MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide two civil revisions, one in hand and the other C.R. No. 905/2000, arising out of consolidated judgments and decrees dated 9.5.1996 and 27.3.2000 passed by the learned Civil Judge and learned Additional District Judge, Lahore, wherein alike questions of law and facts are involved and both of those require similar determination against same set of respondents.
2. Precisely, relevant facts are that Sh. Alauddin etc. Respondents Nos. 1 to 6 filed a suit for declaration to the effect that their predecessor-in- interest Mst. Zubaida Khatoon purchased property No. SX-VI-23-5-20, 44-Main Sarnanabad, Lahore from Syed Muhammad Shah the owner in the year 1967 through a registered sale-deed, where-under she became exclusive owner of the property. Syed Muhammad Shah above-referred, remained in possession of the property as tenant under Mst. Zubaida Khatoon, in whose favour he had also executed a rent note. Respondents Nos. 1 to 6 challenged in their suit sale by Mst. Naseem Fatima in favour of the revision petitioners i.e. Sh. Muhammad Shafi etc. Claiming herself to be owner on the basis of an agreement whereby she clarmed that her husband Syed Muhammad Shah had transferred the property in her favour in lieu of dower of Rs. 32,000/- and she had obtained an ex parte decree dated 1.7.1972 against her husband Syed Muhammad Shah. Respondents Nos. 1 to 6 pleaded that Mst. Naseem Fatima was residing in the property in dispute as a family member of Syed Muhammad Shah and had no independent right, title order interest therein, but she manoeuvred the agreement dated 30.6.1960 which in itself did not create any title in her and the ex parte decree on the basis thereof having already been set aside, transferees from her could not claim ownership in their property on the basis of both these transactions i.e. The agreement and the ex parte decree.
3. Mst. Naseem Fatima, who had obtained ex parte decree on a declaratory suit against Syed Muhammad Shah on the basis of agreement to sell dated 30.6.1960, whereby he allegedly agreed to transfer the suit property in her, favour in lieu of the claimed outstanding dower of Rs. 32,000/- and had transferred property in favour of petitioners Sh. Muhammad Shafi etc. Through. a registered sale-deed dated 25.8.1986, challenged the orders setting aside the ex parte decree and rejection of her plaint through Civil Revision No. 905/2000.
4. Syed Muhammad Shah, who was defendant in the declaratory suit of Mst. Naseem Fatima, absented himself after filing written statement, in which he had denied execution of the agreement, relief in the suit and had pleaded that the dower amount was only Rs. 32/- and not Rs. 32,000/-.
Subsequently increase of dower amount was also denied by him and agreement dated 30.6.1960 was claimed to be forged. It was also averred that sale by Mst. Naseem Fatima in favour of Sh.
Muhammad Shafi etc. Petitioners for an amount of Rs. 300,000/- was unauthorized and was also violative of injunctive order issued by the Civil Court on 15.10.1973. Since Syed Muhammad Shah after filing written statement, had absented himself and the suit was decreed ex parte, his application for setting aside the ex parte decree was accepted and the decree was set aside on 5.1.1973, whereafter an application under Order VII, rule 11, CPC was moved, which was allowed and the plaint was rejected on 17.7.2002. This order was maintained in appeal. She also has come up in Civil Revision No. 905/2000 against the above-referred concurrent judgments and decrees, impugned in this civil revision.
5. The suit .Filed by respondents Nos. 1 to 6 was contested by the petitioners Sh. Muhammad Shafi etc. Whereas Mst. Naseem Fatima was proceeded against ex parte vide order dated 30.11.1991 after publication of proclamation in newspaper against her. Sh. Muhammad Shafi etc. Petitioners averred in their written statement that the suit is barred by limitation and the same is not maintainable as respondents Nos. 1 to 6 were out of possession of the property. On merits, a lawful transfer in favour of Mst. Naseem Fatima by the owner Syed Muhammad Shah was asserted and sale by ti e iransferee was said to be genuine They also claimed to have stepped into the shoes of Mst. Naseem Fatima, who was, according to them, in possession of property with adverse interest to respondents Nos. 1 to 6 with uninterrupted title for more than 12 years. They claimed adverse possession and denied possession of Mst. Naseem Fatima as licensee of owner Syed Muhammad Shah. In view of controversial pleadings of the parties in the suit by respondents Nos. 1 to 6, as many as 16 issues were framed and parties were put to trial. After recording of evidence, the learned Trial Judge, seized of the suit, decreed the same vide his judgment and decree dated 9.5.1996.
