IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Suit No. 1240 of 2007

 

Plaintiff:-                        Mr. S. Abid Ali S/o S. Azmat Ali and others,

 

through Mr. Muhammad Shahid Qadeer, Advocate for the plaintiffs.

 

Defendants:-                  Syed Inayat Ali and others,

 

Through Mr. Ubaidur Rahman

and Mr. Noor Z. Khattak,

Advocates for the defendants

 

 

Date of hearing       14.04.2010

Date of Judgment   28.05.2010

 

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          The present suit has been filed by the plaintiff for declaration, possession, permanent injunction, damages and mesne profit against the defendants in respect of an immovable property i.e. House situated on A-223, Block-L, North Nazimamab, Scheme No.2, Karachi, admeasuring 256.67 square yards. The plaintiffs are the legal heirs of Syed Azmat Ali S/o Syed Shoukat Ali who died on 11.2.2006. The defendants are real brothers and sisters of deceased Syed Azmat Ali. Syed Azmat Ali the father of the plaintiffs who divorced the mother of the plaintiffs and the plaintiffs were residing in a rental house alongwith their mother. The defendants are residing in the suit property. It is contended in the plaint that on 24th May, 1974 vide registered Sale Deed for Rs.90,000/- and thereafter constructed a double storied house thereon. On 11.2.2006 the predecessor-in-interest of the plaintiffs Syed Azmat Ali died and has left behind the following legal heirs:-

i)          S. Abid Ali                              Son

ii)         S Ambreena                          Daughter

iii)        S. Erum Abid                         Daughter

 

On 19.7.2007 one of the legal heirs of Syed Azmat Ali, Mst: Erum Abid died and has left the following legal heirs:-

i)                    Abid Hussain Shaikh, the plaintiff No.2.

ii)                  Sheikh Abu Bakar, the plaintiff No.3.

 

2.         After the death of Syed Azmat Ali the plaintiffs mutated the suit property in the name of the plaintiffs by way of inheritance vide mutation Order dated 7.8.2006. The plaintiffs thereafter asked the defendants to vacate the house, but they refused to do so. The plaintiffs submitted in the plaint that the status of the defendants in the suit property is of illegal occupants, therefore, they are obliged to pay the mesne profit at the rate of Rs.30,000/- per month from 11th February, 2006 to September, 2007. The plaintiff No.1 approached the defendants and demanded them to vacate the suit property, but the defendants have refused and tried to attack the plaintiff No.1, used filthy language and abused the plaintiff No.1. On 26.9.2007 the plaintiffs have filed the present suit against the defendants prayed therein as under:-

a)         'Declaration to the effect that the plaintiffs are lawful owners through inheritance of the house No.A-223, Block No.L, measuring 256.67 Sq. Yds North Nazimabad, Scheme No.2, Karachi.

 

b)                 Declaration to the effect that the defendants are illegal occupants and are in illegal possession of House No.A-223 Block-L, measuring 256.67 Sq. Yds North Nazimabad, Scheme No.2, Karachi, as they have no rights or title over the suit property.

 

c)                  Direct the defendants, their nominees, assignees, agents and executors to deliver the peaceful vacant possession of the suit property to the plaintiff without any hindrance/obstacle.

 

d)                 Direct the defendant to pay mesne profits of the suit property @ Rs.30,000/- per month from 11th February, 2006 to onwards till the possession is delivered to the plaintiffs of the suit property.

 

e)                 Permanent injunction against the defendants restraining them from creating 3rd party interest and parting possession of suit property to some one other.

 

f)                    Direct defendants to pay Rupees Five Millions to the plaintiff No.1, as compensation and damages for mental torture and agony suffered by the plaintiff No.1 at the hands of the defendants.

 

g)                 Any other relief as this Hon'ble Court may deems fit in the circumstances of the case.

 

h)                  Cost of the suit."

