MUHAMMAD SHAN GUL, J.---The question confronting this Court in the present matter is whether without undertaking any inquisitorial exercise for ascertaining market value of a piece of land, could the courts below determine and specify alternate value of the land merely on the basis of their own assumptions and without conducting any fact-finding exercise?
2. Through this judgment the titled constitutional petition is sought to be decided.
3. Facts necessary for a decision in the instant case are as follows: the marriage of the petitioner with respondent No.3 was solemnized on 08.12.2018. Clause-16 of the Nikahnama reads that one plot measuring 05 marla (without specifying location) shall be transferred in the name of respondent No.3 as dower. The marriage turned sour and the petitioner divorced respondent No.3 on 15.06.2020. This led respondent No.3 to file two suits against the petitioner. While one suit was aimed at seeking maintenance allowance and dowry articles, the other suit targeted recovering dower from the petitioner. Of interest in the present context is the fact that respondent No.3 mentioned alternate price of 05 marla plot in issue as Rs.27,50,000/-. Both suits were consolidated by a learned Judge Family Court, Jhang and consolidated issues were framed. For the present purposes issue No.4 is relevant and reads, "whether the plaintiff is entitled to recover dower in terms of Column No.16 of the Nikahnama."
4. Both parties adduced oral as well as documentary evidence. Respondent No.3 appeared as her own witness as PW-1 and, during her cross-examination, stated that the petitioner owns houses in Sargodha and land in Khushab. Father of respondent No.3 appeared as PW-2 and deposed that at the time of Nikkah the petitioner assured him that out of the land owned by him in Sargodha and Khushab, a 05-Marla plot shall be alienated in favour of respondent No.3. A paternal uncle of respondent No.3 appeared as PW-3 and deposed to the same effect. On the other hand, the petitioner appeared as DW-1 and admitted owning land and property in Sargodha and Khushab. A learned Judge Family Court, Jhang decided both suits vide judgment dated 12.3.2022 and ruled in the context of Column No.16 that respondent No.3 was entitled to Rs.10,00,000/- as market value of 05 marla plot described in Column No.16 of the Nikahnama.
5. Thereafter, the petitioner filed an appeal which was dismissed on 20.7.2022.
6. It is the dismissal of this appear that has prompted the petitioner to approach this Court in its constitutional jurisdiction.
7. On the initial date of hearing, counsel for the petitioner withdrew this petition to the extent of the question of maintenance and stated unequivocally that this constitutional petition was only directed against the aspect of determination of alternate value of Rs.10,00,000/- as market value of a 05 marla plot mentioned in Column No.16 of the Nikahnama. Learned counsel for the petitioner submitted that the decisions of both courts below were erroneous and misdirected in law inasmuch as no exercise was undertaken by either of the courts below in gauging and determining the actual market value of 05 marla plot in question. He stated that in the absence of any such exercise or activity there was no way that the courts below could have arrived at and fixed a figure of Rs. 10,00,000/- . On his insistence, both judgments were perused and it became evident that in both judgments there was no discourse whatsoever about how, why and on what basis the market value amounting to Rs.10,00,000/- had been determined.
8. Learned counsel for the petitioner specifically alluded to grounds (E) and (G) in this constitutional petition whereby the petitioner was willing to transfer 05 marla plot to respondent No.3 but the courts below had ignored this aspect and had rather fixed alternate price of Rs.10,00,000/- without ascertaining the whereabouts and value of the land owned by the petitioner.
Learned counsel for the petitioner submitted that the alternate value of land has been fixed on bald presumptions and without any basis and that there was no material or evidence before the courts below in determining the said value.
9. This petition was admitted to regular hearing only to answer the limited question about determination of alternate value of 05 marla plot mentioned in Column No.16 of the Nikahnama and the respondent was put on notice.
10. Learned counsel for the respondent, after perusing the judgments passed by the courts below, submits that while there is no way that she can defend the judgments since both judgments do not offer any discourse on the particular aspect of determination of market value of 05 marla plot in issue, she would want the Court to protect the interest of respondent No.3.
DETERMINATION OF ALTERNATE VALUE OF RELIEF BY FAMILY COURTS:
11. A learned Judge Family Court, while deciding Issue No.4 followed the rationale settled by the Hon'ble Supreme Court of Pakistan in "Dr. Asma Ali v. Masood Sajjad and others" (PLD 2011 SC 221) and NLR 2011 Civil 293 opined that although no description of the 05-marla plot is provided in the Nikahnama, its alternate market value can be granted. However, what he lost focus of is that the Hon'ble Supreme Court in "Dr. Asma Ali v. Masood Sajjad and others" (PLD 2011 SC 221) not only allowed the claim of alternate value of land pledged to be given as dower but also devised a mechanism for ascertainment of such alternate value. Nikahnama in that case merely mentioned the location of the land to be given as dower as falling in Village Chassian but did not disclose any further features.
