Mst. KISHWAR Versus ABDUL DEHYAN

ORDER

The petitioner through the instant petition has called into question the legality and propriety of the judgments and decrees, dated 25-3-2000 of the learned Civil Judge, Charsadda and that of the Additional District Judge, Charsadda, dated 2-6-2003 wherein her suit for seeking decree of declaration, perpetual injunction and for possession regarding the suit property described in the plaint was dismissed.

2: 'Briefly stated the facts leading to the present controversy are that the petitioner entered into wedlock with defendant-respondent No. 1, namely, Abdul Dehyan on,10-2-1960. In consideration and lieu of dower the suit property which consists of agriculture land and a residential house was given to her by the father of her husband, namely, Abdul Tawab and to that effect dower deed was executed in her favour on 10-2-1960.

3. On the basis of the said dower deed Mutation No. 1607 was entered in favour of the petitioner but intriguingly it was kept pending for a considerable, time and was allegedly cancelled by the Revenue officials on 19,-10-1967 without any notice issued to her.

4. The petitioner sensing foulplay, therefore, brought a Suit No.15/FC on 30-3-1968 in the Family Court against the said Abdul Tawab the predecessor-in-interest of the present respondent/defendant for the recovery of the said dower/property which was initially contested by Abdul Tawab (deceased) but ultimately he entered into written compromise with the petitioner vide agreement deed Exh.P.W.2/1. This deed was produced in the Court which was duly acknowledged by the parties to the suit in presence of their counsel and on the basis of the said compromise vide order, dated 5-9-1968 the above suit of the petitioner was decreed. The order of the Court is to the following effect:----- which is Exh. P. W.2/3 while the decree-sheet was also prepared. It may be clarified; that due to the compromise so effected the petitioner because of the family settlement abandoned her claim to the rest of the 8 Kanals land and only 8 Kanals, land with a house, occupied by her, fill today, was decreed.

5. Despite having been given such strong assurance and impression to the petitioner that her rights have fully been secured through the decree of the Court intriguingly "Tamleek" Mutation bearing No. 1651 was attested prior to the decree on 20-3-1968 from the said Abdul Tawab in favour of the present respondents-defendants wherein the entire share of Abdul Tawab in the said Revenue Estate including the suit Khasra number shown to have been transferred. The Revenue Record reveals that the property is still joint one and the petitioner's husband is shown as: co-owner in possession in the suit Khata.

6. This second invasion on her rights, therefore, keyed up her to contest by instituting the present suit which was contested by the respondents-defendants 2 to 5 while respondent, No'.1 her husband submitted cognovit. The trial was held -wherein the suit was dismissed both on facts as well as on technical grounds and appeal filed there against was equally dismissed by the appeal Court hence this petition.

7. Arguments of the learned counsel were heard and record perused with their assistance.

8. At the trial, Patwari Halqa appeared as P.W.1 Who produced and placed on file the Revenue Record including the two mutations mentioned above as well as Khasra Girdawari and Record of Rights.

9. The petition writer was dead, therefore, for the identification of his handwriting and signature on the relevant entry in his register. Syed Marghub Ali Ashraf, Advocate appeared as P.W.2 and proved that the dower deed was correctly incorporated into the register at Serial No.44, dated 10-2-1960 which entries, according to him, were in the handwriting of his father and were duly signed by him.

10. Fazal Amin the special attorney of the petitioner also appeared in support of the dower deed Exh.P.W.2%2 who has also confirmed the Family Court decree having been passed on the basis of compromise EXh.P.W.2/3 and Exh.P.W.2/4 respectively.

11. Another witness, Muhammad Sarwar appeared as P.W.3 who is marginal witness of the dower deed as Exh.P.W.2/2. This witness in cross-examination has given some obliging concession with apparent attempt to create doubts about the deed but his such statement is liable to be ignored having been given because as a result of pre-concert with the defence.

12. From the defendants side defendant No.2, Shah Jehan, who also acted as attorney for the defendants Nos. 3 and 5, appeared as D. W.1 as a lonely witness in defence who denied the correctness of the dower, deed Exh. P. W.2/2 and described the same as bogus and forged one. He also claimed to have improved the status of the land but adduced no cogent evidence on this point.

13. The only issues which were discussed and hotly argued here, as to what is the effect of Family Court decree and dower deed itself and what is legal worth of the Tamleek mutation which was attested prior to the Family Court decree.

14. The learned counsel for the respondents Nos.2, 3 and 5 contended that both the learned two Courts below have recorded concurrent findings both on question of facts and law, therefore, this Court in view of the narrow scope of revisional jurisdiction cannot interfere with the same. He argued that the Tamleek mutation was attested prior to the Court decree thus when Abdul Tawab was not owner of the suit-land on the date when the Family Court passed decree, he could not, therefore, convey same and the said decree was not executed hence after passing of such a long time it has become inexcludable and is of no benefit to the petitioner. Additionally it was argued that possession was not delivered to the petitioner either at the time of alleged dower deed or at the time of Family Court decree and that the present suit was also hit by the principle 'of Order 2, rule 2, C.P.C because the matter has become a closed chapter.

15. It is by now more than a settled principle of law that mere attestation of mutation does not covey any title to the vendee/donee and the very transaction must be proved independently through cogent evidence by the beneficiary claiming title thereunder. Entries in Revenue Record are maintained for fiscal purposes alone, therefore, it is to be seen-that to what extent the defendants have proved the factum of Tamleek having been made by Abdul Tawab in their favour.