 

 

3.         The summons issued to the defendants Nos.1 to 6, which were served upon the defendants and the defendants on 2.8.2008 filed the written statement in the present suit in this Court. All the defendants have signed the said written statement except the defendant No.3, who was represented by defendant No.5 as attorney of the defendant No.3. The defendants in their written statement denied the assertions made in the plaint. It is stated in the written statement that in fact the suit property was purchased from the funds of Syed Shoukat Ali the father of the deceased Syed Azmat Ali and other defendants. Syed Shoukat Ali the grand father of the plaintiffs Nos.1 & 4, the father of deceased Syed Azmat Ali the Predecessor-in-interest of the plaintiffs Nos.1 and 4 and all the defendants was running business in the name and style of Syed Sons of watches and optical at Bunder Road, Karachi. Syed Azmat Ali and all other children of Syed Shoukat Ali were dependents of their father. The suit property was purchased in May 1974 from the funds provided by Syed Shoukat Ali and from the amount of HBFC loan in the name of Syed Azmat Ali. Syed Azmat Ali at that time was neither married nor had any independent source of income. When the subject property was purchased it had a single storey building and after it had been purchased two additional floors were constructed from the amount provided by Syed Shoukat Ali. The HBFC loan was repaid by the family from the income received from various rents and businesses. Syed Azmat Ali was simply a benami owner of the suit property and Syed Shoukat Ali in fact owned the suit property. In June, 1975 Syed Shoukat Ali and Syed Azmat Ali executed an agreement after the execution of the Sale Deed dated 24.5.1974 the said agreement was executed by Amna, Syed Inayat, Syed Willayat, Syed Wajid, Syed Amjad, Syed Asif, Tasmina Begum and Shamima Begum. In 1975 the defendants Nos.2 to 5 and 6 filed a Suit No.158 of 1995 for declaration and injunction in the Court of IInd Senior Civil Judge, Karachi-Central against Syed Azmat Ali and Syed Wajid Ali on the basis of agreement of June 1975, the said suit was dismissed. It is further submitted in the written statement that Syed Azmat Ali never disputed or denied the agreement of June 1975. The defendants denied that they are residing in suit property as licensee of the plaintiffs or Syed Azmat Ali. The defendants submitted in the written statement that they are residing in the suit property in their own rights as owners. The defendants prayed for the dismissal of the present suit in their written statement.

4.         On 5.12.2008 this Court adopted the following consent Issues filed on behalf of the parties:-

1.         "Whether the sale deed dated 24.5.1974 was a benami transaction in the name of Azmat Ali the predecessor in interest of plaintiffs?

 

2.                  Whether the plaintiffs are lawful owner of suit property through inheritance and entitled for possession thereof?

 

3.                  Whether the effect of the agreement of June 1975 {Annexed to the W/S} which declared that the suit property was owned by the parties mentioned therein including the predecessor-in-interest of the plaintiffs and the present defendants?

 

4.                  Whether the defendants are in illegal possession of the suit property and the plaintiffs are entitled for mesne profit at the rate of Rs.30,000/- P.M. from 11th February, 2006 to onwards.

 

5.                  Whether the plaintiffs are entitled to receive Rs.5 millions as compensation and damages for mental torture and agony suffered by the plaintiff No.1 at the hands of defendants?

 

6.                  What should the decree be?"

 

5.         On 6.4.2009 on the plaintiff's application Mr. Dilawar Hussain, Advocate was appointed as Commissioner for recording the evidence for respective parties and their witnesses. On 12.10.2009 the learned Commissioner submitted the report and the matter was fixed for arguments of the counsels of the parties. S. Abid Ali S/o S. Azmat Ali appeared as P.W-1 has produced the following documents:-

"Copy of sale deed dated 24.5.1974, marked Ex-P/2. Copy of Transfer/Mutation Order dated 7.8.2006, Marked Ex-P/3. Certificate dated 8.8.2006 issued by CDGK, marked Ex-P/4. Death Certificate dated 6.5.2006 issued by C.E.O., marked Ex-P/5. Heirship Certificate dated 8.8.2006, marked Ex-P/6. Death Certificate of Erum Abid dated 16.8.2007  alongwith Heirship Certificate, marked Ex-P/7. General Power of Attorney executed by plaintiff No.4 in favour of S. Abid Ali (plaintiff No.1), marked Ex-P/8. Power of Attorney of plaintiff No.2 dated 17.9.2007, marked ExP/9."

