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Petitioner: Kamil Rehman and others VS Respondent: Haji Rehman Bangash and another
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Kamil Rehman and others vs Haji Rehman Bangash and another Case No.: R.F.A.No.09/2017 Date of Judgment:2019-10-21 Reported As: 2019 IHC 180 Result: appeal dismissed
Judgment MIANGUL HASSAN AURANGZEB, J:- Through this judgment, we propose to decide regular first appeals No.08/2017, 09/2017 and 14/2017 since they entail common questions of law and fact. 2. Through regular first appeal No.08/2017, the appellants, Kamil Rehman Khan, etc., who are legal heirs of Haji Zarwar Khan ("Zar war Khan"), impugn the consolidated judgment and decree dated 19.12.2016 passed by the Court of the learned Civil Judge, Islamabad, whereby suit for declaration and permanent injunction ("Suit No.90/2006") instituted on 30.11.1998 by Zarwar Khan against Rehman Bangash was dismissed. In the said suit, Zarwar Khan had prayed for a declaration to the effect that he is the actual and lawful owner in possession of House No.24, Street No.2, E-7, Islamabad ("the suit house") whereas Rehman Bangash was a benamidar having no concern with the suit house. 3. Through regular first appeal No.09/2017, the appellants, Kamil Rehman Khan etc., impugn the said judgment and decree dated 19.12.2016 passed by the learned Civil Court, whereby suit for possession through ejectment, recovery of compensation damages and permanent injunction ("Suit No.1012/2013") instituted on 21.03.1998 by Rehman Bangash against Zarwar Khan was decreed holding that the former was entitled to (i) possession of the suit house, and (ii) rent at the rate of Rs.1,20,000/- per month from January 1998 till the handing over of possession of the suit house. 4. Through regular first appeal No.14/201 7, the appellant, Rehman Bangash, has impugned the said judgment and decree dated 19.12.2016 passed by the learned Civil Court only to the extent whereby his claim for damages was turned down and compensation to the tune of Rs.1,20,000/- per month was awarded in his favour. He has prayed for an enhancement of the compensation to Rs.10,00,000/- per month. 5. Rehman Bangash (hereinafter referred to as "respondent No.1") was Zarwar Khan's nephew (bhatija) as well as son-in-law. Vide letter dated 10.04.1984 (Exh.P/1) issued by the Estate Management Directorate of the Capital Development Authority ("C.D.A.") ownership in the suit house was transferred to respondent No.1. The position
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taken by respondent No.1 in Suit No.1012/2013 instituted by him was that he being the lawful owner of the suit house was entitled to gain possession of the suit house from Zarwar Khan and also recover rent/compensation from him. The position taken by Zarwar Khan, in his Suit No.90/2006, was that he was the real owner of the suit house whereas respondent No.1 was an ostensible/benami owner. 6. During the pendency of the said suits, Zarwar Khan passed away whereafter his legal heirs were impleaded as parties. The appellants, save one, in regular first appeals No.08/2017 and 09/2017 are the legal heirs of Zarwar Khan. Mst. Waqif Jan, who is Zarwar Khan' s daughter and married to respondent No.1, has not assailed the said consolidated judgment and decree dated 19.12.2016. In the said appeals, she has been impleaded as respondent No.2. The legal heirs of Zarwar Khan except Mst. W aqif Jan shall hereinafter be referred to as " the appellants". 7. After the said suits were consolidated, the learned Civil Court vide order dated 16.02.2001 framed the following consolidated issues:- "1. Whether the plaintiff of suit titled "Haji Rehman Bangash Versus Haji Zarwar Khan" at Sr.No.1 has no cause of action? OPD 2. Whether the suit at Sr .No.1 is false and frivolous and is not maintainable? OPD 3. Whether the plaintiff of suit at Sr .No.1 has not come to the court with clean hands? OPD 4. Whether the defendants of suit at Sr .No.1 are entitled to special costs U/S 35-A of CPC? OPD 5. Whether the plaintiff of suit at Sr. No.1 is entitled to the decree for possession and recovery of damages