RASAAL HASAN SYED, J. This appeal is directed against judgment and decree of learned Civil Judge, Lahore whereby the suit of the appellant was dismissed.
2. The appellant instituted a suit on 16.9.2013 for declaration, cancellation of documents, permanent injunction, and consequential relief of redemption of mortgage and possession claiming therein that her late mother Mst. Safia Latif was owner of property bearing house No.29- F, Model Town, Lahore measuring approximately 06 kanals situated in Model Town Cooperative Society, Lahore by virtue of sale deed dated 03.4.1990 registered with the office of the Sub-Register Model Town, Lahore, executed in pursuance of a decree of Civil Court dated 27.1.1990; who mortgaged the same by delivery of title deed and other documents of the suit property for a sum of Rs.22,00,000/- for a period of 23 years w.e.f. 02.2.1990 in favour of one Abdul Ghani, father of respondent No.2 Abdul Ghafoor and that the said Abdul Ghani as usufructuary mortgagee was authorized to reside therein or rent out the suit property; that Mst. Safia Latif subsequently died on 22.9.2012 at Karachi; and that on expiry of the term of mortgage i.e., 23 years on 01.2.2013, the appellant required respondent No.2, legal heir of deceased Abdul Ghani the alleged mortgagee, to deliver vacant possession of the suit property to the appellant and return the title documents; which was not done and that the appellant then approached the office of Model Town Cooperative Society, Lahore from where it transpired that the ownership of the suit property was transferred in the name of one Mst.
Bashiran Bibi who happened to be the wife of Abdul Ghani and mother of respondent No.2 Abdul Ghafoor on the basis of sale deed dated 03.5.1990 executed by respondent No.1, Imtiaz Khan through a General Power of Attorney dated 04.3.1990 allegedly executed by Mst. Safia Latif and that some litigation with respect to the suit property, including suit titled "Mrs. Musarrat Butt and others v. Safia Latif and others" was also pending which was neither in the knowledge of the appellant nor her mother and which had gone up to the Supreme Court of Pakistan; and that the power of attorney on the basis of which Mst. Safia Latif was represented therein was fake and bogus, although eventually the said litigation had terminated in favor of Mst. Safia Latif in April 2012. It was further claimed that at the time of making the inquiry in April 2013 with the Model Town Cooperative Society, Lahore it also transpired that Mst. Bashiran Bibi had further sold a portion of the property measuring 02 kanals and 139 sq. ft. to respondent No.3, Iftikhar Riaz, vide sale deed dated 21.2.1995 who was in possession of that portion and had also sold another portion of the property comprising 02 kanals to one Rizwan Malik vide sale deed dated 04:2.1995 while the remaining 02 kanals and 177 sq. ft. was sold to Muhammad Arshad Malik vide sale deed dated 05.4.1995 who both had in turn sold their proprietary interest to respondent No.4, Sheikh Muhammad Ramzan vide sale deed dated 05.12.2003 and that all these sale deeds were registered with the office of the Sub- Registrar, Model Town, Lahore. It was alleged in the plaint that Mst. Safia Latif had never vested respondent No.1 Imtiaz Khan with the General Power of Attorney bearing document No.1495, book No.4, jild No.292 registered on 04.3.1990 which was allegedly a forged, fictitious, and fraudulent document and that the signatures and thumb-impression on the said document did not belong to Mst. Safia Latif and that the entire superstructure of subsequent transactions by way of the sale deed in favour of Iftikhar Riaz, Rizwan Malik, Muhammad Arshad Malik and Sheikh Muhammad Ramzan would fall aground as transactions without any legal foundation and were liable to be cancelled. It was alleged that as the mortgage was effected in favor of the father of respondent No.2 Abdul Ghafoor on 02.2.1990, when it expired on completion of term of 23 years on 01.2.2013, the suit was instituted on 16.3.2013 promptly by the appellant Mst. Erum Latif as legal heir of Mst. Safia Latif. Contesting written statements were filed by respondent Nos. 2 to 4; however, respondent No.1 Imtiaz Khan, the alleged General Attorney, of Mst. Safia Latif under document No.1495, book No.4, jild No.292, dated 04.3.1990, registered with the Sub-Registrar, Model Town, Lahore filed a conceding written statement in favor of the appellant.
