SALMAN ASHRAF Versus BEGUM ASMATUN NISA

This suit for possession, mesne profits and damages in respect of house No. R‑381, Block‑20, Al‑Noor Society, F.B. Area, Karachi was filed before the Court of Senior Civil Judge, Karachi‑West being Suit No. 2131/1985 in which among other pleas defendant raised an issue relating to valuation of the suit barring pecuniary jurisdiction of the Civil Court. On contest the suit was decreed vide judgment and decree dated 9‑4‑1987 which were impugned in Civil Appeal No. 58/1987 before learned District Judge, Karachi‑West who allowed the appeal expressing the view that the trial. Court had no jurisdiction to try the suit and directed the return of plaint for presentation before the Court having jurisdiction vide judgment and decree dated 7‑9‑1987. Accordingly plaintiff filed the suit before this Court which proceeded ex parte and was decreed by Mamoon Kazi, J. (as his lordships then was). At the instance of the defendant ex aparte judgment and decree were recalled and the suit proceeded afresh.

2. According to the averments in the plaint Mst. Shirin Begum was the owner of the house in suit. She had granted permission to one A.M.I. Nomani, Advocate to reside in the said house. In the year 1976 when Mst. Shirin Begum was in Germany A.M.I. Nomani permitted the defendant to reside in the house with himself but without prior permission of Mst. Shirin Begum. He however, died in May, 1980 whereafter list. Shirin Begum instituted Rent Case No. 5042/1981 before the Controller, Karachi against the defendant which was dismissed for want of relationship of landlord and tenant between the parties. It is the case of the plaintiff that subsequently by an agreement of sale dated 14‑6‑1984 Mst. Shirin Begum sold out the house in suit to the plaintiff for a consideration of Rs.70,000 whereafter plaintiff's name was mutated in the record of the KDA and a lease deed was executed in his favour. It may be pointed out that through a separate agreement on the same day Mst. Shirin Begum also assigned in favour of the plaintiff her right to claim the articles left by her in the said house valued at Rs.10,000 or recover the said amount in lieu thereof and also to recover arrears of mesne profits at the rate of Rs.700 per month for at least a period' of three years from the defendant. The plaintiff accordingly filed the suit for possession, arrears of mesne profits and value of articles in the sum of Rs.10,000 against the defendant considering her as a trespasser.

3. Defendant resisted the suit and filed a written statement asserting that in fact the said A.M.I. Nomani was the real owner ‑of the house who had purchased the property in the name of Mst. Shirin Begum as Benami therefore the plaintiff has no locus standi to file the present suit. She challenged maintainability of the suit for the reason that the plaintiff did not pray for declaration of title. Legal issues with regard to under valuation, non joinder of necessary parties and want of cause of action were also raised.

4. On the pleadings of the parties, following issues were settled:

(1) Is the suit as framed not maintainable in law without declaration of title of the plaintiff? If so, to what effect?

(2) Is the suit undervalued? if so, to what effect?

(3) Is the suit bad for non joinder of necessary parties? If so, to what effect?

(4) Whether the plaintiff is entitled for recovery of possession without declaration of her title in the suit premises.?

(5) Whether Mst. Shirin Begum was Benamidar of Mr. A.M.I. Nomani in respect of the suit premises and whether Mr. A.M.I. Nomani, is the real owner?

(6) Whether the defendant is a tresspdsser? If so, is she liable to pay mesne profits and at what rate and for what period?

(7) Whether the plaintiff 'is entitled to recover a sum of Rs .10,000 towards the value of the articles?

(8) Whether' Mr. Shoaib the only surviving heir of late Mr. A.M.I. Nomani has allowed to the defendant to continue to hold possession of the suit premises the same being gifted to her by him? If so, then in what capacity the defendant is holding the possession of suit property?

(9) Has the plaintiff any cause of action against the defendant?

(10) What should the decree be?

5. In support of his case the plaintiff appeared as his own witness while defendant examined her attorney Barkatullah Khan D.W.1 and Muhammad Obedur Rehman a relation of late Mr. A.M. I. Nomani, Advocate.

6. I have heard learned counsel for the parties and gone through the relevant evidence on record. My findings are as under for the following reasons:

REASONS.

Issues Nos. 1 and 4:

7. Both the issues are inter‑related and may be discussed together, for the sake of convenience and in order to avoid repetition. Section 8 of the Specific Relief Act dealing with a suit for possession reads as under:‑‑

"8. Recovery of specific immovable property.‑‑‑"A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure."

