2026 C L C 321

 2026 C L C 321

[Peshawar (D.I. Khan Bench)]

Before Dr. Khurshid Iqbal, J

KHADIM HUSSAIN and others ---Petitioners

Versus

Mir MAQSOOD ALI and others ---Respondents

C.M. No. 12(2) C.P.C. No. 167-D of 2024 with C.Ms. Nos. 183-D of 2024

and 72, 77, 91, 93-D of 2025, decided on 26th May, 2025.

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

----S.12(2)---Application under S.12(2) C.P.C.---Maintainability---Locus

standi---Requirement of direct and subsisting legal interest at the

relevant time---Applicants acquiring interest in the property only

after culmination of litigation and final judgment---Chain of title

already declared defective and such decision having attained

finality---Effect---Applicants lacking locus standi could not

collaterally challenge judgment having attained finality ---Original

vendors having no valid title in suit property---Effect---One cannot

transfer what one does not possess---Principle---Subsequent

transactions on the basis of defective title---Effect---Subsequent

transactions flowing from defective title would stand vitiated---High

Court in earlier judgment declared power of attorney as fictitious

and consequent mutations defective---Applicants invoked S.12(2) of

C.P.C. to assail the High Court judgment which had attained finality

and declared the general power of attorney as fictitious and bogus,

thereby invalidating subsequent mutations executed on its strength-

--The original defendants (respondents Nos. 8 to 13) had actively

contested the suit through trial, appeal, and revision but failed---

Applicants claiming to be subsequent purchasers of the suit

property through those very defective mutations argued that they

were not parties to the earlier proceedings and had been denied the

opportunity to defend their rights---However, as their alleged title

stemmed entirely from a void and fraudulent power of attorney,

their claim remained tainted by the same foundational defect,

leaving them without any independent or superior right---Therefore,

the pivotal question arisen for determination before the High Court

as to whether the application under S.12(2) of C.P.C. was

maintainable by subsequent purchasers who acquired interest in

the suit property only through mutations rooted in a general power

of attorney already declared fictitious and void, when importantly,

such applicants neither held title nor had any subsisting legal

interest at the time of the original litigation and final judgment which had attained finality? ---Held: Admittedly, respondents Nos.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, attested on 31.10.1970, on the

strength of the said power of attorney, were declared defective---It

was undisputed that the applicants derived their title from those

very mutations---Therefore, their claim was tainted by the same

foundational defect---The legal maxim nemo dat quod non habet i.e.

one cannot transfer what one does not possess, squarely applied 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 were bound by the same fate;

both must sail or sink together---Position of the applicants was

devoid of legal sanctity---The judgment of the High 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 stood vitiated in the eyes of law---The

applicants, having derived their title from respondents Nos. 8 to 13,

who themselves held no valid title, could not claim any superior or

independent right---Action taken by the revenue authorities,

whereby they cancelled all subsequent mutations rooted in the

defective mutations in question, 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 passed by the High Court---Record unequivocally

reflected that at the time when the original suit was instituted,

contested, and ultimately decided, culminating in the judgment

passed by the High Court, 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

favor during the pendency of the earlier proceedings, and their

alleged interest in the property only materialized through

subsequent mutations executed by respondents Nos. 8 to 13, post-

finality of the said judgment---The applicants were complete

strangers to the prior litigation and could not 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 did not confer upon them the right to challenge

the judgment collaterally through an application under S.12(2)

C.P.C.---Such an application could be maintainable only where the applicant had a direct and existing legal interest therein at the

relevant time---The applicants, therefore, lacked the requisite locus

standi to maintain the present proceedings, and their claim

amounted to an impermissible attempt to reopen settled issues by

way of indirect challenge, which the law did not recognize---

Application under S.12(2) of C.P.C. was without merit and same was

dismissed, in circumstances.

Fakeer Muhammad v. Abdul Jabbar and 2 others 2014 YLR 1787 ref.

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

----S.12(2)---Application under S.12(2) C.P.C.---Object, scope and

purpose---Expression any person , meaning of---Locus standi---The

intention of the legislature to legislate subsection 2 of S.12 of C.P.C.

was to curtail litigation and not to enhance the same---The

expression any person in S.12(2) of C.P.C. 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 judgments at the time it was

passed---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.

Mst. Ramzano v. Khushi Muhammad 2016 YLR 2627 ref.

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

----S.11---Maxim res judicata pro veritate accipitur ---Res judicata,

doctrine of---Concept and scope---The principle of res judicata pro

veritate accipitur operates to prevent the reopening of issues

already settled by a competent court.

Tenedos Denizcilik Ve Tic. Ltd. v. Makhambet PLD 2022 Sindh 378

ref.

(d) Maxim---

----Doctrine of Fraus omnia vitiat ---Meaning and scope---Rights

founded upon fraudulent instruments or proceedings are void ab

initio and confer no legal entitlement---No blessings can be accorded

to a transaction which is void ab initio.

Sikander Ali Khan v. Ghulam Qasim 1985 CLC 1881 ref.

(e) Jurisdiction...

....Jurisdiction of court, invocation of---Requirement---Party seeking

to invoke the jurisdiction of a court must demonstrate a vested right

or legal interest in the subject matter of the dispute at the relevant

time.

Muhammad Mohsin Ali for Petitioners.

Muhammad Yousuf Khan for Respondents Nos. 1 to 7.

Akbar Ali Khan Barakzai for (respondents Nos. 10/1 to 10/10, 11, 12

and L.Rs. of Respondents Nos. 8 and 9).

Research Assistance: Mazhar Ali Khan, Research and Reference

Officer.

Date of hearing: 26th May, 2025.

JUDGMENT

DR. KHURSHID IQBAL, J.---The applicants, Khadim Hussain and

others, have invoked the jurisdiction of this Court under Section 12(2)

of the Code of Civil Procedure, 1908 (C.P.C.), 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) C.P.C.

2. The factual matrix underlying the instant petition unfolds from

civil litigation that ensued between respondents Nos. 1 to 7 (then

plaintiffs) and respondents Nos. 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 Nos. 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 Nos. 1 to 6, have now instituted

the instant application under Section 12(2) C.P.C., 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 Nos. 1 to 7 (plaintiffs in the original suit) have

contested the maintainability of the present application filed under

Section 12(2) of the C.P.C.

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 Nos. 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 habet 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 Nos. 41 and 42, attested on

31.10.1970 in favour of respondents Nos. 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 Nos. 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 Nos. 8 to 13 through mutations

Nos. 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 Nos. 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 Nos. 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 Nos. 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 Nos. 8 to 13, post-finality of the said

judgment.

11. It is equally significant to observe that the intention of the

legislature to legislate subsection (2) of section 12 C.P.C. 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 us 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) C.P.C. 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.

UN/135/P Application dismissed.