Rs.50,00,000/- (five million) for illegal use of the property and compe nsation and permanent injunction, as prayed for? OPP 6. Whether the plaintiff of suit titled Haji Zarwar Khan Vs. Haji Rehman Bangash etc at Sr.No.2 has no cause of action? OPP 7. Whether the suit at Sr .No.2 is false, and frivolous and is not maintainable? OPP 8. Whether the suit at Sr .No.2 is barred under Provision of Specific Relief Act? OPP 9. Whether the plaintiff of suit at Sr.No.2 is entitled to the decree for declaratio n and permanent injunction as prayed for? OPD 10. Relief." On 10.01.2002, additional issues were framed which are as follows:- 9-A Whether the defendant No.1 (Haji Zarwar Khan) is in possession of suit prope rty as real owner , not as tenant and plaintiff is just an ostensible owner? OPD 2-B Whether existing building of suit property was constructed by defendant No.1 (Haji Zarwar Khan) by his own sources as owner in possession of suit property? OPD 8. After the framing of issues, both the parties were directed to adduce their respective evidence. Respondent No.2 appeared as PW 7. He also produced Zafar Ullah Khan (PW-1), Amjad Ali (PW-2), Sohail Ghias Khan (PW- 3), Taimous, record keeper, Allied Bank Limited, F-7/2 Branch, Islamabad (PW-4), Muhammad Asam Khan (PW- 5), Ishtiaq Ahmed (PW-6) and Muhammad Ali (PW-8). On the other hand, Kamil Rehman Bangash appeared in the witness box as DW-1. He also got examined Ahmed Iqbal (DW-2). Vide consolidated judgment and decree dated 19.12.2016, Suit No.1012/2013 instituted by respondent No.1 was decreed whereas Suit No.90/2006 instituted by Zarwar Khan was dismissed. Respondent No.1 was awarded compensation at the rate of Rs.1,20,000/- per month from January 1998 till possession of the suit house was handed over to him. CONTENTIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS: - 9. Learned counsel for the appellants submi tted that the learned Civil Court erred by applying the provisions of the Qanun-e-Shahadat Order , 1984 ("the 1984 Order") to documents executed prior to the said law coming into force; that the 1984 Order came into force on 26.10.1984 whereas the documents in question were executed on 04.06.1984 and 15.01.1984; and that the impugned judgment and decree was passed on the basis of documents which were inadmissible in the evidence. 10. Learned counsel for the appellants further submitted that the funds for the purchase of the suit house were provided by Zarwar Khan; that in compliance with the order dated 21.01.2000 passed by the learned Civil Court, Zarwar Khan had produced a copy of bank draft No.527576, dated 15.01.1984, for an amount of Rs.10,00,000/-
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drawn on Allied Bank Limited; that respondent No.1 had produced a copy of the said bank draft after the same had been produced by Zarwar Khan; that the learned Civil Court erroneously placed an exhibit number on a copy of the said bank draft; that the services of a Contractor (Bashir Ahmad) had been engaged by Zarwar Khan for the construction of a house on the plot purchased from Mst. Tahira Zaheer; that Zarwar Khan had entered into an agreement (Exh.D/4) with M/s Saeed Associates Consulting Architect for the design of the suit house; that respondent No.1 was only about 24 years of age in the year 1984 when the suit house was purchased; that respondent No.1 had deposed that he had done his F.A. from the Government College, Hangu in the year 1980- 81, and that in January 1982, he was taken to Qatar when his age was 20 to 22 years; that respondent No.1 did not have financial means to purchase the suit house; that respondent No.1 also deposed that he had no evidence to prove that he had transferred funds from Qatar to Pakistan, and that in those days, funds used to be transferred by him through hundi to his father and brother; that in fact in those days respondent No.1 was financially dependent on his paternal uncle, Zarwar Khan, who was also living in Qatar; that ever since 1987 when the construction of the suit house was completed, the possession, constructive and otherwise had remained with Zarwar Khan and/or his sons; that between 1989 and 1996, the