2002 PLP 31 (MLD)

Brief facts necessary for the disposal of the instant Constitutional petition are that petitioner was married to Syed Abdur Razzaq Shah on 8‑9‑1961 who had transferred to her land measuring 839 Kanals, 19 Marlas situated in village Bedana Gharbi, Tehsil Hasilpur by way of dower. Her husband submitted declaration under section 7 of the Land Reforms Act, 1977 excluding this area but respondent No.1 i.e. Deputy Land Commissioner, Bahawalpur included the same in his holding and calculated total produce index units as 10150 equal to 340 Kanals, 5 Marlas. He was allowed to retain 8000 PIUs and the remaining area equivalent to 2150 PIUs was ordered to be surrendered in favour of Government, vide order, dated 27‑9‑1977 which remained maintained on appeal by the Land Commissioner, Bahawalpur vide his order, dated 8‑12‑1977 and revision petition against the same was also dismissed by the Chief Land Commissioner vide his order, dated 25‑2‑1978 but this order was later on set aside by the High Court vide order, dated 4‑3‑1987 passed in Writ Petition No.108 of 1978 filed by the petitioner and the case was remanded to Chief Land Commissioner for fresh decision on merits. Thereafter, the Chief Land Commissioner, now respondent No.3, again passed an order on 25‑7‑1990 whereby the orders of respondents Nos. l and 2 (Land Commissioner and Deputy Land Commissioner, Bahawalpur) were maintained and revision petition against the same filed by the petitioner was dismissed.

2. This Constitutional petition calls in question the aforesaid order, dated 25‑7‑1990 passed by Chief Land Commissioner.

3. Learned counsel for the petitioner contends that there was no material available before the Chief Land Commissioner (respondent No.3) to hold that (Nikahnama) whereby an area of 839 Kanals; 19 Marlas was given to the petitioner by her husband Syed Abdur Razzaq Shah by way of dower was a fabricated document. It is urged with vehemence that even no opportunity was provided to the petitioner to further strengthen her case by producing the relevant record and leading supporting evidence. It is also contended that respondent No.3 has discarded the decree passed by the learned Civil Judge in favour of the petitioner in her suit for declaration with reference to a judgment passed by a learned Judge of Lahore High Court printed in PLD 1988 Lahore 407 (Punjab Land Commissioner and another v. Mst. Kalsoom Bibi and another). But he had altogether ignored the judgments cited on behalf of the petitioner wherein it, had been categorically held that alienation of land through gift in favour of heirs by declarant is immune from scrutiny in the context of Laws of Land Reforms and also that Nikahnama was admissible to prove factum of alienation of property in lieu of dower, unless some very strong evidence is brought on the file to rebut the same and the genuineness of transaction cannot be doubted on the basis of a technicality that transaction was not followed by a mutation or entries in Revenue Records. The relevant judgments are 1994 SCMR 666 (Federal Land Commission and others v. Mst. Zarin F Qaisha and others), 1989 SCMR 651 (Fazal‑ur-Rehman v. Mst. Soosan Jan and others), PLD 1975 Peshawar 122, 1994 SCMR 1110 and 1994 SCMR 1112 (Federal Land Commission through its Chairman v. Hayat Muhammad Khan and others).

4. With reference to the above judgments and in the above backgrounds, the nutshell of the arguments of the learned counsel is that respondent No.3 has not seen the matter in its true perspective, thus committed material irregularity and illegality while rendering the impugned order, which has resulted in grave miscarriage of justice.

5. On the other hand learned counsel appearing on behalf of the learned Assistant Advocate‑General vehemently supports the impugned judgment by submitting that the same has been passed strictly in accordance with law and facts of the case.

6. I have given due consideration to the arguments of the learned counsel for the parties, perused the record and gone through the judgments cited at the bar.

7. The main consideration appeared to have been prevailed upon respondent No.3 while observing that the Nikahnama was forged and fabricated one was that Column Nos.13, 14 and 15 of the same were left blank, which dealt with the amount of dower, its nature whether prompt or deferred or some part of dower has been paid at the time of marriage. Question as to whether leaving blank these columns can lead to an inference that the Nikahnama is forged and fabricated needs consideration, I here refer to definition of dower given in paragraph 285, Chapter 15 of Muhammadan Law by Mullah, "285, dower defined": ‑‑Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. So it supports that dower could be fixed in the shape of property. So to me answer is negative, and presumption if any, in this regard is rebuttable, for which a fair opportunity should have been provided to the petitioner particularly when no evidence was brought on the record to establish that this Nikahnama was antedated or entries incorporated therein had been added later on. Column No. 16 is reproduced as under:‑‑ Against this column it has been mentioned that the bridegroom has given an area of 839 Kanals, 19 Marlas from his land situated in Mauza Gharbi out of 1259 Kanals, 18 Marlas. Number of Khata was also mentioned. This Nikahnama is‑ dated 8‑9‑1961 long prior to the Enforcement of Land Reforms Act.

8. I may mention here that the judgments cited by the learned counsel for, the petitioners was not even shown to have been considered in the impugned order.

9. Before parting with the judgment I may observe here the spirit behind the impugned orders must be appreciated but at the same time a party prima facie, having a genuine claim must not be deprived of legitimate rights secured under the law. .

10. I am of the view that since the petitioner was not afforded an adequate opportunity to establish her case beyond doubt therefore, case is required to be remanded to respondent No.3 for passing an order afresh, after providing an opportunity to the petitioner to substantiate her claim by leading evidence, in support thereof.

11. Resultantly this petition succeeds and the impugned order of respondent No.3 is set aside by allowing this writ petition with no order as to costs. The case would go back with respondent No.3 for reconsidering the case on merits. Since it is an old matter, the expeditious disposal thereof, preferably within a period of four months after the appearance of the parties, is desired. H.B.T./S‑280/L Case remanded.