' By this suit, the plaintiff seeks declaration to the effect that he is the exclusive and independent owner of a double storeyed house on plot No,85-J, Block 2, PECHS, Karachi and that defendant No,1 was living in the said house as licensee, decree for possession for the ground floor of the said house and direction to the defendant No,1 to pay utility bills or, in the alternative, a decree for a sum due in this connection till delivery of possession and mesne profits.
2. Brief facts of the case are that the plaintiff and defendants Nos.1 and 2 are brothers inter se while defendant No,3 is their sister. Plaintiff claims that, being a Government employee, he became member of Pakistan Employees Cooperative Housing Society Limited in the year 1949 and was allotted a plot, bearing No,85-J, Block 2, PECHS, Karachi, measuring 400 sq. Yards. Plaintiff, after construction of ground floor on the said plot, accommodated in his house his father and the defendants as his licensees. After the death of his father, defendant No,2 and sisters shifted from his house. Thereafter, the plaintiff constructed first floor and shifted therein and allowed defendant No,1 to occupy the ground floor premises as his licensee. In the year 1964-65, defendant No,1 constructed his own house in Federal "B" Area but he did not shift to his own house. The plaintiff requested defendant No,1 to vacate the ground floor of the house but, on one pretext or the other, he avoided it. In 1995, the plaintiff's son got married and separate accommodation was required for him. Therefore, he again requested defendant No,1 to vacate the said premises and on his failure to do so, he served the said defendant with a legal notice, dated 10-6-1995, calling upon him to vacate the premises or in the alternative, he would file suit against him- for possession and mesne profits, defendant No,1 in his reply to the legal notice, stated that he is not a licensee of the plaintiff and is in possession of the portion of the said house as a share-holder as the house was a joint property of the plaintiff and defendants after the death of their father, who was the real owner thereof. Thereafter, the plaintiff filed the present suit in which he also arrayed defendants Nos.2 and 3 as, according to him, they were helping defendant No,1 in delaying the delivery of the possession for the portion of the house in possession of defendant No,1 and that the defendants Nos.2 and 3 may, be interested in denying his ownership of the suit property.
3. In response to the notices issued to the defendants, they appeared and contested the suit.
Defendants Nos.1 and 3 filed their written statements while defendant No,2 expired during the pendency of the proceedings without filing his written statement. In addition to the objections like limitation, estoppel and non-joinder of necessary parties, the main plea of the defendants is that the plaintiff is Benamidar and the real and beneficial owner of the suit property was their father, late S.M. Abdul Ghani, who provided all the funds for purchase of the plot as well as for construction raised thereon and therefore, the suit property was jointly owned, by inheritance, by the plaintiff as well as by all the defendants. Defendant No,3 also expired during the pendency of the proceedings.
However, since both, defendants Nos.2 and 3, were unmarried, therefore, the plaintiff and the remaining defendant are their legal heirs.
4. To prove his case, the plaintiff examined himself as Exh.5. He produced Allotment Letter as Exh.5/1, sub-licence in form A, issued by PECHS, as Exh.5/2, Lease Deed in Form B as Exh.5/3, letter of approval of Building plan as Exh.5/4, certificate regarding payment of loan against salary, dated 1- 6-1959, as Exh.5/5, permission of mortgage as Exh.5/6, completion plan and building plan as Exh.5/7 and 5/8, original mortgage deed as Exh.5/9, original receipts/challans for payment made to National Bank of Pakistan as Exh.5/10-1 to 5/10-151. Clearance Certificate from House Building Finance Corporation as Exh.5/11, photocopy of mortgage deed as Exh.5/12, receipts/challan of payments as Exh.5/13-1 to 5/13-36, photocopy for income-tax return as Exh.5/14, photo copy of letter addressed to Income Tax Officer, Circle Central as Exh.5/15, legal .Notice dated 10-6-1995 and reply thereto dated 6-7-1995 and Exh.5/16 and 5/17. He also produced, during his cross- examination, statement of account as Exh.5/18, attendance sheets of masons and labourers as Exh.5/19 to 5/27, a pocket diary and three small note books as Exh.5/28 to 5/131.
5. Defendant No,1, in support of the defence to the suit, 'examined himself as Exh.A.1. He produced his affidavit-in-evidence as Exh.D.1. He produced counter-folio of Cheque Book of the National Bank of Pakistan, containing Cheques No,960026 to 960050, issued by the father of the parties for part payment made to PECHS, purchase of the plot, as Exh D .2 .
