1. ANWARUL HAQ, J.-The dispute in this case concerns an area of agricultural land measuring 270 kanals and 17 marlas situate in village Khudai in Tehsil and District Muzaffargarh. By a registered deed dated the 25th of April, 1950, the land was gifted by the petitioner in favour of his wife Mst.
2. Khudijatul Kubra. The necessary mutation was attested on the 31st of May, 1951. However, the petitioner revoked the gift by another deed registered on the 16th of December, 1953. A mutation was again entered and attested, but later on it was cancelled.
3. The respondent's wife filed a suit on the 2nd of February, 1972 for a declaration that she was the owner of the property in dispute end that the cancellation of the gift in her favour by the present petitioner was inoperative and void against her rights. She also prayed for possession of the property. The suit was decreed in favour of the respondent on the 2nd of September, 1964. The petitioner's appeal was dismissed by the learned District Judge on the 28th of September, 1964 and his second appeal has also been dismissed by the High Court on 19-5-1975.
4. The petitioner now seeks special leave to appeal.
5. The petitioner had resisted the respondent's suit on several grounds, including the contention that at the time of her marriage with the petitioner the respondent was already married to one Ghulam Qadir, and as such her marriage with the petitioner was void, and she was not entitled to any dower or gift in lieu thereof. This plea was repelled by the Courts below and it was held that the respondent was validly married to the petitioner, that the gift was not the result of any fraud and misrepresentation on the part of the plaintiff or her father, and that even though the petitioner had not parted with the physical possession of the land, yet this was not a necessary requirement on account of the merital relationship between the donor and the donee.
6. Sh. Muhammad Shall, learned counsel for the petitioner, seeks leave to appeal on the following grounds :-
(a) That as the marriage was not consummated and had in fact been repudiated by the husband, and no dower having been fixed at the time of the Nikah but only fifteen days thereafter, the wife was not entitled to any dower or any gift in lieu thereof; and
(b) That in the alternative if it be found that the amount of dower was fixed at the time of the Nikah, then the respondent would be entitled to only half the amount on account of non-consummation of the marriage.
7. We find that these questions were not raised in any of the Courts below. The learned counsel, however, submits that these being pure questions of law could be permitted to be raised at any stage, and that there are precedents when this Court has allowed this to be done.
8. It is true that this Court has, on certain occasions allowed questions of law to be raised for the first time, but the questions now agitated before us on behalf of the petitioner, also involve determination of certain factual controversies, namely, whether the marriage was ever consummated and whether any dower was fixed at the time of the Nikah. We consider that to permit such questions to be raised at this stage would seriously prejudice the respondent, who is a lady and has been pursuing this litigation now for nearly fourteen years. We would accordingly refuse permission to agitate these fresh questions which were not taken in any of the Courts below.
9. As the learned counsel has no other point to raise, the petition fails and is hereby dismissed.