission of fraud upon the court---Application under S. 12(2), C.P.C., was not maintainable under circumstances.

            Subedar Sardar Khan through legal heirs and others v. Muhammad Idrees through General Attorney and others PLD 2008 SC 591 and Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others 2013 SCMR 1419 rel.

(c) Transfer of Property Act (IV of 1882)---

----S. 54---Civil Procedure Code (V of 1908), O. XXIII, R.3---Transfer of land---"Consent decree" and "sale deed", distinction---"Consent decree" and document on the basis of which land is agreed to be transferred, cannot be termed as "sale deed".

            Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470 and Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through Legal Heirs and others 2015 SCMR 1081 rel.

(d) Civil Procedure Code (V of 1908)---

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Judgment, setting aside of---Limitation---No period of limitation has been prescribed in Limitation Act, 1908 for filing application under S. 12(2), C.P.C., so the same falls under Art. 181 of Limitation Act, 1908, which provides a period of three years from the date of accruing of right to apply.

            Muhammad Mahmood Saeed and others v. Mehdi Hassan Shah and others 2015 CLC 307; Muhammad Younus and another v. Venue Gurdas Advani and others 2015 CLD 390 and Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554 rel.

            Muhammad Anwar for Petitioners.

            M. R. Fakhar Baloch for Respondents.

            Date of hearing: 29th July, 2015.

JUDGMENT

            MUHAMMAD SAJID MEHMOOD SETHI, J.---This writ petition is directed against the judgment dated 22.06.2010 passed by Additional District Judge, Jalalpur Pirwala and order dated 14.12.2009 passed by learned Civil Judge, Jalalpur Pirwala, whereby the application under Section 12(2) of Code of Civil Procedure, 1908 (hereinafter 'C.P.C.') filed by the petitioners for setting aside compromise decree dated 09.01.1989, was dismissed by the learned Courts below.

2.         Brief facts for the disposal of this writ petition are that respondents Nos.3 and 4 filed a suit on 22.12.1988 for permanent injunction against Muhammad Nawaz, predecessor in interest of the petitioners, regarding land measuring 28 Acres, situated in Chak No.85/M, Tehsil Jalalpur Pirwala, District Multan. Respondents Nos. 3 and 4 filed an application for compromise and the statements of the parties and their counsel were recorded on 08.01.1989 and, finally, the suit was decreed on 09.01.1989, on the basis of compromise. Present petitioners, being legal heirs of Muhammad Nawaz (deceased), filed an application under section 12(2) C.P.C. before the learned trial Court on 08.07.1999 against the said judgment and decree dated 09.01.1989. Learned trial Court after seeking reply from the respondents, framed issues, recorded the evidence and rejected the said application on merit vide order dated 14.12.2009. The petitioner filed revision petition against the order dated 14.12.2009 before the learned Additional District Judge, which was also dismissed on 22.06.2010. Through this writ petition, petitioner challenges both the orders with the prayer that both the impugned orders be set aside being void, illegal and without jurisdiction, and application under section 12(2), C.P.C. be accepted.

3.         Learned counsel for the petitioner submits that the disputed land was owned by the Provincial Government and Muhammad Nawaz (deceased) was in possession as an allottee under Tube Well Scheme. Further submits that the suit of the respondents Nos.3 and 4 as owners in possession could not be decreed even on the statement of Muhammad Nawaz as no proprietary rights could be transferred by the allottee without prior permission of Government as required under section 19 of Colonization of Government Lands Act, 1912. The disputed agreement is clearly against the provisions of law and learned trial Court had no jurisdiction to pass an order or accept compromise, which is against law. Further submits that the application under section 12(2) C.P.C. filed by the petitioner has been wrongly decided as being barred by time. In the end, he submits that impugned decree, even otherwise, was procured by playing fraud upon the Court as Muhammad Nawaz never consented to passing out said decree. He placed reliance upon the following reported judgments:-

(i)         Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others (2006 SCMR 12)

(ii)        Muhammad Nawaz alias Nawaz and others v. Member Judicial Board of Revenue and others (2014 SCMR 914)

(iii)       Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 Supreme Court 344)

(iv)       Khuram Shafi v. Mst. Inayat Bibi and others (2005 SCMR 766)

