Syed Wasim Ahmed Zaidi VS Salma Farzana Shah etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

R.F.A.No.32/2011 Syed Waseem Ahmed Zaidi Versus Salma Farzana Shah etc.

Date of Hearing: 24.10.2017 Appellant by: Mr. Zulfiqar Ali Abbasi, Advocate. Respondent No.1 by: Mian Abdul Razzaq, Advocate.

MIANGUL HASSAN AURANGZEB, J:- Through this common judgment, we propose to decide Regular First Appeals No.32 and 33/2011, since they involve common questions of law and fact, and arise from consolidated judgment and decree dated 30.06.2009, passed by the learned trial Court, Islamabad.

2.Through R.F.A.No.32/2011, the appellant, Syed Waseem Ahmed Zaidi, impugns the consolidated judgment and decree dated 30.06.2009, whereby the learned trial Court dismissed the appellant’s suit for declaration, permanent and mandatory injunction. Through R.F.A.No.33/2011, the said appellant impugns the said consolidated judgment, whereby respondent No.1's suit for possession and recovery of mesne profit was decreed in her favour and against the appellant.

3.Learned counsel for the appellant submitted that respondent No.1 (Mst. Salma Farzana Shah) was the widow of the appellant’s brother, Syed Azeem Ahmad Zaidi (“Azeem”); that in the year 1976, Azeem had Plot No.339, Sector G-9/3, Islamabad (“suit property”) allotted in respondent No.1’s name, and an allotment letter in this regard was issued by respondent No.2 (Capital Development Authority); that all the expenses regarding the allotment were paid by Azeem; that respondent No.1’s father proceeded to reside at Karachi after his retirement from government service; that respondent No.1 wanted to live with her parents at Karachi, and also wanted to sell the suit property; that Azeem wanted a family house to exist at Islamabad, therefore, he did not agree with respondent No.1 to

sell the suit property; that in order to avoid the development of difference between Azeem and respondent No.1, the appellant offered to pay the expenses for the suit property; that the said offer was accepted in a family gathering; that in the said family gathering, it was also decided that Azeem would buy a plot for respondent No.1 at Karachi; that Azeem purchased two plots at Karachi – one in respondent No.1’s name and the other in his own name; that thereafter, the appellant took over the charge of the suit property; that it was not considered necessary to have the suit property formally transferred in the appellant’s name; that respondent No.1 issued a power of attorney in favour of the appellant to correspond with respondent No.2 for the purpose of constructing a house on the suit property; that ever since the said decision taken in the family gathering, the appellant had taken over charge of the suit property as an owner, and after clearing the dues payable to respondent No.2, had constructed a double storey house thereon with his own resources; and that the appellant has been residing in the suit property as an owner without any objection from respondent No.1.

4.Learned counsel for the appellant further submitted that ever since the allotment of the suit property, respondent No.1 has been its benami owner, whereas Azeem was its real owner; that after the decision taken in the said family gathering, the appellant became the real owner of the suit property, whereas respondent No.1 continued to remain a benami owner; that respondent No.1 has got no right or interest in the suit property, particularly when Azeem had purchased a plot for her at Karachi; that the appellant did not ask respondent No.1 to transfer the suit property in his name due to the cordial relations between the appellant and his brother, Azeem; and that the appellant was under the impression that respondent No.1 would never dispute the appellant’s ownership rights over the suit property.

5.Learned counsel for the appellant further submitted that on 13.11.2000, Azeem died of a heart attack; that even after

Azeem’s death, respondent No.1 did not assert her ownership rights over the suit property; that when respondent No.1 filed a civil suit for possession of the suit property against the appellant, it came as a surprise to the appellant; that respondent No.1 was being unreasonable by filing the said suit against the appellant, since she has no concern, whatsoever, with the suit property; that since respondent No.1 refused to accept the appellant’s title over the suit property, the appellant instituted a suit for declaration, permanent and mandatory injunction against respondent No.1; that the appellant is in possession of the suit property; that the titled documents with respect to the suit property are also in the appellant’s possession; that the consideration for the suit property was not paid by respondent No.1, but as pleaded in the suit, after the family gathering the appellant paid the expenses regarding the suit property; and that the motive for the benami transaction was the continuation of cordial family relations.

