' MUHAMMAD ALAM KHAN, J.---Dr. Muhammad Ali son of Ghulam Ahmad has filed the instant revision petition against Mst. Fakhrun-Nisa through which the petitioner has challenged the judgment and decree of learned Additional District Judge-II, D.I. Khan vide which Appeal No,53/13 of 2006 filed by the petitioner against the judgment and decree of Mr. Johar Ejaz Ali Shah, Civil Judge- I, D.I. Khan in Suit No,42/1 decided on 18-9-2006 titled Mst. Fakhr-un-Nisa. v. Dr. Muhammad Ali, was dismissed and the judgment and decree of the trial Court was maintained.
2. Brief facts of the case are that the Mst. Fakhr-un-Nisa, plaintiff-respondent, brought a suit against Dr. Muhammad Ali for declaration to the effect that the defendant-petitioner is bound to provide to petitioner 18 Marlas of vacant plot for the construction of a house in D.I. Khan or outskirts of D.I. Khan i,e, Union Council Dewala. She had also prayed for permanent mandatory injunction that the defendant-petitioner should provide the said plot to the plaintiff Mst. Fakhr-un-Nisa. She had prayed in Madd "Bay" of the plaint for the specific performance of the agreement incorporated in Kabin Nama, dated 17-2-1990 for providing 18 marlas plot as aforesaid or in the alternative price of the said plot according to the market value.
3. It is averred in the plaint that the marriage of the plaintiff- respondent took place with Dr. Muhammad Ali and a Kabin Nama, dated 17-2-1990 was got executed between the parties on the eve of marriage wherein an agreement had been made that the defendant-petitioner will provide, besides the dower amount for which the plaintiff has got her remedy before the Family Court, a plot measuring 18 marlas as detailed in the head notes of the plaint. It is also alleged that during the subsistence of marriage, daughter namely Faiza Ali was born who is living with the plaintiff- respondent. Unfortunately strained relations developed between the parties and the attitude of defendant-petitioner was cruel to the plaintiff and the minor Faiza Ali. Thus, on 13-1-1992, the petitioner turned out the plaintiff-respondent along with minor. Daughter from the house in wearing apparels and also grabbed the dowry articles. It was averred that regarding the dowry articles, maintenance and other amount, Mst. Fakhr-un-Nisa respondent will seek her remedy in the Family Court but the present suit is restricted only to the plot measuring 18 marlas. It is also averred that now Faiza Ali is a grown up lady, is a student and both of them need a dwelling house in D.I. Khan or the outskirts of D.I. Khan as covenanted by the defendant-petitioner in the Kabin Nama, dated 17-2-1990.
4. The defendant-petitioner was summoned by the trial Court who submitted a detailed written statement wherein the allegations contained in the plaint were hotly contested. The learned trial Court, from the divergent pleadings of the parties, framed as many as ten issues including the relief which are reproduced below:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped to sue due to her own conduct?
(3) Whether the suit is competent in its present form?
(4) Whether the plaintiff has come to the Court with clean hands?
(5) Whether the suit is time barred?
(6) Whether this Court has jurisdiction to entertain the present suit?
(7)Whether suit is hit by principle of res judicata?
(8) Whether the plaintiff is entitled to be declared as owner of plot mentioned in the plaint?
(9) Whether plaintiff is entitled for the decree of specific performance of the contract, dated 17-2- 1990 or in alternative to recover the price of the plot?
(10) Relief.
5. The parties produced their respective evidence as they wished to adduce and the trial Court, after hearing the learned counsel for the parties and perusing the data available on the record, granted a decree for specific performance of the contract incorporated in Kabin Nama and thus, decree for the recovery of Rs,3,18,000 as price/market value of the said plot was granted in favour of the plaintiff-respondent on 18-9-2006.
6. The petitioner filed an appeal before the appellate Court and the learned appellate Court i,e, Additional District Judge-II, D.I. Khan, vide civil appeal No,54 of 2006 decided on 10-9-2007, dismissed the appeal and maintained the judgment and decree of the learned trial Court.
7. Mr. Rustam Khan Kundi, learned counsel appearing for the petitioner submitted that the respondent Mst. Fakhr-un-Nisa has not proved the execution of Kabin Nama which was the basis for filing of the suit. It was also submitted that the respondent was not willing to live with the petitioner and thus, unfortunately, the union of marriage resulted into divorce and there is no matrimonial relationship between the parties. It was also argued that the judgment and decree of the learned trial Court is not in accordance with law. The suit was time barred and the Family Court had the exclusive jurisdiction regarding the recovery of personal belongings of wife which has been included recently through an amendment in the schedule attached to the Family Courts Act, 1964.
Elaborating his arguments, the learned counsel submitted that once divorce occurred, then, the defendant-petitioner was absolved of all the responsibilities emanating from the wedlock and thus, the plaintiff-respondent was not entitled to the decree as granted by the two Courts below.
Thus, it was prayed that the concurrent findings of facts recorded by the two courts below be set- aside.
8. I have heard the learned counsel for the petitioner in detail and have scanned the available record.
9. Admittedly, the marriage of the parties was solemnized and the same was consummated and out of the wedlock, minor Faiza Ali was born who is in the custody of respondent Mst. Fakhar-un- Nisa. On the eve of marriage, a deed in the shape of agreement, dated 17-2-1990 Exh.P.W.1/1 was executed between the parties wherein it was agreed between the parties that the respondent/defendant/husband will provide a plot measuring eighteen (18) Marlas in D.I. Khan city or in the outskirts for construction of a house. P.W.1. Muhammad Ibrahim appeared as P.W.1 and he testified to the contents of the deed Exh.P.W.1/1, he being the scribe of the document was subjected to a very lengthy cross-examination, but nothing adverse has been squeezed out from the mouth of this witness to shatter his veracity. P.W.2. Patwari Halqa has appeared who has produced the chart of mutation, Exh.P.W.2/1, according to which the average price per Kanal comes to Rs .4, 21, 718.40.
10. Mst. Fakhr-un-Nisa plaintiff-respondent appeared before the Court and corroborated the allegations contained in the plaint. Similarly, Sheikh Khadim Hussain, father of the plaintiff- respondent appeared as P.W.6. And supported the version of plaintiff-respondent. These P.Ws.
Were subjected to the cross-examination but nothing adverse was squeezed out from their mouth to shatter the case of plaintiff-respondent. On the other hand, Dr. Muhammad Ali defendant- petitioner appeared as sole witness and in the opening sentence of examination-in-chief, he admitted his signature on the Kabin Nama. Again, in the cross-examination, he was confronted with the contents of Kabin Nama Exh.P.W.1/1 and he admitted the said Kabin Nama. In examination- inchief the only objection was that although the Kabin Nama bears his signature, but it does not bear the signature of the plaintiff-respondent. From the data available on the record, it is abundantly proved that the plaintiff-respondent has proved her case by producing cogent and convincing evidence which could not be shattered in cross-examination by the defendant- petitioner.
11. The two Courts below have recorded concurrent findings of fact to which no exception can be taken. No misreading or non-reading of evidence has been point out by learned counsel for the petitioner. The lis has been decided in accordance with the established principles of appreciation of evidence and the concurrent findings of facts cannot be set at naught in view of the dicta handed down in the cases of Abdur Rahim and another v. Mst. Jantay Bibi and others (2000 SCM R 346), Haji Muhammad Din, v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad, v. Muhammad Siddique (PLD 2002 SC 293).
12. In view of the facts and circumstances narrated above, there is no merit in the instant revision petition which is dismissed in limine.