MUHAMMAD SIDDIQI through Attorney vs Messrs T.J. IBRAHIM & COMPANY

ORDER

' HAMID ALI MIRZA, J.---This civil petition for leave to appeal is directed against the order dated 15- 4-1999 passed by a learned Single Judge of Sindh High Court, Karachi whereby an application (C.M.A. 1880 of 1997) in J.Misc. No,1 of 1989 was dismissed.

2. The brief facts of the case are that the petitioner is said to have purchased Flat No,10, Bath View Apartments on Plot No,C-25, Block-9, K.D.A. Scheme No,5, Khayaban-e-Jami, Defence Housing Authority, Karachi in the year 1984 for valuable consideration who thereafter shifted to U.S.A. For business purchases and in his absence his son Faisal Muhammad Siddiq Motlani was residing in the premises alongwith his aunt and was looking after the property. On or about .13th July, 1996 one Inspector F.I.A., Mr. M.A. Tatari, seized the said property by putting his lock purportedly under section 5(5) of the F.I.A. Act, 1974 in J. Misc. No,1 and 74 of 1989 in Liquidation Proceedings of M/s T.J. Ebrahim & Co. And M/s. Alliance Motors (Pvt.) Ltd. On the ground that the said property was benami of the liquidated companies. In the circumstances C.M.A. 1880 of 1997 in J.Misc. No,1 of 1989 was filed under section 151, C.P.C. Before the Sindh High Court for restoration of the said property to the petitioner. Mr. Shafi Muhammadi was appointed Joint Liquidator with the Official Assignee and was directed to hold enquiry into the matter with regard to claim of the petitioner. The petitioner is said to have purchased the said property from Mrs. Daulat wife of Waseem Hussain Punjawani as per registered sale-deed dated 30th September, 1984, which was originally leased out to one Miss Anjum Rehmatullah daughter of Rehmatullah vide Indenture of Sub-Lease dated 18th March, 1975.

Said Miss Anjum Rehmatullah had sold out the property to Mrs. Daulat vide conveyance deed, dated 21st February, 1978 from whom the petitioner is said to have purchased the property in September, 1984.

3. Mr. Shafi Muhammadi, the Joint Liquidator, conducted enquiry into the claim of the petitioner. He recorded the statement of the son and attorney of the petitioner and submitted his report to Sindh High Court stating that he could not record evidence of Mr. T.J. Ebrahim because of his illness. The application filed by the petitioner was dismissed by the learned Single Judge holding that the petitioner had no locus standi as his signature on the power of attorney given in favour of his son and on the registered sale-deed in 1984 were different and further that the enquiry conducted by the Joint Liquidator and the Official Assignee showed that the claim of the objector was not based on any reliable evidence.

4. We have heard the learned counsel for the petitioner and Mr. Shafi Muhammadi, Joint Liquidator, and also gone through the record.

5. The only contention of the learned counsel for the petitioner is that the learned Single Judge failed to consider the claim of the petitioner in accordance with law and dismissed the application on mere technicalities.

6. The learned Single Judge has observed in the impugned order as follows:-- ' "The learned Official Liquidator Mr.Shafi Muhammadi conducted necessary enquiry and came to the conclusion that the claim of the objector was not based on any evidence whatsoever. He, therefore, rejected his claim. Mr. Daudpota submits that he should be allowed to live in the premises and as a security he is prepared to handover all title documents of the property to the Official Liquidator. But the question here is not whether he should be allowed to live in the premises or not, the question is what is his locus standi. He bases his claim to the property upon the power of attorney given by his father Siddique to him. Mr. Shafi Muhammadi before me points out that he compared the signatures on the power of attorney with the signature of the said Siddique on the Agreement of Sale on which his claim to title to the property is based and he found these to be totally different to each other. I have myself examined the two signatures and I find that they are totally different and the explanation by Mr. Daudpota that this is due to the difference in signatures that inevitably arise, due to lapse of time is a plausible explanation but the difference here is so great that it cannot be attributed to lapse of time. I therefore, find no merits in this application and it is accordingly dismissed."

The learned counsel for the petitioner has placed reliance upon Muhammad Sajjad Hussain v.

Muhammad Anwar Hussain 1991 SCM R 703 wherein it has been laid down that initial burden of proof is on the party who alleges that an ostensible owner is Benamidar and the plaintiff is not absolved from discharging burden of proof. In the instant case M. Ibrahim has laid his claim in respect of the flat in dispute that the said property is benami owned by Alliance Motors. Which was purchased through one Muhammad Siddique, his relative and the amount was paid from the funds of Alliance Motors. Petitioner's signature on the power of attorney apparently differed to that on the sale-deed. Petitioner claimed that he had purchased the flat by borrowing money, whereas his son and attorney Faisal stated that an amount so borrowed was a loan obtained by his grand mother from his cousin, mother of M. Ibrahim, to pay that amount to his uncle to end the dispute between his father and uncle. Petitioner did not appear and could not produce evidence with regard to source of funds with which he is said to have purchased the property in dispute. In the circumstances the facts of the case cited are quite different and distinguishable from the facts of the instant case.

7. We find no substance and merit in the contention of learned counsel for the petitioner in view of aforesaid reasonings and circumstances, consequently leave to appeal is refused and the petition is dismissed.