suit house was given on rent to various tenants through agreements executed by the appellants; that respondent No.1 had never remained in possession of the suit house; that in the year 1998, possession of the suit house was handed over by the tenant to Zarwar Khan; that since Zarwar Khan's family was not in Pakistan in year 1984, the suit house was purchased by him in respondent No.1's name; that it had never been Zarwar Khan's intention to give the suit house to respondent No.1; that all the requisite documents with respect to the sale transaction and the construction of the suit house were in Zarwar Khan's possession; that respondent No.1 has come up with different conflicting positions regarding the possession of the allotment letter/title documents regarding the suit house; that even though the utility bills were in the name of respondent No.1, they were paid by the appellants who are in possession of the relevant receipts; that the impugned judgment passed by the learned Civil Court is based on circumstantial evidence without taking into consideration the relationship between the contesting parties and the surrounding circumstances; that Zarwar Khan had also purchased properties in the name of his brother, Haji Noorwar Khan, who was respondent No.1's father; that respondent No.1's father had executed an iqrarnama in which he had admitted that Hotel Doha Palace in Peshawar had been purchased by Zarwar Khan in the name of respondent No.1's father; and that since a relationship of trust existed between Zarwar Khan and his nephew cum-son-in-law/respondent No.1, the former had purchased the suit property in the latter's name. Learned counsel for the appellants prayed for the appeal to be allowed and for the consolidated judgment and decree dated 19.12.2016, passed by the learned Civil Court, to be set-aside. In making his submissions, learned counsel for the appellants placed reliance on the judgments in the cases of Ghulam Murtaza Vs. Mst. Asia Bibi (PLD 2010 SC 569), Naushad Shamsuddin Fancy Vs. New Jubilee Insurance Company Limited (2007 CLC 1448), Abdul Majeed Vs. Amir Muhammad (2005 SCMR 577), Malik Muhammad Zubair Vs. Malik Muhammad Anwar (PLD 2004 Lahore 515), Muhammad Yaseen Siddiqui Vs. Tahseen Jawaid Siddiqui (2003 MLD 319), Muhammad Zaman Vs. Sheikh Abdul Hamid (2002 CLC 1209) and Asal Muhammad Vs. The State (PLD 1994 Peshawar 214). CONTENTIONS OF THE LEARNED COUNSEL FOR RESPONDENT NO.1:- 11. On the other hand, learned counsel for respondent No.1 submitted that the documents produced by Zafarullah Khan, Upper Division Clerk, C.D.A. (PW-1) clearly show that the sale consideration for the suit house had been paid by respondent No.1; that respondent No.1 had sufficient earnings in Qatar with which the suit house was purchased; that the bank draft through which the sale consideration had been paid to Mst. Tahira Zaheer had been produced as Exh.P/17 by respondent No.1/PW-7; that Sohail Ghias Khan appeared as PW-3 and deposed inter alia that the architect fee had been paid by respondent No.1; that Muhammad Ali who was the son of the construction contractor appeared as PW-8 and identified his father's signature on the books of expenses incurred on the construction of the suit house; that the utility meters in the suit house were in respondent No.1's name; that after the completion of the suit house in 1987, respondent No.1 along with his family resided in the said house for a period of nine years; that in 1995, respondent No.1 went abroad and his family shifted to live with Zarwar Khan; that
