ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Second Appeal No. 01 of 2017

 

Appellant:                             Ahmed Fazale Azeem,

                                                through Mr. Muhammad Safdar, advocate.

 

Respondent Nos. 1 to 7:     Muhammad Mudasar & others (Nemo)

 

 

Date of hearing:                   17.01.2017

Date of order:                       17.01.2017

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O R D E R

 

ZAFAR AHMED RAJPUT, J:-     This Second Appeal, under section 100 C.P.C. is directed against the judgment and decree dated 28.11.2016, passed by the learned Additional District Judge-VIII th, Karachi-East in Civil Appeal No. 64 of 2015, filed by the appellant, upholding the judgment and decree dated 04.09.2014, passed by the learned Senior Civil Judge-IXth, Karachi-East has in Civil Suit No. 636/2011, filed by the respondent No. 1.

 

2.         Brief facts of the case are that the respondent No. 1/ plaintiff filed aforementioned civil suit against the appellant/ defendant No. 2 and respondents No. 2 to 7/ defendants No. 1, 3 to 7 for partition and specific performance initially before this Court in its original jurisdiction being Civil Suit No. 365 of 2011, which was subsequently, due to enhancement of pecuniary jurisdiction, transferred to the Court of IIIrd Senior Civil Judge, Karachi-East from where to the Court of IXth Senior Civil Judge, Karachi-East, where it was assigned a new number being Civil Suit bearing No. 636 of 2011. It has been alleged by the respondent No. 1 in the memo of plaint that the private parties in the suit are the real brothers and sisters and are sons and daughters of deceased Abrar Ahmed, who died on 11.02.2010 at Karachi leaving them as his surviving legal heirs, while the wife of deceased had already died in the year 2002. It has further been alleged that at the time of his death, their said deceased father left behind him an immovable property i.e. a double storey building bearing No.F-87, admeasuring 400 sq.yds, situated in Block-6, PECHS, Karachi (hereinafter referred to as the (“Suit Property”), and  the deceased father of the private parties was the absolute, legal and lawful owner and leaseholder of the suit property, which is in possession of the appellant and respondents No. 2 to 5 and its present market value is Rs.2,40,00,000/- to Rs.2,50,00,000/-, out of which, the share of respondent   No. 1 comes to Rs.55,55,555/-. It is the case of the respondent No.1 that he approached the appellant and respondents No. 2 to 5 continuously for the distribution of the suit property but they kept him on false hopes with one pretext to another and avoided the partition with mala fide intention to usurp his share and lastly he, in the month of December, 2009, along with his well-wishers and neighbors approached the appellant and respondents No. 2 to 5 for the partition of suit property but they refused them and after beating him they threw him out from the suit property. It is also case of the respondent No.1 that since appellant and respondents No. 2 to 5 are residing in the suit property, he is entitled for the mesne profit for his share from the rental value of the suit property @ Rs.20,000/- since February, 2010 till finalization  of the decree with an increase of 20% per annum profit. Hence the respondent No. 1 filed the suit with following prayers:

 

a.         To pass order for partition of the suit property bearing No.F-87, Block-6, PECHS, Karachi measuring 400 sq.yds. of double storied building and effecting the shares of the respondent No. 1 in the suit property or in case the partition is not possible or not convenient then alternatively sale out of the respondent No. 1 from the sale consideration according to Sharia through Nazir of this Hon’ble Court.

 

b.         To permanently restrain appellant and (defendants No. 1, 3 4, 5in the suit), their servants, agents, relatives, friends, attorneys, assignees, anybody, claiming themselves through or under their name not to sell, transfer, alienate or dispose of or create third party interest in any manner in respect of immovable property bearing No.F-87, Block-6, PECHS, Karachi measuring 400 sq. yds. of double storied building.

 

c.         To direct the appellant and (defendants No. 1,3,4,5 in the suit) to pay the means profit up to his share from the rental value of the suit property since February, 2010 at the rate of Rs.20,000/- per month till the finalization of the decree with an increase of 20% per annum.

 

d.         Cost of the suit.

 

e.         Any other relief or relieves which this Hon’ble Court may deem fit and proper under the circumstances of the case.

 

3.         The appellant and respondents No. 2 to 5 contested the suit by filing their joint written statement stating therein that the plot in question was purchased by the appellant in the name of his deceased father and he paid 70% of the sale consideration and then constructed the same on more than 70% investment; however, the plot as well as its construction was kept in the name of their deceased father being ostensible but the appellant is the actual owner of the constructed plot in question with 70% share. They also denied the value of the suit property and the share of respondent No.1, as pleaded by him. It has further been stated in the written statement that the appellant and respondents No. 2 to 5 are residing in the inheritance of their deceased father being co-owners and the question of mense profit does not arise as the respondent No. 1 himself is in possession of room in the suit property, which is more than his share in case of disproving the contention of actual and ostensible owner. It has also been stated in the written statement that the appellant possess major part in the inheritance being co-sharer, wherein 80% is his exclusive right and rest of the value may be distributed to all the legal heirs, including appellant, according to Sharia. The appellant and respondents No. 2 to 5 also denied all the allegations against them in memo of plaint and claimed for its dismissal.

