' KHALID ALI Z. QAZI, J.--- By this judgment, I intend to dispose of two suits which were consolidated vide order, dated 10-3-2005. Suit No,1666 of 2000 has been filed by the plaintiff Chuttal Khan Chachar for declaration, permanent injunction and mandatory injunction with the following reliefs:--- "(a) Declaration be granted to the effect that the plaintiff is actual and original owner of the suit property and has paid the entire amount in respect of the suit property i,e, Flat No,A-3/F, Central Point Building DHA-1, Karachi and transaction i,e, sale-deed, dated 14-9-1995 executed in favour of defendant No,1 declares to be Benami.
(b) Injunction is granted by directing the defendant No,1 to hand over/surrender the title documents in respect of suit property in favour of the plaintiff.
(c) Permanent injunction be granted by restraining the defendant No,1, her agents, attorney, heirs and successors or any body acting on her behalf from selling, alienating, mortgaging and interfering with the possession of the plaintiff in respect of the suit property i,e, Flat No,A-3/F, Central Point Building, Phase-1, D.H.A., Karachi.
(d) Any other relief/reliefs which this Honourable Court may deem fit and proper under the circumstances of the case.
(e) Grant cost of this suit."
2. Suit No,243 of 2000 has been filed by plaintiff Mst, Shahida Rani against the defendant for possession, injunction, recovery of articles mesne profit and damages with the following prayer:--- "(a) The defendant be directed to put the plaintiff in peaceful physical possession of apartment bearing No,A-3/F, Central Point Building D.H.A.-1, Karachi.
(b) The house-hold articles as per schedule Annexure "C" inclusive of others be restored to the plaintiff.
(c) The defendant and/or any person claiming through or under him be permanently restrained from alienating and/or creating any third party interest in respect of the suit property in any manner whatsoever to whomsoever, more so when the plaintiff is put in physical possession of the apartment in question under the decree of this Honourable Court, the defendant and/or any person claiming through or under him be permanently restrained from interfering in such possession in any manner whatsoever.
(d) The defendant be directed to pay mesne profit at the rate of Rs,20,000 per month from 15th October, 1999, till the plaintiff is put in physical possession of the suit property.
(e) To grant damages of Rs,1 million.
(f) Any other relief/reliefs which this Honourable Court may deem fit and proper under the circumstances of the case.
(g) Grant cost of this suit."
(h)
3. Brief facts of the case are that plaintiff Chuttal Khan Chachar is civil servant working as Senior Superintendent of Police (Security), Karachi whereas the defendant is his wife and the plaintiff is residing in Flat A-3/F, Central Point Building D.H.A.-1, Karachi. The defendant was previously married woman and having a daughter name Miss Sidra from her previous husband as she got Khula from him and got married the plaintiff. Before entering into marriage contact the plaintiff was residing at Hyderabad having no personal accommodation at Karachi, therefore, decided to purchase the said house before marriage in order to accommodate the defendant in new house. Plaintiff made immediately arrangements and purchased the suit property in the name of his wife in order to give her full response and sense of protection. It is submitted that before contracting marriage the plaintiff made arrangement for purchasing of the apartment and approached Estate Agent namely Shamrez who is running Mtate Agency known as Empire Estate in Commercial Area Phase I, D.H.A., Karachi and having flat i,e, suit property which was in the name of his wife Mrs. Shaheen Akhtar who agreed to sell the same for consideration of Rs,6,90,000. The plaintiff immediate purchased the said flat in the name of defendant and got executed lease deed dated 14-9-1995 in favour of defendant, but payment was made by the plaintiff himself form his own funds and after payments and execution of such Benami sale-deed dated 14-9-1995, plaintiff got the possession of the suit property from its previous owner defendant No,2 and decorated the said flat by putting furniture and fixture as these arrangements were made earlier to marriage by the consent of the parties in order to facilitate the defendant and nothing else. The defendant will reside as a wife and not a beneficiary of the suit property as the whole transaction was Benami.
4. Further case of the plaintiff is that he in order to finalize such sale transaction ready to sell his Plot No,28/1 measuring 600 sq. Yards situated in Khayaban-e-Sahar, Phase VI, D.H.A., Karachi and asked Estate Agent Shamrez to arrange to get his plot be disposed of and flat be purchased from such money and any surplus amount will be adjusted and paid by the plaintiff accordingly. The Estate Agent namely Shamrez sold plaintiff's plot to Mrs. Safia Tabbasum wife of Munawwar Ahmed on 13- 4-4994 on total consideration of Rs,5,00,000 which was agreed and finally transfer was made on 26-5-1994 in favour of Mrs. Safia Tabasum. The transaction in respect of the suit property was also finalized and accordingly the plaintiff paid Rs,6,90,000 to owner of the flat (suit property) to Mrs. Shaheen Akhtar wife of Shamrez Khan Mughal in presence of her husband Shamrez and got the sale-deed registered in the name of his wife. Soon after the finalization of such transaction, the plaintiff contracted the marriage with the defendant on 10-10-1995 and brought her to his new apartment i,e, suit property and residing happily, but after passing hardly about one year the dispute arose between the husband and wife as she (defendant) proved herself unfaithful wife and did below dignity of the plaintiff's status and did not follow the due instructions of the plaintiff and she started objectionable social activities and created nuisance and mental torture for the plaintiff and did not mend her ways or attitude in spite of best efforts taken by the plaintiff to reconcile the relations but the defendant ultimately left the house in the month of July, 1999 and went to her parent's house along with gold ornament and other valuable articles and also taken away original title documents relating to the suit property, which further created doubts in the mind of the plaintiff.