(v)        Muhammad Saleem v. Muhammad Tariq (2009 CLC 1295)

(vi)       Ilahi Bakhsh v. Sheikh Muhammad Sadiq and 2 others (2005 CLC 1704)

(vii)      Fazal Hussain Shah through Legal Heirs and others v. Rustam through Legal Heirs (2010 YLR 297)

(viii) Sardar Din v. Mst. Khatoon and others (2004 SCMR 1102)

(ix)       Jam Hussain Shah and others v. Additional District Judge and others (2014 YLR 749)

(x)        Ameer Umar and another v. Additional District Judge, Dera Ghazi Khan and others (2010 SCMR 780)

(xi)       Sultan Ahmad and others v. Mehr Din and others (1994 MLD 1671)

(xii)      Muhammad Yar and another v. Allah Ditta and others (2008 CLC 795)

(xiii) Commissioner Multan Division, Multan and others v. Muhammad Hussain and others (2015 SCMR 58)

(xiv) Mrs. Alia Khalid and others v. Nazir Ahmad and others (2005 SCMR 1273)

(xv)      Muhammad Hanif through Legal Representatives v. Province of Punjab through District Collector, Vehari and others (2005 YLR 3331)

(xvi)     Gul Sher and 5 others v. Province of Punjab through E.D.O.R Toba Tek Singh and 8 others (2008 YLR 2277)

(xvii) Allah Bakhsh and 10 others v. Abdul Rahim and 23 others (2005 CLC 1643)

(xviii) Mst. Mehr Bhari and 5 others v. Province of Punjab through Collector Chakwal and another (2003 YLR 603)

(xix)     Muhammad Razzaq v. Faqir Hussain and another (2010 CLC 170)

(xx)      Mrs. Sher Bano v. Kamil Muhammad Khan (PLD 2012 Sindh 293)

(xxi)     Muhammad Anwar v. Muhammad Aslam and others (2012 SCMR 345)

4.         On the other hand, learned counsel for respondents opposed the arguments of learned counsel for the petitioners and supported the impugned orders passed by learned Courts below. He submits that petitioners have failed to point out any illegality or irregularity committed by the learned trial Courts while passing the impugned orders. In support of his contention, he placed reliance upon the following case law:--

(i)         Subedar Sardar Khan through legal heirs and others v. Muhammad Idrees through General Attorney and others (PLD 2008 Supreme Court 591)

(ii)        Muhammad Ashraf v. Kashif Iqbal through Mst. Fakhar-un-Nisa and another (2014 MLD 109)

(iii)       Saifa Bibi and 5 others v. Hidayat and 4 others (2007 MLD 1167)

(iv)       Abdul Haq and another v. Mst. Surrya Begum and others (2002 SCMR 1330)

(v)        Chief Engineer, N.A.P.W.D Gilgit and 4 others v. Late Shaheen Khan, Contractor through Legal Representative and others (2008 CLC 1385)

(vi)       Nawab Din v. Abdul Khaliq and another (2004 MLD 827)

(vii)      Khan Gul etc. v. Azim Shah etc. (PLD 1994 Pesh. 204)

(viii) Muhammad Nawaz v. Barkat Ali (PLD 2004 Lahore 21)

(ix)       Nizar Ali v. Noorabad Cooperative Housing Society Ltd and others (PLD 1987 Karachi 676)

(x)        Javed Iqbal v. Abdul Aziz and another (PLD 2006 Supreme Court 66)

(xi)       Sher Muhammad Khan and others v. Ilam Din and others (1994 SCMR 470)

(xii)      Abdul Jabbar through L.Rs and others v. Abdullah through L.Rs and others (2006 SCMR 1541)

(xiii) Abdul Razzaq and 3 others v. Sultan Mahmood Akbar and 3 others (1998 SCMR 2428)

(xiv)     Habibur Rehman and another v. Mst. Wahdania and others (PLD 1984 Supreme Court 424).

