' NISAR HUSSAIN KHAN, J.--- This civil revision petition is directed against the judgment and decree dated 7-11-2005 of learned Additional District Judge-V, Charsadda, whereby accepting appeal of respondents, her suit was partially decreed, by setting aside judgment and decree dated 19-6- 2004, passed by learned Senior Civil Judge, Charsadda.
2. The resume of the facts forming the background of this petition is that respondent filed suit seeking declaration to the effect that she is owner in possession of landed property measuring 4 kanals falling in Khasra Nos.3049 and 3941 situated in village Mouza Umarzai, by virtue of Dower Deed dated 26-9-1969. She also prayed for perpetual injunction. Besides, that she prayed for any other relief, to which she is found entitled, in the interest of justice. This suit. Was contested by defendant No,1 on variety of grounds, factual as well as legal. He alleged that the dower deed dated 26-9-1969 is fake, fictitious and unregistered document which does not create any right whatsoever in favour of the plaintiffs/respondents. The parties adduced pro and contra evidence in support of their respective claims. On conclusion of trial, suit of respondent was dismissed by the trial Court while appeal filed by the respondents was allowed and suit was decreed to the extent of payment of costs of landed property, mentioned in the dower deed, as it was not the ownership of defendant No,1, according to the Revenue Record.
3. Learned counsel for the petitioners argued that the dower deed relied upon by the plaintiffs/respondents is unregistered document which does not create any right in favour of respondents. He further submitted that petitioner is owner of only two marlas in the property, which is alleged to have been transferred in lieu of dower. So that deed is not binding on the petitioners.
Learned counsel stressed that appellate court has wrongly granted the decree for payment of value of the property because it was not claimed. So it was granted beyond the relief claimed and no issue was framed in this regard. Learned counsel further contended that the civil court has got no jurisdiction in respect of the dispute, as it falls within the exclusive domain of Family Court. So the plaint is liable to be returned for the lack of jurisdiction.
4. Learned counsel for the respondents contended that the defence of the petitioner comes within the pale of approbate and repprobate so this petition is liable to be dismissed on this score alone.
He further pointed out that defendant No,1, now petitioner did not take the plea in his written statement that he is the owner of only two marlas in the suit property, so he cannot raise any such objection beyond his pleading. He pointed out the prayer clause of the plaint and argued that plaintiffs/ respondents have also claimed any other appropriate relief to which the plaintiff is found entitled, by the court. So the learned appellate court was justified to grant relief. He went on to argue that dower deed has not been challenged by the petitioners before any forum. Learned counsel lastly submitted that the respondents have sought declaration of her ownership which is the sole jurisdiction of civil court, so the respondent has rightly approached the proper forum.
5. I have heard learned counsel for the parties and perused the record, with their assistance.
6. Perusal of the record reveals that plaintiff/respondent No,1 has filed suit for declaration and perpetual injunction qua the property mentioned in the plaint against petitioner/defendant No,l. As per averments of the plaint, it was petitioner who was denying the title of petitioners, so the suit was filed. When petitioner/defendant No,1 filed written statement he also denied the title of plaintiff.
The very contents of the plaint do not contain a single hint towards the recovery of dower, which may bring the suit within the domain of Family Court. The jurisdiction of the Family Court, comes into play when there is dispute between the spouses. Whereas in the instant case, husband is not denying her title but it is petitioner/defendant No,1, who happened to be her father-in-law, is denying her right. So in the given circumstances, there is no question of jurisdiction of the Family Court. This proposition is very much evident from the preamble of Family Court Act, 1964, which postulates for the expeditious settlement and disposal of dispute relating to marriage and family affairs and for matters connected therewith. So very intention of legislature is reflected in the preamble of the 'Act, which manifestly provides that the Act and the Family Courts established there under are confined to the family matters of the spouses and not with any outsider. Thus in this view of the matter, the objection with regard o the jurisdiction of the civil court is misconceived.
7. In the instant case, the dower deed was executed on 26-9-1969 hereby plaintiff was given 4 kanals landed property from Khasra os.3941 and 3099 along with one house constructed in 6 marlas land d 8 tolas gold ornaments. To prove the deed the petition writer and a marginal witness were produced. Besides this evidence, patwari halqa also endorsed this document in his statement, wherein he deposed that photocopy of the said deed is annexed with register of khasra Girdawri which is in his official custody. Learned counsel for the petitioner vehemently stressed that there is overwriting of khasra number in the deed. The bare perusal of the deed shows that there is clear reference of 4 kanals land along with number of khasra and there is clear and sufficient space for mentioning the number of khasra. So it cannot be termed as overwriting. It may be deemed as correction of khasra number because these are mentioned in their own place reserved for the same entry. It cannot be termed as overwriting by any stretch of imagination. On the other hand, when defendant appeared as DW he partially accepted the deed to the extent of transfer of house and gold ornaments but denied the transfer of land. So by this evidence it is abundantly proved that this dower deed was executed in respect of the suit property.