6.Furthermore, learned counsel for the appellant contended that the learned trial Court did not appreciate that at all material times, respondent No.1 was a benami owner of the suit property; that respondent No.1 was housewife, and could not have had the resources to purchase the suit property; that respondent No.1 was unable to prove that she had paid for construction over the suit property; that the appellant had produced a contractor who had testified that he had constructed a house in the suit property with funds provided by the appellant; that the learned trial Court erred by not giving any credence to the construction agreement executed between the appellant and the contractor; that respondent No.1 did not produce any evidence as to her earning capacity for the purchase of the suit property; and that the learned trial Court erred by not appreciating the import of the power of attorney executed by respondent No.1 in the appellant’s favour. Learned counsel for the appellant prayed for the impugned judgment and decree dated 30.06.2009 to be set

aside and for the appellant’s suit to be decreed, and for respondent No.1's suit to be dismissed.

7.On the other hand, learned counsel for respondent No.1 submitted that the suit for declaration etc. instituted by the appellant was a counter blast to the suit for possession earlier instituted by respondent No.1; that the said suit was instituted by the appellant with the motive of depriving respondent No.1 of her valuable property; that the suit property was purchased by respondent No.1 with her own resources; that after the demise of respondent No.1’s husband, she moved abroad to earn a livelihood; that the appellant taking advantage of the fact that respondent No.1 is a widow and working abroad concocted a story about a family settlement under which he was to become an owner of the suit property; that respondent No.1’s husband went to Kuwait for employment in the year 1979-80, whereafter respondent No.1 lived with her parents and was working as a teacher; that in the year 1982-83, respondent No.1 joined her husband in Kuwait, where she worked as a teacher; that indeed, the plots in Karachi are owned and possessed by respondent No.1, but at no stage, was there any family arrangement under which the suit property was given to the appellant; that the appellant had not paid any amount towards the suit property; that at no stage was the suit property transferred in the appellant’s name; that respondent No.1 had executed a general power of attorney in favour of her father, who in turn had executed a special power of attorney in the appellant’s favour; that the appellant had been appointed as an attorney for petty matters which were required to be done in the absence of respondent No.1’s father; that the said power of attorney was cancelled afterwards by respondent No.1; that respondent No.1 took a loan from Habib Bank Limited in order to raise construction on the suit property; that the said loan was subsequently repaid by respondent No.1 and the suit property was redeemed; that respondent No.1’s husband died on 13.11.2000 in Kuwait; that the appellant was supposed to take

care of the suit property for respondent No.1, but instead he has usurped the same; that since the appellant refused to hand over the suit property to respondent No.1, respondent No.1 instituted a suit for possession against the appellant; that the appellant had deprived respondent No.1 of the suit property since more than 17 years; and that the appellant’s status in the suit property is that of a trespasser. Learned counsel for respondent No.1 prayed for the appeal to be dismissed.

8.We have heard the contentions of the learned counsel for the petitioner and respondent No.1, and have perused the record with their able assistance.

9.The appellant is respondent No.1’s brother-in-law (dewar). These parties are in a dispute over the ownership of the suit property described hereinabove. The appellant asserts that he is the real owner in possession of the suit property, whereas respondent No.1 is only a benami owner of the said property. The appellant has been in possession of the house constructed on the suit property for more than two decades.

10.The record shows that on 17.09.2001, respondent No.1 filed a suit for possession and recovery of mesne profits against the appellant before the Court of the learned Civil Judge, Islamabad. In the said suit, respondent No.1 prayed inter-alia that a decree for possession of the suit property be granted in her favour against the appellant. The appellant contested the said suit by filing a written statement. On 21.05.2002, the appellant filed a suit for declaration, permanent and mandatory injunction against respondent No.1 praying for inter-alia a declaration that the appellant is the real owner in possession of the suit property, and that respondent No.1 is only a benami owner of the suit property. This suit was also contested by respondent No.1.

