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Petitioner: Mst. Parveen Raza Jadun VS Respondent: Bashir Ahmed Chandio and 5 others
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: Mst. Parveen Raza Jadun vs Bashir Ahmed Chandio and 5 others Case No.:(1) Civil Revision Application No.144 of 2014 (2) Civil Revision Application
No.145 of 2014 Date of Judgment:2019-07-12 Reported As: 2020 YLR 1494, 2019 SHC 226 Result: Application dismissed Judgment Muhammad Faisal Kamal Alam, J: Due to commonality, both these Civil Revision Applications are decided by this Judgment. The First Appellate Court has reversed the findings of learned Trial Court, whereby , the First Class Suit No.147 of 2008 was decreed and Suit No.83 of 2009 was dismissed. 2. An immovable property bearing No.221-A, in Block "C" Unit No.2, Shah Latifabad, Hyderabad ("subject property"), is the centre of dispute. It is also necessary to give a brief introduction of parties to the litigation. Civil Revision Application No.144 of 2014 has been preferred by the legal heirs of Mst. Parveen Raza Jadun (since deceased) , who was the real sister of Respondent No.1 (Bashir Ahmed Chandio) , whereas, Respondents No.2 and 3, namely , Muhammad Aslam Siddiqui and Yameen have subsequently purchased this property from Respondent No.1 (Bashir Ahmed Chandio). Similarly , Civil Revision Application No.145 of 2014 is also preferred by the legal heirs of Mst. Parveen Raza Jadun but only against Muhammad Aslam Siddiqui and Yameen, who have been impleaded as Respondents, for the reasons that these two Respondents have instituted a separate First Class Suit No.83 of 2009, which has been decreed by the learned First Appellate Court and the decision of learned Trial Court has been reversed, which has dismissed this suit earlier . Similarly , the said above named Applicant-Parveen Raza Jadun originally institut ed a First Class Suit No.147 of 2008, claiming that the above subject property actually belongs to her and the said suit was decreed in her favour by the learned Trial Court, but the finding was reversed by the Appellate Court in the impugned decision. For the sake of reference only, legal heirs of above named Applicant-Parveen Raza Jadun (deceased), will be called as Claimants' , whereas, Bashir Ahmed Chandio, is to be referred as Objector ' and the two private parties, namely , Muhammad Aslam Siddiqui and Yameen can be referred to as Purchasers' . 3. Respondents No.4, 5 and 6 are the official Respondents, who have been impleaded in Civil Revision Application No.144 of 2014 only, as they were original parties in the above original First Class Suit No.147 of 2008 (preferred
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by the Claimants). 4. M/s. Irfan Ahmed Qureshi, Muhammad Umer Lakhani and Syed Ali Ahmed Zaidi, Advocates representing the Applicants/Claimants have strenuously argued that the subject property when was purchased by deceased father (late Raees Ahmed Khan Chandio) of Claimants and Objector way back in 1957, then at the relevant time Objector / Respondent No.1 (Bashir Ahmed Chandio) had not attained majority and thus he was only benamidar and the real owner was the deceased father of Claimant and Objector No.1. The Legal Team of Claimants further elaborated this argument, that reason for purchasing the subject property in the name of Respondent No.1 (Objector) was that another Plot No.220-A was already purchased by the late father in his name, and because the regulations prevalent at the given point in time did not permit allotment of more than one plot to one person. It is further contended that the other property-220-A, was admittedly transferred to real sister of Claimant and Objector , Mst. Nasreen Brohi, but due to mala fide acts of original Respondent No.1 / Objector , the subject property could not be transferred in the name of Predecessor-in-interest of present Claimant, namely , Parveen Raza Jadun. 5. The Legal Team of Applicants / Claima nts have relied upon the following case law to augment their arguments relating to a benami transaction_ 1. PLD 1960 (WP) Karachi 852 (Ismail Dada Soomar vs. Shaorat Bano). 2. PLD 1971 Karachi 763 (Sher Muhammad vs. Muhammad Sharif). 3. PLD 1984 Lahore 117 (Sher Muhammad vs. Muhammad Sharif). 4. 1991 SCMR 703 (Muhammad Sajjad Hussain vs. Anwer Hussain). 5. 1994 CLC 811 (Kishwar Malik vs. Lt. Col Retd Sadiq Malik). 6. 1995 MLD 316 (Mazhar Mahmood Khan vs. Khushal Jadoon). 7. PLD 2004 Lahore 515 (Malik M. Zubair vs. Malik Muhammad Anwar). 8. 2005 SCMR 577 (Abdul Majeed vs. Amir Muhammad). 9. 2006 YLR 599 (Kaleem Hyder Zaidi vs. Mehmooda Begum). 10. 2011 SCMR 1550 (Wasi-ud-din vs. Fakhra Akhter) 11. PLD 2003 SC 849 (Sher Baz Khan vs. Malkani Tiwana). 12. 2012 SCMR 954 (Abdul Rehman vs. Zia ul Haq Makhdoom). 6. The Predecessor-in-interest of Claimant (late Parveen Raza Jadun) in her above mentioned suit has basically pleaded multiple sets of facts; (i) that the subject property in fact belongs to Claimant and the same was purchased by the deceased father from his own funds as at the relevant time (1957) Respondent No.1 / Objector had not attained majority and was depended on his parents; (ii) that Claimant had always remained in possession of the subject property; (iii) that in the year 1994 the Respondent No.1 (Objector) orally gifted the property in question to Claimant through Declaration of Oral Gift and lastly; (iv) that the Respondent No.1 illegally and fraudulently sold out the property to above referred Purchasers (private Respondents No.2 and 3) through the Registered Sale Deed dated 09.07.2008 and hence its cancellation is also sought. 