3. Out of divergent pleadings following issues were finalized by orders dated 06.11.2014 and 14.11.2014: "ISSUES
1. Whether the suit property was mortgaged by mother of plaintiff vide mortgaged deed 02-2-1990 to father of defendant No.2 for a period of 23 years and handed over titled documents to defendant No.2? OPP.
2. Whether general power of attorney in favour of defendant No.1 is result of fraud and forgery and is liable to be cancelled along with sale deeds executed on its basis? OPP
3. If issues Nos.1 and 2 are proved in affirmative, whether the plaintiff is entitled to get a decree as prayed for? OPP.
4. Whether suit is not maintainable under the law? OPD-2 to 4.
5. Whether plaintiff has no cause of action and locus standi to file the suit? OPD-2 to 4.
6. Whether alleged mortgage deed is not enforceable in law? OPD-3 and 4.
7. Whether suit of the plaintiff is barred by law and limitation? OPD-3. and 4.
8. Whether the suit is bad for non-joinder or necessary party? OPD-3 and 4.
9. Whether defendants Nos.3 and 4 are bona-fide purchasers of the suit property? OPD.
10. Whether suit is false, frivolous, vexatious and is liable to be dismissed with costs? OPD-2 to 4.
11. Relief."
4. On consideration of evidence produced by the parties and arguments raised pro and contra, the learned Civil Judge dismissed the suit of the appellant vide judgment and decree dated 21.1.2017 which is now subject matter of consideration in this appeal.
5. Arguments heard. Record perused.
6. From facts noted supra it is discernible that the case set up by the appellant was that the property belonged to Mst. Safia Latif, mother of the appellant, she had mortgaged the same in favour of Abdul Ghani father of respondent No.2, the mortgage was for a period of 23 years; Mst.
Safia Latif died on 22.9.2012 and that on the expiry of the mortgage period, the legal heir of Abdul Ghani, respondent No.2 was asked to return the title documents who refused and that on inquiry from the office of Model Town Cooperative Society it transpired that the property was initially transferred in favour of Mst. Bashiran Bibi through registered sale deed dated 03.5.1990 who sold a portion thereof measuring 02 kanals and 139 sq ft in favour of respondent No.3 through sale deed dated 21.2.1995; an area of 02 kanals 177 sq ft was also sold by her in favour of Arshad Malik son of Muhammad Ashraf Malik vide sale deed dated 05.4.1995 and the remaining 02 kanals were sold to Rizwan Malik son of Muhammad Ashraf Malik vide sale deed dated 04.2.1995 and that Arshad Malik and Rizwan Malik further sold their properties through registered sale deed dated 05.12.2003 in favour of respondent No.4. It was further asserted that during her inquiry it also transpired that some litigation in respect of the property titled "Mrs. Musarrat Butt, etc. v. Begum Safia Latif, etc." remained pending up to the level of Supreme Court of Pakistan which was allegedly not in the knowledge of the mother of appellant and that respondent No.1 Imtiaz Khan did not have the power to alienate the property of her mother in favour of Mst. Bashiran Bibi and all the subsequent sale deeds according to appellant, were legally untenable.
7. Admittedly the suit was filed on 16.9.2013 i.e., after a period of approximately 23 years from the execution and registration of basic sale deed dated 03.5.1990 which was executed in favour of Mst.
Bashiran Bibi mother of respondent No.2. The narrative built up by the appellant was that her mother had allegedly mortgaged the property in favour of Abdul Ghani vide Exh.P-2, an unregistered document of mortgage, for a period of 23 years and that after the expiry of period of mortgage, the appellant allegedly approached respondent No.2 for the restoration of possession.
Perusal of Exh.P-2 the unregistered document shows that it was not a Memorandum of Deposit of Title Deed: rather, the document operates in presenti to create relations of mortgagor and mortgagee between the parties. It is a settled law that when the document creates an interest in the property in presenti it requires compulsory registration. Reference can be made to "Bank of Oman Limited through Attorney v. M.Y. Malik & Co. and 2 others" (2004 CLD 490) and "Messers Eagle Star Insurance Co. Ltd v. Messers Usman Sons Ltd. and others" (PLD 1969 Kar. 123). Being unregistered document Exh.P-2 was inadmissible in evidence and no suit could be filed on the basis thereof. Even otherwise the execution of Exh.P-2 could not be proved. The agreement shows that overleaf the stamp paper where endorsement for the sale of stamp paper was affixed, no signatures of Mst. Safia Latif were present nor her CNIC number was recorded. Stamp paper was claimed to have been purchased from one Bashir who was not produced in evidence, nor its deed writer was produced. PWs 2 and 3, who were claimed to be the marginal witnesses of the document, admitted that they were tenants of appellant and were obviously under her influence.