11.Vide order dated 18.11.2002, the learned civil Court consolidated the above mentioned two suits. From the divergent pleadings of the contesting parties, the following issues were framed:-

“1. Whether the suit is not maintainable in its present form?

OPD.

2.Whether the plaintiff has not come to the Court with clean hands? OPD.

3.Whether the plaintiff is owner of the suit property and she is entitled to vacant possession of the same alongwith recovery of Rs.180,000/- from the month of December, 2000 to August, 2001 at the rate of Rs.20,000/- P.M. and in the future at the same rate till the vacation of suit property? OPP

4.Relief 3A. Whether the plaintiff of case titled “Syed Waseem Ahmad Zaidi Vs. Mst. Salma Farzana etc.” is entitled to get decree for declaration as payed for? OP plaintiff of connected matter and defendant of present suit 3B. Whether suit titled “Syed Waseem Ahmad Zaidi Vs. Mst. Salma Farzana etc.” is a counterblast of present suit, if so its effect? OP plaintiff of present suit.

3C. Whether the suit titled “Syed Waseem Ahmed Zaidi Vs. Mst. Salma Farzana Shah etc.” has not been properly valued for the purpose of Court fee and jurisdiction? OP plaintiff of present suit.”

12.Respondent No.1’s brother and general attorney, Shah Muhammad Saleem, entered the witness box as PW.1, whereas respondent No.1 appeared as PW.2. The appellant gave evidence as DW.1, and Sheikh Muhammad Akhtar as DW.2. The lists of documents annexed as "Schedule-A" to this judgment were tendered in evidence by the PWs, whereas the documents listed in "Schedule-B" were exhibited by the DWs.

13.Vide letter dated 10.04.1975 (Exh.P/1), the Capital Development Authority offered for allotment of the suit property to respondent No.1 on payment of Rs.7,000/-. This offer was addressed to respondent No.1, and not her husband. After respondent No.1 deposited Rs.7,000/-, the allotment of the suit property in respondent No.1’s favour was confirmed by the C.D.A. vide letter dated 31.03.1976 (Exh.P/2). Vide registered agreement dated 07.02.1977 (Exh.P/4), the C.D.A. sold the suit property to respondent No.1. Vide certificate dated 26.04.1977 (Exh.P/5), the C.D.A. certified that possession of the suit property had been handed over to respondent No.1. The layout plan for Sector G-9/3 showing the location of the suit property was also produced by respondent No.1 as Exh.P/6. Vide letter dated 31.12.1976 (Exh.P/7) the Directorate of Architecture, C.D.A.

approved the plan for the building on the suit property. This letter was also addressed to respondent No.1. Vide letter dated 24.09.1981 (Exh.P/8) the Estate Management of C.D.A. granted an extension in time to respondent No.1 for the construction on the suit property. Vide letter dated 16.08.1984 (Exh.P/9) another extension in the construction over the suit property was granted to respondent No.1.

14.Apparently, respondent No.1 had taken a loan of Rs.60,000/- from Habib Bank Limited. Vide deed of collateral mortgage dated 28.06.1978, the suit property was mortgaged with Habib Bank Limited. After the said loan along with interest was fully repaid by respondent No.1 to Habib Bank Limited, the mortgage property (i.e. the suit property) was redeemed vide deed of redemption dated 22.06.1981 (Ex.P/10).

15.Vide letter dated 15.07.1991, respondent No.1 cautioned the C.D.A. not to transfer the suit property without her personal appearance. In the said letter, it is mentioned that respondent No.1 gave a special power of attorney to the appellant for the purpose of the construction of a house on the suit property. It was also mentioned that respondent No.1 had borne the expenditure on the construction of the house. The construction of the house was stated to have been completed in 1988.