7. The Legal Team of Applicants / Claimants primarily agitated the Issue of benami and subsequent sale transaction in favour of Purchasers. 8. Mr. Muhammad Najeeb Jamali, Advocate, representing the private Respondents, that is, Objector and Purchasers both, has controverted the submissions of the Claimants? side. He has also relied upon number of reported decisions (mentioned herein under) not only relating to the benami transaction and onus to prove a benami transaction, but also pertaining to the limited scope of revisional jurisdiction and maintainability of present Revisions, because, as per contention of learned counsel for private Respondents, a Second Appeal lies and not the present proceeding_ 1. 2010 YLR 3214 (Major General Dr. Asif Ali Khan vs. Riaz Ali Khan). 2. PLD 2012 Lahore 141 (Mst. Sharifa Bibi and others vs. Abdul Majeed Rauf). 3. 2014 YLR 385 (Mst. Alim Taj vs. Mst. Sahib Jan). 4. 2009 SCMR 124 (M. Nawaz Minhas vs. Mst. Surriya Sabir). 5. PLD 2008 SC 146 (Ch. Ghulam Rasool vs. Mrs. Nusrat Rasool). 6. 2008 SCMR 143 (Mst. Zohra Begum vs. Muhammad Ismail).
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7. 1986 SCMR 1591 (Ahmad Sultan Khan vs. Mst. Sanin Kausar). 8. 1991 SCMR 703 (M. Sajjad Hussain vs. M. Anwar Hussain). 9. PLD 2010 SC 569 (Ghulam Murtaza vs. Mst. Asia Bibi). 10. 2015 MLD 642 (Sh. Muhammad Rafique vs. Sh. Muhammad Jameel). 11. 2016 CLC 1284 (Manzoor Butt vs. Mahmed Sufi). 12. 2016 YLR 75 (Haji Shaizullah Khan vs. Haji Nawab Through Lrs). 9. In a nutshell, the case of Objector and Purchasers is that the subject property is not a benami property and Objector (Respondent No.1 herein) was / is not an ostensible owner of the subject property but is the real and actual owner , who in such capacity , has lawfully conveyed / transferred the subject property to Purchasers. 10. The learned Additional Advocate General has argued the matter on the basis of record and in effect supported the case of private Respondents; Objectors and Purchasers. The learned Law Officer argued and so also mentioned in the Written Statement, available in the record of the present proceeding, which was filed in the suit instituted by Claimants, that the Respondent No.1 / Objector (Bashir Ahmed Chandio) is the allottee of subject property , which has been sold out through a Registered Sale Deed dated 09.07.2008 to private Respondents No.2 and 3 (purchasers). 11. Arguments heard and record perused. 12. It is not necessary to discuss each and every decision cited by Legal Team of both contesting parties about maintainability of present Civil Revision Applications, inter alia, because it is not the case of private Respondents that the present Civil Revision Application s are time barred or suffered from some inherent legal defect, but, instead of instant Civil Revision Applications, IInd Appeal should have been filed. 13. On the other hand, Legal Team of Applicants / Claimants has also cited decisio n(s) that it is the inherent power of a Court to convert the proceeding. Reliance is placed on a well-known Judgment of Manager Jammu and Kashmir Property vs. Khuda Yar PLD 1975 Supreme Court 768, wherein, inter alia, it is also held, that the revisional jurisdiction under Section 115 of CPC, is akin to certiorari , while holding that there is no strict rule that if other remedy is available, High Court cannot exercise revisional jurisdiction. In another reported Judgment of Hon? ble Supreme Court in the case of Muhammad Yousuf vs. Mst. Kharian Bibi 1995 SCMR 784, the learned Apex Court has maintained the decision of learned Lahore High Court for converting the IInd Appeal to a Revision Petition, by further elucidating that this can be done even on a verbal prayer made by the party concerned. This discussion leads to the conclusion that if a revision is filed instead of IInd Appeal, it would not be a fatal error but rectifiable. 14. In view of the above discussion, both present Civil Revision Applications are maintainable. 15. Adverting to the merits of the case. 16. V ide order dated 31.01.201 1 following consolidated Issues were settled by the learned Trial Court_ "1. Whether the defendant No.1 was adult and had his own source of income at the time of allotment of suit plot in the year 1957? 2. Whether the plaintif f remained in possession since the construction of bungalow over the suit plot? 3. Whether the suit property was purchased by deceased Raees Khair Muhammad for his daughter (plaintif f) as such the plaintif f is actual owner of the suit property? 4. Whether the defendant No.01 is became owner of the suit property? 5. Whether the defendants No.2 and 3 had acquired the knowledge regarding actual ownership and possession of plaintif f over the suit property before purchaser of the suit bungalow through impugned registered sale deed? If so its ef fect? 6. Whether the defendants No.2 and 3 (plaintif f in F.C.S No.83 of 2009) are bonafide purchaser of the suit land? 7. Whether the sale deed dated 09-07-2008 vide registration No.1871 book No.1 registered with the Sub- Registrar Latifabad under M.F. Roll No.U-537/14600 dated 28.07.2008 executed by defendant No.1 in favour of defendants No.2 and 3 is illegal and liable to be cancelled? 8. Whether suit is barred by law?
