P L D 1988 Lahore 407 (PLP)

Respondent No.1 Mst. Kalsoom Bibi, filed a suit against the present petitioners defendants 1 and 2 and respondent No.2/defendant No.3 for declaration that the orders dated 7‑11‑1977 passed by Deputy Land Commissioner, Vehari treating the land in dispute in the ownership of respondent No.2 were illegal and void and did not effect the rights of the plaintiff therein and as a consequential relief a decree for permanent injunction was also prayed for, for restraining the present petitioners/defendants 1 and 2 from interfering with the ownership rights of the plaintiff in the land in dispute. The suit was contested by the petitioners by filing written statement. On the leadings of the parties, the learned trial Court framed the following issues: ‑ (1) Whether the order dated 17‑11‑1977 passed by the Deputy Land Commissioner Vehari is illegal, void and ineffective over the rights of the plaintiff for the reasons stated in para. No.3 of the plaint? OPP. (2) Whether the plaintiff has no cause of action? OPD. (3) Whether this Court has no jurisdiction? OPD. (4) Whether the plaintiff is estopped to bring this suit on account of her conduct? OPD. (5) Whether the defendants are entitled to special costs? OPD (6) Relief. Learned trial Court after recording evidence by judgment dated 15‑7‑1985, dismissed the suit. Under issue No.1 it was held by him that the plaintiff failed to prove that the very impugned order dated 17‑11‑1977 passed by the Deputy Land Commissioner was illegal therefore, this issue was answered against the plaintiff. Under issue No.2 it was held that on account of findings on issue No.1 against the plaintiff she had no cause of action to bring the suit. In respect of issue No.3, it was observed that the defendants did not say anything about this issue therefore it was disposed of against them. With regard to issues No.4 and 5 it has been held by the trial Court that no evidence was produced on the said issues therefore the same were decided against the defendants. Plaintiff feeling aggrieved filed an appeal before the lower appellate Court which has been accepted by judgment dated 20‑10‑1986 passed by Additional District Judge, Vehari. The present revision petition has been filed against the said judgment and decree of the lower appellate Court.

2. Learned counsel for the petitioners argued that the entries in Nikahnama Ex. P1 regarding transfer of land in dispute to respondent No.1 by her husband respondent No.2 in lieu of Rs.40,000 amount of dower were made subsequently which fact is apparent from mere perusal of the said document. He also maintained that even if those entries are taken into consideration they do not amount to gifting away of the land by respondent No.2 to respondent No.1 as according to these entries it was an agreement that the form of dower to be given to the respondent No.1 would be the land which shall be transferred to her on her demand. According to learned counsel it was at the most a case of fixation of dower in the form of land which was made prompt and at the most an agreement which did not create any right in favour of respondent No.1 by itself. He has also taker, me through the evidence produced by respondent No.1 which according to learned counsel for the petitioners was rightly disbelieved by the learned trial Court and the learned lower appellate Court has not according to learned counsel adverted to its evidentiary value which amounts to misreading of the evidence by the lower appellate Court.

3. On the other hand, learned counsel for the respondent N0.1 argued that according to well settled law through chain of authorities by this Court and the Supreme Court such as Federal Land Commission and others v. Mst. Zarin Qaisha and others (1984 S C M R 666) mere entries in Nikahnama about the transfer of the land to the wife in lieu of dower was sufficient to create title in favour of wife and such document did not require even the registration. He also relied upon judgments reported as Ghulam Nabi v. Muhammad Siddique and others (1986 C L C 2158) that gift could be made orally. He also maintained that according to judgment reported as Murid Hussain and others v. Ghulam Ahmad alias Ghulam Muhammad and others (P L D 1984 S C 392) mere mention of factum of gift in lieu of dower in the mutation amounted to 'Hiba‑bil‑Evizl therefore the gift as such was made and urged that entries in Nikahnama Ex. P1 were sufficient to constitute complete gift and the property could not have been treated to be the property of respondent No.1 so as to resume the same by the T.L.C. being in excess of the maximum ceiling fixed under the Land Reforms Laws,

