' SHAUKAT UMAR PIRZADA, J.---This writ petition has been directed against the judgments and decrees dated 20-5-2009 and 27-11-2008 passed by learned District Judge, Multan and learned Family Court, Multan, respectively, whereby the petitioner's claim of dower has been disallowed.
2. Brief facts giving rise to this writ petition are that the petitioners filed suit for recovery of maintenance allowance as also for recovery of petitioner No,l's dower which is Property No,126-J/6- 8, Gulistan Colony, Multan to the extent of 02-marlas as per the site plan drawn in agreement dated 14-11-2000. In the said suit, petitioner No,1 impleaded her father-in-law, namely, Haq Nawaz as defendant No,2. Petitioner No,1 married with respondent No,3 on 1541-2000 as per Muslim rites and out of this wedlock three daughters have born. A day prior to Nikah, an agreement was executed by respondent No,4, whereby he transferred 02-marlas out of his House No,126-J/6-8, Gulistan Colony to petitioner No,1 as dower on behalf of his son, respondent No,3. Petitioner No,1 demanded her dower/02-marlas house from respondents Nos.3 and 4, but they first avoided and on her insistence, she was thrashed in pregnancy by respondent No,3 and then turned out of the house along with petitioners Nos.2 and 3, hence, she filed the instant suit. This suit was resisted by respondents Nos.3 and 4 by filing separate written statements. Respondent No,3 in his written statement has conceded petitioner No:1's claim regarding dower by contending that his father/respondent No,4 is obliged to execute conveyance deed in favour of petitioner No,1, as he has executed agreement dated 14-11-2000 in her favour in respect of the house in question.
However, respondent No,4 in his written statement has altogether denied the claim of petitioner No,1 in respect of dower/house in question by stating that the said agreement is forged and fabricated, which has .Been prepared in connivance of petitioner No,1 with respondent No,3 and he is under no obligation to implement the same. It has been further averred that Column No, 16 of Nikha Nama has also been fabricated and he reserves his right to initiate criminal as well as civil proceedings against the culprits. Out of divergent pleadings of the parties, issues were framed and the parties led evidence in support of their respective contentions. Learned Family Court after hearing learned counsel for the parties dismissed the suit of petitioner No,1 to the extent of dower/02-marlas in Property No,126-J/6-8, Gulistan Colony, while granted maintenance allowance at the rate of Rs,1000 per month to petitioner with 10% annual increase. Feeling aggrieved, the petitioners preferred appeal, against the said judgment and decree before the learned District Judge, Multan, who after hearing the learned counsel for the parties dismissed the same on 20-5- 2009, hence, this writ petition.
3. Petitioner No,1 has only challenged the impugned judgments and decrees to the extent of dower/2-marlas in the said property and has not pressed her claim for the enhancement in the maintenance allowance.
4. Learned counsel for the petitioners contends that the impugned judgments and decrees of the courts below to the extent of dower/house in question are based on misreading and non-reading of evidence, therefore, liable to be set aside.
5. Learned counsel for respondent No,4 has controverted the contention of learned counsel for the petitioners and has supported the impugned judgments and decrees.
6. Respondent No,3 present in Court in person has refused to offer any defence/contention/argument in the instant matter.
7. I have heard learned counsel for the parties and perused the available record.
8. A careful examination of the record reveals that marriage between petitioner No,1 and respondent No,3 was an arranged one and as per the prevalent tradition and custom some understanding must have been reached between the two families for converting the proposal of marriage into real marriage bond and in pursuance thereof, an agreement dated 14-11-2000 was executed by respondent No,3 in favour of petitioner No,1 with regard to the nature and quantum of dower. A perusal of the said agreement further reveals that the same has been executed by respondent No,3 with his free will, as the same is not only comprehensive, but reflects the understanding which was reached between the two families. In this agreement, it has been categorically stated that respondent No,3 had no property at all, therefore, respondent No,4 on behalf of his son is transferring a portion of House No,126-J/6-8 to the extent of 2-marlas and a site plan has been drawn on the said agreement indicating. The said two marlas being given to petitioner No,
1. This agreement also clarified that the house in question was owned by the father of respondent Nd.4, namely, Allah Dewaya vide Sale-deed bearing document No,2721 Book No,1, Volume 1787 dated 13-1-1970, who had expired and he (respondent No,4) has become the owner thereof with authority to transfer the same to anyone. This agreement also A determined the value of the property being transferred to petitioner No,1 as Rs,50,000 by stating that in case he avoid or refused to transfer the said portion of the property to her through a registered document, petitioner No,1 shall be entitled to enforce the agreement through a court of law. This agreement has been signed by respondent No,4 and witnessed by Shah Nawaz and Muhammad Aziz, who are related to petitioner No,1 and deposed before the court as P.W.2 and P.W.3. On the following day