6. From the above resume of facts, Syed Muhammad Shah the owner also filed a suit against Mst. Zubaida Khatoon averring that the deed executed by him in her favour was in fact a mortgage deed and not sale-deed. Mst. Zubaida Khatoon predecessor-in-interest of the respondents Nos. 1 to 6 also initiated ejectment proceedings by filing an ejectment petition against Syed Muhammad Shah on the basis of rent note executed by him at the time of execution of the sale-deed in her favour, above-noted, which was originally dismissed by the learned Rent Controller, but was allowed by the learned Additional District Judge in appeal by Mst. Zubaida Khatoon. The appellate order of ejectment was affirmed by this Court while dismissing SAO No: 49/1979 vide judgment dated 6.12.1979 with the observation that ejectment order shall be executed after recall/vacation of injunctive order obtained by Syed Muhammad Shah in his suit, which was subsequently dismissed as withdrawn and the injunctive order therein came to an end. Ejectment order became final after withdrawal of C.P. 70/1980 from the Honourable Supreme Court on 2.8.1983. Mst. Zubaida Khatoon predecessor-ininterest of respondents Nos. 1 to 6 filed an execution petition seeking eviction of Syed Muhammad Shah, after dismissal of his suit. Petitioners Sh. Muhammad Shafi etc. Filed an objection petition claiming ownership to the property on the basis of sale-deed dated 25.8.1986 executed by Mst. Naseem Fatima. Pending these proceedings Mst. Zubaida Khatoon died and respondents Nos. 1 to 6 were substituted in her place. The objection petition of Sh. Muhammad Shafi etc. Was dismissed by the executing Court on 8.3.1986, but the order was set aside on appeal by the learned Additional District Judge on 27.3.1995. Respondents Nos. 1 to 6 filed a civil revision before this Court, but withdrew the same and thereafter filed Writ Petition No. 6489/1995, which was accepted vide judgment dated 26.6.1996 annulling the appellate order. Judgment of this Court was affirmed by the Honourable Supreme Court vide judgment dated 24.8.1998 in CPLA No. 1609-U1996. Sh.
Muhammad Shafi etc. Petitioners aggrieved of the order of the Honourable Supreme Court dated 24.8.1998, filed a review petition (CRP. 45-L/1998), which too was dismissed on 26.11.1998 with the observations that genuineness and execution of agreement dated 30.6.1960 being thirty years old shall be decided by the Appellate Court in the case in hand, on its own merits without being influenced by any observation by the Honourable Supreme Court in the judgment dated 24.8.1998.
7. Learned counsel for the petitioners in both the revision petitions addressed similar arguments because their interest was joint. Before taking note of the arguments of the petitioners it will not be out of place to mention here that Mst. Naseem Fatima claimed here ownership on the basis of agreement dated 30.6.1960 allegedly executed by Syed Muhammad Shah the owner and the other revision petitioners claimed transfer of title of the property from Mst. Naseem Fatima vide registered sale-deed dated 25.8.1986. According to the learned counsel for the petitioners, after transfer of property in favour of Mst. Naseem Fatima, the owner Syed Muhammad Shah was left with not title to transfer it in favour of respondents Nos. 1 to 6, thus suit by them was not maintainable. They further argued that sale by Syed Muhammad Shah in favour of respondents Nos. 1 to 6 was not proved on the file, hence they had no locus standi to file the to defend the revision petitions. They further elaborated their arguments by referring to the two judgments of the Honourable Supreme Court delivered inter-parties in CP. No. 1609-L/1996 and CRP No. 45-L/1998 to contend that both the Courts below were bound to act on agreement dated 30:6.1960 being thirty years' old under the provisions of Article 100 of the Qanun-e-Shahadat Order, 1984. According to them, permission to lead secondary evidence in proof of the said agreement was allowed by the executing Court on objection petition of Sh. Muhammad Shafi vide order dated 3.12.1992 and this order under law would ensure for their benefit even in this suit. Learned counsel for the petitioners heavily relied on an interim order passed by the executing Court on 18.7.1995, wherein it was noted that respondents Nos. 1 to 6 accepted costs of Rs. 150/- for permission to lead secondary evidence in proof of the agreement relied by them. Learned counsel emphasized that photostat copy of the agreement produced in secondary evidence was enough proof of its execution and no further evidence for this purpose was needed, especially when the original record was lost carrying the original agreement and the same could not be produced/summoned. They referred to list of documents provided by them under Order XiII, rule 1, CPC, wherein it was detailed that the original agreement was produced before the Court. Challenging the order dated 5.1.1973 in the suit by Mst.