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9. Whether the plaintif f in F .C.S No.83 of 2009 have no cause of action to file the suit? 10. Whether plaintif f in F .C.S. No.83 of 2009 are entitled for any relief? 11. Whether plaintif f Parveen Raza through his legal heir is entitled for any relief? 12. What should the decree be?" 17. Since the First Appellate Court has reversed the findings of the learned Trial Court, therefore, record and proceeding of the Courts below have been examined. Looking at the evidence of the parties to the dispute and particularly that of mother-Fatima Begum (of original Claimant and Objector), who deposed as Claimant?s witness, the finding of First Appellate Court on consolidated Issue No.1 relating to the age of Objector / Respondent No.1 (Bashir Ahmed Chandio) is not correct and it has wrongly reversed the finding of learned Trial Court. The evidence in this regard concludes that at the relevant time when the plot was purchased by late father , the Objector / Respondent No.1 had neither attained majority nor any independent source of income. But at the same time the pivotal Issues are consolidated Issues No.2, 3 and 4, because it is one of those unique cases in which it is not the deceased father or mother of Claimant and Respondent No.1, who have filed the proceedings with a plea that the Respondent No.1 was only an ostensible owner of the subject property , because he was minor at the relevant time and had no independent source of income and was dependent upon the parents, but here the Claimant (late Parveen Raza Jadun), who was also a minor at the relevant time when the property was purchased and Allotment Order dated 29.06.1957 (Exhibit-60/C) was issued in favour of Respondent No.1, claimed that in fact subject property was purchased for her (Claimant) benefit and she is the actual owner . Hence, it is a case of indirect benami/ostensible ownership rather a direct benami case. Secondly , it is a distinctive case, where the Claimant wants a decision in her favour because the other property , being Plot No.220-A, which was admittedly purchased by the deceased father and Allotment Order was also issued in his name was later gifted to the sister Mst. Nasreen Brohi, who in the evidence also deposed in favour of the Claimant. But at the same time, it is also an admitted fact that the second Plot, which is not the subject dispute of the present proceeding , was jointly gifted by family members to the said Mst. Nasreen, hence this second type of plea can be termed as a claim by reference, that is to say, since the sister (above named) of Claimant was given a property by way of gift, the Claimant should also be given the same treatment. 18. More so, if the findings on the above consolidated Issues No.2, 3 and 4 as handed down by the learned Trial Court are restored and that of learned Appellate Court is reversed, then the sale transaction between Objector and Purchasers, that is, Respondents No.1, 2 and 3 herein would also be adversely af fected. 19. The Claimant in her Suit No.147 of 2008 has claimed the ownership primarily on the grounds that she is in physical possession of the subject property and the same was handed over to her by her late father, but, as her husband was an Army Officer and was posted at different places, therefore, in that period, the subject property was rented out to tenants by Claimant and finally the latter (Claimant-late Parveen Raza Jadun) started living in the subject property since 1994 (as mentioned in paragraph-9 of her plaint). She has further challenged the transaction between the private Respondents, that is, Objector and Purchasers and sought the cancellation of Sale Deed dated 09.07.2018, which admittedly is a registered instrument (Exhibit-60/B). The said Claimant also filed her Written Statement in the above mentioned cross-suit, preferred by Purchasers. In the pleadings, the said Claimant has taken a specific stance that the Bungalow at the subject plot / property was constructed by the deceased father of Claimant solely for the Claimant and her family. In paragraph-4 of her Written Statement (filed in Revision Application No.145 of 2014), it is stated that construction of Bungalow took place in the year 1970-1971. Claimant was in possession since then and the subject property was let out to different tenants. Father of Claimant and Objector passed away in the year 1972 and more specifically mentioned by the Claimant in paragraph-8 of her Written Statement (in Suit No.83 of 2009) on 17.01.1972. It is further averred by Claimant in her Written Statement that from 1989-1990 the Claimant started to reside in the subject property. 20. The Claimant examined three witnesses, namely , Mst. Fatima Begum, who is mate rnal grandmother of present Claimants and mother of original Claimant-Mst. Parveen Raza Jadun as PW-1; Mrs. Nasreen Brohi, who is present maternal aunt of Claimants and real sister of original Claimant and Dr. Aqsa Jadoon, who is one of the present