8. It is admittedly a dower deed, vide which property has been given to the plaintiff in lieu of dower.
It is settled law that, transfer of immovable property by a Muslim husband in favour of his wife in lieu of dower, there are two distinct gifts; one by each party to the other. The husband transfers by gift the property while the wife makes the gift of her right to recover dower i,e, she makes a gift of dower debt. This B transaction is Hiba-bil-Ewaz. Such transfer does not require to be effectuated through registered deed as it is neither sale in terms of section 54 of the Transfer of Property Act nor provision of section-123 of Transfer of Property Act applies by virtue of section 129 of ibid Act.
Thus in the circumstances, non-registration of the dower deed does not affect or impinge the legal value of unregistered dower deed. This principle of law has been settled in case titled: Fazal-ur- Rehman v. Mst. Sosan Jan and others (1989 SCM R 651), Inayatullah v. Mst. Parveen Akhtar (1989 SCM R 1871) and Mst. Allah Jawai v. Allah Ditta (PLD 1975 Lahore-1399).
9. It has been argued that petitioners is owner of only 2 marlas in the suit property while he has transferred 04 kanals property, as is evident from the entries of dower deed so this transfer is nullity in eye of law. The plaintiff, at the time of her marriage had bonafidely believed in the entry of dower deed and reposed her trust on defendant No,1, being her father-in-law. She was not aware of any deficiency qua the entries of dower deed but the same fact was in the knowledge of the defendant No,l. Had he disclosed the actual and factual position of his ownership, the plaintiff or her parents might have asked for proper and lawful arrangement of other property but it was the petitioner who concealed the same fact and deceived her by making her to believe that she has been given 4 kanals of landed property in lieu of her dower. As a consequence of this arrangement, which is a civil contract between the parties, she entered into marriage which has consummated as well. So in the circumstances, if there is any fault or deficiency on the part of the defendant/ petitioner, he is responsible to make up the same. Because he has deceived, cheated and defrauded the plaintiff/respondent.
10. The objection on the part of the petitioner that value of the property cannot be awarded to plaintiff/respondent on the ground that it has not been claimed in the plaint, is misconceived. The prayer clause of plaint clearly shows that she has prayed for any other relief to which she is found entitled, in the interest of justice. So this phrase of the prayer clause clearly encompasses, required relief granted to the plaintiff. It is, by now, settled law that in the interest of justice and circumstances of the case, if the party is found entitled to any relief, she may not be denied due to any formal defect in his/her pleading. In view of new dispensation of justice, duty has been cast on the courts to strive for construction of statute and appreciation of evidence which would advance cause of justice by providing relief to a party entitled thereto and to suppress mischief of denying such right on the ground of unnecessary technicalities. If plaintiff is denied such relief on any technical ground, it would tantamount putting premium on the deceptive tactics practiced by petitioner on none other than his own daughter-in-law. It has been held by Hon'ble Supreme Court in case titled: Samar Gul v. Central Government and others (PLD 1986 Supreme Court-35) that:- "Therefore, we have no hesitation to hold that no prejudice has been caused to the respondents on account of couching the relief in the declaratory form. It is well-settled that a Court is empowered to grant such relief as the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined. The argument advanced on behalf of the respondents is accordingly without substance that no prayer for redemption of the mortgage was made by the appellant in his suit".
' In an unreported case, their Lordship in Hon'ble Supreme Court in C.P. No,769-P of 2003 dated 22- 12-2005 titled: Mst. Maimoona Nabi v. Saad Sethi and 2 others having identical facts have held as under:--- "So far as the subjective understanding of the wife is concerned, she, according to nikahnama as well as the registered deed considered herself to be the owner of two kanals in question. Had it not been a fraudulent act of forgery and had such deed been written by the real owner i,e, the father of the husband, the wife would have been the absolute owner of the landed property since 28-30-12-1988. One can have no doubt about the act that had the fraud been not played, and had the ownership of the land vested in the wife, her land measuring two kanals would, by now, have become a much valued property, keeping in view the high escalation in prices during the last sixteen years.
' One cannot, lose sight of the fact that a local commissioner was appointed by the trial/executing Court who submitted his report on 28-2-1998 (pp.52-56) holding that at the relevant time the property commanded a value of Rs,35,000/- per marla. This brings the value of two kanals to rupees fourteen hundred thousand (Rs,14,00,000/-). This, remarkably, was the value held in the year 1998, whereas, the fact is that after 1998 till today, the prices have rather more than doubled in value. Keeping in .View the circumstances of the present case and in the interest of justice, we would not bring into notice the escalation in value after 1998 and hold Rs,14,00,000/- as the value of two kanals, given in lieu of dower.
' Not allowing the respondent to derive the benefit of his 'own fraud, which by itself was a cognizable offence of fraud and forgery, we are constrained to hold that the petitioner wife was entitled to two kanals of land as dower and as this property did not belong to the respondent, he shall pay the value thereof amounting to Rs,14,00,000/- in lieu of dower."
11. In view of the above discussion, and following the principle set by Hon'ble Supreme Court, no illegality or material irregularity has been round in the impugned judgment of learned appellate court which may warrant interference of this Court. To further clarify the decree, it is held that learned executing court shall determine the market value of suit property according to its kind incorporated in the Revenue Record, on the basis of one year average, and on determination thereof, would ask the plaintiff/respondent to pay ad valorem court-fee, as well and execute the decree within a period of four months, positively.
12. In light of the above discussion, this petition being devoid of merits, is hereby dismissed with no order as to costs.