1. ' KHAWAJA NAVEED AHMED, J.---This is a suit for possession, declaration, cancellation of documents, injunction and mesne profits has been filed by the plaintiff on 23-1-2003 against his mother Mst. Khatoon Shahood and sister Mst. Parveen Salimi wife of Muhammad Hanif Salimi, Muhammad Ali Cooperative Housing Society and Government of Pakistan through Secretary, Ministry of Housing and Works Division, Islamabad. Subsequently on 7-2-2005 he had filed amended title as per order of the Court and deleted Muhammad Ali Cooperative Housing Society from the list of defendants. Again on 7-5-2005 he has filed amended title after deleting his mother Mst. Khatoon Shahood from the list of defendants as she had died on 28-11-2003. Now this case is only against Mst. Parveen Salimi and Government of Pakistan through Secretary, Ministry of Housing and Works Division, Islamabad.
2. ' The facts narrated in the plaint are that the plaintiff is residing in USA since 1975 and owns Investment Banking Firm in California by the name of Newport West Financial. The plaintiff is a man of big financial sources. In the months of August, 1995 the plaintiff has decided to purchase House No,23, Block-D, admeasuring 660 sq. Yards from one Asif Jabbar for the total sale consideration of Rs,1900,000. The plaintiff on 31-8-1995 by showing his mother as the ostensible purchaser made her to enter into agreement to sell with Asif Jabbar and paid advance sale consideration of Rs,600,000 through Pay Order No,123361 dated 31-8-1995 drawn on City Bank, Kara hi through his cousin Azhar Hussain Karni. The Pay Order of Rs,600,000 was prepared from the US$ Account No,43262211-8, Citybank, Karachi, which, is in the name of the plaintiff. The plaintiff had paid the balance sale consideration to Asif Jabbar through his cousin Azhar Hussain Karni vide Pay Order No,123384 dated 5-9-1995. However, the sale-deed was prepared in the name of plaintiff's mother in capacity of ostensible owner. The plaintiff subsequently renovated the property at his own cost. His mother had orally gifted the property to him, which was reduced into declaration of gift-deed 8-1-1996 and it was registered before the Sub-Registrar T-Division-XI, Karachi, vide Registered No,59 at pages 12 to 15, Vol. 430, Book No,1 Addl. The plaintiff's sister Mst. Parveen Salimi, who was living with her husband and children at Lahore came to Karachi in june/July, 1996 in order to meet her mother and started living there. The plaintiff was in USA at that time. The plaintiff had taken no objection as she was his sister and was looking after the property in his absence along with his mother. The case of the plaintiff is that he used to send money to his mother from his earning from USA through Banking channel in the name of his sister, who used to receive the amount. The mother of the plaintiff had complained to him that, the money sent by the plaintiff to his sister is neither being spent on his mother nor Mst. Parveen Salimi is properly looking after his mother. The plaintiff had confronted Mst. Parveen Salimi with regard to the said fact whereupon she became aggressive and abusive towards plaintiff. The plaintiff had asked her to vacate the premises and go back to Lahore. She promised to do so, but kept on delaying the matter on one pretext or the other till she finally turned dishonest and got the property shifted in her favour through misrepresentation and fraud. The plaintiff came to Pakistan in December 2002, and succeeded in obtaining copy of confirmation of oral gift from the office of Sub-Registrar of documents while the office of Muhammad Ali Society did cooperate with the plaintiff. The case of the plaintiff is that he is the real owner the property. His mother was only an ostensible owner/benamidar. The ssaid property was purchased by the plaintiff from his own funds. The mother of the plaintiff was old and ailing housewife and was depending upon the plaintiff having no means or funds to purchase the said property. However, she had gifted property to the plaintiff through registered declaration of oral gift in favour of the plaintiff in January, 1996 and then divesting her all rights with respect the said property in favour of 1 plaintiff. The subsequent gift-deed dated 22-12-2001 is mala fide illegal and without any lawful effect and void. 1 plaintiff is in possession of original documents of the property.
3. The plaintiff has made following prayers in the plaint:--
(a) For possession of House No,23, Block-D, Muhammad Ali Memorial Housing Society, Karachi.
(b) For declaration that the plaintiff is the real owner of House No,23, Block-D, Muhammad All Memorial Housing Society, Karachi.
(c) For declaration that the oral gift dated 15th November, 2001 and confirmation of Oral Gift dated 22nd December, 2001 are void and/or voidable and have no legal effect.