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Claimants and daughter of original Claimant. The first witness to a question has stated by acknowledging that late father-Raees Khair Muhammad Chandio did not claim the subject property during his life time. The witness No.2 (Mst. Nasreen Brohi) in her cross-examination to a question has stated that she does not know whether the subject property was purchased by her father as benami. With regard to period in which construction at the subject property was raised, she showed her ignorance in her cross-examination. She also did not deny the suggestion that due to non-construction at the subject property, Municipal Administration imposed a penalty upon Objector / Respondent No.1 (Bashir Ahmed Chandio), which was assailed by the latter (Respondent No.1) in Appeal. To a question about construction of the Bungalow at the subject property, she has stated in her cross- examination , that her late father got constructed the Bungalow for her at Plot No.220-A, which was later gifted to said Mst. Nasreen Brohi, whereas, the mother (above named Mst. Fatima Begum) got constructed the house at the subject plot / property; this deposition contradicts the claim of the Claimants. 21. The third witness of Claimant-Dr . Aqsa Jadoon [who is one of the Claimants/Applicants No.1(c)] in both Civil Revisions, has produced number of docu ments during her examination-in-chief. She has reiterated the contents of her plaint. With regard to raising of construction at the subject property , she has also not denied the suggestion that penalty was imposed on Respondent No.1 by the Municipal Administration against which the Appeal was preferred. In her cross-examination, she has not disputed when confronted that in the document-Exhibit 60-H, the name of her mother (original Claimant) has been inserted by overwriting and striking out the name of Objector / Respondent No.1. This document Exhibit 60-H is the order of Hyderabad Municipal Corporation to distrain the subject property for non-payment of dues . Similarly , she has not disputed that the bank record produced by her as Exhibit 60-I does not disclose the fact about deposit of rents in bank. She has admitted the fact that private Respondents; Objector and Purchasers herein, have demanded the possession from the original Claimant (Parveen Raza Jadun). She has not denied the suggestion that a father can purchase a property in the name of his son, by voluntarily adding, that in the same manner father can also purchase the property in the name of her daughter . To a specific question on construction, the said witness has stated that the construction at the subject property was done after 1975; which means after the demise of late father (Late Raees Khair Muhammad Chandio) of original Claimant and Respon dent No.1, which testimony is in conflict with the stance of Claimants as per their pleadings. To another very material question in her cross-examination, she has showed her ignorance that who has paid the costs of subject prope rty to Municipal Administration. The said witness could not answer that when possession of the subject property was handed over to her mother (late Parveen Raza Jadoon). The Sale No Objection Certificate (NOC) dated 01.07.2008 for sale of the subject property by Objector to Purchasers was produced in the evidence by above named Dr. Aqsa Jadoon, although with the intent to dispute and challenge it. 22. The Objector (Bashir Ahmed Chandio) examined himself. He produced the original Lease Deed as Exhibit 66-A. This document is perused. It is an ownership lease granted on 11.01.1968 to the Objector / Respondent No.1 through his attorney-Muhammad Yousuf by Government of West Pakistan. Clause-2 states that construction should be completed within two years and eight months. The above named Respondent No.1 also produced order passed in Appeal preferred by the said Respondent No.1 before the Commissioner , in which the penalty for non-raising the construction was set-aside. In his deposi tion, the Respondent No.1 categorically denied that the subject plot was purchased for the benefit of his sister , that is, the above named original Claimant (late Parveen Raza Jadun). He has deposed that it was he (Respondent No.1), who got the approval of building plan and raised construction in the year 1975, although he could not produce approved building plan, but stated that it has been produced by the Municipal Authority . He has further testified in his cross-examination that cost of the subject property was finally paid by him, that is, the Objector / Respondent No.1, and in the year 1968, the aforementioned Lease Deed was issued in his favour . The above named Objector was not cross-examined on a material part of his testim ony, when he stated in his examination-in-chief, that the Lease Deed of the subject property was executed in his favour during the life time of his deceased father but neither the latter (late father) nor the original Claimant (sister , deceased Parveen Raza Jadun) raised any objection.
