2011 SCMR 1550 (PLP)

JAWWAD S. KHAWAJA, J.

The appellant impugns the judgment of the learned Judge in Chambers of the Lahore High Court whereby RSA No.19 of 2007 was allowed and as a consequence the decrees of the learned trial and first appellate Courts were set aside.

2. The present appeal arises out of two suits. The first of these was filed by the appellant and his two brothers claiming declaration that they were co- owners in two of the three properties which are subject matter of the lis. The second suit was filed by Fakhra Akhtar who is the niece (bhanji) of the appellant and his brothers. The facts of the case have been set out in the impugned judgment and need not, therefore, be reproduced in extenso. It will suffice for the present to note that the outcome of this litigation between the parties will depend on whether or not the properties in dispute were owned by Dr. Captain Muhammad Akhtar Raz Minhas father of Fakhra Akhtar. This question has arisen because the properties in dispute, as contended by Fakhra Akhtar, were purchased by Dr. Minhas as the real owner thereof but the purchase was made either in the name of Razia Khatoon, mother of Fakhra Akhtar or jointly in the names of Razia Khatoon and Fakhra Akhtar as mere benamidars. If indeed the real owner of the properties was Dr. Minhas, then the appellant and his brothers would have no right or title in the disputed properties. If on the other hand it is determined as a fact that Razia Khatoon (mother of Fakhra Akhtar) also was owner in the properties as of right, then the appellant and his brothers would be entitled to inherit because the respondent Fakhra Akhtar was the only child of Razia Khatoon.

3. We have heard learned counsel for the parties at great length yesterday and today and have come to the conclusion that the High Court was justified in holding that Dr. Minhas was the real owner of the disputed properties which he had purchased in the name of his wife (Razia Khatoon) and daughter (Fakhra Akhtar). This factual determination was rightly decided on the basis of preponderance of evidence. The cumulative effect of the oral and documentary evidence proves that Dr. Minhas was the real owner of the properties while his wife and daughters were merely name-lenders. The most crucial piece of evidence which has the effect of clinching the issue is that of the appellant Wasiuddin himself who appeared in support of his case as D.W.3. In unambiguous terms he accepted the suggestion given to him in cross-examination that Fakhra Akhtar and her mother Razia Khatoon were benamidars in respect of the three disputed properties. There are also other aspects of the appellant's testimony which tend to support the plea of the respondent that the real owner of the properties was Dr. Minhas. Admittedly the appellant did not file any suit or assert title in the disputed properties during the life time the Dr. Minhas or even thereafter for many years. Dr. Minhas died in 1990 but the appellant filed his declaratory suit on 7-3-1995. Li the said suit no claim was made in respect of the property on Minhas Road. Rajgarh which is one of the properties in dispute. In respect of another property i.e. 31/1, Abu Bakar Block, Garden Town, Lahore, the appellant deposed that a commercial plaza had been constructed thereon and the rent for the same was being received exclusively by Fakhra Akhtar.

4. In addition to the above, improvements appear to have been made by the appellant while deposing in Court. An attempt was made to show that some property belonging to the appellant's family located in Wasan pura and on Multan Road had been sold and the proceeds thereof together with gold and silver belonging to Razia Khatoon had been utilized for the purpose of purchasing the properties in question. However, these pleas were neither taken in the pleadings of the appellant nor is there any credible proof of such assertion. These bald statements, therefore, cannot be relied upon for the purpose of holding that Razia Khatoon had any independent resources sufficient to enable her to purchase the properties in dispute. Furthermore, the evidence on record is sufficient to show that Razia Khatoon was not a lady of any independent means and could not, therefore, have provided the funds for the purchase of the disputed properties. Notwithstanding this position and knowing full well the educational qualification of his sister, a suggestion on behalf of Wasiuddin was made to Fakhra Akhtar that Razia Khatoon had worked as lady doctor for five years in the Lady Willingdon Hospital, Lahore. This suggestion was roundly denied by Fakhra Akhtar and was not proved through any affirmative oral or documentary evidence produced by Wasiuddin.