Naseem Fatima whereby ex parte decree was set aside, her learned counsel argued that in the first instance, the ex parte decree was incorrectly set aside as the defendant therein after filing of his written 'statement absented himself without any sufficient cause and that acceptance of application under Order VII, rule 11, CPC was unjustified because her plaint did disclose a cause of action, hence the same could not have been rejected. Justifying transfer in favour of Mst. Naseem Fatima her counsel emphasized that marriage between the spouses was solemnized in the year 1952 against a deferred dower of Rs. 32,000/- and on her demand of dower, her husband Syed Muhammad Shah the owner of the property executed the agreement dated 30.6.1960, copy of which was produced in evidence as Exh. D.4 by way of secondary evidence under the orders of the.
Court, hence in presence of this proof suit of respondents Nos. 1 to 6 could not have been decreed.
8. Learned counsel appearing on behalf of the respondents refuted the arguments of the petitioners in both the revision petitions, supported the concurrent judgments and decrees of the two Courts below and urged that neither any permission for producing additional evidence was granted to the petitioners in this case and the order passed in execution proceedings was of no help to them nor they produced any evidence even by way of secondary evidence to prove the execution of agreement dated 30.6.1960, which was specifically denied by its executant, thus ownership of Mst. Naseem Fatima was not proved. Learned counsel for the respondents assertively argued that petitioners earlier lost their case in two rounds of litigation upto the level of Honourable Supreme Court, one in ejectment proceedings and the other on objection petition by them, thus they had nothing with them to resist the suit of the respondents, especially without proof in support of their stance. Learned counsel for the respondents further elaborated his arguments by arguing that concurrent findings of facts recorded by the two Courts below after due appraisal of evidence could not be demonstrated to have been returned out of misreading of the record, thus those are immune from interference by the revisional Court.
9. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, Syed Muhammad Shah was owner of the property in question and he himself by filing suit that sale in favour of predecessor of respondents Nos. 1 to 6 i.e. Mst. Zubaida Khatoon was not a sale but was a mortgage, admitted transfer in their favour as he subsequently withdrew his suit. Since this fact could not be refuted by any of the' parties, there was no need of any further proof that property in dispute was sold by Syed Muhammad Shah in favour of Mst. Zubaida Khatoon through a registered sale-deed dated 24.9.1967 (Exh. P.1). Besides it, contest of the petitioners in all the three rounds of litigation is that after transfer of property by Syed Muhammad Shah in favour of Mst. Naseem Fatima through agreement dated 30.6.1960, he was left with no title to transfer it, in favour of respondents Nos. 1 to
6. This stance was specifically denied by Syed Muhammad in his written statement filed in the suit of Mst. Naseem Fatima and after this denial, onus to prove it heavily shifted on the shoulders of the petitioners, who were beneficiaries of this transaction, as per law laid down by the Honourable Supreme Court in the cases of Janat Bibi Vs. Sikandar Ali and others (PLD 1990 S.C. 642), Hakim Khan Vs. Naseem Ahmad Lughmani and 10 others (1992 SCMR 1832), Sana Ullah and another Vs. Muhammad Manzoor and another (PLD 1996 S.C. 256), Muhammad Vs. Mst. Rehmon through Mst.
Sharifan Bibi (1998 SCMR 1354) and Mst. Rasheeda Begum and 3 others Vs. Muhammad Yousaf and others (PLJ 2002 S.C. 706). Entire case of the petitioners rested on Exh. D.4 a photocopy of the agreement dated 30.6.1960, which, according to them, was produced by way of secondary evidence. The document relied by petitioners, under law, was to be proved by producing original document which was said to be lost on account of loss of original file of suit by Mst. Naseem Fatima and since the record was reconstructed in the year 1999, the original could not be produced. Let us assume that the original agreement dated 30.6.1960 has lost whereafter the law has taken care of the situation through provisions of Article 76 of Qanun-e-Shahadat Order, 1984. Before considering these provisions, we have to consider stance of the petitioners that this document be presumed to have been executed being 30 years' old under Article 100 of the Qanun-e-Shahadat Order, 1984.