Even otherwise their evidence was not worthy of credence. No close relative like male member of the family such as brother, uncle, etc. was shown to have stood witness to the document. As far as PW1 the attorney of the appellant is concerned, his statement was unworthy of any credence for the reason that he expressed his lack of knowledge about almost all material questions put to him relating to the documents, the litigation as also the property. This appears to be for the reason that his age was 34 years at the time of recording his statement i:e., on 12.3.2015 and considering this date he would be hardly nine in the year 1990 and thus could not possibly be a witness of the document during the age of his minority. The statement of PW1 being based on hearsay information, lacking direct knowledge, was inadmissible and was rightly discarded by the trial court. It is plain that neither the purchase of stamp paper nor execution of the document could be proved.
8. Perusal of the documentary evidence shows that Mst. Safia Latif filed a suit for specific performance titled "Begum Safia Latif v. Mehboob Alam" which was decreed on 27.1.1990. In execution of the decree, sale deed bearing document No.3685 dated 03.4.1990 was registered in her favour by the Executing Court and in result thereof she received the title documents of the property on the basis of the decree. According to appellant, Mst. Safia Latif handed over the title documents to Abdul Ghani at the time of execution of the alleged agreement of mortgage Exh.P-2 which plea on the face of it was fallacious as proved by the facts noted supra. Mst. Safia Latif herself obtained the sale deed on 03.4.1990, therefore, having no title deed on 02.2.1990 she could be not in a position to deliver the title deeds of property to the mortgagee. Obviously, sale deed being executed by the court in implementation of the decree and registered with the office responsible for maintaining public record presumption of correctness was attached to the document. Since the document itself shows that it was registered on 03.4.1990, the appellant's stance of delivering the document of title to Abdul Ghani on 02.2.1990, on the face of it, was factually untrue. It appears that with a view to fabricate explanation for delayed filing of the suit much after the expiry of limitation i.e. after 23 years, an attempt was made to fabricate evidence which went against her as the appellant was belied by the document that obviously shall have preference over the concocted oral plea of delivery of title deed on the date when the deceased mother of the appellant herself was not in possession thereof. Even otherwise it is a settled rule that the suit for specific performance if decreed, passes no title to the decree holder till such time that a registered sate deed is executed in their favour in implementation of the decree. Reference can be made to "Muhammad Ishaq v. Muhammad Siddique" (PLD 1975 Lah. 909). Being so, the deceased mother, of the appellant did not have any title till 03.4.1990 and thus she could not create any mortgage of the property which itself had not vested in her on the material date. Cumulative, result of the facts noted supra clearly yields the ineluctable conclusion that the stance taken by the appellant was false and was therefore rightly disbelieved by the court below.
9. The plea of appellant as to the lack of knowledge was also belied by the other documentary evidence. Application under section 12(2), C.P.C. Exh. D-1 titled "Mrs. Musarrat Butt and two others v. Begum Safia Latif and two others" for the annulment of decree dated 27.1.1990 for specific performance shows that Mst. Safia Latif mother of the appellant was cited therein as respondent No.1 and Imtiaz Khan (respondent No.1 herein) the General Attorney of appellant's mother as respondent No. 2 and Mst. Bashiran Bibi wife of Abdul Ghani (and mother of respondent No.2 herein) as respondent No.3. In the application under section 12(2), C.P.C., not only the ex parte decree was challenged but the subsequent sale of property by Mst. Safia Latif in favour of Mst.
Bashiran Bibi on 03.5.1990 was also assailed. It was specifically mentioned in the application that after the decree the sale deed was executed in favour of Mst. Bashiran Bibi, who was arrayed as respondent No.3. The application was contested jointly by Mst. Safia Latif and Mst. Bashiran Bibi (respondents Nos.1 and 3 respectively in the said case). In the reply to the application Mst. Safia Latif did not deny the execution or registration of sale deed of property in favour of Mst. Bashiran Bibi.