8. Case of the plaintiff in nutshell is that he entered into an agreement of sale with the owner of the house in suit Mst. Shirin Begum for a valuable consideration. In support of his case besides his evidence he produced a receipt for consideration of Rs.70,000 purportedly executed by Mst. Shirin Begum Exh. 6/1, agreement to sell Ex. 6/2, letter issued by KDA to Mst. Shirin Begum in response to her application for permission to assign in respect of the house in suit Exh. 6/3, letter issued by the KDA to the plaintiff Exh. 6/4 informing him that his name as a holder of occupancy rights, leasehold, fights on the plot in suit had been substituted in their record and mutation of the plot effected in his favour. Indenture of lease executed by KDA in favour of plaintiff Exh. 6/5, allotment order dated 23‑3‑1963 in favour of Mst. Shirin Begum Exh. 6/6, copy of agreement executed between A.M I. Nomani and a building contractor Exh.6/7, extract from P.T.I Register showing Mst. Shirin Begum as owner of the house in suit Exh. 6/8 and agreement assigning her rights and confirming the sale agreement in favour of plaintiff Exh. 6/9, and more particularly the change of ownership rights and mutation in the name of the plaintiff by KDA in their records followed by the execution of a valid and lawful Indenture of Lease in favour of plaintiff establish that it can be very conveniently and safely held that the plaintiff is entitled to sue for recovery of possession without seeking ,the declaration of title which is neither under clouds nor defective in the context of oral as well as documentary evidence on record. Both the issues are accordingly answered in favour of the plaintiff.

Issue No. 2:

9. Onus of proof of this issue rests on the defendant who failed to substantiate her allegation as to how the suit is undervalued. Admittedly she did not step into the witness‑box to substantiate her assertion and felt contended by authorising Barkatullah Khan to act, appear and give evidence on her behalf. No doubt Barkatullah Khan stated in his affidavit‑in‑evidence that at the time of alleged transaction value of the disputed premises was more than Rs.3,00,000 but it was valued at Rs.70,000 to avoid the payment of court‑fees in the event of any suit, defendant's witness Muhammad Obedur Rehman preferred to remain silent on this aspect of the case and did not utter a word with regard to the valuation of the property in suit. During his cross‑examination, no question was put to the witness but in his own evidence plaintiff denied that value of the house in suit was Rs.3,00,000. In the absence of any cogent and satisfactory evidence of a valuer or a building expert it is not possible to subscribe to the view of the defendant that the value of the house in suit was Rs.3,00,000 or that it was grossly undervalued by the plaintiff. The agreement to sell executed in June, 1984 in respect of a plot of land measuring 120 sq.yards in Block‑20, F.B. Area by itself cannot be assessed at Rs.3,00,000 as wrongly understood by the defendant. The judgment recorded by District Judge Karachi‑West did not deal with value of the suit in this perspective and fit declared the suit beyond the pecuniary jurisdiction of the Civil Court taking into consideration, the admitted consideration for the transfer of the property in suit as well as the amount of mesne profits claimed in the suit in excess of Rs.1,00,000.

Issue No. 3.

10. This issue was settled at the instance of the defendant who pleaded that legal heirs of late Mr. A.M.I. Nomani were necessary parties to the suit. In para. 2 of the written statement it was stated that the deceased left behind him his brother Mr. Shoaib Siddiqui, five nephews and four nieces. At the hearing of the arguments, however, learned counsel for the defendant did not press the issue seriously. It may be observed that the plaintiff does not derive any title from late Mr. A.M.I. Nomani because the agreement to sell the house in suit is said to be executed by Mst. Shirin Begum owner of the house in suit. Even otherwise since no relief is sought against the legal representatives of the said Mr. Nomani who expired on 1‑5‑1980, whereas the agreement to sell was executed on 14‑6‑1984 to my mind neither the legal representatives of said Mr. Nomani nor for that matter Mst. Shirin Begum are necessary parties to the suit. At any rate, since no relief is claimed against any one except the defendant; the suit was properly constituted and filed. Moreover, it is settled rule of law that no suit shall fail for non‑joinder or misjoinder of parties unless it has caused gross miscarriage of justice because no party can be condemned unheard. Reliance is placed on the provisions of Order I, Rule 9; C.P.C. Needless to observe that none of the so‑called legal representatives of deceased Mr. Nomani or for that matter Mst. Shirin Begum have cared to appear before the Court and volunteered to be impleaded as party to the suit. For these reasons neither the suit is bad in law nor liable to be defeated for non‑joinder of any other party.