(d) Adjudicating Confirmation of Oral Gift dated 22nd December, 2001 to be void and/or voidable and cancelling and delivering the same to the plaintiff.
(e) For Permanent Injunction restraining the defendants Nos .3 and 4, their officers, employees and/or any one else claiming or acting through or under them from mutating/transferring the House No,23, Block-D, Muhammad Ali Memorial Housing Society, Karachi in favour of the defendant No,2 in any manner whatsoever.
(f) For Permanent Injunction restraining the defendant No,2, her agents, privies, attorneys and/or any one else claiming or acting through or under her from alienating/disposing of and/or parting with or handing over possession of the House No,23, Block-D, Muhammad Ali Memorial Cooperative Housing Society, Karachi to any person in any manner whatsoever.
(g) For mesne profits at the rate of Rs,40,000 per month w.e.f, 1st January, 2002 pendent lite till the realization of decretal amount.
(h) Cost of the suit.
(i) Any other relief deemed fit and proper in the circumstances of the case by this Honourable Court.
4. ' The defendants Nos.1 and 2 i.e, the mother of the plaintiff in her life time and his sister has submitted their written statements on 12-5-2003. The defendants had totally denied the claim of the plaintiff regarding any Banking Investment Firm by the name of Newport West Financial. It is claimed by the defendants that the plaintiff is an employ of ISTIL and he has dispute with his partner and litigation is pending in foreign Court. They have made the allegation of fraud and cheating upon the plaintiff. It is stated in the written statement that suit property was purchased by defendant --No,1 through registered sale-deed in the year 1995, in para. 8 of the written statement the defendant No,1 has categorically stated that she has purchased the suit property for herself in her own name through her own funds. The plaintiff has nothing to claim from the suit property. The then defendant No,3 Muhammad Ali Cooperative Housing Society had also filed the written statement wherein they had vehemently denied that the Society has any collusion with the defendant No,2. The defendant No,3 had prayed for rejection of the plaint on the ground that mandatory notice under section 70 of Cooperative Societies Act was not given to the Society.
5. Defendant No,4, Government of Pakistan, through Secretary, Ministry of Housing and Works Division, Islamabad had filed their written statement stating' therein that any order passed by this Court will be obeyed by them. The plaintiff had finally deleted the defendant No,3 from the list of defendants with permission of the Court.
6. ' The Court had adopted the issues given by the Advocate for plaintiff and Commissioner was appointed by the Court vide order dated 31-1-2005, which are as under:--
(1) Whether the suit is not maintainable under section 42 of Specific Relief Act?
(2) Whether the suit is not maintainable under section 54 of Specific Relief Act?
(3) Whether the Property bearing No,23, Block-D, admeasuring 660 Square yards Muhammad Ali Housing Society, Karachi was purchased by the plaintiff as real owner from his funds in the name of defendant No,1 as ostensible owner?
(4) Whether the Property No,23, Block-D, admeasuring 660 Square Yards, Muhammad Ali Housing Society, Karachi was validly gifted by the defendant No,1 in favour, of the plaintiff vide oral gift dated 4-1-1996 and. For which declaration of gift was executed on 8-1-1996?
(5) Whether the Oral Gift, dated 15-11-2001 and Confirmation of Oral Gift dated 22-12-2001 with respect to Property Bearing No . 23 , Block-D, admeasuring 660 square yards, Muhammad Ali Housing Society, Karachi by the defendant No,1 in favour of defendant No,2 is valid and legal?
(6) To what relief if any the plaintiff is entitled?
(7) What should the decree be?
7. ' Plaintiff has examined five witnesses in support of his case including himself. He is witness No,l. -He has filed an affidavit in evidence and has produced documents as Exh. No, P.W.1/2 to P.W.1/260. He was cross-examined by Mr. Muhammad Zahid Khan, Advocate on 9-5-2005. The plaintiff had admitted that "It is correct that I did not file any documentary proof regarding my income in USA along with my affidavit in evidence." He had denied the suggestion that he did not live with his mother for any time during the year 1995. The plaintiff had denied the suggestion that being a poor man he took 16000 US$ from defendant Mst. Parveen Salimi. The plaintiff has admitted that when he had left for USA as a student he was a poor person and had carried 300 US$ for his expenses. He has admitted that his ticket was purchased by his mother. The plaintiff has denied the suggestion that documents Exh.P.W.1/72 and P.W.1/257 were deceitfully removed by him from the cupboard of his mother. The plaintiff had denied the suggestion that entries shown on Exh.P.W.1/8 are forged and are afterthought. He has denied the suggestion that signature of his mother on Exh.P.W.1/8 are forged. He has denied the suggestion that Exh.P.W.1/8 is a manipulated document with the help of Sub-Registrar. He has denied the suggestion that he has deposed falsely.