6. Defendant No,2 expired before filing of his written statement while defendant No,3 filed her written statement but she expired prior to filing of her affidavit-in-evidence.
7. On the basis of the pleadings of the parties, issues, for the first time, were 'framed on 19-1-1988, which, by the consent of the parties were recast on 9-2-2000, as under:--
(1) Whether S.M. Abdul Ghani was the real owner of Plot No,85-J, Block 2, PECH Society, Karachi and the plaintiff was its Benamidar?
(2) Whether the plaintiff is the real owner of the aforesaid property? If so, its effect?
(3) Whether this suit is bad for non-joinder of necessary parties? If so, what is its consequence?
(4) What is the status of possession of defendant No,1 in respect of ground floor of the suit property?
(5) If the defendant No,1 was licensee of the plaintiff, whether after termination of such licence the defendant No,1 is liable to deliver possession to the plaintiff.
(6) Whether the defendant No,1 is liable to pay utility bills for the portion and period during which he enjoys physical possession?
(7) Whether plaintiff is entitled to mesne profits from defendant No,1? If so, up to what extent?
(8) Whether the suit is barred by limitation?
(9) Whether the plaintiff is legally estopped from filing the present suit?
(10) To what relief, if any, the plaintiff is entitled to?
(11) What should the decree be?
8. I have heard Mr. Ali Akbar, Advocate for the plaintiff and Mr. Abdul Rasheed Awan, Advocate for the defendants. My findings on the above issues are as under:-- Issue No,1.
9. Issue No,1 relates to the determination of the real owner of the suit property. The plaintiff claims that he is the area owner of the suit property as he has paid the price of the plot as well as the expenses incurred on the construction raised thereon while the defendant claim that the real and beneficial owner of the suit property is father of the parties, namely, S.M. Abdul Ghani. This is the main issue on which the fate of the entire suit hinges.
10. Admittedly, all the title documents are in the name of the plaintiff and it is the defendants who are claiming that plaintiff is Benami owner of the suit property. Therefore, the onus to prove that the plaintiff is Benami owner of the suit property lies on the defendants. Since the A defendants allege it to be a Benami transaction, therefore, such documents would be of no help to him in case the defendants succeed in establishing that the finances for purchase of the. Suit plot and the construction raised thereon were provided by their late father S.M. Abdul Ghani. Admittedly, the family of late S.M. Abdul Ghani, the plaintiff and the defendants migrated to Pakistan from India in 1947. The plight of the family could be judged from the fact that wife and son of defendant No,1 were murdered by the rioters in India and they had to flee with whatever they could carry on their person. Therefore, it can be safely said, and nothing has been produced to the contrary, that the family, when it landed in Pakistan, was not well-off financially. Whatever was earned by them was earned after their arrival in Pakistan. The entire family of late S.M. Abdul Ghani on migration to Pakistan in 1947, started living in two flats in Ranchoreline as a joint family. It is also admitted that the father of the parties was a businessman in India, acting as agent and dealer of Dalmia Cement Factory, and after landing in Karachi, he once again started his business with the same Factory and soon was running a flourishing business. The Government, in order to provide shelter to its employees, established Pakistan Employees Cooperative Housing Society. The plaintiff and defendant No,1, at the relevant time, were in Government service as Assistant and Lower Division Clerk respectively, defendant No,1 in his evidence stated that father of the parties, taking advantage of the fact that two of his sons were in Government employment, applied for two plots in the name of his two sons and in response thereto one plot was allotted near the graveyard, while another plot, being the subject-matter of this suit, was allotted to plaintiff. He has stated in his affidavit-in-evidence that 'it was suggested by one of the sisters namely Mst. Azra for the construction of the house on Plot No,85-J and not on the plot allotted to the deponent near the graveyard". Although the plaintiff in his evidence has denied that any plot was allotted in his brother's name but, in the same breath, he admits that "my sister suggested for construction of the house on plot J-85 and not pear the graveyard. The name of my said sister was Azra. "If there was no other plot available to the family, there was no question of any suggestion to construct the house on Plot J-85.
