Mst. Hussana, the petitioner filed suit for declaration to the effect that she was owner of land measuring 3-1/2 Kanals out of 24 Kanals, 19 Marlas situated at Mauza Matta, Planagzai, Tehsil and District Charsadda, the detail of which has been specifically mentioned in the heading of the plaint.
The said suit was resisted by the respondents/defendants by filing written statement, the learned trial Court after framing as many as 8 issues, decreed the suit in favour of petitioner/plaintiff vide judgment and decree dated 18-2-1992. Being aggrieved with the said judgment and decree respondent tiled Appeal No.31/13 of 1992 which was allowed vide judgment and decree, dated 13-2- 1993. The judgment and decree passed on 18-2-1992 by the learned trial Court was set aside and the case was remanded back for decision afresh. After recording further evidence and hearing the learned counsel for the parties, the learned trial Court once again passed decree in favour of the petitioner vide judgment and decree dated 27-5-1996. The respondents were not satisfied with the said judgment and decree, they again tiled Appeal No.100/13 which was allowed. The judgment and decree passed in favour of the petitioner/plaintiff on 27-5-1996 was set aside and the suit filed by the petitioner was dismissed. Having been aggrieved with the said judgment and decree passed by the learned Additional District Judge, Charsadda dated 29-7-1997 the petitioner has filed the revision petition in hand.
2. Mr. S.M. Attique Shah, the learned counsel representing the petitioner argued that the petitioners were non-suited under the wrong impression of law. Sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act were not properly interpreted and applied by the Courts below. The petitioner/plaintiff was given property mentioned in dower deed Exh. P. W.-2/1 dated 13- 7-1966 which was proved by her by examining herself as P.W.-2, by examining the marginal witness Fazal Ahmad (P.W.-3) and Muhammad Raziq (P.W.-4), but this evidence was ignored by the Courts below. Since the property was transferred in lieu of dower through gift deed which was "not sale", therefore, the gift-deed did not compulsorily require registration. He placed reliance on the following judgments:-- (i)Abdul Ghaffar and 6 others v. Ghulam Jan (represented by 5 heirs) and another (PLD 1975 Pesh.
12).
(ii)Mst. Allah Jawai v. Allah Ditta represented (by heirs) (PLD 1975 Lah. 1399).
(i.e)Amjad Hussain and another v. Mst. Shagufta and 2 others (PLD 1996 Pesh. 64) and (iv)Wali Dad v. Mst. Rasneem Kausar and another (1999 CLC 163).
3. On the other hand Mr. Ziaur Rehman's Khan the learned counsel representing the respondent argued that the dower deed Exh. P.W.-2/1 is in fact a fabricated and fictitious document which was never acted upon in the lifetime of Fazal Ahad who died in the year 1970. No entry in the Revenue Record was made on the basis of the said deed. Before the attestation of his inheritance mutation not only husband of Mst. Hussana petitioner/plaintiff had the knowledge that the inheritance mutation of Fazal Ahad would be attested in favour of his L.Rs. But Mst. Husana was also informed that the said inheritance mutation of her father-in-law would be attested in favour of his L.Rs. But she kept quiet and did not raise any objection at the relevant time. She also failed to tile any appeal against the said mutation before the competent authority. The present suit was filed by her in the year 1990 i.e. 20 years after the attestation of inheritance mutation, therefore, the suit filed by her was hopelessly barred by time.
4. It was further argued that the petitioner/plaintiff never remained in possession of the property in dispute. It was after the death of Fazal Ahad that his legacy devolved upon his L.Rs. Including Fazal Wadeed, husband of the petitioner, who was put into possession of his share. If he had cultivated his share through Ghulam Sarwar P. W.-5, the said cultivation cannot be said to be on behalf of the petitioner.
5. It was further argued that the property was claimed to have been transferred through dower deed in favour of the petitioner. When interests in property are transferred through dower deed, the same compulsorily requires registration. The judgments and decrees passed by the Court below, therefore, are in accordance with law and need no interference.
6. I have hard the learned counsel nor the parties and perused the record.
7. The argument of the learned counsel for the petitioner that the dower deed did not require any registration and that the provisions of sections 17 and 49 of the Registration Act were wrongly interpreted by the Courts below has no force at all. It is admitted fact that Nikah of Mst. Hussana with Fazal Wadood was solemnised on 13-7-1966. The marriage was not registered as per section 5 of the Muslim Family Laws Ordinance, 1961 with the Nikah Registrar duly licensed for the area where the Nikah took place. Had the marriage of the petitioner with Fazal Wadood been registered as per requirement of law and Fazal Ahad, father of Fazal Wadood transferred any property in lieu of dower to the petitioner, the same would have been mentioned in the Nikah Nama prescribed by Muslim Family Laws Rules and then in such a case, there was no need to execute a dower deed separately and the property mentioned in the Nikah Nama (as prescribed in Family Laws Rules) would stand transferred in the name of the petitioner and the judgments cited by the learned counsel for the petitioner would have helped her. In the case in hand a dower deed, dated 13-7- 1966, Exh.P.W.2/1 was allegedly executed by the father of Fazal Wadood. Husband of the petitioner.
