Mst.Razia Sultana vs Baseer Ul Jalil

Stereo. HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

EFA No.1314 of 2013 Razia Sultana Versus Baseer-ul-Jalil.

JUDGMENT

Date of hearing: 17.02.2026.

Appellant by: M/s Nauman Qureshi and Ch.

Waheed Jatt, Advocates.

Respondent by: M/s Moeen Ahmad Siddiqui and Jawad Jamil Malik, Advocates.

ASIM HAFEEZ, J. This Execution First Appeal (“EFA”) is heard along with Civil Revision No.2858 of 2013, which are directed against separate judgments, passed in separate nature of proceedings but between common parties. EFA arose out of the order of dismissal of objections under Order XXI Rule 103 of the Code of Civil Procedure 1908 (the ‘Code’), brought by appellant. And Civil Revision No.2858 of 2013 arose out of suit proceedings initiated by appellant and dismissal orders in suit and appeal proceedings.

2.Facts of the case are that appellant seeks half share in the property of deceased Malik Atta Ullah as her dower – Malik Atta Ullah married appellant on 17.11.1974 and factum of dower [1/2 of the suit property] was mentioned in the

Nikah Nama. Suit was instituted on 27.03.1990. Objection petition under Order XXI Rule 103 of the Code was filed on 19.06.1997. Conversely, respondent seek ownership of entire property by virtue of judgment and decree dated 21.09.1985, based on agreement to sell with Malik Atta Ullah. Execution was initiated in 1986 and sale deed was presented in court on 29.05.1986. Suit for possession through partition was dismissed on 04.02.1999 and appeal was also dismissed on 07.12.2009. Objection petition was dismissed on 08.12.1999 and appeal against said decision was dismissed on 07.12.2009. Aforesaid decisions were set-aside in terms of order dated 28.09.2010, in Civil Revision No.135/2010 and matters were remanded. Post remand proceedings matters were adjudicated upon decisions remained unchanged. Suit and appeal of the appellant were dismissed on 29.11.2010 and 15.08.2015, respectively. Likewise, objection petition was dismissed on 29.11.2010 and appeal against said dismissal was dismissed on 15.08.2013. Hence, EFA and Civil Revision.

3.At the outset, learned counsel for appellant conceded that in wake of adjudication of EFA there would be no legal basis to conduct adjudication of Civil Revision as the question of title, a real bone of contention, would be decided under the scope and jurisdiction of Order XXI Rule (103) of

the Code, which provision bars independent suits. In these circumstances, Civil Revision is, hereby, dismissed as withdrawn without prejudice to claim of possession through partition to the extent of 1⁄2 of the property – which dispute is subject matter of EFA.

4.Learned counsel for appellant contends that both courts failed to record clear and confirming findings that fraud was committed or any deception exercised regarding relevant entry of Nikah Nama, which acknowledged obligation of dower to the extent of half of the property. Submits that Secretary Union Council, Nikah Khawan, Nikah Registrar and witness of Nikah Nama along with appellant appeared as witnesses, which evidence substantiated existence, execution and contents of Nikah Nama, including obligation incurred by husband of the appellant – appellant is second wife of Malik Atta Ullah. Submits that certified copy of Nikah Nama was produced upon comparison with the original Nikah Nama in the record, produced by A.W-1 – Secretary Union Council. Further submits that any one of the copies of the Nikah Nama, so produced, would satisfy the requirement of production of primary evidence and failure to produce other copies would not suggest adverse inference, when document by way of primary evidence is available and exhibited. Adds that judgments, whereby objections and appeal were

dismissed manifest conjectural analysis and presumptions, otherwise rebuttable.

5.Conversely, learned counsel appearing for respondent contends that objection petition is barred by limitation.

Submits that reasons extended by the courts below are sufficient to deny claim of dower when it was established that claim was raised collusively by husband along wife to defeat rights accrued to the respondent under the decree of the Court and frustrate execution thereof.

6.Heard. With the assistance of learned counsel, record, evidence and judgments assailed are examined.