16.On 28.09.1986, respondent No.1 had executed a special power of attorney (Ex.D/2) in favour of the appellant authorizing him to inter-alia construct a building on the suit property and get the building plan approved from the concerned authorities. The appellant was also authorized to sign rent agreements and collect rent from the tenants of the suit property. The said power of attorney does not in any manner authorize the appellant to sell the suit property.

17.The appellant (DW-1) in his cross-examination admitted that he does not have any document to show that respondent No.1 had given the suit property to him. He has also not been able to substantiate his pleading in paragraph 3 of his suit that he had “paid the expenses” of plot No.339, G-9/3, Islamabad. In

order to assert his ownership rights on the suit property, the appellant produced Ex.D/1 which sets out details of the construction on the suit property. According to this document, Sheikh Muhammad Akhtar was the contractor, entrusted the responsibility to raise construction on the suit property.

18.As mentioned above, the said contractor gave evidence as DW-2 who in his examination-in-chief deposed that he had constructed a house on the suit property and that he had been paid by the appellant for the construction. He had produced Ex.D/5 which were receipts for payment of Rs.13,000/- through cheque dated 07.06.1982, and Rs.30,000/- through cheque dated 19.07.1984 made by the appellant. If these receipts were given by DW-2, it is not understandable as to why he and not the appellant produced them in evidence. In his cross examination, DW-2 deposed that the plot on which he had raised construction belonged to the appellant’s relative whose name he did not know. DW-2’s testimony does not in any way establish that the appellant was the owner of the suit property.

19.It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly raising an inference of that fact. In order to determine whether a transaction is benami or not the Courts are usually guided by the following factors:- "(1) the source from which the purchase money came;

(2)the nature and possession of the property, after the purchase;

(3)motive if any, for giving the transaction a benami complexion;

(4)the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;

(5)the custody of the title-deeds after the transaction and (6) the conduct of the parties concerned in dealing with the property after the sale."

20.The vital question that needs to be answered in this case is whether respondent No.1 was the real or an ostensible/benami

owner of the suit property. The appellant, in his civil suit, has inter-alia pleaded that after the family settlement, the respondent No.1's ownership of the suit property was benami in nature.

21.Learned counsel for the appellant explained that it was not the appellant’s case that the suit property was infact purchased by the appellant’s older brother, and not by respondent No.1; that the appellant was not praying for a share in the suit property as inheritance from his brother; and that the appellant was praying for a declaration that he is the real owner of the entire suit property. The appellant could not produce any independent evidence to substantiate his plea that a settlement in a family gathering had taken place in which it was decided that respondent No.1 would no longer remain the owner of the suit property. There is no document on the record to prove that such a settlement had taken place. There is also nothing on record to prove that the plots purchased by respondent No.1’s husband in Karachi were some sort of a consideration for respondent No.1 to relinquish her ownership rights in the suit property in favour of the appellant.

22.Possession of the suit property would not by itself establish the appellant’s claim that he is the real owner of the suit property. If such a plea were to be accepted, any person could occupy the property of a close relative and thereafter begin to assert his ownership over such a property by creating some sort of story about family settlements etc. The title deeds of the suit property were brought on record from respondent No.1’s possession, through her general attorney. The payment of consideration for the suit property by respondent No.1 to the C.D.A. also stands proved from Ex.P1 to P4. The payment of any consideration by the appellant at the time of the purchase of the suit property or at the time of the alleged family settlement has not been proved. There is a perfectly good explanation as to how and why the appellant came in possession of the suit property. Respondent No.1 had proceeded abroad with her husband and left the suit property in the appellant’s care. After respondent

