ARBAB ALI HAKRO, J:- Through this petition, the petitioner has impugned the concurrent determinations of the learned subordinate judiciary. Specifically, an order dated 26.4.2022, passed in Civil Revision No. 112/2021 by the learned Additional District Judge-VI, Central Karachi, and an order dated 09.12.2021, promulgated by the learned Senior Civil Judge-VII, Central Karachi, in Suit No. 1204/2018 ("Impugned Orders"). The crux of the impugned orders was an application submitted by the petitioner under Section 12(2) of the Code of Civil Procedure, 1908 ("CPC").
2. The petitioner asserts ownership of the house bearing No. R-6, measuring 120 square yards, constructed a double-story house situated at Sector-8 North Karachi township, Karachi ("suit property"), jointly acquired by him and his deceased father. However, the suit property was transferred to his brother, Faisal Waseem, to circumvent tax liabilities. Subsequently, his brother conveyed the ownership of the suit property to his sister, Mst.Feeroza Khatoon, through a conveyance deed. She then alienated it to respondent No. 2, and ultimately, the ownership was transferred between respondent No. 2 and respondent No. 1. It is alleged that respondents No. 1 and 2 clandestinely instituted a Civil Suit No. 1204/2018, which was later compromised between them, resulting in a compromise decree. The petitioner had filed an application under Section 12(2) C.P.C, asserting that the compromise decree was vitiated by fraud and misrepresentation of material facts. He avers that he is in possession of the suit property as a co-owner, having inherited it from his father and that the property was surreptitiously and fraudulently transferred to his sister's name through an attorney. Furthermore, he contends that he has been in continuous possession of the suit property since 1994 and has procured all pertinent documents, namely: Domicile, Permanent Residence Certificate (PRC), Driving License, Computerized National Identity Card (CNIC), B-Form, Telephone, and Electricity connection, all of which reflect the address of the suit property. The learned trial court dismissed this application vide order dated 09.12.2021. Subsequently, the petitioner challenged the said order of the learned trial court by filing Civil Revision No. 112 of 2021, which was also dismissed vide order dated 26.04.2022. Hence, the petitioner is before this Court against the concurrent determinations.
3. Learned counsel for the petitioner premised his case on the argument that the suit property is in the exclusive possession of the petitioner, and he has been residing therein since 1994. He further contended that the petitioner and his deceased father jointly acquired the suit property, and a sale agreement was duly executed. However, with the intent to deprive the petitioner of his valuable property, respondents No. 1 and 2 clandestinely compromised the suit and procured a compromise decree through fraud and misrepresentation of facts. Moreover, the petitioner was not impleaded as a necessary party to the suit. Consequently, the concurrent determinations should be set aside.
In conclusion, learned counsel articulated that if the concurrent determinations are predicated on misreading and non-reading of evidence and facts, they cannot be deemed sacrosanct or sanctified and ought to be set aside.
4. Conversely, learned counsel for the respondents espoused the impugned orders of the learned lower Courts and contended that the petitioner failed to adduce even a scintilla of evidence demonstrating his entitlement to the suit property. Moreover, the learned lower courts, having meticulously scrutinized the intricacies of the matter, rendered the impugned orders, which merit affirmation.
5. We have assiduously heard the learned counsel for the parties and meticulously examined the record arrayed before us. At the outset, it is deemed expedient to reproduce the respective constituents of the concurrent determinations of the learned lower courts hereunder: "Order dated 26.04.2022 (passed in Revision).
Applicant claims to be co-owner in the subject property, but he did not produce any documentary proof to establish such title. Apart from the above there is nothing on record whether applicant approached any forum to get the declaration as to his title in the subject property."
"Order dated 09.12.2021 (passed in 12(2) application)
It is matter of record that the compromise decree was prepared in accordance with law for the reasons applicant/intervener has miserably failed to produce documentary evidence in order to prove his plea that suit property was/is inheritance property, whereas at the time of sale of suit property Mst. Feroza Khatoon was the exclusive owner of the suit property by virtue of registered sale deed and she was fully competent to sale the suit property to the defendant through registered conveyance deed."
6. It is unequivocally discerned from the meticulous appraisal of the foregoing that the learned lower Courts are in unanimous concurrence on the point that the petitioner has egregiously failed to produce even an iota of evidence in support of his purported claim to be the owner of the suit property. The ground taken by the petitioner in his application under Section 12(2) C.P.C. is that he is in possession of the suit property as a co-owner, which he and other legal heirs allegedly inherited.
The petitioner contends that the suit property was fraudulently transferred in the name of his sister, Mst. Feroza Khatoon. Upon scrupulous perusal of the record, it is incontrovertibly revealed that a Sale Deed was duly executed in favour of Mst. Feroza Khatoon on 12.3.2001. However, the petitioner has conspicuously failed to challenge the said Sale Deed, and there is a conspicuous absence of any plausible explanation as to why he remained inexplicably silent for such an extended period.
The petitioner's failure to contest the Sale Deed at the appropriate juncture raises grave questions about the validity of his claims and the reasons for his prolonged inaction. The possession of the petitioner in the suit property without title does not, in any manner, create any right, title, or interest in the suit property. Furthermore, the petitioner has manifestly failed to meet the criteria which define an aggrieved person, as stipulated in the application under Section 12(2) C.P.C. In his futile attempt to challenge the compromise decree dated 07.05.2019, the petitioner neither filed any mutation entry nor relied upon any document that could substantiate his locus standi to file the application under Section 12(2) C.P.C. On this ground alone, the petitioner was patently incompetent to initiate proceedings under Section 12(2) C.P.C. The petitioner alleged that he was not made a party in the suit, and while it is correct that he was not made a party, even if he had been made a party, he would have had no defence except that he is in possession of the suit property without any title. This lack of title and failure to provide supporting documentation further eviscerate the petitioner's position. The petitioner's inability to establish his status as an aggrieved person and failure to present credible evidence or documentation to support his claims render his application legally untenable.
7. Additionally, the petitioner has egregiously failed to establish his locus standi and the factum of fraud allegedly practised upon the Court. He has not demonstrated, with any degree of specificity, how the purported fraud was perpetrated upon the Court. Since the provision of Section 12(2) C.P.C. has been invoked by the petitioner, the entire burden to prove fraud and misrepresentation within the ambit of Section 12(2) C.P.C. rested squarely upon the shoulders of the petitioner. Merely invoking the terms "fraud" and "misrepresentation," without actually delineating the necessary particulars does not attract the provision of Section 12(2) C.P.C.
8. Notwithstanding the above, there was no justification for Plaintiff to implead the petitioner as a party, as the petitioner neither had nor could establish any legal character or right over the suit property based on mere possession. Without a title document, mere possession could not confer any title upon the petitioner, as he is in illegal possession. Thus, impleading the petitioner before he had established his right in the suit property would have been utterly meaningless.
9. Pursuant to the above discussion, it can be unequivocally held that there appears to be no jurisdictional error, legal infirmity, or illegality in the impugned orders passed by the learned Courts below. Rather, the vested jurisdiction has been judiciously and aptly exercised. The impugned orders are up to the standards of judicial dexterity and do not warrant any interference by this Court in exercising extraordinary constitutional jurisdiction. Consequently, the constitutional petition at hand, devoid of force and substance, stands dismissed.