7.Initial burden to prove factum and contents of Nikah Nama was on the appellant, which obligation was effectively discharged. Sufficient oral evidence was produced to extend support to documentary evidence. Nikah Nama is a public document and in case of objection qua its existence Secretary Union Council was produced with record, who facilitated perusal / comparison by the court. Respondent pleaded collusion between husband and wife to defeat rights accrued under the decree but no evidence was produced. Courts had dismissed objections on the premise that wife had not recorded her dower in the records of Excise and Taxation.

Courts dismissed objections on the premise that appellant failed to produce her or her husband’s copy of Nikah Nama.

Whether any adverse inference could be drawn against appellant when certified copy was brought on record and court had seen original record, at the time of evidence of AW-1 – Secretary Union Council. Appellate court presumed that non-production of original Nikah Nama leads to inference that entries therein were fabricated in collusion with the staff of the Union Council – whether such inference could be drawn when certified copy of Nikah Nama was produced;

Secretary Union Council produced original record and court examined it. If at all certified copy was forged to the extent of entries, why respondent had not sought production of record of Union Council. Courts failed to appreciate that each of the copy [Part] constitute a valid and lawful piece of evidence.

Beside other reasons which are not per se sustainable, appellate court observed that husband of the appellant, while submitting written statement to a suit for specific performance, had not disclosed factum of dower and appellant when asked had nothing in response, hence collusion/ deception stood established. This finding is erroneous on its face. Whether any adverse inference could be drawn against the lady without confronting contents of written statement submitted by husband. There is another aspect of the matter. And if appellant was confronted with the written statement she could have tendered some explanation.

Court observed that it was not possible for Nikah Khawan or Nikah Registrar to recall events of 1974 in 1999 – these observations are based on presumption and purely conjectural.

8.Learned counsel for respondent is confronted with examination in chief – respondent appeared as R.W-2. It is evident that respondent has not even alleged that Nikah Nama or any condition therein, particularly condition of dower, is forged or interpolated, lately. These circumstances substantiate that judgments failed the legal test.

9.On the question of limitation both courts erred in law.

Executing court referred to Article 181 of the Limitation Act 1908 and restricted decided issue No.1 on the premise that objections were filed after three years – starting point of limitation was reckoned from appellant’s knowledge of the decision of Hon’ble High Court, which was around December 1989. Objection was filed on 19.06.1997. And appellate court had not commented on the findings on question of limitation but affirmed the decision of executing court. Perusal of provisions of Limitation Act 1908 suggests that limitation for filing objections under Order XXI Rule 103 of the Code was one year of the date of the order passed in terms of the circumstances illustrated in Article 11-A of the Limitation Act 1908. I have examined the reply to the objections, where no reference was made to any order passed

in the context of circumstances prescribed in Article 11-A, ibid. Hence, starting point would be from the date of the order and in absence of any specific order appellant could not be non-suited on the point of limitation.

10.While recapping analysis of the adjudication, I reiterate two points. Firstly, orders assailed are based on mere presumptions and conjectural. And secondly, respondent while submitting reply to the objection petition pleaded that entry of dower was fraudulently and collusively incorporated in Nikah Nama after dismissal of appellant’s husband challenge to the decree in respondent’s suit for specific performance – appellant was not party thereto hence, issuance of publication in said suit / proceedings cannot be read adverse to the interest of the appellant. No evidence was produced by the respondent to substantiate allegation of interpolation. In brief, forgery of entry of dower in Nikah Nama was not substantiated by respondent, who alleged fraud and collusion. Evidence evaluated, balance of probabilities tilt in favour of appellant.

11.In view of aforesaid analysis, this EFA is allowed and impugned judgment dated 29.11.2010 of the executing court and judgment dated 15.08.2013 of the appellate court, in execution proceedings, are declared illegal and same are set- aside.

It is observed that in wake of exclusivity of jurisdiction to decide question of title under Order XXI Rule 103 of the Code findings recorded in judgments subject matter of challenge under Civil Revision C.R. No.2858 of 2013 are of no legal effect.

It is further observed that appellant had claimed 1⁄2 (50%) of the property in lieu of dower therefore, parties are at liberty to seek respective possession to the extent of their entitlement, subject to partition proceedings. No order as to the cost.

(ASIM HAFEEZ)

JUDGE

Approved for reporting.

JUDGE

Imran/*