2009 PLP 1031 (MLD)

S. ALI HASSAN RIZVI, J.

Muhammad Ibrahim, the revision-petitioner has filed a suit on 1-8-2007 against the two defendants/respondents seeking a declaration to the effect that house No.791 of 1998, situate in street No.19, Bazar No.1, Mohallah Razabad, Faisalabad, was purchased by him in the name of Mst. Nasim defendant/respondent No.1; that she was only a benamidar; that at the time of her marriage with him, she was given the said house as a gift; that the marriage was consummated but after some time defendant/ respondent No.1 had left the house in his absence; that on 17-6-2007 with mala fide intention defendant/respondent No.1 further transferred the same in favour of his real sister Mst. Shamim, defendant/respondent No.2. Along with the plaint he filed an application under Order XXXIX rules 1 and 2, C.P.C. seeking temporary injunction.

2. The suit was resisted vide written statement filed by the defendants/respondents on-18-10-2007.

3. After hearing learned counsel for the parties Mr. Ehsan Shahzad Butt, learned Civil Judge, Faisalabad seized of this matter, had by order, dated 15-4-2008 rejected the application for temporary injunction. The appeal preferred thereagainst, was also dismissed by Mehr Tahir Nawaz Khan, learned Additional District Judge, Faisalabad on 28-2-2009. The present revision petition has been filed to challenge the aforementioned concurrent orders.

4. After hearing learned counsel foil the petitioner and going through the pleadings of the parties and the orders passed by learned two Courts below, I find that the plaintiff/petitioner had claimed in the suit that the transaction in favour of Mst. Nasim-respondent No.1 with regard to the house in question, was a benami in nature. However, conditions of a benami transaction were not alleged. The heading of the plaint itself showed that the said house was given by the plaintiff/petitioner to Mst. Nasim-defendant/respondent No. 1 as a bridal gift. To all intents and purposes, it was a bridal gift and could not be claimed back through process of law. PLD 2006 Lah. 401 is direct authority on the point. Mst. Nasim-defendant/respondent No.1 was owner of the house to all intents and. purposes and further transfer by her in favour of Mst. Shamim, his sister (defendant/respondent No.2) could not be dubbed as a fraudulent deal. Moreover, it was nowhere pleaded in the plaint as to what was the motive for making benami transaction in favour of respondent No.1. The petitioner is Baloch by caste whereas Mst. Nasim was Pathani. The marriage between two still inures. It was in clearcut words noted in the heading of the plaint that the plaintiff/petitioner had given the house in question to Mst. Nasim as a bridal gift and in absence of any material to the contrary, I have no reason to hold otherwise. What is not pleaded, cannot be allowed to be proved later through evidence. Secundum allegata et probata is a time-honored rule. The parties are bound by their pleadings. The assertion that the transfer of house in favour of defendant/respondent No.1 by the petitioner was in the nature of a bridal gift, contains germs of defeat of the assertion that the transaction was benmai.

5. For all the above reasons I am unable to hold that the petitioner had a prima facie case anywise. He was not entitled to any temporary relief. His application for temporary injunction was rightly dismissed by the learned two Courts below. The revision' petition is accordingly dismissed in-limine.

6. A copy of this order is directed to be sent to the learned trial Court. H.B.T./M-229/L Petition dismissed.