16. As mentioned above only defendant No.2 Shah Jehan appeared in defence. No independent evidence has been brought on record to prove the making of the gift "Tamleek" by Abdul Tawab in favour of the defendants. No one from the area has been produced to prove that such Tamleek indeed was made. Tamleek is a type of gift and it may be proved through cogent and convincing evidence independent of mutation B and Jamabandi entries and the onus lay heavily upon the beneficiary of; the same. The defendants have absolutely failed to establish through any independent evidence the factum of making of Tamleek of the said property by Abdul Tawab in their favour. therefore they have failed to discharge the legal onus which the law has placed on them.

17. Judged and looked from another angle and if the case and fortune of the parties is to be tested on the basis of time and date of transactions then in that case too the dower deed which has been proved beyond doubts is much prior in time and date to the Tamleek mutation, therefore, when Abdul Tawab had transferred the 'suit-land to the petitioner through the said dower deed then he was no more owner of the said area of land to make a Tamleek mutation in favour of the defendants and on this .principle of law too the Tamleek mutation in favour of the defence to the extent it covers the suit property is invalid and ineffective as no valid title could be conveyed in the same by Abdul Tawab to the defendants because by then he was not owner of the same as it vested in the petitioner.

18. The dower deed has been proved through an iron clad evidence. Not only witnesses in support of it have appeared but it has undergone a judicial scrutiny of the Family Court where it was re-acknowledged by Abdul Tawab by making statement at the bar and submitting written compromise deed therein on which the decree of the Family Court has been passed. This exhibition, acknowledgement and endorsement of the dower deed in judicial proceedings are facts which cannot be denied by any one as the same serves as a notice to the Public-at-large. It is a principle of law that any declaration/findings given by the Family Court on matrimonial matters and matters ancillary thereto are judgments in rein which is binding on the whole world. Unless and until this decree of a competent Court is set aside by adopting proper legal procedure it has overriding and super-imposing legal effect on all other documents including the so-called Tamleek mutation because legally. It occupies a very high pedestal as strong legal sanctity is attached to it.

19. The plea, that the decree has not been executed within the stipulated time period of limitation thus has become ineffective and invalid, is simply fallacious and being based on misconstruction of law and facts both. The suit filed in the Family Court was seeking three distinct reliefs, one was for declaration of title, the other for permanent injunction and the consequential relief of seeking possession. No doubt the Family Court while passing the order on the basis of compromise has `inadvertently mentioned. the grant of decree of possession but the omission is not because of negligence on the part of the Court but it was for obvious reasons. As in the compromise deed the title and ownership of the petitioner was admitted by the defendant therein, namely, Abdul Tawab to the extent of an area of 8 Kanals landed property and one residential house, therefore, probably the Family Court was of the view that title stood admitted, therefore, only consequently relief was to be granted which was done, accordingly.

20. As the consent decree was passed on the written compromise deed wherein title of the petitioner has been admitted to the above extent, therefore, it is to be read as integral part of the decree and order of the Court and decree for declaration of title shall be deemed to have been included therein albeit not in expressed words.

As the parties settled the matter amicably through mutual consent and consent decree of the Family Court was passed thereon, therefore, there was no need for the petitioner to execute the same. The need for execution of decree arises when the judgment-debtor openly and publicly refuses to abide by the Court decree but when the decree is passed on consent no such eventuality arises to execute the same. Additionally the house was already in occupation of the petitioner and which is still in her possession and that a smaller area of 8 Kanals was given in a joint Khata to the petitioner which consist of more than 100 Kanals of area, therefore, she could not recover physical possession except through partition and such recourse to partition was not the necessity of time because of the family settlement. It has been judicially noticed that females of our society do not physically participate in managing agriculture land and it is always done and conducted by the males who surely dominate the society because of their formidable influence and dominant role, therefore, this aspect purely a technical one cannot be taken to nullify the effect of Family Court decree or to deprive the petitioner of her vested and accrued rights.

Even otherwise it has come on record that the suit Khata is still joint one and respondent No. 1, the husband of the petitioner, is shown in possession and co-sharer therein, therefore, the petitioner is deemed to be in constructive possession of the suit land. The Hon'ble Supreme Court in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 has laid down guiding and golden principle fully securing the rights of females in such-matters and because being the weakest unit of the society even the Hon'ble Supreme Court has mitigated the rigours and formalism of the limitation law for females as in the said case the suit brought by females (sisters) against brothers was hopelessly barred by time but was allowed.

21. The plea that the case is hit by Order 2, rule 2 is equally unsustainable one not only because for the reasons that application of C.P.C. has been excluded to the proceedings before the Family Court but also for the reasons that on the facts and circumstances of the present controversy the said principle is not applicable at all because of fresh cause of action having been accrued to the petitioner as a result of fresh invasion made on her accrued and vested rights. Similarly the plea of limitation cannot be pressed into service against a co-sharer in a land comprised, in a joint Khata.

22. As both the learned Courts below have misdirected themselves in the matter of appraisal of evidence on record and have also committed legal error due to misapplication and non-application of correct 'law to the subject in issue and due to flagrant violation of settled principle, of justice they have rendered their judgments as nullity, therefore, in such a case the revisional jurisdiction of this Court. being corrective and curative in nature would come into play to undo manifest injustice having been caused/done to the petitioner.

23. For the foregoing reasons, therefore, this revision petition is accepted, both the impugned judgments and decrees of the two Courts below are set aside and all the three decrees as prayed for in the heading of the plaint are granted to her but to the extent of an area of 8 Kanals agriculture land in the suit Khata which was granted to her on 5-9-1968 through the decree of the Family Court. Similarly she is also granted decree about the residential house mentioned in the Family court decree, with costs throughout.

H.T.B./959/P Revision petition accepted.