' ROOH-UL-AMIN KHAN, J.---The dispute in this lis pertains to the legacy of one Painda Gul who was owner and in possession of property measuring 17, Kanal 17, Marla and 2 Sarsai in different Khasra numbers situated in Mouza Turlandi, Tehsil and District Nowshera.
2. Record reveals that Painda Gul during his lifetime had contracted first marriage with the mother of Mst. Wadagai, defendant No.8, (hereinafter referred as petitioner) and second marriage with Mst. Khial Jana, plaintiff, (hereinafter referred as respondent). Noor Gul, predecessor of defendants Nos.1 to 7 and Ali Gul, defendant No.9, were brothers of the deceased Painda Gul. Thus the deceased was survived by one daughter (petitioner) two brothers (Noor Gul and Ali Gul) and a widow Mst. Khial Jana (respondent). On demise of Painda Gul, the inheritance Mutation bearing No. 2730 was attested on 29-5-2009. Since Noor Gul had died before Painda Gul, therefore, the mutation ibid was rectified on 26-6-2009 and the legal heirs of predeceased brother i.e. Defendants Nos.1 to 7 were excluded from the inheritance of Painda Gul. The respondent challenged the validity of Mutation No.2730 dated 29-5-2009, rectified on 26-6-2009, to the effect that at the time of solemnization of marriage, Painda Gul had transferred 4-Kanal landed property along with a portion of house measuring 6-Marla to the plaintiff in lieu of her dower. To this effect, a dower deed was executed in presence of Shabirullah (P.W.1), Zarab Khan (P.W.2) and scribe Inayatullah Siddiqui. She prayed for rectification of the mutation by excluding her dower property measuring '4-Kanal 6-Marla and her due share to the extent of 1/8th share in the legacy of deceased Painda Gul, thus by this way, she deserved to be declared as owner of 5-Kanal 15-Marla out of 17-Kanal 17-Marla 2 Sarsai. During the pendency of the suit, the respondent died, thus the sole legal heir i.e. Her consanguine brother Kachkol son of Dad Khan was impleaded. Amongst the defendants, only petitioner contested the suit, through filing written statement wherein she accepted the entitlement of the respondent to the extent of 1/8th share in the legacy of Painda Khan while denied the dower deed. The trial Court after hearing the parties, passed decree of declaration, injunction and possession in favour of the respondent against the petitioner as prayed for in the plaint vide judgment and decree dated 22-9-2011. Dissatisfied with the aforesaid judgment and decree dated 22-9-2011, petitioner filed appeal before the District Judge Nowshera which also borne no fruit and was dismissed by judgment and order dated 5-4-2012. Hence this appeal.
3. Record reveals that Painda Gul contracted second marriage in the year 1982 with respondent and in lieu of her dower 4-Kanal landed property and 6-Marla house was transferred to her, vide dower deed dated 31-12-1982. At the time of attestation of Mutation bearing No.2730 dated 29-5- 2009, her dower property was not excluded from the legacy of Painda Gul and the entire property was distributed among his legal heirs in accordance with their due shares. The respondent approached the Court of Senior Civil Judge for declaration to the effect that she is exclusive owner and in possession of 4 Kanal landed property and a portion of house comprising six Marla on- the- strength of dower deed dated 13-12-19&2 first by excluding her dower property from the entire legacy of Painda Gul, she be held entitled to 1/8th share in the remiaining property of 13-Kanal 11- Marla and 2, Sarsai. In support of her dower deed, she produced Shabirullah son of Raaza Shah who categorically stated that in his presence Inayatullah Siddiqui deceased had scribed the dower deed whereby Painda Gul had transferred 4-Kanal landed property and one house in favour of respondent, in lieu of her dower. He stated that in his presence Abdul Malik and Zarab Khan as marginal witnesses and Painda Gul deceased as executant affixed their thumb impression. He disclosed in his cross-examination that the marriage between Mst. Khial Jana and Painda Gul was solemnized in the year 1982 and at that time, he was 20 years old. P.W.2 Zarab Khan being a marginal witness of the dower deed fully corroborated the plaint and statement of P.W.1. He affirmed that the deed was scribed by Inayatullah Siddiqui in presence of Abdul Malik, Shabirullah (P.W.1) and Kachkol. He along with Abdul Malik thumb impressed the deed on the spot. Similarly Wahidullah appeared as P.W.3 who being nephew of Inayatullah Siddiqui identified the signature and handwriting of his uncle.
4. On the other hand, petitioner appeared in Court and while recording her statement as DW-2, took a somersault by stating in her cross-examination that the Nikah of Mst. Khial Jana had not solemnized with her father (Painda Khan). In the same statement, she stated that Mst, Khial Jana remained with her father for about 30 years. Even in her examination in chief, she had admitted Mst. Khial Jana as her step mother, but averred that she had been informed by her father before his death, that he had never executed any dower deed in favour of Mst. Khial Jana. Mumtaz Khan, Ex. Nazim, Union Council, Zara Miana appeared before the trial Court and recorded his statement, wherein he avowed that he remembered the marriage of Mst. Khial Jana with Painda Khan and he has seen the dower deed Exh.P.W.2/1, after the death of Painda Khan. He further stated in the following words:-- {{URDU TEXT}} DW-I has introduced a total irrelevant story, in derogation of the claim of petitioner taken in the written statement. This witness has made a statement beyond the pleadings. The exaggerated facts alleged by this witness are in perfect hostility with the written statement. In civil proceedings parties are not allowed to produce evidence beyond the parameter of the pleading and if any such evidence is produced, would not be looked into while deciding the suit. Reliance may be placed in case titled Muhammad Iqbal v. Ali Sher (2008 SCM R 1682). Relevant portion of the judgment is reproduced as follows:-- "---When such details were totally lacking in the plaint, Trial Court, after examining the pleadings of the parties, should not have allowed the plaintiff to lead the evidence on the facts not alleged by him in the plaint and even if the evidence was allowed to be recorded by the trial Court, it should not have been considered as evidence in the case by the Appellate Court and the High Court---".
5. The record divulged that the plaintiff/respondent has discharged her burden of proof and through cogent and reliable evidence have proved the execution of dower deed in her favour by Painda Khan at the time of their marriage in the year 1982. On the other hand, the petitioner has produced shaky, unreliable and contradictory witnesses and failed to refute the claim of the respondent. Both the Courts below have properly appreciated the material available on the record and have concurrently arrived at a just and proper conclusion. The learned counsel for the petitioner could not point out any illegality or irregularity or misreading and non-reading of evidence by the Courts below. Thus the instant revision being devoid of merits is dismissed in limine.