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Zarwar Khan had given the suit house on rent with respondent No.1's consent and upon the latter's return from abroad the rent was paid to him; that Zarwar Khan had given the suit house on rent to Mr. Paul Medhurst, Security Officer, UNMOGIP without respondent No.1's consent; that respondent No.1 had issued a legal notice to Mr. Medhurst requiring the latter to vacate the suit house; that the said tenant handed over possession of the suit house to Zarwar Khan in 1998; that ever since 1998, Zarwar Khan and/or his sons are in unlawful possession of the suit house; that Zarwar Khan, in his suit for declaration etc. has not pleaded the motive for entering into a benami transaction regarding the suit house; that possession of the allotment letter had been with respondent No.1 but the same was taken by Zarwar Khan; that none of the ingredients for declaring the transaction for the purchase of the suit house in respondent No.1's name to be a benami transaction have been satisfied in the case at hand; that Zarwar Khan and/or his sons were bound to pay compensation to respondent No.1 for the period that they remained in possession of the suit house; and that the learned Civil Court had correctly held respondent No.1 entitled to compensation and unpaid rent but the amount of compensation ought to be enhanced by this Court. Learned counsel for respondent No.1 prayed for appeals No.08/2017 and 09/2017 to be dismissed and for appeal No.14/2017 to be allowed. 12. We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. 13. As mentioned above, Zarwar Khan's stance was that he was the real owner of the suit property whereas respondent No.1 was only an ostensible/benami owner. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner always rests on the person asserting it to be so. In the cases of Muhammad Sajjad Hussain Vs. Muhammad Anwar Hussain (1991 SCMR 703) and Muhammad Siddiqui Vs. T.J. Ibrahim & Company (2001 SCMR 1443), it was held that "the initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar". This burden has to be strictly discharged by adducing evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly raising an inference of that fact. In order to determine whether a transaction is benami or not, the Courts are usually guided by the following factors:- "(1) The source from which the purchase money came; (2) The nature and possession of the property , after the purchase; (3) Motive if any, for giving the transaction a benami complexion; (4) The position of the parties and the relationship, if any , between the claimant and the alleged benamidar; (5) The custody of the title-deeds after the transaction; and (6) The conduct of the parties concerned in dealing with the property after the sale." The source from which the money for the purchase of the suit house came: - 14. Vide agreement to sell dated 20.12.1983 (Exh.D/3) executed between Mst. Tahira Zaheer and respondent No.1, the former agreed to sell the suit house to the latter for a total sale consideration of Rs.10,75,000/-, out of which Rs.75,000/- was paid as earnest money whereas the remaining Rs.10,00,000/- was to be paid by 15.01.1984. 15. Vide bank draft No.527576, dated 15.01.1984, for an amount of Rs.10,00,000/- drawn on Allied Bank Limited, the remaining sale consideration was paid to Mst. Tahira Zaheer . In suit No.60/2009, Zarwar Khan had pleaded inter alia that the remaining sale consideration had been paid by him through the said bank draft. Since a copy of the said bank draft had not been filed along with the said suit, respondent No.1 filed an application for the production of the said bank draft. Vide order dated 21.01.2000, the learned Civil Court directed Zarwar Khan to file a copy of the said bank draft in the Court. It appears that on 01.03.2000, Zarwar Khan produced a copy of the said bank draft in the Court. 16. Thereafter , on 06.04.2000, respondent No.1 filed a written statement wherein it was pleaded that respondent No.1 had paid the remaining sale consideration through the said bank draft No.527576 dated 15.01.1984. 17. In the cases of Shalimar Limited Vs. Raisuddin Siddiqui (1979 CLC 338), Ismail Dada Adam Soomar Vs. Shorat Bano (PLD 1960 Karachi 852) and Mst. Shohrat Bano Vs. Ismail Dada Adam Soomar (1968 SCMR 574), it was held inter alia that "the most important criteria for determining the benami nature of the transaction is the source of the purchase money". Zarwar Khan died before getting an opportunity to record his evidence. His son, Kamil Rehman,