Admittedly the price of the properties mentioned in the e alleged dower deed Exh. P. W.2/ 1 was more than Rs.100, therefore, as per requirements of law the same required registration. A similar proposition came up for hearing in Umar Bakhsh v. Mst Zamrut Jan and 9 others (PLD 1973 Peshawar 63), his Lordship Mr. Justice Ghulam Safdar Shah, erstwhile Chief Justice of this Court, while reiyuig upon Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106) held:-- "These observations, with which I am respectfully bound, furnish a complete answer to the contention of the learned counsel and without extending this discussion any further, it is obvious that dower --deed, Exh. P. W . 1 / 1, did not create in favour of Mst. Zamroot Jan any interest in the suit property, for being unregistered under section 17 of the Registration Act, it came within the mischief of section 49 of the Registration Act and section 54 of the Transfer of Property Act. It would, therefore, follow that the appellant too, who claims through Mst. Zamroot Jan, would have no interest in the suit property, notwithstanding the fact that Mst. Zamroot Jan had allegedly gifted to him her share in the property and also put him in possession. This was clearly an exercise in futility, cause if Mst. Zamroot Jan would have no share in the property then she could convey none to the appellant. "
8. Keeping in view the dicta laid down by this Court it can safely be held that if there was a dower deed Exh. P. W .2/ 1, dated 13-7-1966 in favour of the petitioner, the same required registration under section 17 of the Registration Act, 1908. Failure of the petitioner to get the dower deed registered would render the deed ineffective and no interest in the property in favour of the petitioner would be transferred through the said unregistered deed (Exh.PW.2/1)
9. Another factor which goes against the petitioner is that Exh. P. W.2/ 1 was allegedly executed on 13-7-1966 by Fazal Ahad but the same was not given effect in Revenue papers. Fazal Ahad remained alive four years after the execution of alleged deed Exh.P.W.2/1, but neither the petitioner nor her husband. Tried to get the properties mutated in her favour, then Fazal Ahad died in the year 1970. It was brought to the notice of the petitioner and Fazal Wadood, her husband that the Inheritance Mutation of Fazal Ahad would be attested in favour of his L.Rs. The Inheritance Mutation No.3282 was attested on 30-3-1970 in favour of the legal heirs of deceased Fazal Ahad. As mentioned above, the petitioner had the knowledge of attestation of inheritance mutation which she admitted in her statement in the following words:--
10. She did not bother to raise any objection at the time of attestation of Mutation No.3282 nor did she challenge the same before the Revenue Authorities/ Appellate Forum. The inheritance mutation was given effect in the Revenue papers i.e. Entries were incorporated in the Jamabandies on the basis of Mutation No.3282 attested on 30-3-1970. Right from the date of attestation of Mutation till filing of the suit on 10-9-1990, the petitioner kept mum though she had the full knowledge that the property left by Fazal Ahad her father-in-law stood devolved upon his legal heirs including Fazal Wadood her husband, who was put into possession of the portion of the property inherited by him. Since the petitioner had the knowledge of attestation of Inheritance Mutation No.3282 attested on 30-3-1970, therefore, cause of action accrued to her in 1970. The suit filed by her in the year 1990 i.e. After 20 years is hopelessly barred by time. In Qazi Fazal Ahmad through Legal Heirs v. Riazur Rahim and others (1997 CLC 322) it was held:-- "It is clear from the column 3 that the limitation starts from the date of accrual of the cause of action. The cause of action admittedly accrued in this case on 22-2-1961 when the disputed mutation was sanctioned while the suit was filed on 22-6-1980, therefore, the same is barred by limitation. It is relevant to mention here that even defendants Nos.24 to 27 and 28 to 30 were impleaded aver about 10 years i.e. 24-1-1990. The suit was rightly held time-barred. It is not possible to believe the explanation given by the plaintiffs in this behalf that since they were settled at Bhawalnagar, therefore, they could not know of the sanction of the mutation in 1961. Mehr was not a distinct relation but real brother of their ancestor Bundha. There is nothing on record to show that they did not learn of the death of Mehr. This was the basic fact which should have been proved but there is nothing on record to show that death of Mehr was concealed from the plaintiffs. Therefore, natural consequence is that they must have learnt as to the settlement of estate left by deceased Mehr. Even if Article 127 is applied still the suit was time-- barred. "
11. Similarly in Mir Shah Jehan and another v. Syed Ali and 5 others (1989 CLC 2206) it was held:-- "Article 120 of the Limitation Act which was found to be applicable to the case of the plaintiffs by the trial Court prescribes a period of six years for filing a suit described therein."
12. It is well-settled law that the relief which a party is held entitled to is subject to a law of limitation because every litigant is to I be vigilant in claiming his/her rights within the limitation prescribed by the law. The petitioner in this case, was not vigilant to pursue her rights. She has even failed to establish that she ever remained in possession of the property in dispute or in any part thereof. As discussed earlier, her own witness namely Ghulam Sarwar (P. W.5) did not support her case. The husband namely Fazal Wadood after the death of his father was put into possession of his share which devolved upon him and it was the same property which was given to Ghulam Sarwar (P.W.5) for cultivation by Fazal Wadood by the petitioner.
Keeping in view the above discussion, I am of the firm view that the judgment and decree passed by the learned Appellate Court, dated 29-7-1997 is based on proper appreciation of evidence and law applicable to the case. I have not been able to find out any misreading or non-reading of evidence or any irregularity or any jurisdictional error or defect. I, therefore, dismiss the revision petition in hand with no orders as to costs.
Q.M.H./M.A.K./628/P