i.e, 15-11-2000, the Nikah of petitioner No,1 with respondent No,3 was performed and in column No,16 of the Nikahnama, dower measuring 2-marlas as per agreement dated 14-11-2000 was referred. On the Nikahnama, respondent No,4 has signed as witness. These two documents, namely, agreement dated 14-11-2000 and Nikhanama dated 15-11-2000 have been tendered in evidence by petitioner No,1 and exhibited as Exh.P.2/1 and Exh.P.4, respectively. Execution of agreement Exh.P.2/1 is fully proved by its marginal witnesses P.W.2 and P.W.3, who belong to bridal side, which appears to be a natural arrangement, because the dower was fixed to provide security to the bride, therefore, to ensure the accomplishment of the transaction as agreed between the parties/families, the witnesses were taken from the bridal side, which appeals to reason. I am failed to understand as to how the learned courts below have given preference to oral evidence on the documentary evidence, which remained un-rebutted on the record. The interpolation in the Nikahnama as alleged by B respondent No,4 would have been exposed, if certified copy of the Nikahnama would have been obtained by respondent No,4, which he has not done knowing fully well that there was no interpolation in the Nikahnama. During cross-examination as D.W.1, respondent No,4 has admitted that blank columns of Nikahnama have been crossed, while admittedly Column No,16 is filled in and not crossed. He has also admitted his signatures on the Nikahnama Exh.P.4. Admittedly, he is a literate and put his signatures in English, which are also appearing on Exh.P.2/1 i.e, an agreement dated 14-11-2000. As regards purchase of stamp by respondent No,3 on behalf of respondent No,4, it appears to be natural, as this marriage had been taken place, if respondent No,4 would not have represented respondent No,3 and had not offered his own property as security/dower to petitioner No, 1 's family. As regards objection of the courts below that petitioner No,1 was not present at the time of execution of the agreement dated 14-11-2000 (Exh.P.2/1), the same is frivolous, as it was not a commercial transaction, which is settled between the buyer and seller. This was an arranged marriage and obviously all terms and conditions would have been settled amongst the elders of both the families and not by the bride and the bridegroom. In such like situations what to say about brides, even the womenfolk are not allowed to participate in such meetings. As regards the contention of respondent No,4 that he was not owner of the property in question at the time of executing agreement Exh.P.2/1 and Nikahnama Exh. P.4 and that he became owner thereof after 2-1/2 or 3 years latter, the same is without substance and is not supported by any document rather this has been contradicted by extract of register Haqdaran-e-Zamin for the year 2000-01 Exh.P.5, showing him owner of the property in dispute. The falsity of respondent No,4's defence is further exposed that although he has stated in preliminary objection No,5 of his written statement dated 11-5-2006 that the said agreement and Column No,16 of the Nikahnama are forged and fabricated and he reserves the right to initiate criminal as well as civil proceedings against the culprits, but he has done nothing on that count, which proves that nothing wrong has been done by petitioner No,1 or anybody else. The facts and circumstances of the instant case transpire that for having the hand of petitioner No,1 for his son, respondent No,4 offered his property and executed documents Exh.P.2/1 and Nikahnama Exh.P.4 to the satisfaction of the family of petitioner No,1, but after marriage he has changed his mind and is trying to wriggle out of his commitment. The pleas which he has taken up in his defence, could not be substantiated by him through evidence. The learned courts below have totally ignored the social and cultural values of our society while adjudging Exh.P.2/1 and Exh.P.4 and took the aforementioned transaction as of a commercial one, which was absolutely incorrect. Moreover, without assigning any cogent reason, the courts below have given undue weightage to the oral evidence as against the unrebutted documentary evidence, therefore, their findings on issue No,1 are erroneous and based on non- reading and misreading of evidence, hence, not sustainable in the eye of law. This view is supported by case law laid down in Sadaruddin v. Aslam Madad Ali and others (PLD 2008 Karachi 205), the relevant extract from the same is reproduced below:-- "I have perused the pleadings as well as orders passed by the courts below and have heard Mr. Zafar Hadi Shah, Advocate. There are concurrent findings of both the courts below. It is settled law that the High Court in constitutional jurisdiction can reverse the concurrent findings of the courts below if the same are based on misreading or non-reading of evidence or the same are fanciful and are against the law laid down by the Superior Courts."
9. In view of what has been discussed above, this writ petition is allowed and the judgments and decrees of the Courts below on Issue No,1 are set aside and the suit for recovery of dower/house No,126-J/ 6-8, Gulistan Colony, Multan to the extent of 2-marlas as described in the said agreement is decreed in favour of petitioner No,1 and against respondents Nos. 3 and 4.
Respondent No,4 is directed to transfer the sid property to petitioner No,1 within one month, failing which petitioner No,1 shall be entitled to file .Execution petition for the recovery of dower/property in question.