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23. One official witness, namely, Hashmat Ali produced the official record relating to the subject property, which includes the Noting Sheets, according to which, inter alia, the subject property has now been mutated in the name of above named Purchasers. The official record also contains Note Sheets-68 to 81, according to which, Allied Bank Limited with which the subject property was earlier mortgaged by Objector No.1, has been released as the said Objector No.1 paid off the loan. The said official witness has also produced the ownership lease document dated 11.01.1968 in favour of Objector No.1 as well as the correspondence dated 15.09.1973 (page-513) Exhibit-64/J, issued by District Housing Officer- II, Land-grant Officer, Municipal Committee Hyderabad Sindh, for scrutinizing revised approved building plan. The said correspondence has mentioned the name of Objector as allottee, therefore, the testimony of above named Objector No.1, that he could not produce the approved building plan but the same has been produced by the above named official witness, is correct. The said official witness has also produced Exhibit 64/K, which is a permission to mortgage the subject property with House Building Finance Corporation for obtaining a house building loan. The said permission is given to the above named Objector No.1 whose name is mentioned in paragraphs-3 and 4 of this document. It has also come in the evidence as an undisputed fact that earlier the said Objector No.1 mortgaged the subject property with Allied Bank Limited, which was later redeemed. 24. From the above discussion, the contradiction in the evidence of Claimants is very much apparent. The claim of original Claimant in her plaint of Suit No.147 of 2008, about the construction at the Plot, which is now a subject property , has been disproved by the conflicting testimonies of Mst. Nasreen Brohi and Dr. Aqsa Jadoon (the above named witnesses). In the pleadings, it is the stance of Claimant that late father of original Claimant got constructed the house, whereas, per deposition of Dr. Nasreen Brohi, who is maternal Aunt of present Claimant, the construction at the subject property was raised by the mother of Claimant, namely , Fatima Begum wife of late Raees Khair Muhammad. Similarly , the aforesaid Mst. Nasreen Brohi in her cross-examination has not denied the suggestion that she does not know that whether the subject property was purchased by her later father as benami. The Claimant has failed to prove that the house at the subject property was built by the father (late Raees Khair Muhammad) from his own funds, inter alia, as one of the Claimants' witnesses, the present Applicant No.1(c), herself has acknowledged that construction was raised somewhere in 1975; that is, when the above named grandfather of present Claimants was not alive. Similarly, there is no convincing evidence produced on behalf of the Claimants that the latter (Claimants) were residing in the subject property as its real owners. The evaluation of the evidence done by the Appellate Court, inter alia, that Plaintiff (present Claimants) never remained in continuous physical possession also leads to the conclusion, that even if the Claimants did reside in the subject property for some time, that was because of close relationship of sister and brother between the original Claimant and the present Respondent No.1 (Objector). 25. It is an established rule that the initial burden to prove a benami transaction is on the party , who has taken the plea of benami (ostensible ownership). The reported decisions of Hon'ble Supreme Court relied upon by the legal team of both Parties (Claimant and Objectors) primarily relate to the principle rather jurisprudence of benami transaction (ostensible ownership) evolved in the Sub-continent. Following reported decisions relied upon by the learned counsel for the parties should be mentioned: PLD 2010 Supreme Court 569, 2005 SCMR 577 and 2009 SCMR 124. Prcis of the case law cited by the learned counsel for the parties is that_ i). Motive for ostensible ownership, that is, a party setting up a claim of benami, should satisfy the Court that why the property in question does not stand in…
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