2013 PLP 2439 (YLR)

ABDUL LATIF KHAN, J.

Sardar Ahmad, petitioner, filed the instant petition against the judgment and decree dated 8-8-2011 passed by the learned Additional District Judge-I, D.1.Khan whereby the judgment and decree dated 20-9-2010 passed by the learned Civil Judge-I, D.I.Khan was maintained and suit of the petitioner was dismissed.

2. Precise facts giving rise to the instant petition are that the respondent filed a suit against the petitioner for declaration regarding a plot fully detailed in the plaint as well as rectification of Revenue Record and cancellation of Mutation No.7017 attested on 23-4-2003.

3. The suit was contested by the petitioner through filing written statement. After a full dressed trial, the learned trial Court dismissed the suit of the respondent. Appeal filed by the petitioner also met the same fate, hence, the instant petition.

4. The thrust of the arguments of learned counsel for the petitioner is that the plot in question was purchased by the petitioner and this fact was duly admitted by other side and Iqrarnama, Exh.P.W.3/2, to this effect was reduced into writing wherein the parties agreed that the petitioner would transfer a plot measuring 9 marlas situated in Gulshan Jameel Colony, D.I.Khan in favour of Mst. Zeenat Bibi respondent, through a mutation and after attestation of mutation and prior to the marriage/rukhsati, a house is to be constructed by the petitioner and thereafter the said house shall be the ownership of the respondent, to be the wife, of the petitioner but unfortunately the marriage dissolved prior to consummation, resulting into the present litigation between the parties. The petitioner filed suit for return of plot mutated in the name of respondent which was concurrently dismissed by the courts below. He contended that the dismissal of the suit by the two courts below is contrary to law and perverse in nature, liable to be reversed.

5. As against that, learned counsel appearing on behalf of the respondent contended that the format of the suit filed by the petitioner was wrong and as such no decree can be granted in his favour, as suit being bad in law. He contended that the petitioner has been left with no authority to ask for the return of the plot as after attestation of mutation in favour of the respondent, it became the sole ownership of the respondent and the petitioner has nothing to do with the title of the same. He forcefully supported the judgments delivered by the courts below and argued that being concurrent, the findings arrived at by the courts below, cannot be interfered with and prayed for the dismissal of the instant petition.

6. I have given my anxious thought to the valuable arguments of learned counsel for the parties and perused the record with their able assistance.

7. The petitioner filed a suit for the cancellation of mutation attested on the strength of 'Sharaet Nama/Kabin Nama' dated 18-4-2003, in favour of the respondent, who was agreed to be married to the petitioner and formal Nikah was recited between the parties, but later on the marriage dissolved through court decree passed by the Family Court and the matter came up to this court wherefrom the respondent got decree for half of the dower amounting to Rs.50,000, as marriage dissolved prior to consummation. The record reveals that another suit filed by the respondent for specific performance of the agreement/Kabin Nama dated 18-4-2003 on the basis of which Mutation No.7017 dated 23-4-2003 was attested in her favour on behalf of the present petitioner, Sardar Ahmad. Both the suits were consolidated and consequently dismissed on 29-9-2010 by the trial Court. No appeal/revision filed by the present respondent and as such findings of the trial Court in her suit with regard to specific performance of Kabin Nama/agreement, being not challenged, attained finality. However, the petitioner filed an appeal before the learned appellate court which was dismissed by dint of impugned order dated 8-8-2011. The stance of the respondent stands disproved and disallowed by the trial Court to the effect that she was not entitled to the specific performance of that agreement.

8. So far as Kabin Nama is concerned, after the receipt of dower amount, consequent to the decree of this court and dissolution of marriage, she remained no more the wife of the petitioner and her claim to the extent of dower stood satisfied, then how she can intact her demand to the extent of plot agreed to be given by the petitioner, solely on the existence of relation of spouses and when the relations ended, then there is no justification to claim the benefit out of the tie, already broken. Even otherwise, agreement/Kabin Nama being unregistered document, bestows no title on the beneficiary until or unless a decree to this effect has been obtained from the competent court of law.