5.         Arguments heard and record perused with assistance of the learned counsel for the parties.

6.         It is also obvious from the record that family members of the respondents Nos. 3 and 4 were murdered and in order to get his sons out of jail, Muhammad Nawaz agreed to transfer the land in question in favour of the respondents Nos. 3 and 4. Soon after the said agreement, his sons came out of jail. Even otherwise, admission of execution of agreement can be clearly inferred from the written statement of Muhammad Nawaz filed in the suit of specific performance. Relevant portion of the written statement reads as under:-

7.         Similarly, in the application for appointment of receiver of suit property in the suit for specific performance, Muhammad Nawaz etc. admitted as follows:--
         
"2. That as respondents/plaintiffs were in legal possession of property allotted to the predecessor of petitioners/defendants hence, on 08.11.1987 incident was took place, in which wife of respondent No.1 Hussain Ahmed and daughter of petitioner No. 1 Sherbaz Khan were murdered. FIR No. 352, dated 08.11.1987, was registered against the petitioner etc. on the basis of political influence. By intervention of the respectable, a compromise to the effect that property measuring 224 kanals remains under cultivation of the respondents for further fifteen years, was affected and some blank papers were signed on the ground that on these papers the above said compromise will be written, as at that time, all participants of meeting were uneducated."

Similar inferences can be drawn from the evidence led by the petitioners that some agreement was executed to affect a compromise with regard to murder of the family members of the respondents Nos. 3 and 4.

8.         Learned trial Court got the disputed thumb impression of Muhammad Nawaz compared with his admitted thumb impression by appointing a handwriting expert, who had given his opinion that thumb impression affixed on the agreement is that of Muhammad Nawaz, which also proved the execution of aforesaid agreement by Muhammad Nawaz in favour of respondents Nos. 3 and 4.

9.         Record reveals that Muhammad Nawaz was alive till the year 1997 but he neither objected to the aforesaid decree nor filed any application under section 12(2), C.P.C. during his life time, while it is also established from the record that decree was fully in his knowledge. The present petitioners who are his legal heirs, have no locus standi to file application under section 12(2), C.P.C. Reliance is placed on Muhammad Ashraf v. Kashif Iqbal and another (2014 MLD 109). Relevant portion (Para No. 3) is reproduced as under:--
         
"3. ……… In the above circumstances, applicant/petitioner was having no locus-standi to file application under section 12(2) of C.P.C. when a decree has been passed against a person who is alive and has not challenged the decree in any proceedings before any forum. In this view of the matter, in the above circumstances, this revision petition is not competent and even on the touchstone of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the matter has been seen, no case is made out, therefore, this petition stands dismissed."

10.       The petitioners have not given the particulars of fraud in their application moved under section 12(2), C.P.C. or in their evidence. Even the witnesses produced by the petitioners did not utter a word of commission of fraud upon the court. In the circumstances, application under section 12(2), C.P.C. was not maintainable under the law. In this regard, reference can be made to the Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others (2013 SCMR 1419) and Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees (PLD 2008 SC 591). In the case of Messrs Lanvin Traders supra, the Hon'ble Supreme Court of Pakistan has held as under:--
         
"40. ……. In the present case, the contents of the two applications, as reproduced above, reveal that in none of the two, any grievance of fraud, collusion, misrepresentation, manipulation or mala fide was attributed either by the judgment debtor/petitioner or by objector Younus Habib, though it is an elementary principle of pleadings that where allegations of fraud, misrepresentation, collusion or mala fide are attributed, necessary particulars and details in that context are to be unfolded in the application/pleadings, and any bald or vague statement to this effect is of no legal consequence."

11.       It has also been noticed that the advocate, who appeared on behalf of Muhammad Nawaz for recording statement, has not been impleaded as party to the application under section 12(2), C.P.C. filed by the petitioners. It has been held by the Hon'ble Supreme Court in case titled Raja Muhammad Arshad v. Raja Rabnawaz (2015 SCMR 615) that the person against whom fraud is alleged, is a necessary party in the application moved under section 12(2), C.P.C. Relevant portion of the said judgment of Hon'ble Supreme Court is reproduced below:--
         
"11. In addition to the above we have noted that Ghazanfar was not impleaded as a party in the application under section 12(2), C.P.C. Learned counsel for the appellant argued that this was not necessary. This submission, we are afraid is wholly misconceived. Section 12(2), C.P.C. is a substitute for a separate/ independent suit for setting aside of a decree. This law was brought about in 1980. In the circumstances an application under section 12(2), C.P.C. has all the relevant attributes of a suit and therefore, the person against whom an allegation of fraud is made is a necessary party and must be impleaded in the application as a respondent. Far from being impleaded Ghazanfar, as noted above, actually appeared on his own without being summoned to give testimony in favour of the appellant."

