2008 PLP 803 (CLC)

MUHAMMAD ALAM KHAN, J.

Major Rifat Nawaz has called in question the judgment and decree of Civil Judge 1st Class, Kohat in Suit No.125/1, dated on 7-6-2006 vide which a preliminary decree for partition of a house fully detailed in the head notes of the plaint was passed in favour of the respondent/plaintiff against the petitioner/defendant and also of the judgment and decree of the learned Additional District Judge, Kohat in Civil Appeal No.18/3 of 2006 decided on 18-9-2007 through which the appeal of the petitioner/defendant was dismissed and the judgment and decree of the learned trial Court was maintained.

2. Briefly narrated the facts of the case are that Mst. Tahira Begum plaintiff/respondent brought a suit against the defendant for partition of a house fully detailed in the head notes of the plaint. The learned trial Court summoned the petitioner/defendant who submitted the detailed written statement and out of the pleadings of the parties the following issues were framed:-- Issues (1) Whether the plaintiff has got cause of action? (2) Whether the plaintiff is estopped to sue by her own conduct? (3) Whether the suit is within time? (4) Whether there is non-joinder of necessary parties? (5) Whether the plaintiff is co-owner in the suit house through Nikahnama, dated 5-6-1987 as a dower? (6) Whether the suit house can be partitioned? (7) Whether the plaintiff is entitled to the decree as prayed for? (8) Relief. The parties produced their respective evidence which they wished to produce and the learned trial Court after hearing the arguments of the parties and perusing the record passed the preliminary decree in favour of Mst. Tahira plaintiff/respondent vide Suit No.125/1 decided on 7-6-2006. The petitioner filed an Appeal bearing No.18/13 of 2006 which was dismissed on 18-9-2007 and the judgment and decree of the trial Court was maintained.

3. Major Riffat Nawaz has assailed the concurrent findings of the two Courts below.

4. It was argued that the house subject-matter of the present lis belong to his father namely Muhammad Nawaz and as the petitioner has not given the house in dower to the respondent, thus she was not entitled to the decree through partition. It was also submitted that the mother of the petitioner namely Mst. Nazir Jan who was a necessary party to the instant litigation was not made a party and thus, the preliminary decree for partition was not maintainable under the law.

5. I have gone through the record of the case and have anxiously considered the submissions of the petitioner.

6. The question that whether a father can give dower in favour of his daughter-in-law on the eve of the marriage of his son was exhaustively dealt with in Mst. Mehr Bhari and 6 others v. Mst. Bhag Bahri and 2 others 1987.CLC page. 1588 and this is settled principle of law that the father-in-law can also give a dower the movable as well as immovable property on the eve of his son's marriage particularly when Nikahnama dated 5-6-1987 contained the stipulation regarding the dower with full particulars in shape of boundaries of the said house. This Nikahnama has also been thumb-impressed by Muhammad Nawaz father of the petitioner. This document has been fully proved on the record of the case.

7. Regarding the non-impleadment of the mother of the petitioner as necessary party to the lis is also not helpful to the petitioner as when the estate is partitioned and the share of all the co-sharers are kept intact then no challenge can be made to the decree for partition passed by the Court as held in Mst. Bibi Lal Bibi v. Mir Baluch Khan and another PLD 1962 (W.P.) Quetta page 28 and the learned trial Court will keep intact the shares of all co-sharers including Mst. Nazir Jan.

8. The learned two Courts below have appreciated the evidence on the record, and after scanning the same has passed the decree in favour of the plaintiff/respondent. Mst. Tahira who appeared on pre-admission notice no misreading or non-reading of evidence has been pointed out. The judgments and decrees of the learned trial Court as well as that of the Appellate Court are strictly in accordance with the established principle of appreciation of evidence, which calls for no interference.

9. In view of the facts and circumstances of the case narrated above there is no force in this revision petition which is dismissed in limine along with the civil miscellaneous. H.B.T./21/P???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.