9. Admittedly the plot was purchased by the petitioner as the contents of the written statement filed by the respondent in suit of the petitioner and her own suit filed for specific performance of agreement, she has categorically admitted that as per terms of the agreement/Kabin Nama, the petitioner had purchased the plot and mutated in her name. The trial Court has dismissed the claim of the petitioner mainly on moral and ethical consideration ignoring the legal aspect of the case. It has been observed that the instant case is best example of moral degradation in the society but without the aid of logic. However, no legal cover has been given by the trial Court as to what extent the respondent is entitled to get the plot after the non-existence of relations between the parties, as spouses.

10. Admittedly, both the courts observed that the plot was purchased by the petitioner despite the fact that the stance of the respondent fluctuated with the passage of time. Her statement in court and pleadings are contrary to each other, rather she has departed from her pleadings by saying that she purchased the plot herself through her brother and then took u-turn by saying that it was purchased by the petitioner. This leads one to the conclusion that she concealed the facts from the court and tried to get benefit of the Kabin Nama, at any cost without looking into her entitlement permissible under the law. The appeal court has taken the matter lightly and the observations that agreement, Exh.P.W.3/2, being of great importance, payment of sale consideration by the petitioner, would not entitle him for cancellation of mutation or return of the plot from the respondent. This strange finding arrived at by the learned Additional District Judge-I, D.I.Khan is alien to law for the simple reason that the perusal of Kabin Nama does not speak about the transfer of disputed plot in lieu of dower amount.

11. Section 54 of Transfer of Property Act, 1882 provides a mechanism for sale, which is transfer of ownership in exchange for price paid or promised or part paid and part promised. So consideration being vital aspect of sale could not be ignored, as observed by the appeal, court. Column No.13 reveals that Rs.1,00,000 was fixed as dower payable on demand. Column Nos.14 to 16 are blank, provided for the property to be given in lieu of dower amount. However, in Column No.17, the factum of execution of Iqrar Nama has been mentioned, which is not disputed by the parties as the same was executed at the relevant time but dispute arose later on when the marriage stood dissolved and thereafter she was not entitled to get benefit of the agreement with special reference to the fact that it was not part and parcel of the dower amount agreed between the parties at the time of marriage. Even otherwise, had it been the part and parcel of the dower amount, as claimed and later on refuted by the respondent, in that eventuality, the civil court had no jurisdiction to entertain the matter and only Family Court had to take cognizance of the matter but this is not the case of the respondent and the learned counsel conceded before the court that it is not the part and parcel of dower amount. However, advanced a strange proposition that grant of plot is the part and parcel of the marriage. If this being the position, as already stated, the marriage stands dissolved and the plot shall be returned to the original owner, petitioner and the mutation attested in the name of the respondent, being the offspring of the tie of the marriage, stands annulled. The terms and conditions of the agreement/ Kabin Nama, if perused with care and caution, do not revel the condition that some benefit in the shape of plot or otherwise has been gifted to the respondent by the petitioner as normally out of love and affection, even apart from the dower, the husband used to grant in favour of wife, but the instant case lacks this aspect too and as such in no eventuality, the respondent/ wife was permissible to get benefit out of the broken tie and retain the plot owned by the petitioner.

12. The agreement between the parties pertains to landed property measuring 9 marlas, of the value more than one hundred rupees, compulsorily registerable under section 17 of the Registration Act, 1908, which provides that either gift instrument regarding immovable property or other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent. If we apply this test to the agreement/Kabin Nama, no right, whatsoever has been bestowed on wife/respondent and on this score too, not entitled to get through contingent agreement.

13. For the stated reasons, this petition is accepted, the findings arrived at by the courts below are set at naught and the suit of the petitioner is hereby decreed to the extent of Mutation No.7017 attested on 23-4-2003 which is hereby annulled. Necessary correction in the Revenue Record is to be made in favour of the petitioner. Parties to bear their own costs. AG/323/P Petition accepted.