12.       The learned counsel for the petitioners has vehemently argued that no transfer of land can be made when such land is allotted under Section 19 of the Colonization of Government Lands Act, 1912. To appreciate this argument, it would be in order to reproduce the said section 19, which reads as follows:--
         
"19. Transfers of rights to be void. Except as provided in section 17, none of the right or interest vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the (Executive District Officer (Revenue), or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy, any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collector:
         
Provided that the right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated."
         
The consent decree and the document, on the basis of which the land was agreed to be transferred by Muhammad Nawaz, cannot be termed as sale deed. Hon'ble Supreme Court has already held in Sher Muhammad Khan and others v. Ilam Din and others (1994 SCMR 470) that such a transfer was not in violation of Section 19 of the Act of 1912. Reference can also be made to the case law titled Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through Legal Heirs and others (2015 SCMR 1081), the relevant portion reads as under:--
         
"12. In Sher Muhammad Khan v. Ilam Din (1994 SCMR 470) land in question was situated in Colony area and the transferor had agreed to sell the corpus of land in question and had received full amount and had also delivered possession of the property. Dealing with the question as to whether the transfer in question was in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912, this Court, while discussing the earlier case-law, has specifically held as follows:
         
"Now, if the document Exh.P3 is read in the light of the above definition coupled with the express words of section 19 of Colonization of Government Lands (Punjab) Act of 1912, by no stretch of imagination it can be termed as a sale deed. Its very recital starts with the words and concludes with. Though Jiwan had received the full sale consideration in respect of the suit land and its possession delivered to respondent No.1 but still its contents do not give an inkling that the document Exh.P3 is a sale-deed. Through the said document Jiwan did not transfer his tenancy rights but had only agreed to sell the corpus at the hands of respondent No.l. Therefore, the said transfer was not in violation of section 19 of Act of 1912. A similar question came for consideration before the Full Bench of this Court in Civil Appeal No. 216 of 1978 decided on 16-6-1981 where in para 12 it was held:
         
"On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantee had acquired proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition and recognition of its legal effect and effort on the part of contracting parties to keep this sale within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provision of section 19 of the Act or of the public policy behind such a statutory provision."
         
This view has been followed in the case of Muhammad Iqbal and others v. Mirza Muhammad Hussain and others (PLD 1986 SC 70) relied upon by the "learned counsel for the respondents and we respectfully follow the same view. The authorities cited by the learned counsel for the appellants are clearly distinguishable and thus not relied upon."
         
13. In Muhammad Anwar v. Muhammad Aslam (2012 SCMR 345) in similar facts, this Court has held as under:
         
"13. In the present proceedings, it is an admitted fact that the respondent No.2 had acquired the proprietary rights on 12-8-1979. Prior to acquiring such rights, he had agreed under an oral agreement to sell the land to respondents Nos. 1, 3 and Haitam. The terms of oral sale agreement were affirmed by the parties by executing the Iqrarname (Exh.P/1) in 1976. The contents of Exh.P/1 were merely an agreement to sell, specific performance of which was postponed to a date when the respondent No.2 was to acquire the proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and the effort on the part of the contracting parties to keep themselves well within the confines of law to act in accordance with requirements of law. Such an agreement to sell cannot be said to be violative of either the express provisions of section 19 of the Act or of the public policy behind such a statutory provision. We, for the aforesaid reasons, hold that oral agreement of sale and Iqrarnama are not hit by the provisions of section 19 of the Act."
         