 

Mr. Muhammad Mujtaba S/o Muhammad Mustafa appeared as P.W-2 who were cross-examined by the Advocate for the defendants.

6.         Syed Asif Ali S/o Syed Shoukat Ali the defendant No.5 and attorney of defendant No.3 appeared as D.W-1 and has produced the following documents:-

"Power of attorney dated 21.1.2008, marked Ex-D/2. Visiting Card of Saeed Sons, marked Ex-D/3. Bill of Sui Gas, marked Ex-D/4 & D/5. Certified true copy of the agreement dated 7.6.1975, marked Ex-D/6. Copy of application under Order 12 Rule 8 CPC dated 22.4.2009, marked Ex-D/7. Original receipt of TCS dated 23.4.2009, marked Ex-D/8. Copy of the Bill of Water & Sewerage Board, marked Ex-D/9. Photocopy of Receipt of paid challan in National Bank of Pakistan, marked Ex-D/10. Certified copy of the plaint in Suit No.158/1995, marked Ex-D/11 alongwith the application U/O 7 Rule 11 CPC with Affidavit, Counter Affidavit and Written Arguments of the Defendant No.1 in the Suit No.158/1995. Certified copy of the order dated 9.12.1996 passed in suit No.158/1995, marked Ex-D/12. Copy of the notice dated 24.4.2006 addressed to the District Officer CDGK, marked Ex-P/13 alongwith TCS receipts."

 

Mst: Ishrat Bibi W/o Muhammad Anis, Najamuddin Ahmed S/o Qammuruddin Ahmed the attesting witnesses of agreement of June 1975 and Syed Javed Ahmed S/o Syed Saeed Ahmed, cousin of defendants and father of the plaintiff No.1 & 4 appeared as D.Ws-1, 2 & 3 cross-examined by the learned counsel for the plaintiffs.

7.         Both the learned counsels for the plaintiffs and defendants filed their written arguments as well as both the learned counsels argued at length before this Court on 14.4.2010.

 

Issue No.1.

            The burden of proof of this Issue lies upon the defendants, the learned counsel for the defendants cited the case of Hon'ble Supreme Court reported in 1991 SCMR page 703 and 2009 SCMR page 124 wherein it is held that following four requirements are necessary to prove whether an ostensible owner is a benamindar:-

i)                    Source of consideration.

ii)                  From whose custody the original title deed and other documents came in evidence.

 

iii)                Who is in possession of the suit property, and

iv)                Motive for the benami transaction.

 

i)          The predecessor-in-interest of the plaintiffs namely S. Azmat Ali died on 11.2.2006 at the age of 56 years. On 24.5.1974 when the Sale Deed of the suit property was executed in favour of Syed Azmat Ali he was approximately 24/25 years old. The defendants are the real brothers of S. Azmat Ali, S.Javed Ahmed the defendant's witness the cousin of the predecessor-in-interest of the plaintiffs and the defendants, Ishrat Bibi an Aunt (Phuphi) of the predecessor-in-interest of the plaintiffs and the defendants and Mr. Najamuddin Ahmed defendant's witness have stated on Oath that in the year 1974 S. Shoukat Ali S/o S. Muhammad Ali the father of the defendants and grand father of the plaintiffs Nos.1 and 4 was running the business of watches and optical in the name of "SYED SONS" on Bundar Road, Karachi and at that time all sons and daughters of S. Shoukat Ali including S. Azmat Ali the predecessor-in-interest of Plaintiffs Nos.1 and 4 were dependents on their father. Whereas S. Abid Ali, plaintiff No.1 and Muhammad Mujtaba the plaintiff's witness have failed to mention any source of income of S. Azmat Ali in 1974 or thereafter. Even S.Abid Ali, plaintiff No.1 admitted in his evidence "It is correct that I have not mentioned any documents regarding the income of my father in the plaint or affidavit-in-evidence. I have not mentioned the income of my father when the property in question was purchased by my late father."