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appeared as DW-1 and deposed inter alia that his father had purchased the suit house from Mst. Tahira Zaheer on 20.12.1983 for an amount of Rs.10,75,000/-. He produced the agreement to sell dated 20.12.1983 as Exh.D/3. Furthermore, he deposed that the sale consideration for the suit house had been paid by his father through a bank draft issued by Allied Bank Limited, F-7/2 Branch, Islamabad. He produced a copy of the said bank draft as Mark-D/1. 18. Respondent No.1 appeared as PW-7 and deposed inter alia that he had purchased the suit house from Mst. Tahira Zaheer in the year 1983 for an amount of Rs.10,75,000/-, out of which Rs.75,000/- was paid in cash whereas the remaining Rs.10,00,000/- was paid on 15.01.1984 through bank draft No.527576 from his current account No.744 with Allied Bank Limited . Respondent No.1 produced a copy of the said bank draft as Exh.P/17 during his evidence, under objection of the learned counsel for the appellants. 19. Ahmed Iqbal, Manager Operations, Allied Bank Limited, F-7/2 Branch, Islamabad appeared as DW-2 and deposed inter alia that since the regulations of the State Bank of Pakistan require banks to maintain records for the previous five years, his bank does not have the record pertaining to the year 1984. 20. There is nothing on the record to show that bank draft No.527576 for an amount of Rs.10,00,000/- had been prepared from the funds in the bank account of either respondent No.1 or Zarwar Khan. Other than the production of a copy of the said bank draft by Respondent No.1 as Exh.P/17, and by DW-1/Kamil Rehman as Mark-D/1, there is no other corroborative documentary evidence to show that the said bank draft was made at the instance and from the funds of either respondent No.1 or Zarwar Khan. There is also no receipt of the sale consideration on the record. 21. Zafarullah Khan, Upper Division Clerk, Estate Management Directorate, C.D.A. appeared as PW-1 and deposed inter alia that the suit house was transferred on 10.04.1984 to respondent No.1. He produced a copy of the transfer letter as Exh.P/1. He also deposed that respondent No.1 had deposited the transfer fee with respect to the suit house. He produced the application for the transfer of the suit house as Exh.P/2. PW-1 was not cross- examined. Vide order dated 12.02.2015, the right to cross-examine PW-1 was closed by the learned Civil Court. 22. Vide transfer letter dated 10.04.1984 (Exh.P/1) addressed by the Estate Management Directorate, C.D.A. to Mst. Tahira Zaheer and copied to respondent No.1, the suit house was transferred to respondent No.1. The said transfer letter makes reference to Mst. Tahira Zaheer 's transfer application which was produced by PW-1 as Exh.P/2. The content of the said transfer application is a clear acknowledgment by Mst. Tahira Zaheer that the sale consideration for the suit house was paid to her by respondent No.1. For the purposes of clarity , this acknowledgment on her behalf in Exh.P/2 is reproduced herein below:- "I was allotted by CDA plot No.24, Street No.E-7, Sector E-7, Islamabad measuring 1153.33 square yards vide allotment order No.CDA/EM-24/E- 7/75/8445, dated 26.03.1982, I have now decided to transfer the said plot to Haji Rehman Bangash son of Haji Noor War Khan aged about 23 years, resident of V+PO Dohba Teh Hungu Kohat from whom I have received the entire amount paid by me to the CDA on account of price premium of the plot and who has agreed to abide by all the terms and conditions of allotment and to pay the transfer fee as prescribed by CDA and other dues payable by me in respect of the said plot." (Emphasis added) 23. Since PW-1 was not cross-examined and no objection was taken on behalf of any of Zarwar Khan' s legal heirs when Exh.P/1 and Exh.P/2 were produced by PW-1, the contents of Exh.P/2 (which is a public document) are ample proof that the sale consideration for the suit house was paid to Mst. Tahira Zaheer by respondent No.1. There is no other document executed contemporaneously with Exh.P/2 to show that the sale consideration was in fact paid by Zarwar Khan so as to contradict the contents of Exh.P/2. 24. The contesting parties did not produce Mst. Tahira Zaheer, who would have been in the best position to state as to from whom she had received the sale consideration. It may be mentioned that respondent No.1 had, on 13.05.2002, filed an application before the learned Civil Court under Order XXVI C.P.C. for the appointment of a local commission to record Mst. Tahira Zaheer's evidence. The said application was dismissed as withdrawn on 15.01.2003. Years later, on 14.03.2015, respondent No.1 filed an application for the appointment of a local commission to record the evidence of Mst. Tahira Zaheer's husband, Mr. Zaheer Ahmed Qureshi. Vide order dated 30.03.2015, the learned Civil Court dismissed the said application on the ground that respondent