11. In the written arguments filed on behalf of defendant No,1, much emphasis has been laid on the fact that late S.M. Abdul Ghani was in a sound financial position and was able to pay for the purchase of the plot and for the expenses incurred on the construction raised thereon. However, in a Benami transaction the position is converse as the party claiming a transaction to be Benami transaction had to show that the person in whose name a property stands was not in a financial position to pay for the same e.g. a wife having no income or money of her own or a minor son or daughter. Thereafter, the question of financial position of the real owner comes into play. In this case it is admitted that father of the parties, late S.M. Abdul Ghani was a businessman in India and, soon after landing in Pakistan, he started his business which flourished in a short time.
12. The defendant No,1, in his evidence has stated that the plaintiff was drawing .a salary of Rs,100 to 150 per month. This was denied by the plaintiff and he stated that he was drawing a salary of Rs,400 per month. However, the onus to prove the quantum of salary drawn by the plaintiff was on the plaintiff which he has failed to discharge.
13. In regard to the payment of the cost of the plot, the plaintiff had made conflicting statements.
First he says that. "The instalments were paid to the society in cash. It is incorrect to suggest that the cost of land was paid through cheques". But in the next line, when confronted by cheques through which the amount was paid to the society, he says that "I cannot say that one installment was paid on 26-6-1956 and the other on 21-12-1958 through cheques". In case the payments were made by him in cash, he would have produced the receipt therefor, and would have emphatically denied that any installment was paid by cheque. It is also admitted that one of the two cheques of the cheque book of his father through which a part of the payment was made to PECHS, was written by the plaintiff himself.
14. So far as the question of construction is involved, the entire accounts were prepared and maintained by the father of the parties. The plaintiff has taken the plea that since he was Government employee, the construction of the house was carried out under the supervision of his father. However, he ignores that fact that his father was not an unemployed person, on the contrary, he was running a flourishing business of his own. Both the plaintiff and his father were employed. However, while the father had to manage his business personally, plaintiff, being a Government servant, was working only for fixed hours and was in a better position to look after his affairs if he paid for the cost of construction. He could even obtain leave to supervise construction of the house. In this back drop when it is noted that all the expenses in connection with the construction of the house are in the hand of the father of the parties, it spells out only one thing his deep involvement in the matter. Although some objection was raised about the receipts for the purchase of cement, but, the receipts carry a note which clearly establish that the cement was purchased for the house being built on the suit plot, and not for the housing scheme of Dalmia Cement Factory. The note reads as follows:-- {{URDU TEXT}} ' This note clearly establishes that the cement mentioned therein was purchased for his (father's) own house. In this note he has used the word pay which clearly shows that his personal interest was involved. Otherwise, an immaculate accounts keeper that he was, he should have mentioned that the name of his son, the owner of the plot, if that was so, in these receipts. There are some other receipts on blank papers which state "Received from Shaikh AbdulGhani" which further establishes that said S.M. Abdul Ghani was directly involved in the construction otherwise if the payments were being made on behalf of the plaintiff, he would have mentioned plaintiff's name on the receipts. Another important aspect is that if all these expenses were made on behalf of the plaintiff by his father, then, on completion of the construction he would have handed over the accounts to his son. It is also evident from a perusal of these receipts and record that nowhere he mentions receipt of any amount from his son for whom, according to the plaintiff, he was acting in connection with the construction of the house. It is sufficient proof that the amount spent on the construction was coming from the pocket of the father and, therefore, these accounts were kept by him as part of expenses made by him. The plaintiff could not produce any evidence to controvert the record maintained by his deceased father.
15. Learned counsel for the plaintiff has submitted that the record/accounts filed by the defendants relates to construction of staff quarters of Dalmia Cement Factory. A perusal of this record shows that it consists of two kinds of record. One in connection with the construction of the staff quarters for Dalmia Cement Factory, which proves that the father of the parties was immediately in business and the other specifically relates to suit property.
16. Another aspect which requires consideration is that eversince the house was constructed, the plaintiff and the defendants are residing therein as a joint family. In the intervening period, whoever left the house, left at his own sweet will and due to exigency. None of them was called upon by the plaintiff to vacate his house. The plaintiff has stated in the plaint that defendant No,2 and his sisters made their own arrangements and shifted from the house, however, it is on record that defendant No,2 shifted to Rawalpindi in the year 1963 in connection with his business. He also admitted that the business address of the firm of defendant No,2, namely National Construction, was of the suit property. And to top it all, it is stated by the plaintiff himself that 'defendant No,1 constructed his own house in Federal "B" Area in the year 1964-65 but he did not shift there". This house was rented out by defendant No,
1. At this juncture, the plaintiff did not agitate his case against his brother to vacate his house. He remained silent till 1995 and, thereafter, he filed the present suit on the ground of the need for his son. It is also proved by evidence that repayment of mortgage was made out of the rental income, therefore, it is not significant that the mortgage was in the name of the plaintiff.
