2009 PLP 1272 (YLR)

S. ALI HASSAN RIZVI, J.--Through this writ petition, the judgment and decree, dated 31-3-2008 passed by respondent No.2 in appeal has been impugned to the extent of giving 50 kanals of land as dower to respondent No.1. 2. The brief facts of the case are that respondent No.1 filed suits for maintenance, recovery of gold ornaments, dowry articles, for dower amount fixed in Nikah Nama and agricultural land measuring 50 kanals as dower. The petitioner/defendant also filed a suit for restitution of conjugal rights. The learned Judge, Family Court consolidated all the suits and framed the issues arising out of the pleadings of the parties as follows:-- Issues:-- "(1) Whether the plaintiff. is entitled to decree for recovery of maintenance allowance and if so to what extent and for what period? OPP (2) Whether the plaintiff is entitled to decree for recovery of golden ornaments weighing 10 tolas and dowry articles according to list appended with the plaint? OPP (3) Whether the plaintiff is entitled to the decree for possession of the land measuring 50 kanals detailed in the head note of the plaint according to conditions of Nikah Nama, dated 2-10-2005? OPP (4) Whether the plaintiff has a cause of action and locus standi to file this suit? OPP (4-A) Whether the defendant Sabir Hussain is entitled to decree for restitution of conjugal rights? OPD (5) Relief." Issue No.1 was decided against respondent No.1 as she was not found ready to perform the matrimonial obligations and also held to be not entitled to recovery of maintenance allowance. Issue No.2 to the extent of gold ornaments was declined while according to the list Exh.P.5, issue was decided in favour of respondent No.1 holding her entitled to decree for recovery of dowry articles given in the list. The suit of respondent for decree for the possession of land measuring 50 kanals according to the condition incorporated in Nikah Nama, dated 2-10-2005 was declined and decided against respondent No.1. Issue No.4 was decided against the petitioner (defendant) while issue No.4-A was decided in his favour, and respondent No.1 was directed to go to the house of the petitioner to perform matrimonial obligations. According to the judgment and decree, dated 31-3-2008 of the Judge, Family Court, suit of respondent No.1 for recovery of maintenance allowance, suit for recovery of possession of land as dower were dismissed whereas the suit filed by the petitioner for restitution of conjugal rights was decreed. 3. Respondent No.1 filed two appeals wherein the learned appellate Court decided these appeals as under: "(i) The appellant/plaintiff is entitled to get maintenance but she can be compensated from the land given to her as dower and from proceeds of land, she can be compensated regarding her maintenance. (ii) The appeal to the extent of gold ornaments is dismissed while findings of learned trial Court regarding remaining dowry articles as mentioned at Sr. No.2 of Exh.P.5 are hereby upheld. (iii) The suit of the plaintiff for dower of remaining 50 kanals of land is hereby decreed and appeal to this extent is hereby accepted while the findings of learned trial Court regarding this issue are hereby reversed accordingly. (iv) The suit of defendant for restitution of conjugal rights is hereby dismissed while findings of learned trial Court regarding this issue are hereby reversed and appeal of the plaintiff for this relief is hereby accepted accordingly." Hence this writ petition is filed against the impugned judgment and decree, dated 25-9-2008 passed in appeal by the learned Additional District Judge-II, Bhakkar. 3-A. It is argued by the learned counsel for the petitioner that the judgment and decree of the learned trial Court, dated 31-3-2008 was well-reasoned while the appellate judgment and decree to the extent of giving 50 kanals of land as dower to respondent No.1 was illegal being the result of mis-reading and non-reading of material evidence. The entry in the Nikah Nama for agricultural land was claimed to be the result of forgery by the respondent because the petitioner had never given at the time of Nikah any land to respondent No.1. This entry against column No.15 was claimed to be an interpolation. According to learned counsel, respondent No.1 had failed to prove her case. 4. Heard. 5. The marriage between the spouses still exists. The claim of respondent No.1 in the suit as also in appeal throughout was that the petitioner had given her as dower the land measuring 100 kanals out of which 50 kanals of land was mutated in her favour at the time of Nikah while for tile remaining land, she had not been transferred the land by the petitioner. In evidence of respondent No.1 as P. W.1, a bald question was asked as to the relevant entry vaguely saying that it was fictitious. The following reply is quite revealing:-- The petitioner as D.W.I. had admitted his signatures on Nikah Nama Exh. P.1. and his marriage with respondent No.1 taking place on 2-10-2005. The Nikah Nama was executed on 9-10-2005. He admitted during evidence that Mutation No.554 was entered in favour of respondent No.1 on 12-9-2005. This portion of evidence makes it clear that entry in the Nikah Nama in respect of transfer of land, as dower in favour of respondent No.1 was genuine. The petitioner had not denied the same, rather admitted that the he himself had agreed at the time of Nikah for the transfer of land to his wife (respondent No.1). The petitioner has nowhere alleged with details as to how the entry in the Nikah Nama was fictitiously made after the Nikah. The petitioner himself states that on 17-9-2005, he had transferred the land in the name of respondent No.1 whereas the date of the marriage given by him in 2-10-2005 and the same is the date of Nikah given in Exh.P.1. The factum of Nikah and transfer of the land measuring 50 kanals of land in favour of respondent No.1 has been admitted. There is no evidence produced in rebuttal to the claim of respondent No.1. It is proved that she at the time of Nikah was given 100 kanals of land out of which 50 kanals had already been transferred in her name. It is not shown if the petitioner had initiated any legal action against respondent No.1 as to the entry in the Nikah Nama. It is in evidence that the petitioner was involved abduction of one Zubaida Batool and remained in jail. The respondent had rightly claimed the maintenance allowance. There is no legal justification to deny the dower settled. Therefore, the ;impugned judgment and decree, dated 25-9-2005 passed by the learned appellate Court is in the accordance with law and is based on correct appreciation of the evidence. The appellate Court was the final Court of facts. No misreading or non-reading of evidence has been found. The writ petition is dismissed in limine. M.H./S-50/L Petition dismissed.