12. In "Dr. Asma Ali v. Masood Sajjad and others" (PLD 2011 SC 221), it has been held as follows:-- "23. In respect of 100 Kanals of agricultural land, since no description of the land was given in the Nikkah Nama in terms of its Khasra numbers or identifying data, a decree is given in favour of appellant-wife as prayed for in her plaint. In view of absence of particulars of 100 Kanals land, the learned Trial Court shall appoint commission by directing a member of the Revenue hierarchy, to determine the average price of per Kanal agricultural land in village Chassian, Tehsil and District Attock and after such determination the appellant will be entitled to receive the 100 Kanals land or its market value so determined."
"4. That once we decide that if the property/house mentioned in the Nikahnama on account of lack of sufficient description leading to its identification then its price, if mentioned in the Nikahnama, can be awarded then in the same way the value of the other property (agricultural), the price of which has not been mentioned in the documentation Thrikahnama, can also be granted if the evolvement of a mechanism for determination of value is possible, which is not in conflict with any provision of law rather in consonance with the established principles for determining the value of property, then the same be resorted to. .................. Moreover, in the judgment, which is and has been referred to in the leave granting order i.e., Civil Petition No. 769-P/2003 (Mst. Maimoona Nabi v. Saad Seth and others), there is a mode adopted during the execution proceedings without an order of the Court in the main suit or appeal which is of a wider scope than the one in the execution jurisdiction where the Executing Court cannot travel beyond the terms of the decree, then in the instant case such a recourse can very easily be made while deciding the appeal arising out of the main suit."
13. In "Mst. Razia Begum v. Jang Baz and 3 others" (2012 CLC 105) Clause-16 of the Nikahnama bound the husband to give a 05-marla plot to his wife. After the divorce, the wife instituted a suit for recovery of the house as promised or its alternate value. The courts below allowed the relief of recovery of the possession of house or Rs.10,000/- as its alternative value. This Court dispelled the fixing of such alternative value without evaluating any evidence suggesting such value and held as follows: "14. I have gone through the Nikahnama Exh.P.2. Column No.16 makes it clear that respondent No.1 would give 5 marlas of land situated in Mohallah. Gohri Village Jand, District Attock to the petitioner. There is no condition that in case of failure to give the above mentioned 5 marlas of land to the petitioner, the respondent No.1 would pay Rs.10,000/- to the petitioner. I find that both the courts below have grossly misapplied the law on the subject by granting decree worth Rs.10,0001- instead of granting decree for possession of the suit-land or in the alternative granting decree for the amount equivalent to the present market value of the suit-land.
17. So far as the alternative prayer of the petitioner/plaintiff and the question of determination of present market value of the suit property is concerned, it is noted that it was duty of the learned trial court to determine the said value and decree the suit of the petitioner/plaintiff in light of the prevailing market value of the said property. Omission on part of the learned trial court/Appellate Court by not determining the price of the suit-land equivalent to its present market value, could not render the impugned judgments redundant or ineffective. Illegality/ irregularity so committed by the courts below is cured/rectified by holding that the said value will be determined by the executing court during execution proceedings.
19. The pith of all the discussion made above is that this petition is allowed by modifying the impugned judgment and decree of the learned Judge Family Court, Jand dated 22-7-2008 and by also modifying the impugned judgment and decree dated 27-11-2008 of the learned Additional District Judge, Attock Camp at Jand and it is declared that the petitioner would be entitled to the recovery of possession of 5 marlas of land, fully described in Column No.16 of the Nikahnama Exh.P.2 or in the alternative, the petitioner is entitled to recover price of the said land equivalent to its present market value from respondent No.1 to be determined by the executing court during execution proceedings. No order as to costs."
14. In "Muhammad Shoaib and another v. Mst. Shameem Akhtar and 2 others" (2014 CLC 1307), it has been held as follows: "12. No reasons, whatsoever, had been stated by the learned Family Court, while fixing/determining the price of gold even for the year, 1999. No Court may assume the status of an administrator in this regard, to determine himself, the value, rate of gold or other property, without taking recourse to the established principle in this regard and, without appointing of a commission in this regard as well as statements in respect of prevailing rates of gold from those who remained acquainted with such-like business of gold or without ascertaining the official market rate prevailing in the time when either the marriage was solemnized or, at the time of institution of suit or when the decree was awarded.