 

4.         The respondent No. 6 (The Secretary, PECHS, Shahra-e-Qaideen, Karachi) also filed his written statement admitting the suit property in the name of deceased Abrar Ahmed, while the respondent No. 7 (The Sub-Registrar-1 Jamshed Town, DC Office, Gulshan-e-Iqbal, Karachi) was duly served on 23.09.2011 but he did not file his written statement, therefore, vide order dated 02.03.2012, he was debarred to file the same.

 

5.         From the pleadings of the parties, following issues were framed by the learned trial Court.

 

1.     Whether the suit is maintainable?

 

2.     Whether the property bearing No.F-87, Block-6, PECHS Karachi measuring 400 sq. yds. was purchased through benami transaction by appellant in the name of his father ?

 

 

3.     Whether the respondent No. 1 is entitled for the mense profit at the rate of Rs.20,000/- per month since February, 2010 ?

 

4.     Whether the respondent No. 1 is entitled for the relief claimed by him?

 

 

5.     What should the decree be?

 

6.         In support of his case, respondent No. 1 examined himself as Ex. P and produced death certificate of deceased Abrar Ahmed as Ex. P/1, photocopy of sub-license issued by Pakistan Employees Cooperative Housing Society as    Ex. P/2, legal notice and its courier receipts as Ex. P/3 to P/6. Besides, Parveen Jamal, Fatima Noreen, Naseeruddin Ahmed and Muhammad Saleem Nazeer recorded their evidence as Ex. P/7 to P/10, as witnesses of the respondent No. 1.

 

7.         The appellant and respondents No. 2 to 5 did not appear to record their evidence, consequently, their side for evidence was closed.

 

8.         The learned trial Court after assessing the evidence on record decided Issues No. 1, 2 and 4 in favour of respondent No. 1 and decreed the suit only for the relief prayed under clause “a” and “b”, vide judgment and decree dated 04.09.2014. Being aggrieved, the appellant preferred Civil Appeal No. 64 of 2015 which was dismissed by the learned Additional District Judge-VIII, Karachi-East, vide Judgment dated 28.11.2016. it is against that judgment and decree, the appellant has preferred this Second Appeal.

 

9.         Heard the learned counsel for the appellant and perused the material available on record.

 

10.       At the very outset, the learned counsel for the appellant has failed to point out any misreading or non-reading of evidence or any misconceiving of fact or commission of any jurisdictional error by the learned Courts below. He has developed his arguments on the premises that the learned Appellate Court arbitrarily failed to open the side of the appellant to produce the documents and to conduct cross-examination of respondent No. 1 and his witnesses and to allow him to produce witnesses with supporting documents; that the appellate Court did not give weight to the adjournment sought by the counsel for the appellant on the ground of illness and because of that he could not cross-examine the respondent No. 1 and failed to produce the appellant and his witnesses in witness box; that when the suit was filed before this Court, office raised the objection on its maintainability, which was overruled by the learned Single Judge of this Court, vide order dated 11.03.2011 by treating the suit as “suit for administration” while the learned Appellate Court framed the issues in the suit, which are not in consonance with the nature of the suit i.e. suit for administration.

 

11.       It is an admitted position that the appellant did not come forward to record their evidence even no cross-examination was conducted on plaintiff and his witnesses despite the fact that that the counsel of the appellant was present when the side was closed and no application was moved by the appellant for the reopening of the side for cross-examination of respondent No. 1 as well as for opening the side of appellant for evidence. Issue No. 2, above-mentioned, was framed on the pleadings of the appellant and respondents No. 2 to 5 as it was their claim that the suit plot was purchased by the appellant in the name of his deceased father and he paid 70% of the sale consideration and then he constructed the same by investing more than 70% amount. It is settled principle of law that for the determination of question as to whether transaction was benami or not, four factors are required to be considered; (i) source of consideration; (ii) from whose custody the original title deed came, (iii) who is in possession and (iv) motive of benami transaction. The learned trial Court has observed in its judgment that the sub-license issued by the Pakistan Employees Cooperative Housing Society (Ex. P/2), shows that the same was executed in the name of deceased father of the private parties on 14.09.1965 and admittedly in 1965 all the children of said deceased were of younger age and it was incumbent upon the appellant to show his income in 1965 but he failed to do so. The record further reflects that the appellant and respondents No. 2 to 5 themselves choose before the trial Court not to cross-examine the respondent No. 2 and his witnesses. The contention of learned counsel for the appellant in this regard that the counsel of the appellant was sick, therefore, he could not cross-examine the respondent No. 2 and his witnesses is contrary to the record, which reflects that the counsel was present in the Court but he did not prefer to cross-examine the witnesses even he did not file any application for adjournment, hence, the arguments advanced by the counsel for the appellant on this point has no force.

 

12.       As regards institution of the case by the learned single Judge of this Court as a suit for administration and framing of issue No. 2, suffice to say it that the said issue was framed by the learned trial Court on the pleadings of the appellant and respondents No. 2 to 5 and after its framing, the nature of the suit still remains as a suit for administration.

 

13.       In view of above as no case is made out on the ground of any irregularity or illegality, the impugned judgments and decree, passed by the Courts below, do not call for any interference by this Court on any point of law in the case of concurrent findings. Accordingly, the instant Second Appeal is dismissed in limine along with listed applications.

 

 

14.       Above are the reasons of my short order dated 17.01.2017.

 

 

                                                                                                            JUDGE

 

 

 

 

 

HANIF