2014 PLP 1336 (MLD)

MALIK MANZOOR HUSSAIN, J.

This revision petition has been directed against the judgment and decree dated 31-1-2005, passed by learned District Judge, Charsadda, whereby the appeal filed by respondents/defendants was accepted and the judgment and decree dated 24-11-2003 passed by learned Civil Judge, Shabqadar was set aside, while the Objection Petition of petitioner/plaintiff against above judgment of learned Civil Judge, was dismissed.

2. Briefly, the facts of the case are that the petitioner/plaintiff brought a suit against the respondents/defendants for declaration, permanent injunction etc regarding the suit property fully described in the heading of the plaint. The suit was strongly contested by the respondents by filing written statement. The learned Trial Court after recording pro and contra evidence partially decreed the suit of petitioner/plaintiff in respect of 8 Kanals of land while her suit in respect of 1 Kanal was dismissed. Feeling aggrieved from the impugned judgment and decree, the respondents/defendants preferred an appeal before the Appellate Court whereas plaintiff/petitioner also filed Objection Petition against the same judgment in respect of dismissal of her claim in respect of 1 Kanal. The learned Appellate Court after hearing learned counsel for the parties, vide order dated 31-1-2005, accepted the appeal of respondents/defendants and set aside the judgment and decree dated 24-11-2003 passed by learned Civil Judge, Shabqadar, while the Objection Petition of petitioner/plaintiff was dismissed by the learned Appellate Court. Dissatisfied from the same, the petitioner filed Writ Petition No.319 of 2005 which was lateron converted into Civil Revision vide order dated 25-5-2010 passed by this court.

3. Learned counsel for petitioner contended that disputed property measuring 8 Kanals, 1 Marla was given in lieu of dower by Mir Alam, the father-in-law of the petitioner and during his life time, Mir Alain never objected to the transfer of the same. He further argued that the petitioner was put into physical possession of the said property and was enjoying its usufruct and after death of Mir Alam the predecessor in interest of respondents Nos.1 to 17, there left no property in the name of Mir Alam. Thus the inheritance mutation bearing No.3524 attested on 23-10-1995 with regard to suit property was ab initio void and being illegal, confer no title on the L.Rs. of Mir Alain. Learned counsel further submitted that the document dated 11-10-1994 was duly proved by the petitioner through production of cogent evidence and the learned Appellate Court ignored all the material evidence available on record and passed the judgment contrary to the admitted fact with regard to the suit property.

3. Conversely, the learned counsel for respondents supported the judgment passed by the learned Appellate Court and prayed for dismissal of instant revision petition. Arguments heard, record perused.

5. From the perusal of record it reveals that 8 Kanals, 1 Marla agricultural land and one Kanal construed property was alienated by Mir Alam in favour of the petitioner through deed dated 11-10-1994 in lieu of dower. As one Kanal land was already transferred by Mir Alam in the year 1993 in favour of his wife, thus it was rightly held by both the Courts below that the petitioner was not entitled to decree to the extent of this land. So far as the agricultural land measuring 8 Kanals, 1 Marla is concerned, not only the scribe, two marginal witnesses as required under Article 79 of Qanun-e-Shahadat Order, 1984, were produced in the trial court but the same fact was supported by statement of Nikah Khwan (PW.5) as well as PW.4 Mulana Zainul Abideen. The question raised by learned counsel for respondents that the deed dated .11-10-1994 was not registered, thus it creates no title, is not tenable on the ground that there is plethora laws on the point that transfer of property in lieu of dower is to be treated as a gift under the Muslim Person Law and the document manifesting such transfer, does not require registration for creating a right, title or interest in favour of transferee. Reliance can be placed on "Mst. Kaneez Bibi and others v. Sher Muhammad and 2 others" (PLD 1991 SC 466), "Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others" (1977 SCMR 154), "Inayat Ullah v. Mst. Parveen Akhtar" (1989 SCMR, 1871) and "Mst. Roshan Ara v. Badri Kamala and 9 others" (1989 SCMR 1981).

6. It is well settled that in cases where property is transferred by father-in-law in favour of daughter-in-law, no strict proof of delivery of possession is required. It is also well settled that for proof of execution of documents if, in addition to one of the marginal witness, the scribe of documents appeared in the Trial Court and deposed that the agreement was scribed by him and also thumb impression was put by the defendants, such statement of the scribe could be considered to be a statement of a marginal witness in the circumstances. Reliance can be placed on a D.B. judgment reported in the case of "Zafar Ullah Khan v. Mst. Hakim Bibi and another" 2000 YLR 2789. However, in the case in hand not only scribe appeared in the court but two witnesses out of three appeared in the court and deposed in support of the document. The requirements of Article 79 of Qanun-e-Shahadat Order, 1984 were fully complied with in the case. Moreso it had never been suggested by the respondents to any of the witnesses of the petitioner that the deed being relied upon by her was not a genuine document. The learned Appellate Court did not advert to this material fact and failed to give effect to the proper appreciation of material available and also failed to apply the correct law. Present is a case of non-reading and mis-reading of the material evidence which resulted into miscarriage of justice. Appeal is continuation of the suit and all the material should be thrashed properly, which the learned Appellate Court failed to follow. For what has been discussed above, this Civil Revision is allowed and by setting aside the judgment and decree of the learned Appellate Court, the decree of learned Trial Court is restored. Consequently decree to the extent of 8 Kanals, 1 Marla is maintained against the respondent. Parties are left to bear their own costs. AG/659/P Revision accepted.