The documents referred in the provision of law under discussion, are those documents execution of which is not specifically denied by the executant and of those, which in the normal course of events under the relevant provisions of law, would have created a lawful title. Since the execution of the agreement by simply relying on Article 100 of the Order (ibid) cannot be said to have been proved especially when it was denied by the executant. Article 76 of Order, 1984 requires proof of documents through secondary evidence regarding its existence, conditions and contents of the original document, which were not proved by the petitioners by producing its scribe, marginal witnesses or the persons acquainted with handwriting/signatures of the executant. Though no application for permission to lead any secondary evidence in this case was moved or allowed by the Trial. Court, hence petitioners could not rely on the order dated 3.12.1992 in this behalf by the executing Court on their objection petition, yet in absence of any proof even by way of secondary evidence, it cannot be held that Mst. Naseem Fatima became owner on the basis of an unproved agreement and that the petitioners were transferred the property in question, with lawful title. They also did not prove that marriage between the spouses, which was solemnized in the year 1952, was performed for a deferred dower of Rs. 32,000/-. The file is absolutely thirsty of the proof that the so- called deferred dower was claimed by Mst. Naseem Fatima in the year 1960. Had the property been transferred at the time of marriage i.e. In the year 1952, then it may have been claimed that the transfer was in lieu of dower transferring the title thereof, but this transfer was asserted much later through a document in form of an agreement, the same could not be alienated through a simple agreement as the same was situated within the municipal limits of Lahore i.e. In Samanabad.
Urban properties within municipal limits could only be transferred through a registered document and not otherwise, in terms of Registration Act. The ex parte declaratory decree on the basis of this agreement to sell was set aside on 5.1.1973 much before the sale-deed executed by Mst. Naseem Fatima decree-holder. In this manner, as well, she was not competent to execute any sale-deed on the. Basis of mere an agreement which did not create any right, title or interest in the property, as held by the superior Courts of the country in number of cases, like M. Ghulam Muhammad Vs. Custodian of Evacuee Property, Lahore and others (PLD 1966 Lahore 953), Sh. Nazir Ahmad Vs. Haji Ghulam Hussain and others (1985 CLC 7), Capt. Dr. Abdul Wahab Vs. Province of Punjab, and another (1986 MLD 2049) and Sh. Manzoor Ahmad and others Vs. Mst. Lqbal Begum and others (1989 SCMR 949).
10. Petitioners, after loosing twice up to the level of Honourable Supreme Court, had nothing with them to resist the claim of respondents Nos. 1 to 6.
Mst. Naseem Fatima failed to prove her title as held in the foregoing paragraphs, to the property transferred in favour of the respondents, as ex parte decree in her favour was rightly set aside by the Court concerned by detailing lawful reasons and her plaint for mere declaration that she was owner, was correctly rejected as the same did not disclose any cause of action being based on mere an agreement to sell and was not maintainable. Transfer of urban property within municipal limits, in lieu of dower which was not outstanding against her husband, was not permissible, thus both the. Courts below correctly returned the findings that she had no title to transfer the property in favour of Sh. Muhammad Shafi etc. The revision petitioners. I have no ambiguity in my mind that after two judgments by this Court and by the Honourable Supreme Court, judgments impugned were -absolutely justified being in consonance with the record. Similarly, no legal defect could be pointed out in the view expressed by the Appellate Court on two applications filed before it, one for -additional evidence and the other for amendmane of memo. Of appeal. Petitioners failed to demonstrate as to why the documents sought to be produced by way of additional evidence were not produced at the time of trial of the suit, where they consumed considerable time for conclusion of their evidence, during which this record was available with them for production. They have also not explained any reason as to how this record is necessary for a just/fair decision of the case especially in presence of the facts above produced. Objection petition of Sh. Muhammad Shafi petitioner was adjudicated upon, like a suit where he led his entire evidence but lost his case up to the highest level. Likewise, prayer for amendment of memo. Of appeal for inclusion of prayer of remand of case had no sense in it because the Appellate Court was otherwise equipped with power to remand the case even in absence of any specific prayer in the memo. Of appeal. The judgments impugned, in all respects, are not arbitrary or fanciful and fulfill all the requirements of doing justice on the basis of canons known in this behalf.
11. For the reasons noted above, both the Courts below properly appraised the evidence on the file and their judgments are riot tainted with any illegality/irregularity, thus those are not open to interference in revisional jurisdiction as held by the Honourable Supreme Court in the cases of Haji Muhammad Din Vs. Malik Muhammad Abdullah (PLD 1994 S.C. 291), Mst. Shumal Begum Vs. Mst. Gulzar Begum and 3 others (1994 SCMR 818), Sirbaland Vs. Allah Loke and others (1996 SCMR 575), Abdul Hakeem Vs. Habibullah and 11 others (1997 SCMR 1139) and Mst. Ameer Begum Vs Muhammad Naeem Khan and another (PLD 2000 S.C.
839). Both the revision petitions have no merit in those and consequently are dismissed with costs.