Sardar Muhammad Raza Khan, J.--Leave to appeal is sought by the petitioners against the judgment dated 19.11.2004 rendered by a learned Judge in Chambers of Lahore High Court whereby Civil Revisions Nos, 841/ 2000 and 905/2000, filed by the petitioners were dismissed. The facts, the judgment and the parties being common, litigating in the same background, we propose to decide both the petitions through this single judgment.
2. The property, generally known as 44-Main Samanabad is the bone of contention. It was originally owned by Syed Muhammad Shah who sold the same in favour of Mst. Zubaida Khatoon through a registered deed dated 24.9.1967 for a sale consideration of Rs, 50,000/-. After the sale Syed Muhammad Shah, the owner, alongwith his family remained in possession but thenceforth as a tenant under Mst. Zubaida Khatoon through a rent deed.
3. Mst. Naseem Fatima, the wife of Syed Muhammad Shah somewhere in the year 1972 filed a suit against her husband that she was in fact the owner of the property on the basis of agreement dated 30.6.1960 whereby the husband had agreed to transfer the same in lieu of dower of Rs, 32,000/- The husband in his written statement, totally denied the execution of agreement dated 30.6.1960 and the fixation of dower as Rs, 32,000/- which, instead, was alleged to be Rs, 32/-. It seems that thereafter he absented himself at some stage and an ex-parte decree was granted in favour of Mst. Naseem Fatima on 1..7.1972. Claiming herself to be the owner of the suit property, she sold the same in favour of Sheikh Muhammad Shafi etc. through a registered sale-deed dated 25.8.1986.
4. In the meantime Syed Muhammad Shah had applied for getting the ex-parte decree set aside.
The same was accepted and the decree, in favour of his wife, was set aside on 5.1.1973. He again moved an application under Order 7, Rule 11 CPC which too was allowed and the plaint was rejected on 17.7.2002. The lady came up against such orders in Civil Revision No, 905 which was also dismissed through the impugned judgment.
5. On the other hand, Sheikh Ala-ud-Din son of Sheikh Rafi-ud-Din alongwith his five sisters, the legal heirs of Mst. Zubaida Khatoon, brought a suit against Mst %seem Fatima, her husband Syed Muhammad Shah and Sheikh Muhammad Shafi etc. that they being owners of the suit property since 24.9.1967 having. been purchased from rightful owner Syed MuhammadShah, his wife Naseem Fatima had not right or title to transfer the same in favour of Sheikh Muhammad Shafi, through a registered deed dated 25.8.1986. This suit was contested by Sheikh Muhammad Shari whereas Mst. Naseem Fatima was proceeded against ex-parte. The suit was decreed by the trial Court vide judgment dated 9.5.1996. It is pertinent to mention that Syed Muhammad Shah subsequently also filed a suit against Mst. Zubaida Khatoon, claiming that the transfer made by him in favour of the aforesaid lady was not a sale but a mortgage.
6. Mst. Zubaida Khatoon, on the basis of rent deed, filed ejectment proceedings against Sheikh Muhammad Shafi etc. This was originally dismissed by the learned Rent-Controller but was allowed by the Additional District Judge. The appellate order of ejectment was affirmed by the High Court vide judgment dated 16.12.1979. The ejectment was finally ordered subject to vacation of temporary injunction, issued by the Civil Court. The aforesaid injunction, obtained by Sheikh Muhammad Shafi, came to an end when subsequently he withdrew his suit, which was dismissed as withdrawn. The ejectment order thus became final.
7. When Mst. Zubaida Khatoon, filed execution proceedings, the aforesaid Sheikh Muhammad Shafi came out within objection petition which was dismissed by the Executing Court on 8.3.1986. This order was set aside on 27.3.1995 but subsequently due to acceptance of Writ Petition No, 6489/95 the appellate 'order was annulled on 26.6.1996, affirmed by this Court through judgment dated 24.8.1998 in CPLA No, 1609/96, against which the review also failed on 26.11.1998. Mst. Naseem Fatima and Sheikh Muhammad Shafi, having failed in their designs before the High Court, have now come to this Court, seeking leave to appeal.
8. We have extensively heard the arguments of learned counsel on either side and also examined the entire record of the case. It is to be recalled that the petitioners had failed in their first round up to this Court. The ejectment order had become final.
9. The first question that requires attention is as to whether the transfer in favour of Mst. Zubaida Khatoon was a sale or a mortgage. Having been struck through a registered deed, its contents would sufficiently prove that the same was a sale-deed. The suit brought by Syed Muhammad Shah, claiming the same to be a mortgage, was withdrawn by the said plaintiff. Rather by filing such suit, it stood indirectly admitted that the property had in-fact been transferred in favour of Mst. Zubaida Khatoon and the same was a sale and not a mortgage.