10. The application under section 12(2), C.P.C. was dismissed vide order dated 13.12.1993 Exh.D-2.
Appeal Exh.D-3 titled "Mrs. Musarrat Butt and two others v. Begum Safia Latif and 2 others" was filed against the order of dismissal of the application. This appeal too was dismissed vide order dated 05.3.1994 Exh.D-4 by Kh. Imtiaz Ahmad, learned Addl. District Judge, Lahore. Perusal of the order which is available at page 355 of the paper-book, shows that the learned counsel for respondent Nos.1 and 3 therein i.e., Mst. Safia Latif and Mst. Bashiran Bibi, supported the order of dismissal of application under section 12(2), C.P.C. The matter did not stop there. Civil revision No. 2382 of 1994 was filed, by Mst. Musarrat Butt, etc. titled "Mrs. Musarrat Butt and others v. Begum Safia Latif and others" against the order dated 05.3.1994 before this Court for the annulment of the order by which their application under section 12(2), C.P.C as also the appeal got dismissed. This revision petition was dismissed as withdrawn on 29.11.1994. Copies of the revision petition and order passed therein were tendered in evidence as Exh.D-5 and Exh.D-6 and are available at page Nos.
356 to 364 of the paper-book. Thereafter Mst. Musarrat Butt, etc. filed another application to challenge the order of dismissal of the revision petition which is available as Exh.D-7. In the said application too Mst. Safia Latif and Mst. Bashiran Bibi were arrayed as respondents Nos.1 and 3 while Imtiaz Khan, respondent No. I herein, was arrayed as respondent No.2. Reply of the application under section 12(2), C.P.C. was filed jointly by respondents Nos. 1 and 2. In the said reply Exh. D-8 also it was not alleged by Mst. Safia Latif or by Imtiaz Khan that Mst. Bashiran Bibi, who was arrayed as respondent No.3 in the case, had no concern with the property or that the property was not sold or that Imtiaz Khan was never appointed as General Attorney. These documents unequivocally showed that in those proceedings which were initiated after the registration of sale deed dated 03.5.1990 in favour of Mst. Bashiran Bibi, wherein she was arrayed, the same were initially contested jointly by Mst. Safia Latif and Mst. Bashiran Bibi and. thereafter, by Mst. Safia Latif and Imtiaz Khan; the response of Mst. Bashiran Bibi was also produced as Exh.D-7 which is available at page 373 of the paper-book. This application too was dismissed.
11. Due consideration of all these documents leaves no room for doubt that after Mst. Safia Latif had purchased the property in implementation of the decree for specific performance on 30.4.1990, the subsequent sale in favour of Mst. Bashiran Bibi dated 03.5.1990 as also the decree dated 27.1.1990 were challenged by Mst. Musarrat Butt, etc., wherein all the three dramatis personae, namely, Mst.
Safia Latif, Imtiaz Khan and Mst. Bashiran Bibi were arrayed as respondents who had contested the matter and at no point of time did either Mst. Safia Latif or Imtiaz Khan ever allege that no power of attorney was executed in favour of the latter or that no sale had taken place in favour of Mst.
Bashiran Bibi or that the property was under any mortgage with Abdul Ghani. The appellant's claim in the plaint that she was unaware of these instances of litigation or that her mother was unaware thereof, on the face of such documentary evidence, was proved to be feigned. Admittedly, at no point of time those proceedings or the orders passed therein were ever challenged by Mst. Safia Latif in her lifetime or by the appellant after her demise, to claim that she was not represented in those cases. In the presence of judicial record and all orders passed therein by the Courts reflecting the representation of Mst. Safia Latif and also Imtiaz Khan as well as Mst. Bashiran Bibi, it is hard to believe that despite being beneficiary of the orders passed in those proceedings, they were ignorant of the same or that someone else was representing the deceased in those proceedings. The plea raised was nothing but for all intents and purposes an unsuccessful attempt to avoid the consequential effects thereof.
