Dr. Khurshid Iqbal,
1. The applicants, Khadim Hussain and others, have invoked the jurisdiction of this Court under Section 12(2) of the Code of Civil Procedure, 1908 (CPC), to assail the judgment dated 27.02.2006, rendered in Civil Revision No. 58 of 2003. The impugned judgment, according to the applicants, suffers from legal infirmities warranting its recall on grounds of misrepresentation and fraud, thus inviting judicial scrutiny within the contours of Section 12(2) CPC.
2. The factual matrix underlying the instant petition unfolds from civil litigation that ensued between respondents No.1 to 7 (then plaintiffs) and respondents No.8 to 13 (then defendants), wherein the plaintiffs sought a declaration of ownership in respect of the property described in the headnote of the plaint, asserting themselves to be the legal heirs of one Ahmad Ali--the alleged true owner of the suit property. They also challenged the validity of a general power of attorney allegedly executed in favour of defendant No.1, Mehmood Ahmad. The suit was dismissed by the learned trial court vide judgment and decree dated 24.05.2001, inter alia, holding that the said power of attorney was a bogus document. The plaintiffs' appeal met the same fate and was dismissed by the learned Additional District Judge-I, Dera Ismail Khan, through judgment dated 13.01.2003. Subsequently, their civil revision No. 58/2003 was also dismissed by this Court vide judgment dated 27.02.2006, with a clear finding recorded in paragraph 7 that the transfer of title in favour of defendants No.1 to 5, premised on the general power of attorney issued to defendant No.6, was defective, and both the courts below had concurred in holding that the said power of attorney was fictitious and fraudulent.
3. The applicants, claiming to be subsequent purchasers of the suit property from the original defendants No.1 to 6, have now instituted the instant application under Section 12(2) CPC, contending that the adverse findings recorded in the earlier judgment are vitiated by fraud, misrepresentation, and lack of jurisdiction. They assert that the revision petition was adjudicated without affording them an opportunity of hearing, as they were not impleaded as parties in those proceedings, thereby denying them the right to defend their interest in the property. The applicants further submit that the original owner, Ahmad Ali, had earlier instituted a suit on 12.02.1974 challenging the same general power of attorney, which was dismissed, and therefore, the principle of res judicata bars the subsequent suit on the same cause. Consequently, they argue, the findings recorded in the later litigation regarding the invalidity of the general power of attorney are legally unsustainable and warrant revisitation.
4. Respondents No.1 to 7 (plaintiffs in the original suit) have contested the maintainability of the present application filed under Section 12(2) of the CPC.
5. Arguments of learned counsel for parties heard and record gone through.
6. Admittedly, respondents No. 8 to 13 (original defendants) actively contested the suit at all three stages--trial, appellate, and revisional. However, the general power of attorney allegedly executed in favour of respondent No.13 was conclusively held to be fictitious and bogus. Consequently, the land transfers effected through mutations No.40 and 41, attested on 31.10.1970, on the strength of the said power of attorney, were declared defective. It is undisputed that the applicants derive their title from these very mutations. Therefore, their claim is tainted by the same foundational defect.
The legal maxim nemo dat quod non ha bet--one cannot transfer what one does not possess-- squarely applies to the present case. Since the original defendants had no valid title to convey, the applicants, having derived title through them, acquired no better or independent right. Having stepped into the shoes of the original defendants, the applicants are bound by the same fate-- both must sail or sink together.
7. It is pertinent to note that mutations No.41 and 42, attested on 31.10.1970 in favour of respondents No.8 to 13, were based on the aforementioned general power of attorney which was later declared fictitious and bogus. On the strength of these defective mutations, respondents No.8 to 13 subsequently executed several further mutations in favour of various individuals. Despite the matter having attained finality through the judgment of this Court in Civil Revision No.58/2003, dated 27.02.2006, the applicants purchased portions of the disputed property from respondents No.8 to 13 through mutations No.1660 and 1661 of 2007, 1683 of 2007, 1778 of 2008, and 2773 of 2016.