5. It is further stated that plaintiff again made several approaches and efforts to reconcile the dispute between the parties but in vain. In the meantime during the stay in the house of her parents defendant No,1 abruptly changed her mind and tried to sale the suit property through her parent and Estate Agent under the garb of such sale-deed which is Benami transaction and nothing else. She tried to take such undue advantage of such Benami transaction the plaintiff is actual and original owner of the suit property who has paid the entire consideration of amount of Rs,6,90,000 from his own pocket by selling his plot plus cash. The defendant is Benamidar and such transaction in respect of sale-deed dated 14-9-1995 was Benami transaction and therefore, the defendant have no right to sale/transfer or alienate, mortgage or to get any benefit from said suit property except she can We the same for living purpose only being the wife the plaintiff. The defendant No,1 has not paid a single rupee or in any part payment while the total consideration of purchasing suit property. But the plaintiff had paid the entire amount, as he is also Zamindar having agriculture land in District Ghotki, since his forefathers. Now the situation in respect of relation between the plaintiff and defendant No,1 are very strained and there is no possibility of their reconciliation on the part of the defendant. Therefore, under such circumstances the plaintiff apprehends the selling, transferring alienating, mortgaging the suit property at the hands of defendant No,1 at any time therefore, plaintiff have decided to file a present suit in order to save his property which is fundamental right of the plaintiff. The sale-deed dated 14-9-1995 is totally Benami transaction and the defendants have no right or any title over the suit property.
6. It is further stated in the plaint that Suit No,1077 of 1999 was filed before X-Senior Civil Judge south Karachi, which was admitted and registered. The defendants were served and filed their written statements respectively. Learned Senior Civil Judge directed the plaintiff to revalue the suit and to present the suit before proper Court having jurisdiction as the suit property is around of Rs,30,00,000 which came under the provision and ambit of section 7(iv-A) of Court Fee Act and returned the plaint accordingly.
7. In response to the summons issued the defendant No,1 filed her written statement denying the allegations levelled in the plaint and raised certain preliminary objections about the maintainability of suit and submitted that the suit is hit by sections 42, 54 and 56 of the Specific Relief Act. Further the plaintiff has no cause of action in the suit, nor having any right or interest in the suit property. It is submitted that the plaintiff before filing this suit had filed Suit No,1077 of 1999, which plaint pursuant to order, dated 3-2-2000 passed by Xth Senior Civil. Judge, Karachi South and by own act filed C.M.A. No,24 of 2000 filed before 1st Additional District Judge South Karachi, who by his order, dated 24-11-2000 ordered him to present the plaint returned by the trial Court pursuant to aforesaid order, dated 20-10-1999, which plaint has never been presented up till now in this Honourable Court, but on the contrary in derogation of such orders, the plaintiff illegally and malafidely filed the fresh present suit, as such it is barred under the provisions of Order II, rules 2 and 3, due to which the present suit merits to be dismissed. It is further submitted that the answering defendant has already filed Suit No,243 of 2000 much before the instant suit of the plaintiff in this Court. It is submitted that issue or issues are also directly and substantially in issue in a previously aforesaid suit filed by answering defendant against the plaintiff, that is between the same parties or between the parties under whom they or any of them claiming litigating under the same title where the such suit of answering defendant is pending disposal in this Honourable Court having jurisdiction to grant the relief claimed, as such this suit is subjudiced within the provisions contained in section 10, C.P.C., pursuant whereof the justice demands in the great and largest interest of justice, this Court may be pleased to stay the present suit of the plaintiff till the disposal of suit of the answering defendant.
8. It is stated that the answering defendant married with one Rasa Ejaz and out of the wedlock a daughter Sidra was born, due to certain differences the aforesaid marriage was dissolved.