17. In view of the above discussion, Issue No,1 is answered in affirmative.
Issue No,2
18. In view of my finding on Issue No,1, this issue is answered in the negative.
Issue No, 3
19. The parties to the suit have relied upon the documents in their possession and in record/document, relevant for the purpose of this suit, is in possession of any other party nor there is any objection as to the genuineness of any document. No prejudice is shown to have been caused to any of the parties on the ground of non-joinder of any party. The defendants have not been able to show as to how this issue can be decided in their favour. Accordingly, this issue is answered in the negative.
Issue No,4
20. This issue relates to the status of possession of the defendant No,1 of the ground floor of the suit property. In view of my findings to issue No,1, the father of the parties has been held to be the real owner of the suit property, therefore, defendant No, l's possession is held to be in his own right as a co-owner after the death of their father.
Issue No,5.
21. Defendant No,1 is occupying the ground floor of the suit property in his own right, which is supported by evidence, both documentary as well as defendant No,1, examined as Exh.A-1, therefore, he is not a licensee. This. Issue is answered accordingly.
Issue No,6
22. In view of my findings that both, the plaintiff and defendant No,1, are co-owners and are living in the suit property, they are liable to foot the utility bills in equal shares. Both of them are liable to pay the utility bills accordingly for the past as well as for the future. However, payment for electricity, gas and telephone bills, based on actual consumption, are the responsibility of the plaintiff alone as the defendants are not availing of these utilities.
Issue No,7
23. Issue No,7 deals with mesne profit claimed by the plaintiff. In this connection much emphasis has been laid by the counsel for the plaintiff on the fact that the defendants have not denied the quantum of mesne profits claimed by the plaintiff. The defendants are denying the sole and absolute ownership of the plaintiff which follows that they are also denying that the plaintiff is entailed to any mesne profits, therefore, question of quantum of mesne profits is of no help to him.
In view of my findings on Issues Nos.1, 2 and 4, this issue is answered in the negative.
Issues Nos.8 and 9
24. Learned counsel for the defendants contended that the suit is barred by limitation as according to him, the cause of action, if any, accrued to the plaintiff for the first time when defendant No,2 shifted from the house in the year 1963 and thereafter when defendant No,1 constructed his house in Federal "B" Area in the year 1964 and in 1978 when the father of the parties expired. However, the plaintiff waited till 1995 to file the suit. Since it is admitted that the brothers and sister were living in a joint family, therefore, no question of limitation arises on the above dates. The dispute, if any, for the first time surfaced in the year 1995, when plaintiff asserted his sole ownership of the suit property and the defendants denied the same. Therefore, this issue is answered in the negative.
25. So far as the question of estoppel is concerned, the same does not apply in the present case. A brother can allow his other brothers and sisters to live with him without charging anything from them. This does not mean that he is estopped from asserting his right of ownership in future.
However, this issue becomes irrelevant in view of my findings on Issue No,1 above.
Issue No,10
26. Issue No,10 specifically relates to the relief to which the plaintiff is entitled. Since both the brothers, i.e, plaintiff and defendant No,1, were earning members of the family, they were spending whatever they were earning on the upkeep of the family. Therefore, they are equally entitled to their respective shares from the Estate of their deceased father.
27. Learned counsel for the plaintiff has in the written arguments, pointed out that on the expiry of the defendant No,2, the defendant No,1 and his sons have taken over possession of the properties of the defendant No,2 as well as his entire business. However, this issue gives a separate cause of action to the plaintiff and he is at liberty to seek redress of his grievances through appropriate proceedings.
Issue No,11
28. In view of my findings on the above issues, I hold that both the parties are entitled to their respective shares in the suit property as legal heirs of the late S.M. Abdul Ghani as well as to their respective shares, in the suit property, from the Estate of the deceased defendants. The suit is decreed accordingly. accordingly.