8. ' The second witness examined by him is P.W.2 Azfar Hussain Karni. He was also cross-examined at length by the learned defence counsel. This witness has clearly stated that Mst. Khatoon Shahood did not have money to purchase the house. He had checked Bank balance of Mst. Khatoon Shahood to ascertain her wealth. He has supported the plaintiff on almost all the averments made by the plaintiff in his evidence. This witness was cross-examined at length by Mr. Muhammad Zahid Khan, Advocate. The witness states that he is Chemical Engineer and is employed in Islamic Development Bank in Jeddah since end of January, 1996. This witness has stated that the wealth of Mr. Sohail Masood can be judged by the fact that he wears PATEK PHILLIPE watch worth US$ 50,000.
9. It is a lengthy cross-examination and in the end this witness has stated that it is incorrect to suggest that Khatoon Shahood purchased the house from her own funds. Voluntarily says Khatoon Shahood did not have money to purchase the house. He further states that Mst. Khatoon Shahood was an Assistant in Ministry of Finance, Government of Pakistan and she retired in mid 1970's. He has further stated that his family and Khatoon Shahood family used to live in the same house on the first and ground floor and she did not have a car.
10. ' The third witness was P.W. Hassan Ali, who was Officer Grade-2, MCB, Shahrah-e-Faisal. He had produced Bank statements attested by MCB Manager Mr. Vinod Kumar Ahooja of Account No,KB000160-3 in the name of Parveen Salimi and Saba Salimi as Exh.P.W.3-3/261 to 289. Since this witness has only comes to produce documents therefore, was not cross-examined.
11. ' The Commissioner Tarik Ali, Advocate has submitted his report dated 28-2-2006, which was presented in Court on 6-3-2006 and is at page No,193 of the suit file. Commissioner after recording the evidence of two witnesses had returned the file and P.W.3 was examined by another Commissioner. The plaintiff has also examined P.W.4 Mr. Muhammad Saleem who is Sub-Registrar.
12. He has brought the record pertaining to declaration of gift executed between Mrs. K. Shahood in favour of Mr. Sohail Masood. The Registrar has confirmed that the document has been registered bearing Registration No,59 at page 12 to 15 Vol. 430 of Book 1 Additional, dated 8th January, 1996 of Sub-Registrar T-Division-II. He had produced attested photocopy of the same document as Exh.P.W.4/270 containing 5 pages. Since the witness had come to produce documents he was not allowed cross-examination.
13. ' P.W.5 is Mr. Tanveer Ahmed Khan, the Citi Gold Executive, Senior Relationship Manager, Main Branch I. I. Chundrigar Road. He has produced bank statements showing the remittances and application submitted by the plaintiff for issuance of pay order in favour of Asif Jabbar dated 5-9- 1995. P.W.5 was recalled and reaffirmed. He had produced the documents, which were under objection viz., copy of Cheque No,18228, which pertains to Account No,432622118.
14. ' The learned counsel for the defendant has raised objection to the legibility of the document to which Mr. Adnan Karim had pointed out Court order dated 19-2-2007. The witness has also produced Bank certificate, dated 25-1-2007 in respect of Cheque No,18228. The plaintiff had closed his side.
15. ' Both the defendants has not led any evidence.
16. ' My findings on the above issues are as under:- ISSUES NOS.l AND 2.
17. ' Regarding these issues though the objections were taken in the written statement, but the defendants have not argued as to how the suit is not maintainable under sections 42 and 54 of the Specific Relief Act. In PLD 1972 SC page 25 Mst Khair un Nisa and 6 others v. Malik Muhammad Ishaque and 2 others it has been held as under:-- ' "Written statements cannot be exhibited in a case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case. Written statement cannot be exhibited if defendant dies without being examined."
18. ' In the circumstance, I hold that the suit is maintainable and as such both the issues are replied in negative.