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No.1 had earlier withdrawn his application for the appointment of the local commission for the recording of Mst. Tahira Zaheer's evidence. Respondent No.1 did not assail the said order dated 30.03.2015. 25. Since the burden was on Zarwar Khan and/or his legal heirs to prove that the said transaction was benami in nature, a safe mode to discharge this burden was for them to have called Mst. Tahira Zaheer as a witness so that she could testify that she had in fact entered into the transaction with Zarwar Khan and that it was from him that she had received the sale consideration. This, Zarwar Khan and/or his legal heirs, did not do. They did not even produce the witnesses to the agreement to sell dated 20.12.1983. Due to this omission, the acknowledgment in Mst. Tahira Zaheer 's above-mentioned transfer application (Exh.P/2) as to the receipt of the sale consideration from respondent No.1 remained un-rebutted. In the case of Abdul Ghani Vs. Muhammad Shafi (1991 CLC 1706 ), one of the reasons why a suit filed by the respondent asserting to be the beneficial owner of a property did not succeed was because the vendor had not been produced to give evidence in support of the respondent' s stance. 26. In view of the above, it cannot be held that the plaintif fs/appellants in the suit for declaration etc. (Suit No.90/2006) had discharged their onus of proving that the sale consideration for the suit house had been paid by them and not by respondent No.1. 27. It is not disputed that a house was constructed on the plot sold by Mst. Tahira Zaheer. Kamil Rehman (DW- 1), in his examination-in -chief, deposed that on 04.06.1984, an agreement for the construction of a house on the suit property was executed between Zarwar Khan and one Bashir Ahmad. Kamil Rehman produced the construction agreement dated 04.06.1984 (Exh.D/1) executed between Zarwar Khan and Bashir Ahmad (Contractor). Muhammad Ali (PW-8), who was Bashir Ahmad's son, had identified his father's signatures on the said construction agreement. The said agreement was witnessed by Salar Abdul Ghani and a second witness whose name cannot be deciphered from his signature. The stamp paper on which the said agreement (Exh.D/1) was executed and was issued on 04.06.1984 for an agreement between Bashir Ahmad and respondent No.1. Kamil Rehman/DW-1, in his cross-examination, deposed that one of the witnesses namely Salar Abdul Ghani had passed away. He chose not to produce the second witness in order to prove the execution of the said agreement. Therefore, it can safely be held that the execution of the said agreement was not proved in accordance with Section 68 of the Evidence Act, 1872. It ought to be borne in mind that the Qanun-e Shahadat Order, 1984, Article 79 whereof requires such a document to be proved by producing two attesting witnesses had come into force on 26.10.1984, i.e. after the alleged execution of the said construction agreement. 28. The architect of the suit house was M/s Saeed Associates Consulting Architects. Kamil Rehman (DW-1) produced Exh.D/4 which is an agreemen t executed between Zarwar Khan and the said firm for drawing up the design for the suit house. The said agreement was signed by Chaudhary Muhammad Saeed, Chief Architect on behalf of the said firm. Chaudhry Muhammad Saeed did not appear as a witness on account of having gone abroad. Sohail Ghias Khan, who was Auto Operator in said firm, appeared as PW-3 and produced the design map of the suit house as Mark-A and the receipt for the payment of architect' s fee as Mark- B. PW-3…
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