Issue No. 5:

11. This issue was raised by the defendant who claimed that in fact Mr. A.M.I. Nomani was the real owner of the house in suit who had purchased the plot in the name 'of Mst. Shirin Begum out of love and affection for her and raised construction thereon. Be that as it may, there is no sufficient, satisfactory and reliable evidence in support of the version of the defendant because she did not dare to step in the witness‑box despite the fact that she had .signed and verified the written statement. At the stage of evidence she authorised D.W. Barkatullah Khan to act, appear and give evidence on her behalf in proof of the facts of the suit. In his affidavit‑in‑evidence D.W. Barkatullah Khan reiterated the facts pleaded, in the written statement. He claimed that Mr, Nomani who obtained allotment of the plot in suit at his cost from Calcutta Cooperative Housing Society in the Benami of his aunt Mst. Shirin Begum to please her and built the premises thereon at his cost. According to him he was living in the disputed houso in his right, title and interest and paid all types of taxes and installed a telephone in the premises in his own name. He claimed that Mr. Nomani was the real owner of the disputed house and after him his legal heirs who survived him. The witness asserted that Mst. Shirin Begum was living with late Mr. Nomani as his dependent till early 1976.

12. For the first time and quite inconsistent with the stand taken in the written statement, the ‑witness stated that because Mst. Shirin Begum was always living with Mr. A.M.I. Nomani as his dependent, she took away all the documents concerning the premises when she left him some time in early 1976 during his absence. In order to justify complete silence on the part of Mr. A.M.I. Nomani, the witness ventured to say that Mr. Nomani did not take any legal action against her for the reason that it would lead to family scandal. The witness asserted that Mst. Shirin Begum was not the owner of the house and she had no right, title or interest in the property. In the opinion of the witness she had no means to bear the cost of the allotment of land and construction of the building which was borne by Mr. Nomani. During his cross‑examination the witness maintained that Mr. Nomani always used to say that he owned the property in dispute but he had never shown him the documents to that effect. While conceding that the plot in dispute stood allotted to Mst. Shirin Begum, he further admitted that the heirs .of late Mr. Nomani did, not file any suit for administration or any other suit with regard to the plot in dispute claiming the same to be the property of the deceased. As admitted the heirs of late Mr. Nomani even did not move KDA Authorities claiming the transfer of the plot in their names as heirs of the deceased. On the one hand, witness dishonestly asserted that Mst. Shirin Begum did not sell the house in dispute to the plaintiff on the other hand he conceded that he came to know about the allotment and lease thereof in favour of Mst. Shirin Begum by KDA after the institution of this suit. He did not know if any steps were taken by the defendant or heirs of late Mr. Nomani with regard to lease/allotment of the disputed plot in favour of Mst. Shirin Begum. More or less to the same effect is the evidence of D.W. Muhammad Obedur Rehman who filed his affidavit in evidence on the line is filed by D.W. Barkatullah Khan. He claimed that he was on visiting terms with the late Mr. Nomani during his lifetime but fairly conceded that Mr. Nomani did not execute any document to the effect that he was the real owner of the plot in dispute or that Mst. Shirin Begum was Benami owner.

13. I have given my anxious thought to the evidence on record adduced on behalf of the defendant and come to the conclusion that it is tainted, hearsay in nature and inadnussible in evidence. In all reasonableness defendant herself taking the plea that Mst. Shirin Begum was Benamidar who held the property for and on behalf of late Mr. Nornani, ought to have appeared for her evidence to withstand the test of cross‑examination. Her absence from the Court without any valid and legal justification diminishes the evidentiary value of the statements. D.W. Barkatullah Khan did not disclose the source of his information and knowledge on which he deposed on behalf of the defendant. It is true that in the body of power of attorney dated 18‑3‑1990 Mst. Shirin Begum stated that she was a Pardahnashin lady but bare recital cannot be accepted for the reason that the power of attorney was executed on 18‑3‑1990 whereas on her amended written statement filed before this Court on 19‑5‑1990 she was identified by her advocate to the Commissioner for taking affidavits. In case she could appear in the office of this Court in May, 1990 and admit the contents of the written statement before the Commissioner for taking affidavits she could not be heard to say in March, 1990 that she being a Pardahnashin lady was not in a position to appear for her evidence. By keeping away from the Court and not offering herself on the touchstone of cross‑examination she has rendered her version infirm which is not entitled to explicit reliance by this Court. Her attitude in not appearing before the Court leads to the inference that had she appeared in person for her evidence it would have gone against her interest. Strictly speaking women in Karachi do not often observe Parda. For this reason as well as the fact that both her witnesses did not personally know the facts of the case and were not in a position to prove the actual ownership of Mr. Nomani, I am least inclined to accept their oral word without any strong and independent corroboration. The fact that during his lifetime Mr. Nomani did not assert his title to the property and after his death in May, 1980 his legal heirs if at all any, remained totally silent tends to show that the property was. acquired, possessed and owned by Mst. Shirin Begum in her own rights.