19. ISSUE NO.3.
20. ' I have already discussed the entire case in the preceding paragraphs of this judgment. Now while dealing the matter as issuewise in addition to what I have observed above I hold as under:- ' To prove this issue plaintiff has examined himself. P.W.2 Azfar Hussain Qarni through whom the funds were withdrawn from the Citibank has supported the case of the plaintiff, original documents of the property are with the plaintiff. He has sufficient means to purchase the property. The defendant's counsel had cross-examined at length both the witnesses, but nothing material came out during cross-examination to shake the witnesses or to impeach their credibility.
21. ' P.W.3 Hassan Ali the then Officer of MCB has produced the Bank account of Mst. Parveen Saleemi and Mst. Saban Saleemi, which shows that they never had sufficient funds at the relevant time to purchase the property. P.W.5 Tanveer Ahmed Khan has also supported the case of the plaintiff and has produced Bank statement showing Cheque No,18226, dated 31-8-1995 amounting to US$18500, which was cashed from the account No,432622118 of Citibank and Cheque No,18227 dated 5-9-1995 amounting to US$ 52,200 debited from account of plaintiff Sohail Masood and third Cheque No,18228, dated 5-9-1995 amounting to US$ 116,743, which were debited from Account of plaintiff bearing No,43262218 of Citibank as Exh.P.W.5/ 171, 172 and 173. He has also produced the Bank statement of plaintiff Sohail Masood with effect from 1-11-2001 to 31-1-2002 as Exh.P.W.5/174. He has also produced the request of the plaintiff dated 31-8-1995 for issuance of pay order payable to Asif Jabbar as Exh.P.W.5/175 and another pay order P.W.5/176. He also produced another application of the plaintiff dated 5-9-1995 as Exh.P.W.5/ 177 and pay order Exh.P.W.5/178. In the circumstances the Issue No,3 is proved in favour of the plaintiff and it is held that their payment for the purchase of the house has been made from the plaintiff B from his personal accounts as such I reply the issue in affirmative.
22. ISSUE NO.4.
23. ' To prove this issue the plaintiff has examined P.W.4 Muhammad Saleem who has produced registered declaration of gift in respect of the suit property between Mrs. K. Shahood and Mr. Sohail Shahood. This document is registered at Serial No,59, at page 12 to 15 Vol. 430 of Book-1, Additional, dated 8th January, 1996, of Sub-Registrar T-Division-XI. The document has been exhibited as P.W.4/270 containing five pages. In the circumstances this is proved that the property was gifted in favour of the plaintiff by his mother through registered C document. The issue is replied in affirmative.
24. ISSUE NO.5.
25. No evidence has been led by the defendant to prove Oral Gift, dated 15-11-2001 and Confirmation of Oral Gift dated 22-12-2001 in respect of the suit property. The issue has not been proved by the defendant No,1 upon whom the burden of proving this issue lies. The issue is decided in negative.
26. ISSUES NOS.6 AND 7.
27. ' This suit was originally filed by the plaintiff against his mother and sister Mst. Parveen Saleemi, who was originally defendant No,2. Subsequently amended plaint was filed on 7-5-2005 after the death of Mrs. Khatoon Shahood (mother of the plaintiff) and case proceeded only against Mst. Parveen Saleemi, whose Advocate had cross-examined the witnesses, but she has not led any evidence in favour of her contentions as well as for proving her documents i.e, Oral Gift, dated 15-11-2001 and confirmation of Oral Gift, dated 22-12-2001 as such both these documents are not proved and are declared to be void and are liable to be cancelled. The plaintiff has proved that he has purchased the property from his own funds in the name of his mother and subsequently mother had gifted the same to him. He has proved declaration of gift in his favour by examining the Sub-Registrar, Central Record, Karachi namely Muhammad Saleem as P.W.4. The Oral Gift in favour of the plaintiff is proved.
28. ' I therefore, decreed the suit in favour of the plaintiff as prayed by him except prayer clause 'G' of the plaint because neither any issue was framed in this respect nor any evidence was led by the parties on the point of mesne profit. Moreover Mrs. Khatoon Shahood as per death certificate had died on 28-11-2003 as such she being the mother of the plaintiff was entitled to live in the house and the plaintiff cannot claim mesne profit till 28-11-2003. Since property is not in possession of the plaintiff I therefore, allow mesne profit @ of Rs,15,000 per month from 1-12-2003 till realization of the possession of the property.