4. I have examined Ex.P

1. There is a separate column No.16 which is meant to be filled where in lieu of the full dower amount or part of it something in the shape of property was intended to be given to wife has to be mentioned. Against this column no entry ‑was originally made rather a cross mark has been put which clearly establishes that at the time of Nikah no property was given to the respondent No.1 in lieu of the dower. Against column No.15, which is to the effect as to whether any part of the dower amount was paid at the time of marriage, an entry has been made mentioning therein Rs.40,000 as part of dower amount and in lieu thereof land situated as Mouza Mustafabad Tehsil Vehari, District Multan on demand. The words Mouza Mustafabad Tehsil Vehari District Multan 'Indul Talab have over stepped the said column and are on the first line of column No.16 as noted above. Against column No.14 which requires to specify as to how much amount of dower was prompt and deferred, it has been written that Rs.15,000 out of the total dower amount would be paid in the form of ornaments. According to column No.13 total amount of Rs.55,000 has been fixed as dower amount. From the perusal of this document it is fully established that even the land in dispute was not given to respondent No.1 at that time and no title was created in her because according to entry it was specifically provided that this will be merely a form of payment of part of dower amounting to Rs.40,000 and the same shall be payable on demand which means that the respondent No.1 shall be transferred the land if she makes demand of her that part of dower amount and instead of giving her the money in cash the ‑same shall be paid in the form of transfer of land. It was rightly construed to be an agreement by the trial Court where land was to be transferred on demand and that no title was created in the land itself by the mere entry having been made to that effect. The learned lower appellate Court has not in the. impugned judgment dealt with the logical basis on which the findings' of the‑trial Court rested therefore, the judgment of the lower appellate Court is not sustainable. This view is fully supported by judgment reported as Madan Gopal and 4 others v. Maran Bepari and 3 other (P L D 1969 S C 617).

5. I have gone through the evidence produced by respondent No.l. P.W.2 Dost Muhammad Khan has appeared. He is the husband of respondent No.1, who according to him transferred the land to her in lieu of dower. In the cross‑examination, he stated that he got mutation of the land effected in favour of respondent No.1 in respect of the said transfer of land in lieu of dower whereas it is an admitted fact that no mutation was got sanctioned. He also stated that he was prosecuting the case on behalf of respondent No.1 but in the same breath stated that his relations with respondent No.1 are not cordial for the last 2/3 years. He denied the suggestion that he filed appeal before the Land Commissioner about the land in dispute whereas from document Ex.P3 which is an order passed by the Land Commissioner on 2‑1‑1978 it is manifest that he filed the appeal. This witness is not truthful witness. It is actually her attempt to save the land in collusion with her husband from the provisions of Land Reforms Laws it is pertinent to note that the Nikahnama was executed on 13‑1‑1972 whereas for the first time in 1977 when the land was resumed it was pleaded that this land stood transferred to respondent No‑1 in light of dower. There is no explanation on the record as to for such a long time why the mutation was not got sanctioned. It may be that, mutation itself does not create any right but when in such circumstances the existence of transaction itself is challenged the conduct on the part of the parties claiming through such transaction is very much material and presumption could very well validly b raised against the party claiming rights under the transaction. The aspect of the case has not been properly attended to by the learn lower appellate Court and adjudicated upon. So much so, the respondent No.1 woke up suddenly in the year 1977 and filed a suit for declaration that she was the owner of property in which she impleaded he husband respondent No.2 as defendant. A compromise decree we obtained in the said suit which was being used in these proceedings in order to plead that through the said decree respondent No. became the owner. I am afraid the filing of the said suit in the year 1977 and obtaining decree on compromise was an afterthought and consent decree has no better status than a mere agreement between the parties thereto of course the authority of the Court super‑added to it. This decree in no manner advances the ease of respondent No.1 and could be treated to be evidence in favour of the respondent No.1 in proof of her title based on the said gift, All these proceeding rather establish the collusion between respondent No.1 and respondent No.2 and an attempt to retain the land. for what has been said above, the case law referred to above by the learned counsel of the respondent No.1 is not applicable to the facts of this case inasmuch as in this case the very gift of property in favour of respondent No.1 does not stand proved on record. The findings of the learn lower appellate Court are based on misreading and misconstruction entries of Ex.P1 and also the evidence produced by the petition The findings of the learned lower appellate Court that the compromise decree having not been challenged therefore the same was operate against the petitioner has no legal sanction. The said decree being merely an agreement between husband and wife on account of being a consent decree therefore, could be avoided by the petition in the present suit without challenging the same by separate proceedings.

6. Learned counsel for the petitioners also argued that under section 28 of the Land Reforms Act, 1977 the jurisdiction of the Courts was barred to entertain suits against orders passed by D.L.C. I am afraid the contention appears to be misconceived. In the brought by respondent No.1, a question of title was raised which could only be adjudicated ‑ upon by Court of general jurisdiction established under the law and this question could not have decided by any of the officers under the Land Reforms Act. Lear counsel for the petitioners failed to point out that to decide such question was within the jurisdiction of authorities under the La Reforms Act. Under Section 28, the jurisdiction of the Civil Court are barred to the extent of such matters which are within jurisdiction of the Land Reforms Authorities to decide. The question of title is not one of those matters over which Land Reforms Authorities have been vested with any jurisdiction. This view finds support from judgment reported as Dalil Khan and another v. Sardar Khan and 21 others 1979 C L C

104. For the foregoing reasons, the revision petition is accepted. The judgment and decree dated 20‑10‑1986, passed by the lower appellate Court is hereby set aside and that of the trial Court restored, ,leaving the parties to bear their own costs. A. A. /P‑34/L Revision accepted.