14. Defendant also miserably failed to establish by oral as well as documentary evidence to show that actual payment/investment was made by late Mr. Nomani. In case it is accepted that in 1976 while leaving the house Mst. Shirin Begum had taken away all documents relating to the house in suit it was incumbent upon Mr. Nomani or the defendant to take a serious exception to the alleged unlawful act. Defendant in all fairness could summon the Bank account record, KDA official record for payment, KESC Bills, Property Tax payments, Sui gas consumption charges, telephone connection and subsequent bills as well as applications for utility services to prove her case but none was produced in evidence.

15. Issuance of a valid allotment order by KDA followed by letter of transfer in respect of the house in suit in her favour and subsequent Indenture of Lease executed in favour of the plaintiff unequivacally substantiate the claim of the plaintiff that Mst, Shirin Begum in her own rights was legally competent to transfer the house in suit in his favour. Notwithstanding variation of place of residence in the receipt reflecting the acknowledgment of consideration, agreement of sale and deed of assignment in favour of the plaintiff, logical conclusion emerging from these documents, evidence of the plaintiff and the execution of leasehold rights in favour of the plaintiff is that she was the real titleholder of the house in suit. At any rate defendant herself being a licensee and in occupation of the premises with the permission of Mr. Nomani is legally estopped from challenging the right, title and interest of the plaintiff in the house in suit. It would suffice to say that there is hardly any evidence worth reliance to hold that Mst. Shirin Begum was Benamidar of Mr. Nomani.

16. The rule of best evidence demands that the defendant should have examined Mst. Shirin Begum on'this aspect of the case but no effort was made to secure her attendance for her evidence and the trend of cross‑examination suggesting that it was for the plaintiff to examine her is untenable. In fact it was neither imperative nor incumbent upon the plaintiff to examine the said vendor as his title became perfect with the execution of Indenture of Lease in his favour which was duly registered with the Sub‑Registrar T‑Division as far back as 15th September, 1984 and never called into question by any of the heirs of the deceased.‑

17. During the cross‑examination an attempt was made to question the document of lease, but a complete answer is provided in Regulation 21 of the Karachi Development Authority, Lands and Estate Department, Allotment Regulations 1965 framed in pursuance of Article 15 of the Karachi Development Authority Order, 1957. This regulation permits the transfer of residential and commercial plots allotted to individuals before execution of the lease deed on the conditions firstly (a) all the dues with interest, if any, and the uptodate ground rent, have been paid, secondly (b) that transfer shall be governed by the same terms and conditions as of the original allottee, thirdly (c) that the date of completion of construction shall remain the same as in the case of original allotment and lastly (d) that the transfer shall be subject to the payment of transfer fee to be determined by the Governing Body. In my view a valid lease deed having been executed in favour of the plaintiff unchallenged by any of the legal representatives of Mr. Nomani as well as the defendant herself, it cannot be said by any stretch of reasoning that Mr. Nomani was the real owner of the house in suit as contended. Issue is therefore answered in negative.

18. Before parting with this issue a reference may be made with advantage to the law laid down by the Supreme Court in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703). In this case Hon'ble Supreme Court laid down that some of the criteria for determining the question whether the transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:

(i) sources of consideration;

(ii) from whose custody the original title deed and other documents came in evidence;

(iii) who is in possession of the suit property; and

(iv) motive for the Benami transaction.

None of the abovesaid factors have been established or made out by the defendant in support of her case that Mst. Shirin Begum was not the real owner or that this was a case of Benami transaction in her name on the part of late Mr. Nomani. There can hardly be any difference of opinion to say that initially burden of proof lies on the defendant to prove that Mst. Shirin Begum was Benamidar for late Mr. Nomani and that the weakness if any in the evidence of the plaintiff would not relieve the defendant from discharging the above burden of proof since the defendant utterly failed to establish her case burden of proof never shifted to the plaintiff deriving title from Mst. Shirin Begum.

