2017 PLP 374 (YLRN)

ALI AKBAR QURESHI, J.

The petitioners are aggrieved of judgment and decree dated 21.10.2011 and 18.12.2010 passed by the learned courts below respectively, whereby the suit for declaration filed by the respondent No.1 was decreed in her favour.

2. The respondent No. 1 who married to one Muhammad Sharif deceased, filed a suit for declaration against the petitioners on the ground, that at the time of her marriage with deceased Muhammad Sharif, 03-Acres landed property was given to her by the deceased Muhammad Sharif as Haq Meher and this fact was also given effect in the Nikahnama, the said Muhammad Sharif was murdered during subsistence of marriage and after his death, the petitioners not only thrown out the respondent from house, but also illegally possessed the landed property given to her at the time of marriage, and lastly prayed that as the respondent No.1 is owner of the property, therefore, she be declared the owner of the suit property. The suit was contested and the learned trial court, out of the pleadings, framed ten issues, recorded the evidence of the parties and decreed the suit. Being dissatisfied of the aforesaid judgment and decree, an appeal was filed by the petitioner, which was dismissed by the learned Additional District Judge, Jahanian and affirmed the judgment and decree in favour of the respondent No.

1. The petitioners are now before this Court in this Constitutional petition.

3. The respondent No. 1 is claiming the ownership of the suit land only on the one ground, that the suit land was given to her at the time of marriage and this fact has also been given effect through entries in Column Nos.13 and 15 of Nikahnama. Further, the respondent No. 1 also claimed in the plaint, that she had been receiving the produce of the suit land, therefore, she is owner of the property, whereas on the other hand, the petitioners/defendants have claimed that the suit land was never given to her at the time of marriage and the entries in the Nikahnama are forged and result of fraud and misrepresentation.

4. Now, it is to be seen from the pleadings of the parties, ocular as well as the documentary evidence, and the contentions of the learned counsel for the parties, whether the respondent No.1 has succeeded to prove her claim and to what extent, and whether the petitioners have succeeded to rebut the same. The respondent No.1 while appearing in the witness box, supported the contentions taken in the plaint and also got exhibited the Nikahnama, which is the important document to solve the controversy between the parties. At the time of tendering Nikahnama by the respondent No.1, as revealed from the record, no objection was raised by the petitioners, therefore, the same was received in evidence, exhibited by the court and the learned courts below rightly, after appreciating the exhibited document i.e. Nikahnama, reached to a concurrent conclusion that the Nikahnama is valid and all the entries of said Nikahnama are correct. Further, as evident from the record, the Nikahnama Ex.P 1 came into the knowledge of the petitioners much before filing of the suit but the petitioners neither challenged the validity of Nikahnama nor its entries in any manner whatsoever, therefore, the petitioners, by this way, have been estopped by their own conduct to question the validity or authenticity of Nikahnama Ex.P1.

5. The respondent No.1, even otherwise, has succeeded to prove the validity of Nikahnama and the factum of giving the landed property as Haq Meher on the eve of marriage with deceased Muhammad Sharif, through reliable, cogent and confidence inspiring evidence, whereas on the other hand, the petitioners could not rebut the contention and the execution of Nikahnama Ex.P1 through any reliable evidence. The witnesses appeared on behalf of the petitioners, stated in cross examination, that they were not present at the time of execution of Nikah whereas, DW-1 stated, that she had no knowledge whether the Nikah was registered or it was Sharai or oral.

6. As regards the objection raised by the learned counsel for the petitioners regarding the jurisdiction of the civil court, it is observed, that the suit land was given to the respondent No.1 at the time of her marriage as dower, she had been receiving the produce of the suit property and after the murder of her husband, namely, Muhammad Sharif, the land was illegally possessed by the petitioners after throwing out the respondent No.1 from the house, therefore, the respondent No.1 filed a suit for declaration rightly claiming herself the owner of the property, therefore, the learned civil court had the jurisdiction to entertain and decide the matter.

7. As regards the second contention of the learned counsel for the petitioners, that the mutation of the land in question was not entered in the name of the respondent No.1 and further, the original mutation entered in the name of deceased Muhammad Sharif, husband of the respondent No.1, had already been cancelled by the revenue authorities. It is well settled proposition of law, that the mutation is to be entered in the revenue record on the basis of the title document, simply to recover the revenue and in any case, is not a title document. In this case, the title document is the Nikahnama and even otherwise, the revenue authorities had no jurisdiction or powers to cancel the mutation of the land in question without issuing the notice to the respondent No.1 by providing fair opportunity of hearing, therefore, the order to cancel the mutation of the suit land by the revenue authorities, is illegal, unlawful and without lawful authority.

8. Even otherwise, both the learned courts below, after careful appreciation of the record including the evidence produced by the parties, rightly decreed the suit in favour of the respondent No. 1, therefore, there is no reason to interfere with the concurrent findings on facts and the law.

9. Resultantly, this petition is dismissed with no order as to costs. ZC/N-5/L Petition dismissed.