12. From the evidence it is plain that Mst. Safia Latif remained alive for 22 years after the execution of the sale deed dated 03.5.1990 in favour of Mst. Bashiran Bibi, the first purchaser of the entire property from Mst. Safia Latif but at no point of time did the deceased mother of the appellant ever question the title of Mst. Bashiran Bibi or that of the subsequent purchasers during her lifetime. It is a settled rule that if the owner of a property, despite knowledge of transactions, did not challenge the transaction in their lifetime for years, the legal heirs shall have no locus standi to challenge the validity of those transactions after the demise of the owner. Reference can be made "Nasir Fahimuddin and others v. Charles Phillips Mills and others" (2017 SCMR 468) wherein it was observed to the effect that if the party's predecessor-in-interest never challenged the transfer document in favour of the opposite side or sought eviction of the transferee, such conduct proved that ownership of property was not being claimed and, therefore, was estopped in terms of Article 114 of Qanun-e-Shahadat Order, 1984 and, consequently, no valid locus standi would pass onto the legal heirs for claiming ownership or to challenge such document of transfer. Reference in this context can also be made to "Abdul Haq and another v. Mst. Surraya Begum and others" (2002 SCMR 1330), "Muhammad Rustam and another v. Mst. Makhan Jan and others" (2013 SCMR 299), and "Noor Din and another v. Additional District Judge Lahore and others" (2014 SCMR 513).
13. In view of the reasons noted supra Mst. Safia Latif having failed to challenge the sale deed in favour of Mst. Bashiran Bibi and also the subsequent sale deeds based on the first sale deed during her lifetime (who died on 22.9.2012) for 22 years was estopped from taking a volte face and will deemed to have accepted the validity of the transactions while the appellant being successor of her mother did not have any locus standi to tile the suit in view of the rule in the precedents referred hereinabove.
14. As to the argument that the respondent No.1 had filed a conceding written statement, the same is also without legal substance. Admittedly respondent No.1 Imtiaz Khan did not enter in the witness-box to testify in the case. It is a settled rule that pleadings of the parties are not substitute of evidence and that the averments made in the pleadings would carry no weight unless proved through evidence in court or admitted by the other side and that written statement filed by a defendant who was not later examined in the case could not be utilized nor any admission therein could be taken into the consideration unless proved through evidence. Reference in this regard may be made to "Faqir Muhammad and 8 others v. Abdul Momin and 2 others" (PLD 2003 SC 594), "Hakim Ud Din through L.R.s and others v. Faiz Bakhsh and others" (2007 SCMR 870) and "Messrs United Bank Ltd. v. Messers Interior Decoration and Design Association and others"
(1983 CLC 244). The rule observed in these precedents is to the effect that if the defendant filed a written statement but chose to remain absent from the court and failed to step in the witness-box, such non-appearance will be strong basis to discard the truth of the case. In the instant case, respondent No.1 Imtiaz Khan in league with the appellant filed a conceding written statement but avoided entering the witness-box knowing fully well that he will be exposed in cross-examination if confronted with the documentary evidence referred to in the preceding paragraphs where he had been a party to the proceedings and never took the stance as was being taken in the conceding written statement and in such eventuality he might have to countenance serious consequences including the possibility of prosecution for perjury and false deposition before a court of law. The documents produced by the respondents pertaining to the litigation of the property initiated by Mst. Mussarat Butt, etc. made it evident that respondent No.1 had been actively participating in the matter wherein Mst. Musarrat Butt, etc. specifically alleged that Mst. Safia Latif had alienated the property after the execution of decree in her favour and registration of sale deed; despite that neither the appellant's mother nor respondent No.1 ever attempted to deny the execution and existence of sale deed or the General Power of Attorney in favour of respondent No.1 on behalf of the deceased mother of the appellant. In view of the reasons supra, respondent No.1 deliberately opted to stay away from the witness-box to avoid consequential events and, in any case, the alleged admission in the written statement filed by him being legally inadmissible was rightly discarded by the trial court.
15. For the reasons hereinbefore recorded, it is clear that Mst. Safia Latif had sold the property in dispute during her lifetime, number of alienations took place thereafter which she never challenged despite having knowledge of the transactions which leads to no other conclusion except that she was fully conscious that the property was lawfully sold by her in favour of Mst.
Bashiran Bibi who subsequently lawfully sold it in favour of other buyers thereafter. The deceased having not challenged the transactions and the documents despite knowledge during her lifetime, the appellant as an heir did not have any locus standi to file a suit to challenge the transaction of the deceased after her demise in view of the settled law and that the suit having been instituted after 23 years was time-barred and that the yarn spun by the appellant to lay an explanation for the late institution of suit was proved to be false. The trial court did analyze the entire evidence in its proper perspective and thereafter concluded that the suit instituted by the appellant was liable to be dismissed. Findings so recorded do not suffer from any misreading and non-reading of evidence or from any error of law or jurisdiction so as to warrant interference.
16. Resultantly, this appeal being devoid of any merit is dismissed.