14. In Abdul Jabbar v. Maqbool Jan (2012 SCMR 947) this Court while relying upon the earlier case-law reported at Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others (1992 SCMR 1510) and Abdul Jabbar v. Abdullah (2006 SCMR 1541) has specifically held that "Section 19 of the Act bar "sale" and not to an "agreement of sale." In Nasir Ali Shah v. Ahmad Yar (2011 CLC 1566) the learned Lahore High Court in similar circumstances where vendor in prior agreement had undertaken to execute sale-deed in favour of plaintiff (prior purchaser) on grant of proprietary rights and had agreed to sell corpus of property to plaintiff, which would come into operation after grant of proprietary rights, has held that "according to terms of such prior agreement, plaintiff was carrying a risk to loose his money, if proprietary rights were not granted to vendor. According to such prior agreement, in case of failure of vendor to execute sale-deed after grant of proprietary rights, he was bound to pay to plaintiff amount specified therein in addition to earnest money already paid. Such prior agreement did not necessitate obtaining of prior permission under Section 19 of Colonization of Government Lands (Punjab) Act; 1912." Same was the view of the learned Lahore High Court in Muhammad Aslam v. Muhammad Anwar (2006 YLR 2607) and Muhammad Aslam v. Ghulam Aslam (2002 MLD 1860) that such an agreement to sell did not fall within the mischief of section 19 of the Colonization of Government Lands (Punjab Act), 1912 and that Provisions of section 19 of the said Act do not debar vendors to execute agreement to sell with vendees.

13.       It is also pertinent to observe here that the respondents Nos.3 and 4 have also filed a suit for specific performance of agreement to sell executed by Muhammad Nawaz in favour of respondents Nos. 3 and 4. Without prejudice to the merits of said case, there is another aspect of this case that, in terms of section 53A of the Transfer of Property Act, 1882, a person who obtains possession under a written unregistered agreement, is entitled to claim protection. Section 53A of the Act which is relevant for the purpose, reads as follows:-
         
"53A. Part performance. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
         
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
         
In this regard, reference can be made to Javaid Iqbal v. Abdul Aziz and another (PLD 2006 SC 66), Sh. Abdur Rashid v. Sh. Mubarak Ali etc. (1994 CLC 1617), Nanjegowda and another v. Gangamma and others (2012 SCMR 1246), Abdul Jabbar and others v. Mst. Maqbool Jan and others (2012 SCMR 947).

14.       No period of limitation is prescribed in schedule of Limitation Act, 1908 for filing of the application under section 12(2), C.P.C. so the same falls under Article 181, which provides a period of three years from the date of accruing of right to apply. The petitioners, legal heirs of Muhammad Nawaz, have filed application under Section 12(2), C.P.C. after expiry of a period of ten years from the date of passing of judgment and decree dated 09.01.1989, despite having knowledge of the said decree as is evident from the record. The application is grossly barred by time. Neither any application for condonation of delay was filed by the petitioners nor any explanation has been furnished in the said application under Section 12(2), C.P.C. moved by them. The learned Courts below have rightly held that the application filed by the petitioners was barred by time. Reliance can be placed on Muhammad Mahmood Saeed and others v. Mehdi Hassan Shah and others (2015 CLC 307), Muhammad Younus and another v. Venue Gurdas Advani and others (2015 CLD 390) and Fida Hussain v. Ghulam Sarwar (2002 SCMR 1554).

15.       The case law cited by the learned counsel for the petitioners is not relevant to the facts and circumstances of the instant case and is quite distinguishable. The said case law is not attracted at all.

16.       Further, in case of concurrent findings of the courts below, the scope of the constitutional petition becomes very limited. Both the decisions of learned Courts below are concurrently against the petitioners which are immune from interference by this Court in its constitutional jurisdiction unless some gross illegality, irregularity, jurisdictional defect or misreading and non-reading of evidence is floating on surface which could not be pointed out by learned counsel for the petitioners. In this regard, reference can be made to the judgments reported as Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others (2008 YLR 2309), Hafiz Muhammad Sharaf-Ud-Din v. District Judge, Khushab and others (2015 MLD 1081), Manzar Shah alias Manzar Hussain Naqvi v. Ch. Shafquat Hussain and 2 others (2015 YLR 595) and Sadruddin v. Aslam Madad Ali and others (PLD 2008 Karachi 2005).

17.       For what has been discussed above, the impugned orders passed by the learned Courts below are in accordance with law and facts of the matter and do not require interference by this Court. Resultantly, the instant writ petition is dismissed, with no order as to costs.

MH/S-104/L                                                                                        Petition dismissed.