 

The learned counsel for the defendants referred to an agreement dated 7.6.1975 produced as Ex-D/6. The said agreement was executed between the defendants, who were the party of the first part and the plaintiffs' predecessor-in-interest was the party of the second part in the said agreement. It is mentioned in that agreement that,

            "Whereas immovable property bearing No.A-223/L, North Nazimabad, Karachi with building thereon, (subject property) is in occupation of the above named parties and has been purchased by the parties above mentioned in the name of the 2nd party who is and shall continue to be one of the co-sharer in the said property.

 

            Whereas a loan for house purchase has been arranged from the House Building Finance Corporation at Karachi in the name of the 2nd Party under a sanction conveyed by the said Corporation bearing No.H.B.A-1448 dated 16.5.1974 amounting to Rs.41,000/- payable to the said corporation is monthly Rs.358/- during the period of 20 years.

           

            With a view to avoid any doubts, misunderstanding or confusion in the context of the ownership of the said immovable property existing or likely to occur in the future, the parties have finally agreed to declare and precisely prevail upon all the said co-sharers that the said property is and will remain the joint property of the entire co-sharers despite the fact that the stands in the name of 2nd party and loan has also been sanctioned or paid in the name of the 2nd party by the House Building Finance Corporation.

            All the Aforesaid co-sharers that is the part of the first part and second part are and shall be continued to be considered as sharing according to the law of inheritance obtaining under the Muslim Shariat Law. The second party has and/or shall have no objection to it at any time hereinafter."

 

            The defendants Nos.2,4,5 and 6 filed Suit No.158/1995 for declaration and permanent injunction against Syed Azmat Ali the predecessor-in-interest of the plaintiffs and present defendant No.3 in the Court of IInd Civil Judge, Karachi-Central, which is produced as Ex-D/11.     

            The aforesaid agreement was referred to in the said suit on 20.3.1995. Written Arguments on behalf of S. Azmat Ali were filed in that suit by his Advocate. Syed Azmat Ali challenged the legal effect of the said agreement, but did not deny the execution and validity of that agreement. The said suit on technical reasons was dismissed. The learned counsel for the defendant cited PLD 1953 Lahore page 251, wherein Mr. B.Z. Kakaus held on page 254 that;

"The agreement does not require registration for it does not purport to create any rights in land. -------------------------------- ----------------------------------------------. Whatever the rights of the parties in this documents, it is clear that by means of this document no rights in the land had been created."

 

            The agreement of 1975 was an internal family document and was merely a family settlement, which did not require registration. The learned counsel for the plaintiffs referred to the portion of the evidence of the parties where simply the plaintiff No.1 has denied that his father S. Azmat Ali was dependent on his grant father and further referred the denial of suggestion that property was purchased in the name of S. Azmat Ali. The learned counsel for the plaintiff contends that the plaintiffs Nos.1 and 4's father purchased the property independently and denied that their father was a Benamidar of the property in question. The plaintiffs have failed to mention in their pleadings that their predecessor-in-interest had any source of income from which he paid the sale consideration of suit property in 1974 at the age of 24/25 years. The plaintiffs have further failed to produce any proof that their predecessor-in-interest was running any business separately from his father S. Shoukat Ali or had any source of independent income.

ii)         The learned counsel for the defendants has referred to a judgment reported in 2006 MLD 1429 Mst; Sara Bai and 7 others Vs. Iqbal where it is held that mere production of original leases in absence of proof of payment has no significance, therefore, the custody of the original title deed in possession of the plaintiff No.1 and 4 has no significance.

iii)        It is an admitted position that the defendants are in continuance, undisturbed possession and occupation of the suit property and moreover, the plaintiff No.1 admitted in his cross-examination that his father never filed any suit for ejecting of the defendants from the suit property. Moreover the plaintiffs' predecessor-in-interest divorced his wife and the plaintiffs Nos.1 and 4 residing separately with their mother, while the plaintiffs' predecessor-in-interest S. Azmat Ali till his death resided with the defendants in the suit property.

