1998 PLP 986 (CLC)

The petitioner/defendant was married with Mst. Fahmeeda Begum respondent/plaintiff on 22‑9‑1989. On the same day, he gave the house in question to aforenamed Mst. Fahmeeda Begum in consideration of his marriage with her and conferred all the rights upon her qua that house. A separate document (Exh.P‑1) was reduced into writing on the same day apart from the Nikah' deed solemnizing the ' Nikah' between the parties. After marriage, the parties started living in the aforesaid house but the petitioner allegedly gave beating to the respondent about 7 months prior to the institution of the suit filed by her and turned her out of his house after taking into possession her belongings. She contended that the petitioner had no right to do so as she was the owner of the house by virtue of the document aforesaid. The suit was contested in the Court below on the ground that the respondent/plaintiff had no cause of action and the petitioner/defendant had never beaten the respondent/plaintiff as alleged in the plaint. She, however, allegedly left the house of the petitioner/defendant of her own and took away all the dowry and the golden ornaments valuing Rs.5,000 in October, 1992. On account of this incident, the petitioner/defendant allegedly divorced her on 24‑10‑1992.

2. Both the Courts below came to the conclusion that the ownership of the house in question vested in Mst. Fahmeeda Begum on account of the document executed by the petitioner on the day of marriage as Exh.P‑1.

3. Learned counsel for the petitioner has assailed the judgments and decrees of both the Courts below on the ground that there was misreading of evidence; that the house in question belonged to one Shaukat Ali a brother of the petitioner and his attorney who had purchased the same from Saleem Barber; that the house was never owned by the petitioner and as such, he was not competent to convey the same to anyone including the respondent/plaintiff; that the documents itself being unregistered did not confer any proprietary rights upon the respondent/plaintiff; that the marginal witnesses of the document were not produced in the Court so as to prove its contents; and lastly that the learned Courts below misread the evidence brought on record by the parties to conclude that the house in question belonged to the respondent/plaintiff.

4. I have gone through the pleadings and the evidence of the parties with the able assistance of the learned counsel for the petitioner. One thing is clear that this objection we never taken in the written‑statement that the house in question did not belong to the petitioner/defendant or it belonged to his brother Shaukat Ali who had purchased the same from Saleem Barber. This appears to be a story which was invented at some later stage, hence it would not receive much of credence as it would have received if this plea was taken in the written statement. The learned counsel was unable to point out any contradiction or mis reading in the evidence brought on record by the respondent/plaintiff. She appeared in the Court as P. W .3 and clearly stated that the house in question was given to her by the petitioner/defendant in lieu of marriage on the day of marriage vide Exh.P‑

1. The aforesaid document confirms the story of the respondent/plaintiff that the house valuing Rs.12,000 was given to her by her husband on the day of ' Nikah' in lieu of her marriage. It was signed by the petitioner/defendant in the presence of marginal witnesses Qazi Manzoor Elahi and Muhammad Akram. Out of them, Qa: i Manzoor Elahi was produced as P.W.2 and he affirmed that the document Exh.P‑1 was executed by the petitioner in his presence and that he had put his signature thereon as a witness. The petitioner/defendant had also signed in his presence. The contents of document (Exh.P‑1) were read out to all who had put their signatures on it. This witness, during the cross‑examination, stated that he was also present during the 'Nikah' of the parties. The document Exh.P‑1 was written at the time of 'Nikah'. It is, thus, obvious that one of the marginal witnesses also proved the execution of the deed Exh.P‑

1. The contention of the learned counsel that the other marginal witness was not produced and as such, the document remained unproved does not appear to be solid or convincing argument. The statement of one marginal witness is enough to prove the document particularly when its executant has not come forward in the witness‑box to deny its execution. On the contrary, a plea has been taken at the stage of evidence that the house belonged to the brother of the petitioner namely Shaukat Ali. Though this was never so stated in the written‑statement and appears to be an invention of some able brain at some subsequent stage to nullify the fact of the document which purportedly conveyed the title of the house to the respondent/plaintiff. Even the statement of Shaukat Ali as attorney appears to be self‑contradictory. He stated that the petitioner/defendant had no concern with the house as the same was purchased by him from Saleem Barber. He also admitted that the petitioner/defendant used to appear in the Court previously but stopped coming after appointing him as attorney. He also contended that the petitioner was serving in Army. However, he admitted that the written‑statement was filed by the petitioner himself. He also accompanied and the written‑statement was got drafted from a lawyer in his presence. He also admitted that he knew about the present suit since its institution. He also added that he never made any application to become a party in the case although allegedly the house belonged to him.‑ He contended that he never got the house in question through registered sale‑deed nor any mutation was effected regarding his ownership although the same was purchased by him ten to twelve years back. He had allegedly paid Rs.17,000 to Saleem Barber as consideration of the house and that the aforesaid Saleem Barber was still alive. However, nothing was written to complete the aforesaid transaction with Saleem Barber. He also admitted that the parties remained in the present house after their marriage. The perusal of the examination‑in‑chief of this witness will highlight the contradiction in his statement which appears to be mutually destructive. In one breath, he stated that the land under the house belonged to one Aurangzeb from whom he had purchased the same and in the other breath, he stated that the land aforesaid was agricultural land and the house thereon was built by Saleem Barber from whom, he had purchased the same. It is, thus, obvious that on one hand, he stated that he had purchased the land himself, whereas, on the other hand, he states that he purchased the house from Saleem Barber. It, therefore, follows that the story invented by Shaukat Ali D:W. is neither plausible nor rings true. It is just a vain attempt to save the house. Had there been any grain of truth in the story, it should have found its way in the written‑statement. On the contrary, the evidence of the respondent/plaintiff brought on record is consistent to say that the house was given by the petitioner/defendant to the respondent/plaintiff in lieu of her marriage. As nothing was paid in money as consideration, therefore, it could not be termed as a sale. The contents of Exh.P‑1 are clear enough to show that the husband has given the house to a wife on wedding day. Hence its non‑registration will not affect the proprietary rights of respondent/plaintiff qua the house.

5. In view of my above discussion, I do not find any latent or patent defect either in law or with facts so as to interfere with the findings of the Courts below which remain unexceptional. The revision petition being meritless is dismissed in limine. A.A./R‑52/L Revision dismissed