Issues Nos. 6 and 8:

19. Both the issues may be discussed together for the sake of convenience as evidence on both the issues is common. It is the case of the plaintiff that Mst. Shirin Begum had allowed Mr. A.M. I.‑Nomani to live with her in the house in suit but when she left for Germany in 1976 to see her son Dr. Ashraf, Mr. Nomani permitted the defendant to live with him in the said house. It is the case of the plaintiff that when Mst. Shirin Begum returned from Germany Mr. Nomani wassailing therefore she accommodated herself in the house of her son -in‑law in P.E.C.H.S. and did not disturb Mr. Nomani. It was contended on behalf of the defendant that in the legal notice Exh.7/3 dated 8‑3‑1981 by Mst. Shirin Begum addressed to defendant, Mr. Nomani was stated to live in the house in suit as licensee whereas in the subsequent notice dated 16‑9‑1981 Exh.7/4 Mst. Shirin Begum claimed him to be a tenant at the rent of Rs.700 per month. Be that as it may, in both tile notices, the defendant was treated as a licensee with the consent of Mr. Nomani and without the permission of real owner i.e. Mst. Shirin Begum. After the notices Exhs.7/3 and 7/4 calling upon the defendant to vacate the premises and to pay mesne profits for her use and occupation, her licence stood revoked and her status was no better than that of a trespasser. In order to overcome this difficulty defendant through her attorney produced a deed of release, relinquishment or disclaimer dated 26‑4‑1989 purportedly executed by Mr. Muhammad Shoaib Siddiqui 'brother of Mr. Nomani confirming the declaration of oral gift by Mr. Nomani in favour of the defendant. To say the least this document by itself does not confer any right, title or interest in favour of the defendant in respect of the house in suit. In the first instance, Mr. Nomani himself has not been adjudged to be the owner of the house in suit; secondly there was no declaration or affirmation of gift on his part in favour of the defendant and thirdly Mr. Muhammad Shoaib Siddiqui has no lawful authority or right to relinquish the proprietary rights in respect of the house in suit in favour of the defendant: In order to constitute a valid gift under the Muhammadan Law apart from absolute ownership of the donor there ought to be acceptance of the gift by donee coupled with delivery of vacant and peaceful possession of the property so gifted. Execution of a deed of release and disclaimer by a person having no right and title to the property, after nine years of the death of Mr: Nomani does not at all create any right or title to the house in suit in favour of the defendant who is in possession of the house in suit only under a licence which was revoked more than 15 years back. Since she is not found to be lawful owner of the house in suit, she is liable to pay mesne profits at the rate of Rs.700 per month for a period of three years preceding the filing of the suit before Senior Civil Judge on 25‑8‑1985. Obviously the house in suit consists of construction on ground floor with some portion on the upper storey and spread over 120 sq. yards in a posh locality of Al‑Noor Society in Federal ' B' Area. Amount of Rs.700 per month by way of mesne profits is by no means excessive or unreasonable and in my view it is rather on much lower side.

Issue No. 7:

20. Apart from producing the deed of assignment purported to have been executed by Mst. Shirin Begum in favour of the plaintiff authorising him to recover her articles valued Rs.10,000 or the said amount in lieu of the articles from the defendant, there is hardly any evidence in support of the claim. Agreement Exh.6/9 is not accompanied by the list of articles and there is no concrete evidence in support of the claim. I am therefore not inclined to decree this claim as the same could not be established by evidence of high order.

Issue No.9:

21. Learned counsel for the defendant did not advance any argument on this issue which in law is deemed to have been abandoned. At any rate plaintiff has narrated the facts disclosing a valid cause of action for filing this suit which have not been successfully controverted. It is therefore just, fair and appropriate to answer the issue in affirmative and I hold accordingly.

Issue No. 10:

22. For the aforesaid facts, and circumstances and consequent upon the findings on the forgoing issues plaintiff's suit is decreed for possession and mesne profits at the rate of Rs.700 per month for a period of three years preceding the filing of the suit on 25‑8‑1985 till delivery of possession subject to additional court‑fees if any. He would also be entitled to the costs of the suit.

A.A./S‑42/K Suit decreed.