17. However, keeping in view the poor financial status of the petitioners, while invoking herewith the jurisdiction as envisaged under Order XX, Rule 11, C.P.C. we allow the petitioners to deposit the decretal amount, which shall be assessed by the executing Court in due course according to the prevailing market rate during the institution of the suit, in 12 equal installments, prevailing over a time period not later than one year from the receipt of this judgment. In view of the reasons and observations, the instant writ petition is disposed of as such."
15. In "Mst. Mehbooba v. Abdul Jalal" (1996 SCMR 1063), it has been held as follows: "...........The Trial Court decreed the plaintiff's, suit for the amount claimed by her in the plaint as the market value of the ornaments while in appeal the valuation was fixed according to market value shown in the receipts placed on file. This difference in the valuation has not been judicially resolved. We, therefore, feel that determination of the market value of the ornaments is the main issue relevant for decision in this appeal. Both the learned counsel for the parties agreed that section 13 of the West Pakistan Family Courts Act, 1964, is not helpful in determining the market value of the ornaments (movable property) rather it is silent about the determination of its value in case a decree for delivery of such property is un-executable......... We fully endorse the view taken in the precedent case and hold that the plaintiff is entitled to the market value of 18 Tolas 11 Mashas of gold.
As there has been led no evidence about the market rate of the gold on the date of institution of the suit, therefore, we instead of remanding the case; partially allow this appeal, set aside the judgments and decrees of the Courts below to that extent and decree the plaintiff's suit for the market value of the ornaments weighing 18 Tolas 11 Mashas at its market rate on the date of institution of the suit. Such amount shall be determined by the executing Court after proper inquiry and recording evidence of the parties."
16. In "Dua Aneeo v. Adnan Jahangeer and 2 others" (2021 MLD 1208) a learned Single of this Court after relying on the law laid down in "Mst. Humaira Majeed v. Habib Ahmad and 2 others" (PLD 2012 Lahore 165) held that the Executing Court seized of executing a decree of dower did nothing erroneous by seeking information from Sadar Sarafa Market, Rawalpindi about the prevailing rate of gold. In this case, judgment and decree had already been passed by the trial court and upheld by the appellate court whereafter the Executing Court in order to determine the alternate value had conducted an inquisitorial exercise, which had been challenged and declared bad in appeal but which decision had been set aside in constitutional jurisdiction of this Court by upholding the inquisitorial activity undertaken by the Executing Court.
17. In "Shahid Mehmood v. Mst. Naureen Ijaz and 2 others" (2012 MLD 1594) similar observations have been recorded at paragraphs Nos. 8 and 9 about the role and power of the Executing Court to determine alternate value in a case where such value had not been determined on the basis of inquiry or evidence.
18. From the judgments cited above it appears that the practice of fixing alternate value of any relief without any evidence of the value at the prevalent market has been discouraged and overturned by the Hon'ble Superior judiciary time and again.
19. From the evidence produced by the petitioner himself, it is evident that he owns a plot measuring 05-marla in Sargodha as also agricultural land in Khushab. The petitioner in his petition has agreed to transfer a 05-marla plot to respondent No.3 situated in his native village i.e. Tehsil Noor Pur, District Khushab. PW-2 (father of respondent No.3) has also stated in his testimony that the petitioner agreed to transfer 05-Marla plot from his assets either in Khushab or Sargodha. Since the learned trial and appellate court have already accepted the claim regarding 05-marla plot and have granted the relief in shape of alternate market price of the same and since the claim has not been contested by the petitioner before this Court the only issue outstanding is that of determination of market value. Such determination having been made erroneously and without relying upon any evidence is untenable and hence, is set aside and declared to be of no legal effect.
20. It has been held in the cited judgments that the issue of ascertainment of market value on the basis of evidence can be -undertaken by the Executing Court. Hence, following the course adopted in "Mst. Razia Begum v. Jang Baz and 3 others" (2012 CLC 105), "Muhammad Sohaib and another v. Mst. Shameem Akhtar and 2 others" (2014 CLC 1307) and "Mst. Mehbooba v. Abdul Jalal"
(1996 SCMR 1063) the impugned judgments are partially set aside to the extent of determination of alternate value of the 05 marla plot. The Executing Court shall determine the market value of a plot of 05-marla situated in District Khushab after a thorough judicial inquiry on the basis of evidence and by appointing a local commission and thereafter the law shall take its course.
21. Partially allowed in the above terms.