10.The next point is to the effect as to whether the suit property had been transferred through an agreement by the husband in favour of his wife Mst. Naseem Fatima in lieu of dower of Rs, 32,000/-.
The claim of wife was specifically denied by the husband in his written statement. Nowhere in record, it could be proved that the husband had so transferred the property. Mere agreement did not vest title in the lady and moreover such transfer, if at all, required to be registered compulsorily, which it was not. The benefit of transfer of immovable property without registration as provided under Muslim Family Laws Ordinance can also be not derived because the so-called agreement is dated 30.6.1960 whereas Muslim Family Laws Ordinance happened to be enforced on 24.7.1961.
11.The entire case of Mst. Naseem Fatima, the petitioner, rests upon the agreement dated 30.6.1960.
The discussion on this document is mani-faceted. The first among those is that this is a mere agreement, never converted into a regular sale. It is an admitted principle of law that a mere agreement of transfer does not create title. The second aspect is that this deed, copy Ex-D-4, was not produced in original. Neither the petitioner applied for nor the Court gave permission to prove this document through secondary evidence and hence the so-called proof, furnished by the petitioner, is not legal.
12.The third one is the privilege, claimed by the petitioner to the effect that it was a thirty years old document, to which certain presumptions are attached under Article 100 of Qanoon-e-Shahadat Order, 1984. It would be convenient to reproduce Article 100 as follows: "100. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation
13. A perusal of the above section would indicate that the required presumption at the first place is completely rebuttable. Secondly the presumption is attached only to a document which purports to or is proved to be thirty years old. Thirdly it must come from proper custody. Fourthly the Court has a discretion to presume that the signature and every other part of such document, which purports to be in the hand-writing of any person, is in that person's hand-writing and further that it was duly executed by the person by whom it purports to be executed. From these important ingredients, what follows unavoidably is that such old document must be before the Court in original. In case the original is not before the Court, it cannot make any assessment as to whether it in fact is thirty years old, as to whether there are any signatures in original on the document, whether such signatures are legible, capable of being discriminated or deciphered and further capable of being compared with any other signatures.
Unless the original is before the Court, no such observations can be made.
14.The rebuttable presumption is discretionary and the Court may or may not resort to the presumption, in the circumstances. Such presumption attached to thirty years old document, carries a logical behind, in that, if it is proved to be thirty years old, the chances of forgery are minimized. Moreover the fleeting past of time casts certain peculiar features upon the documents' tenor, the texture, the language, the signature. the thumb-impression, the specific date, the existence of witnesses and the paper which it is written upon. All these features cannot be attended to, examined and appreciated unless the document in original is before the Court. Thus, to derive benefit of oldness of a document for a period of thirty years, it must be produced in original.
15.In the instant case not only that the document was not produced in original, even permission to lead secondary evidence was neither asked for nor granted. The matter of secondary evidence, however, is of secondary importance. The fact is that admittedly no original of the agreement dated 30.6.1960 was produced in Court and hence no advantage u/S. 100 of Qanoon-e-Shahadat can at all be claimed.
16.The ex-parte decree based on the aforesaid agreement in favour of Mst. Naseem Fatima was set aside on 5.1.1973, whereas, she executed the sale-deed in favour of Sheikh Muhammad Shafi etc. on 25.8.1986. Where, on the one hand, the lady had no title to transfer in favour of Sheikh Muhammad Shafi, the latter, on the other hand, cannot be dubbed to be a bona-fide purchaser either. Except for the decree and that too ex-parte, the lady had no title and even under decree in question, the subsequent purchaser ought to have had exercised due diligence because in the very suit filed by her, the husband had outright denied the very execution of agreement dated 30.6.1960 and the same ex-parte decree did not exist at the time of sale in favour of Sheikh Muhammad Shafi. He is not entitled at all to the protection of Section 41 of Transfer of Property Act.
17. Mst. Naseem Fatima had failed twice up to the level of this. Court. In the instant round as well, there are concurrent findings of three Courts against the petitioners essentially involving the questions of fact. This by itself is sufficient for us not to show, indulgence. Same principle was applicable to the High Court as well which declined to interfere with the concurrent findings of fact arrived at by the two Courts below, not cursorily but by discussing all the pros and cons of the case in the light of available record. It is a case where the petitioners before us have unjustifiably dragged the litigation to such an extent that Mst. Zubaida Khatoon and her legal heirs could not receive and enjoy the possession of the property since 24.9.1967 despite having purchased the same from a rightful owner through a registered deed.
18.Consequently the leave to appeal is refused and both the petitions are hereby dismissed on payment of Rs, 25,000/- as costs in each case.