IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.276 of 2012
Sheikh Attaur Rehman………..vs………..Mst. Nafeesa Khatoon & Ors
Plaintiff : Through: Mr. Abdul Wajid Wyne, Advocate.
Defendant : None present for the defendants
Date of hearing : 12.09.2014
Date of Judgment: 23.09.2014
SALAHUDDIN PANHWAR, J:- By this judgment I decide Suit No.276 of 2012, filed by the plaintiff against the defendants seeking his status as ostensible owner in respect of suit property, claiming the same to have been purchased in name of his mother as Benami transaction.
2. Succinctly, facts leading to the case are that plaintiff filed a suit for Declaration and Permanent Injunction wherein pleading that he is the lawful and exclusive owner and in possession of plot of land viz. premises No.110-C & 112-C measuring 105 Sq. yards each in the area of Pakistan Employees Cooperative Housing Karachi. Plaintiff purchased the suit property measuring 210 Sq.yards in the name of his mother Maimoona Bi wife of Hafiz Rehman Ellahi as a mark of respect for her as a Benamidar being his mother through funds of the plaintiff. All the original title documents of the suit property are lying in possession of the plaintiff. Plaintiff at the time of purchase of the suit property paid the token money against the sale consideration and obtained receipt dated 13.3.1975 in his own name from the previous owner. Plaintiff , being real owner is also regularly paying taxes and other charge against the suit property to the concerned departments / offices. Mst. Memoona wife of Hafiz Rehman Ellahi died on 25.11.1978 at Madina Munawara, Saudi Arabia leaving behind the plaintiff and the defendants as her legal heirs. Defendants No.1 to 4 filed a suit bearing No.769/2004 against plaintiff and defendants No.5 to 8 being other legal heirs of the deceased mother for administration, appointment of receiver, sale of assets, distribution of sale proceeds and rendition of account and permanent injunction; during the pendency of the said case the defendant No.1 to 4 filed an application for amendment of plaint under Order 6 r 17 read section 151 CPC to add the suit property belonging to the deceased mother, his deceased mother as a mark of respect for her and if the defendants herein (who were plaintiffs in that suit) insist otherwise are invited to appear in court and if takes special oath on Holy Quran and the plaintiff is prepared to abide by the said Oath whereas defendants refused to take oath and thus honourable High Court distributed the properties except the suit property which was exclusive belongs to the plaintiff hence the plaintiff is entitled for declaration that he is real owner of the suit property and the deceased mother is only Benamidar.
3. In view of above back ground the plaintiff has prayed as under:
a) Declaration that the plaintiff has purchased the suit property viz. plot of land viz. premises No.110-C & 112-C measuring 105 Sq.yards each in the area of Pakistan Employees Cooperative Housing Society Karachi from his own income and resources of his benefit and interest and is the real owner and the deceased mother of the legal heirs of defendants is the Benamidar of the suit property and the legal heirs of the deceased mother the defendants herein have no right to claim the same’
b) Permanent injunction restraining the defendants, their agents, representatives, attorneys, assignees or any other person or persons from alienating, transferring, creating any third party interest and
/ or to dispose off the said property i.e plot of land viz. premises No.110-C & 112-C measuring 105 Sq. yards each in the area of Pakistan Employees Cooperative Housing society Karachi.
4. The process was issued against the defendants but except defendant No.5 none was served through ordinary way of service. Accordingly, the rest of the defendants were served through substitute service on application of the plaintiff, moved under Order v Rule 20 CPC. Such publication was got flashed in daily JANG Karachi hence service against the defendant Nos.1 to , 6,7(viii) and 8 were held good. None of the defendants, however, filed written statement hence vide order dated 14.10.201 the defendant Nos.1 to 4, 6,7(vii),8, defendant Nos.5 and 7(i) to (vi) were declared ex-parte vide order dated 14.10.2013.
5. The plaintiff filed his own his affidavit in ex-parte proof so also of his witnesses namely Muhammad Ibrahim and Nasir. They were also examined and their depositions were recorded accordingly.
6. The learned counsel for the plaintiff argued that since the claim of the plaintiff went unchallenged and even the defendants, who, at the most, could have come forward to challenge the claim of the plaintiff, despite service, opted to remain absent; therefore, plaintiff is entitled for a decree in his favour.
7. I have heard the counsel for the plaintiff and have also examined the material available on record.
8. The defendants, undoubtedly, were legal entitled to question the claim of the plaintiff as the title of the subject matter was in name of mother of the plaintiff and defendants but it is a matter of record that they did not come forward to question the claim of the plaintiff despite having been served. Here, it is also worth to add that the defendants had acquired knowledge of the claim of the present plaintiff during the course of ‘administrative suit’ wherein the present plaintiff had brought his specific claim of ostensible owner of subject matter. Thus, it also became the matter of record that the defendants had full and active knowledge about the claim of the plaintiff and they from their own conduct and attitude have allowed such ‘claim’ to hold the field.
9. Without prejudice to above, it is worth to mention here that even while recording the ex-parte decree the court is required to examine the entitlement of the plaintiff for the relief, prayed for. Reference, if any, can be made to the case law reported as 2008 CLC 120 (Karachi).
10. Now, let’s examine the entitlement of the plaintiff for his claim. The plaintiff has claimed relief of his declaration being ostensible / genuine owner of the subject matter while alleging that title in name of his mother was ‘benami’. Before going into further merits of the case, I would like to take advantage of the judgment of the honourable Supreme court of Pakistan, reported as 991 SCMR 703 and recent judgment , reported as 2009 SCMR 124 wherein the determining factors to prove the ‘benami transaction’ were held to be :-
i) source of construction;
ii) from whose custody the original title, bill and other documents come in evidence;
iii) who is in possession of the suit property; and
iv) Motive for Benami transaction;
Let’s examine what the plaintiff has brought on record to establish the above.
11. The perusal of the plaintiff’s evidence would show that plaintiff has claimed the property to be purchased in name of his mother as a mark of respect. To substantiate claim of payment by plaintiff he has placed on record the receipt of payment of token money. Such claim of the plaintiff was never questioned / challenged by other legal heirs of mother of the plaintiff (Mst. Maimoona) who, undisputedly, had knowledge of such claim of the plaintiff, therefore, silence would lead to draw a permissible impression of an ‘admission’ within meaning of Article 129 of the Qanun-e-Shahdat Order 1984.
12. It is also a matter of record that all the document (s) i.e conveyance deed, receipt dated 13.3.1975 regarding payment of token money, copy of paid taxes and other charges, copy of application U/o 6 r 17 r/w section 151 CPC filed by defendants in FC Suit No.769/2004 have been brought on record from the possession of the plaintiff. Production of such document (s), including title document, from possession of the plaintiff proves another determining factor.
13. The plaintiff from his unchallenged claim of being in possession of subject matter property has also produced evidences of two witnesses who support the claim of the plaintiff to be in possession of the subject matter. The plaintiff has also claimed to have been sufficient means to purchase the property against his mother (Mst. Maimoona) as he has been in business of import and export. Such unchallenged claim also established that the possession of the subject matter is also with the plaintiff and he had sufficient means to purchase the subject matter.
14. Since the claim of the plaintiff is unchallenged and the plaintiff has also proved himself entitled for the relief claimed by qualifying the determining factors to establish the transaction to be a ‘benami transaction’ , therefore, I am of the view that plaintiff is entitled for the decree in his favour.
15. Accordingly, the suit of the plaintiff is hereby decreed, as prayed. Let such decree be drawn.
J U D G E
Karachi
Dated :-23.09.2014
Sajid