MUHAMMAD SANAULLAH Versus SHAMIM NAZ KAUSAR

ORDER

MIR HAZAR KHAN KHOSO, J .‑‑‑Petitioner, Muhammad Sana Ullah, married with respondent Mst. Shamim Naz Kausar on 6‑10‑1977. The petitioner undertook to pay dower to the respondent, which is mentioned in paragraph No.13 of the Nikahnama as under:‑‑---

In October, 1989, the petitioner divorced the respondent No.l. On 16‑6‑1991 the respondent filed suit for recovery of dower i.e. (i) one‑half portion of the house situated in Sadiq Colony, Shahra‑e‑Sadiq, Mauza Dera Izzat, Tehsil Bahawalpur, (ii) ornaments wieghing six and half tolas and (iii) six Kanals of agricultural land situated in Mauza Dera Izzat, Tehsil and District, Bahawalpur. The petitioner resisted the suit and filed his written statement before the Court. On pleadings of the parties following three issues were framed:‑‑---

"(1) Whether the defendant has paid the dower mentioned in the plaint to the plaintiff ? OPD.

(2) Whether the plaintiff is entitled to the decree for Haqul‑Mehar as prayed for? OPP. ,

(3) Relief."

2. Both the parties adduced evidence in support of their claims. Vide judgment dated 26‑7‑1992, the learned Judge Family Court, Bahawalpur gave relief to the respondent No.l as under:‑‑

"In the light of my findings on the abovementioned issues, suit is hereby decreed in favour of the plaintiff against the defendant to the extent of Rs.10,000. The defendant is directed to pay the decretal amount within a month. Parties are left to bear their own costs."

3. The petitioner and the respondent challenged the abovesaid judgment and decree before the Additional District Judge, Bahawalpur, who vide judgment dated 29‑4‑1993 dismissed both the appeals. The respondent challenged the abovesaid order of the Additional District Judge in writ petition before the Lahore High Court, Bahawalpur Bench, Bahawalpur. Vide judgment dated 19‑6‑1994, the High Court gave relief to the respondent as under:‑‑

"For reasons aforementioned I find that both the learned Courts below has grossly misapplied the law on the subject by granting decree worth Rs.10,000 instead of one for the properties. I, therefore, set aside the decree and judgment of the learned Courts below and accept the writ petition. Resultantly the suit of the petitioner stands decreed in the terms that she will get 1/2 portion of the house and 6 Kanals of land as mentioned in the Nikahnama and not the amount of Rs.10.000 in lieu thereof. The parties are, however, left to bear their own costs.

4. The petitioner has challenged the abovesaid judgment of the High Court before this Court through this petition.

5. The learned counsel for the petitioner contended that according to the agreement between the parties the respondent was entitled to get half of the share of the house or Rs.5,000. He further claimed that the land under dispute was that of his father. In failure of giving the land the respondent was entitled to get Rs.5,000. He further submitted that the ornaments were already given to the respondent.

6. With the assistance of the learned counsel for the petitioner we have gone through the Nikahnama. Para. 13 of the Nikahnama makes it clear that the petitioner would give half portion of the house situated in Sadiq Colony, Shahra‑e‑Sadiq, Mauza Dera Izzat, Tehsil Bahawalpur to the respondent. There is no condition that in case of failure to give half portion of the house to the respondent the petitioner would pay Rs.5,000 to her. The learned Judge of the High Court was, therefore, justified in awarding decree for half portion of the house to the respondent. Regarding 6 Kanals of land, as mentioned in the Nikahnama, it may be observed that the father of the petitioner has died and the land has devolved upon the petitioner. The respondent, therefore, had the right to claim 6 Kanals of the land from the petitioner. The learned Judge of the High Court was, therefore, justified in giving 6 Kanals of the land to the respondent. Abortively the learned counsel for the petitioner while relying upon Muhammadan Law (page 399), by Syed Amir Ali and the Hedaya (page 50), by Hamilton, tried to make out his case. We have gone through the impugned judgment, the documents brought on the record and the evidence adduced by the parties. We do not see anything wrong with the judgment passed by the High Court in writ petition on 19‑6‑1994. There is no merit in the petition which dismissed and leave to appeal is refused accordingly.

A.A./R‑2097/S Leave refused