1995 PLP 1593 (MLD)

(6) Whether site plan of the suit house is incorrect? (7) Whether defendants have matured their title by adverse possession for more than twelve years? (8) Whether defendants have improved the suit property, if so, to what extent? (9) Whether plaintiff is the owner of the suit house? (10) Whether relationship of landlord and tenants exists between the parties? (11) Whether the plaintiff is entitled to the decree as prayed for? (12) Relief. ADDITIONAL ISSUES: (1) Whether defendant has effected any improvement over the suit house, if so, to what extent and effect? (2) Relief. After recording the evidence as the parties wished to adduce in respect of their claims and hearing the parties, the learned trial Court dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff preferred an appeal before the learned District Judge, Charsadda. The learned appellate Court remanded the case to the lower Court for decision afresh after ascertaining whether the suit house was situated in Khasra No.180 and that it was the same property which was inherited by Mst. Shamsul Huda from her father Shakirullah on the basis of Mutation No.1559 dated 14‑6‑1955. Being dissatisfied with the findings of the learned appellate Court, the defendants‑petitioners have come up in revision to this Court.

3. I have heard the arguments of Mr. Fateh Muhammad Khan, Advocate, for the petitioners and Mr. Wali Khan Afridi, counsel for the respondents and perused the record with their assistance. The learned counsel for the petitioners has questioned the remand order of the learned appellate Court on the ground that `Patwari' had given oral evidence and had not produced any Revenue Record wherefrom it could be ascertained that the suit house was situated in Khasra No.180 wherein Mst. Shamsul Huda, mother of the plaintiff, had allegedly beep shown as owner on the basis of inheritance Mutation No.1559 dated 4‑6‑1955.

4. I see force in the contention of the learned counsel for the petitioners for the ~reason that the `Patwari Halqa' who appeared as P.W.1 had given oral statement and had not produced any Revenue Record whatsoever or mutation before the Court which could support the ownership of Mst. Shamsul Huda in Khasra No.180. Plaintiff had alleged that she had become owner of the suit house on the basis of dower deed vide which the house in question was given to her mother in dower in lieu of her marriage with Zubair son of Khan Baig by her father‑in‑law. She further claimed in the plaint that after the death of her own father Sardar Khan she had become full owner being the only issue of Mst. Shamsul Huda and Sardar, second husband of her mother. This very fact has been falsified by P.W. Roidad Khan, himself uncle and next friend of plaintiff who in his statement before the trial Court stated that his brother Sardar Khan was alive and was residing in Karachi with his second wife Mst. Zahida. Thetz i's no denial of the fact that during the life time of her own father, Roidad Khan cannot act as a legal guardian and next friend of the minor‑plaintiff. , It is also the contention of the learned counsel for the petitioners that the house which admittedly belonged to Khan Baig, father‑in‑law of Mst. Shamsul Huda was never given in dower to Mst. Shamsul Huda as she had married Zubair son of Khan Baig against the will of his father and that after that marriage the spouses resided in Karachi and had never returned to village and thus the dower deed Exh.PW2/1 is fictitious, fake and ineffective against the rights of the petitioners. It is further argued that the plaintiff was not the daughter of Mst. Shamsul Huda but the daughter of Sardar Khan from his second wife Mst. Zahida with whom he married soon after his marriage with Mst. Shamsul Huda.

5. These arguments of the learned counsel for the petitioners also seem to have force. The alleged deed Exh.PW2/1 was executed on 31‑7‑1961 whereas as per statement of P.W. Roiadad Khan recorded on 15‑4‑1984 the marriage of Shamsul Huda and Zubair took place some 20/22 years back. To prove the execution of dower deed plaintiff produced one marginal witness P.W. Saraj. In his statement before the trial Court he had stated that dower deed which he had signed was only in respect of a house whereas dower deed Exh.PW2/1 mentions the gold ornaments valuing Rs.80. Besides, the deed which was executed by the father‑in‑law, Khan Baig, should have been registered as it was not given to her by her husband Zubair. This document Exh.PW2/1 being unregistered is bad in the eyes of law and cannot be considered in evidence. The plaintiff has also failed to prove that the house in question was given to the defendants on payment of `Khakshora'. No evidence whatsoever was produced by the plaintiff to prove that she, was ever paid any rent, either cash or kind by the defendant‑petitioner in lieu of the suit E house. In view of the above discussion, I, while accepting this revision petition, set aside the remand order of the learned appellate Court and thus dismiss the suit of the plaintiff‑respondent with no order as to costs. AA./1797/P Revision accepted.