5. The respondent has also placed on record the petition and proceedings in Criminal Miscellaneous No.11S6/H/1995 filed by the appellant under section 491, Cr.P.C. This Habeas corpus petition was filed against Muhammad Ashfaq husband of Fakhra Akhtar and had sought the recovery and production of Fakhra Akhtar in Court. It was alleged therein that she was being illegally and improperly detained by the said Muhammad Ashfaq. A bailiff was deputed by the High Court who produced Fakhra Akhtar in Court after raiding the house where she was living with her husband. When she appeared in Court she confirmed that she was not confined by any one against her will. Her statement was recorded by the Court which is reproduced as under: "Statement of Mst. Fakhra Akatar wife of Muhammad Ashfaque resident of 31-1 Abu Bakkar Block, New Garden Town, Lahore on S.A. Respondent N9.1 who is my husband has brought me to be produced before this court. My marriage was solemnized with the respondent by my hither as far back as in 1988. My parents have died. I am leading harmonious life with the respondent and there is no restraint upon me. The petitioner who is my maternal uncle has filed this habeas corpus petition just to harass me and for the purpose of snatching away the property which was devolved upon me after the death of my parents. A case regarding the property in question is also pending adjudication in the court of a Civil Judge Lahore. The petitioner is also advancing threats to harm me as well as my husband just to put pressure and snatch away my property. I want to go with the respondent my husband who is present in court."

6. As a result of the above statement, the Court imposed costs of Rs.2,000 on the appellant for filing a frivolous habeas corpus petition. The appellant's conduct also is such that it undermines his credibility and truthfulness as a witness. Furthermore, such a person is not entitled to the equitable relief by way of declaration and permanent injunction which was sought by him in his suit.

7. Learned counsel for the appellant then referred to a number of judgments to support his argument that the High Court while exercising jurisdiction in second appeal under section 100, C.P.C., was limited by the provisions of the said section and, therefore, should not have reversed the concurrent findings of the learned trial and appellate Courts. We have considered these judgments including in particular Amjad Sharif Qazi and others v. Salim Ullah Faridi and others (PLD 2006 SC 777) and Muhammad Amir v. Khan Bahadur and another (PLD 1996 SC 267). We have also gone through the judgments rendered by the learned trial Court and by the learned Additional District Judge Lahore in first appeal. It is quite clear from the same that the evidence adduced on record and in particular the aspects thereof which have been considered above were not taken into account and in fact, in a very cursory manner, the case was decided by these two Courts in favour of the appellant and against the respondent. The learned Judge in Chambers in the High Court took pains to go through the evidence and, as noted earlier, came to the correct conclusion. Learned counsel for the appellant also assailed the judgment of the High Court on the ground that the entire evidence had not been considered by the learned Judge in Chambers. We have examined the evidence and have noted the aspects thereof which are sufficient to support the conclusions reached by the High Court.

8. Learned counsel for the appellant also adverted to a number of cases to argue that the various considerations such as motive for a benami transaction did not exist in the present case and also that there was evidence to show that the appellant's family had provided the sums for the purchase of the disputed properties. We have already considered the evidence which does not show that the source of funds came from Razia Khatoon. On the contrary the evidence preponderantly shows that Dr. Minhas had provided the funds for the purchase of the properties. The other considerations such as motive for a benami transaction are only aides in guiding courts in cases where assertions in respect of benami title are made. We cannot loose sight of the fact that the dispute in such cases is factual in nature and any outcome must, therefore, be based on the facts and circumstances of the particular case. The guidance. given in the above noted precedents does not constitute an absolute rule of law: Furthermore, in the case titled Mst. Zohra Begum and 6 others v. Muhammad Ismail (2008 SCMR 143), it has been observed the question as to benami title is a question of fact and "could command multifarious aspects in addition of the four mentioned above and thus the court must take notice of all the circumstances occurring in each case". We are in respectful agreement with this observation.

9. In view of the foregoing discussion we find no justification for interfering in the impugned judgment. This appeal, as a consequence, is dismissed with costs throughout. M.H./W-2/SC Appeal dismissed.