Thereafter, Muhammad Musa and Muhammad Ishaq, sons of Ahmad Ali, through their attorney Muhammad Nadeem, moved an application before the Revenue Authorities seeking correction of the revenue record in light of the said judgment. Acting upon the application, the Revenue Authorities obtained a fresh report from the field staff and accordingly ordered the cancellation of all mutations originating from the defective mutations No.41 and 42, including those subsequently attested in favour of the present applicants.
8. In the wake of the above-discussed factual and legal backdrop, the position of the applicants is devoid of legal sanctity. The judgment of this Court dated 27.02.2006, having attained finality, conclusively held the general power of attorney to be fictitious and the consequent mutations based thereon as defective. Any subsequent transactions flowing from such a defective title stand vitiated in the eyes of law. The applicants, having derived their title from respondents No. 8 to 13, who themselves held no valid title, cannot claim any superior or independent right.
9. Moreover, the attempt to assert rights under mutations executed in derogation of a binding judgment amounts to a collateral challenge to a matter that has already been conclusively adjudicated. The principle of res judicata pro veritate accipitur operates to prevent the reopening of issues already settled by a competent court.[1] Likewise, the doctrine fraus omnia vitiat leaves no room for doubt that rights founded upon fraudulent instruments or proceedings are void ab initio and confer no legal entitlement. It is an established principle that no blessings can be accorded to a transaction which is void ab initio.[2] In this backdrop, the action taken by the Revenue Authorities, whereby they cancelled all subsequent mutations rooted in the defective mutations No. 41 and 42--including those in favour of the applicants--was not only in accordance with law but also a necessary consequence to uphold the sanctity of the final judicial determination.
10. Furthermore, it is a well-established principle of law that a party seeking to invoke the jurisdiction of the Court must demonstrate a vested right or legal interest in the subject matter of the dispute at the relevant time.[3] In the instant case, the record unequivocally reflects that at the time when the original suit was instituted, contested, and ultimately decided--culminating in the judgment of this Court dated 27.02.2006--the present applicants neither held title nor had any demonstrable connection with the suit property or the litigation arising therefrom. No mutation stood attested in their favour during the pendency of the earlier proceedings, and their alleged interest in the property only materialized through subsequent mutations executed by respondents No. 8 to 13, post-finality of the said judgment.
11. It is equally significant to observe that the intention of the legislature to legislate sub-section 2 of section 12 CPC was to curtail litigation and not to enhance.[4] The expression "any person" in Section 12(2) does not imply an unqualified right of audience to any outsider; it must be understood to mean a person who is genuinely aggrieved, i.e., one whose rights were directly affected by the impugned judgment at the time it was passed. As noted earlier, this necessarily presupposes that such person had a subsisting legal interest in the subject matter of the lis when the judgment was rendered. Absent such an interest, no grievance can be legitimately raised, for the principle ubi jus ibi remedium (where there is a right, there is a remedy) only operates where a corresponding legal right is first established.[5]
12. This being so, the applicants were complete strangers to the prior litigation and cannot claim to have been prejudiced by a judgment rendered at a time when they held no legal or proprietary interest in the property. The mere fact of acquiring property at a later stage through a chain of title already declared defective does not confer upon them the right to challenge the judgment collaterally through an application under Section 12(2) CPC. Such an application is maintainable only where the applicant had a direct and existing legal interest therein at the relevant time. The applicants, therefore, lack the requisite locus standi to maintain the present proceedings, and their claim amounts to an impermissible attempt to reopen settled issues by way of indirect challenge, which the law does not countenance.
13. For the above recorded reasons, this application is without merit and thus, dismissed. The listed CMAs have become infructuous. Hence, disposed of accordingly.
1. Tenedos Denizcilik Ve Tic. Ltd. vs. Makhambet (PLD 2022 Sindh 378).
2. Sikander Ali Khan vs. Ghulam Qasim (1985 CLC 1881 [Lahore]).
3. Fakeer Muhammad vs. Abdul Jabbar and 2 others (2014 YLR 1787 Sindh)
4. Mst. Ramzano vs. Khushi Muhammad (2016 YLR 2627 Lahore [Multan Bench])
5. Imtiaz Ahmad Mahmood vs. Federal Board Of Intermediate And Secondary Education, Islamabad (PLD 20023 SC 40).