2009 PLP 605 (YLR)

MUHAMMAD AFZAL SOOMRO, C.J.

The plaintiff claimed to be real, absolute and actual owner, holder and possessor , of House No.41, situated at Phase 4, DHA, Karachi having been purchased by him through his own funds and accounts in the name of the defendant No.1. He is in occupation of the property. Thus the plaintiff acquired the title of Benami purchaser while the defendant as Benamidar being simply ostensible owner of suit property. According to plaintiff, entire construction, repairs and renovation work was carried out by him from his own funds. While the defendant No.1 being household lady and wife was not an earning hand or has no source of income. Therefore not capable to purchase any property of her own. Likewise, the plaintiff also purchased H.No.8-21/115A, at Quetta in the name of defendant No.1 as Benamidar. Such Benami purchases were made by him in the name of defendant No.1 as a secret trust for his own benefit. It was his case that he was the only supporter of his family including the defendant No.1 and maintaining his family providing all necessary requirements including education in Pakistan and abroad which conduct reflects the motive of purchasing the property from his own sources. According to the plaintiff, the defendant No.1 appeared to have changed her mind at the behest of her relations or other interested persons of the family and intended to usurp the property in suit with mala fide object by selling the same. Hence he filed the instant suit for the following reliefs: -- (i) A declaration that the said property i.e. House constructed on a piece of land measuring 600 square yds bearing Plot No.41, Commercial Avenue situated at Phase 4, Defence Housing Authority, Karachi is the property of the plaintiff and the Defendant No.1 is merely a Benamidar, having no interest or title to the said property or any part thereof including the fitting and fixtures etc., thereof. (ii) A further declaration in consequence of the above that all record in the office and in the property Registers of Defendant No.2 and other concerned and allied offices etc. be rectified by deleting the name of the defendant No.1 in respect of the said property and substituted in place thereof everywhere the name of the plaintiff, substituting and treating the plaintiff as lawful real owner of the Property in question an name of plaintiff be placed on all relevant Records of ownership of Defence Housing Authority, Karachi. (iii) That the Defendants Nos.1 and 2 may please be permanently rest-rained from selling, transferring and changing the ownership rights, title of the Property in question to any Vendee and in all relevant records of ownership, transfer a mutation etc., .of said Property in the relevant records and offices of defendant No.2. (iv) To grant consequential direction and relief:- (a) Directing the Administrator, Secretary or concerned officer of defendant No.2 to grant the final lease of the said Plot/mutation and transfer of said Property, in due cause of law, to and in favour of the Plaintiff and to recognize and deal with the plaintiff as the lessee to the exclusive wholly and entirely of defendant No.1 and rectify all records accordingly; (b) to complete all papers, documents, completion plans and whatsoever is in the name of the plaintiff and proceed on their basis for all successive acts and deeds and things including demand, local taxes, fees or others for realization from the plaintiff. (v) . (vi) . Processes were issued to the other side. The learned counsel filed power on behalf of the defendant No.1 but failed to file written statement. I have heard the learned counsel for plaintiff and gone through the plaint and examined the record. Important ingredients of benami transaction are motive, source of money, with which the property is said to have been purchased, possession of the property, conduct of the parties as to how the property was dealt and possession of title documents. (See Majid M. Zubair v. Malik Muhammad Anwar) PLD 2004 Lah. 515 (Siraj Ahmed v. Nomani v. Iftikhar Ahmed Nomani), 2004 CLC 782 and Hameeda Begum v. Farzand Ali 2002 YLR 1311. Admittedly the plaintiff and defendant No.1 were husband and wife at the time of filing the suit. The plaintiff has filed copy of plaint in Suit No.59/03 filed by the defendant No.1 against plaintiff for recovery of possession of suit property, which proves that the suit property is in possession of the plaintiff. It was, however, alleged that both the plaintiff and defendant No.1 had left for USA on 25-6-2002 and in July 02, the plaintiff came back on the pretext that he had some urgent work to attend. Thereafter, he sent divorce deed dated 7-8-2002 to her from Pakistan. According to her when she returned back to Pakistan from USA on 19-9-2002, she found that the suit property was illegally occupied by the plaintiff. Be that as it may, the possession with the plaintiff is not denied. As regards source of income, the plaintiff produced number of documents from the Banks showing that he is running a business with the title Imam Traders at Quetta therefore, fully capable to purchase the property. So far as the defendant No. 1's financial position is concerned, the plaintiff has relied upon a copy of deposition of the defendant No.1 in Suit No.155 of 2002, filed by her against the plaintiff and others at Quetta, wherein she admitted that her previous husband Nasir Ali, after divorce did not pay any expenses towards maintenance and that it was the plaintiff who bore the expenses for her children. She further admitted that before entering into second marriage with the plaintiff, she had no money or bank balance. She also admitted that the house at Karachi was got purchased by the plaintiff for her. Since the above statement is made by the defendant No.1 before he court at Quetta, but relates to the suit property also, hence the same cannot be excluded from consideration and can be taken as documentary evidence. From own admission by the defendant No.1 that she had no money before entering into marriage with the plaintiff, she had no source of income in as much as the suit property was purchased by the plaintiff for her, the claim of the plaintiff that it was purchased in the name of defendant No.1 as Benamidar, is not open to any doubt. That the other essential ingredients i.e. conduct of the parties and motive for purchase for property, which are fully, reflected in para No.14 of the plaint which finds support from the above statement of defendant No.1 before Civil Court, Quetta. As far as possession of title documents is concerned, admittedly the defendant No.1 was wife of the plaintiff and residing with him. As per routine, the documents are always kept in the house under the guard and care of the wife who acts as in charge of the house and family. A bona fide presumption could be drawn ' that taking undue advantage of the confidence of the plaintiff, she might have sneaked the title documents. However, once the defendant No.1 herself admitted that the plaintiff got purchased the suit house at Karachi for her, this ingredient would not come in the way of the plaintiff. Since the documents produced by the plaintiff fully establish the case of the plaintiff, I do not find it necessary to record oral evidence and linger on the matter. The defendant No.1 though represented by a counsel but fuled to rebut the claim of the plaintiff. In these circumstances, the suit of the plaintiff is decreed as prayed for. H.B.T./A-8/K Suit dismissed.