iv)        The motive for the Benami transaction as stated in the plaint and during the evidence by the defendants that in the regime of Mr. Zulfiqar Ali Bhutto in early 70's owners having more than one property were afraid that Government would deprive them from their properties under the garb of nationalization or otherwise. The mother and father of the plaintiff's predecessor-in-interest had already properties in their names, therefore, Sale Deed of the suit property was executed and registered in the name of S. Azmat Ali the predecessor-in-interest of plaintiffs' Nos.1 and 4.

            While holding the Issue No.1 as affirmative, I held that the Sale Deed dated 14.5.1974 was a Benami transaction in the name of S. Azmat Ali the predecessor-in-interest of the plaintiffs.

ISSUE No.2.

            Since I have already held that the Sale Deed dated 14.5.1975 was a Benami transaction in the name of S. Azmat Ali the predecessor-in-interest of the plaintiffs, therefore, the plaintiffs are not lawful owners of the suit property through inheritance and therefore are not entitled for possession as the owners. However, the plaintiffs are the owners in respect of the share of their predecessor-in-interest in the suit property.

            The learned counsel for the plaintiffs submitted that the plaintiff No.1 denied the contentions of the defendants in his evidence that his father S.Azmat Ali was dependent of his grand father Syed Shoukat Ali. He further denied that property was purchased in the name of S. Azmat Ali. The property was purchased by the father of plaintiff No.1 independently and the said property was solely in the name of the father of the plaintiff No.1. The counsel for the plaintiffs further urged that only the defendant No.1 who is also the attorney of defendant No.3 appeared in the witness box and the other defendants avoided to appear in the witness box and even not filed their affidavit-in-evidence. The learned counsel further contended that the original copy of the agreement dated 7th June 1975 Ex-D/6 was not produced and the photocopy of the same was produced which is not admissible. It is urged by the counsel for the plaintiffs that the defendants have failed to prove the claims of Benamidar. The learned counsel for the plaintiffs urged that the plaintiffs have proved their case for declaration to the effect that their predecessor-in-interest was the sole and absolute owner of the property and they are by inheritance are the owners of the suit property and are entitled for possession of the suit property.

            It is well settled law that initial burden of proof is on the party alleges that an ostensible owner is Benamidar and that the weakness of defendants' evidence would not relieve and plaintiff from discharging the burden of proof. During the trial once the burden of proof shifted from a defendant to a plaintiff and he fails to discharge a burden of proof so shifted to him the defendant shall succeed.

 

ISSUE No.3.

            The learned counsel for the plaintiff argued that the agreement of 7th June 1975 Ex-D/6 has been denied by the plaintiff and the defendants have produced the photocopy of the agreement and had not obtained prior permission of this Hon'ble Court to produce the copy of the agreement which was secondary evidence. While the learned counsel for the defendants argued that the agreement dated 7.6.1975 was executed between the defendants, their parents who were the party of the first part and the predecessor-in-interest of the plaintiff No.1 and 4 who was the party of the second part. Learned counsel for the defendants submitted that the witness who were examined in the present suit namely Ishrat Bibi W/o Anis and Mr. Najamuddin Ahmed S/o Qamaruddin Ahmed, are the closed relatives of the predecessor-in-interest of the plaintiff and the defendants were the attesting witnesses of the agreement dated 7th June, 1975. Certified copy of which has been produced as Ex-D/6. The attesting witnesses categorically stated in their affidavits-in-evidence that, "S. Azmat Ali has signed the said agreement in my presence. I signed this agreement as one witness. I identify my signatures as well as signatures of S. Azmat Ali on annexure-D (Ex-D/6) to the affidavits-in-evidence of defendants Nos.3 and 5". This portion of the evidence of the attesting witnesses has remained unchallenged, un-rebutted, un-controverted  and not denied by the plaintiffs during the cross-examination of the witnesses by the plaintiffs counsel, hence it shall be deemed to have been accepted by the plaintiffs. It is further contended by the learned counsel for the defendants that the plaintiffs Nos.1 and 4 during life time of Syed Azmat Ai were not residing in the suit property and on the death of their father came to the suit property accompanied their mother. S. Azmat Ali the predecessor-in-interest of the plaintiffs resided in the suit property till his death. The plaintiffs admit that the defendants are in possession of the subject property. It is evident from the written statement and list of legal heirs of the defendants that the defendants Nos.1 to 6 alongwith their respective family members are residing in the suit property since long whereas the predecessor-in-interest of the plaintiffs Nos.1 and 4 resided in the suit property till his death and the plaintiffs No.1 and 4 were residing separately with their mother who had been divorced by the predecessor-in-interest of the plaintiffs Nos.1 and 4 long time ago, hence I decide the Issue No.3 in affirmative and hold that according to the terms and conditions of the agreement of June, 1975 the suit property was owned by the parties mentioned therein including the predecessor-in-interest of the plaintiffs and the present defendants.