No.1’s husband’s demise, she continued working in Kuwait until the Gulf crises in 1991. It is only but natural for a widow to expect a brother-in-law to take care of her property and supervise the construction being raised thereon. It is another matter when a brother-in-law (dewar) breaches a sister-in-law’s (salee) trust by not giving up possession of a property which does not belong to him. It does not appeal to reason as to why the appellant did not get the suit property transferred in his own name after the alleged family settlement had taken place. Ex.P.11 shows that the appellant had a younger brother, namely, Sikandar Ahmed Zaidi. If a family settlement had taken place, why did the appellant not produce his younger brother to give testimony as to the factum of such a settlement. As regards the motive for the alleged benami transaction/arrangement viz that it was respondent No.1’s husband’s desire that a family property should be retained in Islamabad, and that respondent No.1 would be compensated with plots in Karachi, does not inspire confidence and would not appeal to any mind, prudent or even imprudent.

23.Taking all these factors into account, we are of the view that the appellant’s stance as to there being a family settlement under which respondent No.1 ceased to be the owner of the suit property is nothing but a figment of the appellant’s imagination, and his wishful thinking.

24.Learned counsel for the appellant made no submissions to question the judgment of the learned trial Court, whereby respondent No.1’s suit as regards mesne profits, was decreed. The learned trial Court had held respondent No.1 entitled to receive mesne profits at the rate of a meager amount of Rs.5,000/- per month from the date of the institution of the suit till the delivery of actual possession of the suit property to respondent No.1. Since respondent No.1 has not filed an appeal against the quantum of the mesne profits, there is no reason for us to interfere in the same.

25.Taking into consideration the cumulative effect of all the facts and circumstances of the present case, we are of the view that the learned trial Court correctly decreed respondent No.1’s suit for possession of the suit property and recovery of mesne profits. Furthermore, the dismissal of the appellant’s suit for declaration, permanent and mandatory injunction, does not suffer from any legal infirmity. Given the facts and circumstances of the case, these appeals are dismissed with costs throughout.

(ATHAR MINALLAH) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

ANNOUNCED IN AN OPEN COURT ON ___________/2017.

(JUDGE) (JUDGE)

Qamar Khan*

Uploaded By: Zulqarnain Shah

"SCHEDUEL-A"

LIST OF DOCUMENTS TENDERED BY RESPONDENT NO.1/ PWS

S. Details of documents Exhibit No.

1.Letter dated 10.04.1975 offering respondent No.1 for "Exh.P.1" allotment of suit property

2.Confirmation letter dated 31.03.1976 with respect to "Exh.P.2" allotment of suit property

3.Payment receipt in respect of suit property "Exh.P.3" 4. Agreement dated 07.02.1977 executed between the CDA and "Exh.P.4" the respondent No.1, whereby former sold the suit property in favour of respondent No.1

5.Certificate of Possession dated 26.04.1977 "Exh.P.5") 6. Layout Plan for Sector G-9/3 "Exh.P.6"

7.Letter dated 31.12.1976 by which Directorate of Architecture "Exh.P.7" CDA approved the building plan on suit property.

8.Letter dated 24.09.1981 through which Estate Management of "Exh.P.8" CDA granted an extension in time for construction on the suit property.

9.Letter dated 16.08.1984, the CDA granted another extension "Exh.P.9" in the construction on the suit property

10.Deed of Redemption dated 22.06.1981 "Exh.P.10" 11. Letter dated 06.12.2005 addressed to the Additional "Exh.P.11" Management Officer, Estate Management CDA, by respondent No.1 as regards prevention of fraud in respect of suit property.

"SCHEDUEL-B"

LIST OF DOCUMENTS TENDERED BY THE APPELLANT/ DWS

S. Details of documents Exhibit No.

1.Details of construction work on suit property "Exh.D.1" 2. Special Power of Attorney dated 28.09.1986 issued by "Exh.D.2" respondent No.1 in favour of the appellant

3.Building Plan of suit property "Exh.D.3"

4.Photocopy of HBL deposit slip No.CDR 884073A "Exh.D.4" dated 16.08.1984

5.Payment Receipts dated 09.06.1982, and 20.07.1984 "Exh.D.5" Uploaded By: Zulqarnain Shah