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Civil Revision No. 142 of 1973, decided on 14th October, 1980.

‑‑‑‑ S. 115‑Revision‑Finding of fact, held, cannot be disturbed in revisional jurisdiction ‑ Lower Appellate Court ignoring material evidence and dismissing suit on grounds entirely untenable‑ Revision petition entertained in circumstances of case.

----S. 114 read with S. 90, Explanation‑Agreement deed‑Custody of‑Husband (petitioner) ‑producing agreement deed between his wife and himself‑Agreement apart from evidencing dissolution of marriage containing stipulations favourable to husband regarding custody of children and return of land (given to respondent in lieu of dower) Held, husband's custody of agreement deed not to be regarded unusual and no importance to be attached to its production by husband.

‑‑ S. 114‑Presumption‑Patwari entering mutation of land week before execution of agreement deed containing stipulation regarding return of land and children to husband‑Parties having already agreed to this before execution of deed registering of mutation prior to execu tion of deed and its custody with petitioner, held, can hardly be suspicious in circumstances.

Abdus Samad Hashmi for Petitioner.

Nemo for Respondent.

Date of hearing: 12th October, 1980.

This civil revision calls in question the judgment and decree, dated 20‑2‑73 of Additional District Judge, Rawalpindi which reversed the judgment and decree dated 8‑8‑70 of Administrative Civil Judge, Murree and dismissed the suit of the petitioner for possession of land.

2. The petitioner was married to the respondent and in lieu of dower amount he had transferred the land in dispute to her. There were three issues of the marriage. Subsequently, the respondent became attached to one Mehrban and demanded her freedom from the petitioner. A punchayat intervened 'and, as the petitioner's case is, he agreed to divorce her on the understanding that she would return the land back to him. Accordingly a mutation was entered in the register of Patwari for the retransfer of the land to him. On 31‑10‑66 both parties went to the sub- divisional headquarter at Murree where an agreement deed (Exh. P 1) was executed under which he divorced the respondent and in return she returned the suit land back to him. Later, the respondent resiled from the agreement and refused to get the mutation sanctioned. Upon this on 4‑11‑67 he instituted the present suit for possession of the land in dispute.

3. The suit was resisted by the respondent. She admitted that the petitioner had divorced her but denied that there was any agreement for the return of the land to him.

4. On the pleadings of the parties the trial Court framed the following issues :‑---

(1) (1) Whether there is a written agreement between the parties for the return of the suit land in case of divorce

(2) Relief.

5. Both parties led evidence and after considering the same the trial Court found that an agreement did exist between the parties and in accordance with that agreement the respondent was under an obligation to return the suit land to the petitioner. Accordingly, it decreed the suit with costs. The respondent preferred an appeal which was heard by an Additional District Judge at Rawalpindi. The learned Additional District Judge took the view that no agreement bad been proved; consequently, he accepted the appeal and dismissed the suit, leaving the parties to bear their own costs.

6. Ordinarily a finding of fact cannot be disturbed in revisional jurisdiction. To get over this bar the learned counsel for the petitioner contended that the lower appellate Court had ignored material evidence and dismissed the suit on grounds which were entirely untenable. After going through the entire evidence I am inclined to agree with him.

7. The deed which was executed by the parties to give effect to the agreement between them is Exh. P‑1 on the record. This agreement the terms which had been arrived at between the parties in the, presence of the respectables of the locality. The terms were:

(i) the land which had been given to the respondent in lieu of the dower amount would be returned by her to the petitioner;

(ii) the custody of the three issues of marriage would be granted to the petitioner ; and

(iii) the petitioner would divorce the respondent.

These terms appear to be logical whey we consider that just before the agreement was executed the respondent had eloped with another person and wanted to marry him. It is also to be noticed that Mehrban was present at the time of the execution of the agreement and that shortly after the petitioner divorced the respondent Mehrban married her. This marriage is still subsisting.

8. The agreement deed (Exh P. 1) was thumb marked by the respondent also. Sultan Khan (P. W. 1) was an attesting witness of this deed. It was scribed by Syed Ali Ahmad (P. W. 2). Syed Ali Ahmad (P. W. 2) stated that he had drafted the deed at the instance of the parties. The presence of Mehrban at the relevant time would indicate that the respondent knew precisely what she was giving away when she thumb marked the deed. Thus, it cannot be regarded as a case of an illiterate woman who was persuaded to execute the document without knowing what its implication would be. I can, therefore, see no reason why the terms of the agreement which were agreed upon by the parties ought not to be given effect to.

9. In arriving at the conclusion which he did the learned Additional District Judge was influenced by two considerations: first, that as Exh. P 1 was a divorce deed it ought to have been in the custody of the respondent whereas it was produced at the trial by the petitioner and second, that the mutation with regard to the return of the land to the petitioner was entered by the Patwari about a week before the execution of the deed. In my opinion both these considerations are insubstantial. It is to be noticed that apart from evidencing dissolution of marriage of the parties the deed further stipulations, one with regard to the custody, of the contains two children and the other in respect of the land. Both these stipulations were in favour of the petitioner. In the circumstances if the petitioner retained the deed (Exh. P 1) with him it could not be regarded as unusual. This being so, no importance can be attached to the fact that during the trial the deed (Exh. P 1) was produced by the petitioner and not by the respondent. So far as the factum of the entry of the mutation a week before the execution of the deed is concerned it is to be noticed that the agreement has already been arrived at between the parties before the deed (Exh. P. 1) was executed. Consequently, the registering of the mutation prior to the execution of the deed can hardly be viewed as a suspicious circumstance.

10. For the reasons stated above I set aside the judgment and decree the learned Additional District Judge and restore those of the trial Court.

In view of the peculiar relations between the parties I direct that they shall bear their own costs throughout.

Petition dismissed.

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