ISSUE No.4.

            Since I have already decided that the Sale Deed dated 24.5.1974 was a Benami transaction, the predecessor-in-interest of the plaintiffs Nos.1 and 4 S. Azmat Ali was a Benami/ostensible owner of the suit property and the plaintiffs are not the lawful owner of the whole of the suit property and the agreement of June 1975 was duly and lawfully executed between the predecessor-in-interest of the plaintiffs Nos.1 and 4, defendants and their parents which declared that the Predecessor-in-interest of the plaintiff and the defendants were the co-sharers according to the Law of Inheritance under Muslim Shariat Law.  The defendants are admittedly residing with their family members in the suit property since long time in their own rights therefore they are not in illegal possession of the suit property and hence the plaintiffs are not entitled to have any mesne profit. I, therefore, decide Issue No.4 as negative.

ISSUE No.5

            In view of the findings of Issue Nos.1 to 4 I am of the view that the defendants are residing in the suit property in their own rights. The suit property had been purchased from the funds provided by S. Shoukat Ali the father of the predecessor-in-interest of the plaintiffs and the defendants, therefore, the plaintiffs are not entitled to receive any compensation and damages for mental torture and agony at the hands of the defendants.

ISSUE No.6

            Since the plaintiffs have failed to prove their case for declaration to the effect that their predecessor-in-interest was the sole and absolute owner of the suit property. While deciding Issue No.1 I have already held that the Sale Deed dated 14.5.1974 was the Benami transaction in the name of S. Azmat Ali the predecessor-in-interest of the plaintiffs, the said property has been purchased by Syed Shoukat Ali the father of the predecessor-in-interest and the defendants in the name of the predecessor-in-interest of the plaintiffs but the Sale Deed of that property was executed and registered in the name of the predecessor-in-interest of the plaintiffs. The plaintiffs' predecessor-in-interest at the time of purchase of the said property was only 24/25 years in 1974 and he had no independent source of income at the relevant time. The plaintiffs were resided separately with their mother who had been divorced by the predecessor-in-interest of the plaintiffs while the predecessor-in-interest till his death resided with the defendants in the suit property.

            In view of the facts, circumstances, legal position and findings of the earlier Issues I am of the view that the plaintiffs are only entitled to the extent of the share of Syed Azmat Ali S/o Syed Shoukat Ali the predecessor-in-interest of the plaintiffs in the property situated at Plot No.223, Block-L, measuring 256.67 squire yards, North Nazimabad, Karachi and the defendants are the legal occupants and are in legal possession of the suit property in their own rights and title over the suit property to the extent of their shares according to Muslim Law of Inheritance. The plaintiffs' predecessor-in-interest Syed Azmat Ali S/o Syed Shoukat Ali was a Benami/ostensible owner of the suit property. The plaintiffs are not entitled for any mesne profit, compensation and damages as claimed in the present suit. The suit is, therefore, disposed in the aforementioned terms without awarding any cost.

 

JUDGE