Thereafter the defendant started living with her parental family at Karachi where she was facing a difficulty and therefore, she was in hunt of her own house. As such her parents family started searching a house for her and for her daughter who was getting education at Karachi. During the aforesaid hunt of house, the defendant was introduced to parental family of the plaintiff, when the plaintiff told to the former that he had very good relations with one estate agent namely Shamroze, who is running a Estate Agency under the name and style of Empire Estate in D.H.A. As such they went to aforesaid Shamroze, who told that he had an apartment in the name of his wife and they wanted to sell the said apartment, as such after seeking the said Apartment bearing No,A-3/F, Central Point Building Phase-I, Defence Housing Authority, they negotiated and finalized the deal, and the defendant purchased it from her won funds vide sale-deed, dated 14-9-1995, which is self- speaking thus she became the lawful true owner, seized and possession of the suit property. It is stated that thereafter the plaintiff developed relations with the parental family of the defendant and lastly he persuaded the parental family of defendant for marrying with the defendant and with the blessing of elders of the defendant the marriage was solemnized at Karachi on 19-10-1995. It is stated that soon after the marriage the plaintiff became greedy and started pressurizing the defendant to transfer the suit property in his name, to which she in her own legal rights refused, which resulted in strained relations between the parties. It is further submitted that the attitude of the plaintiff became more hostile, resulting in disharmonization of sanctity of the happy marriage but the answering defendant tolerated with patience and perseverance in order to avoid any misshape(?) to occur.
9. It is also stated in the written statement that the plaintiff observing the mild attitude of the defendant, then, and undue advantage thereof, played a foul play by bringing women of questionable character, to commit Zina and used to drink with such women in her presence with a view to take undue advantage for compelling her to exhaust her patience so that she be victim of such cruelty and to be indulged in unnecessary temptation, mental torture and tension, in order to compel her to accept his unwarranted illegal and demands with a view to usurp her suit property.
Under such compelling circumstances defendant was left with no alternate but to protest such cruelty, which resulted in waging a war of vilification and vengeance, due to which the plaintiff threatened the answering defendant that she will be divorced, her property will be snatched forcibly, he being posted at a High Police Post will exercise his influence, all over the local administrative machinery due to which not only she will be put in added harassment but equally any of her well-wisher and/or any of her relative, extending any rescue to her, would be equally put in hot waters, at this juncture, she protested to it and further did not care such threats and declared that she was prepared to face further fatal consequence and eventualities that may come. It is also submitted that on 15-10-1999, the answering defendant had gone to see her ailing aunt, and the plaintiff taking undue advantage of her absence surreptitiously, illegally and malafidely criminally trespassed in suit flat and broke open the locks of the house which were changed, it is further submitted that the suit house was fully decorated with precious dowry articles inclusive of gold ornaments worth lacs of Rupees, the articles shown in the schedule Annexure "C" were lying there in the demised premises at the relevant time, she was also informed by her brother on phone that some notice had come to his house from some Court, then she reached to her house. Where she found that three Armed Police Guards were standing at the door of her house, who not only rebuked, abused and misbehaved with her but threatened her that if she enters into the house, they had orders from the plaintiff to shoot her and her daughter, this was all done to usurp the property of the answering defendant and when she went to lodge complaint against the plaintiff, the Area Police officials refused to register case against the plaintiff, on the pretext that the plaintiff was their officer and it being a family matter it should be solved at home. It is submitted that when defendant reached to the house of her brother she was shocked to receive the notices of Suit No,1077 of 1999, in which suit the plaintiff had levelled false and frivolous allegations and even used defamatory and derogatory language and falsely claimed that the suit house and the articles lying therein belong to him and he had purchased it in the name of the answering defendant and that answering defendant is a Benami, to which the defendant filed her written statement, and also filed application under section 151, C.P.C. Read with Order VII, rule 11, C.P.C., which application was heard and the suit of the plaintiff has been disposed of.
10. It is further stated that the plaintiff in order to defame, disgrace, to lower her in every walk of life, not only divorced her but proved his aforesaid threats by snatching the answering defendant's property and to give a colour of title, he has laid a false claim of claiming the suit property, under the garb and colour of Benami transaction, in the aforesaid suit, though neither he is the owner nor was in physical possession of the apartment in question nor he has got anything to do with the articles in question. It is submitted the plaintiff in order to usurp the property of the answering defendant and to divorce her created environments by defaming, disgracing in lowering her in estimation of her parental family, her family friends in particular and public in general, which fact finds supports from different allegations contained memo. Of plaint in Suit No,1077 of 1999, filed by him in the Court of Xth Senior Civil Judge South Karachi and the answering defendant is entitled for damages of Rs,1 million as claimed in her suit. It is submitted that the plaintiff has also started removing house hold articles from the suit property, and has further threatened that he will either dispose of and/or alienate the suit property and usurp the articles in question. Under the aforesaid circumstances, the answering defendant has already claimed in her own suit to be entitled for a decree of permanent injunction to the effect that the plaintiff be permanently restrained from alienating the suit property in any manner whatsoever to whomsoever and for the restoration of all the house hold articles as per schedule Annexure "C" and further for physical possession of the suit property with mesne profit at the rate of Rs,20,000 per month from 15th October, 1999, till the answering defendant is put in physical possession thereof. Lastly it is stated that the plaintiff has no right, interest in the above matter nor any kind of character seeking relief inter alia is involved. The plaintiff, therefore, in view of the forfeit is not entitled any relief prayed for, and the suit is to be dismissed with special compensatory costs.
11. Out of the pleadings of the parties consolidated issues were framed on 10-3-2005. Defendant No,1 moved an application for reconstituting the issues, which was granted with the consent of learned counsel for the plaintiff and vide order, dated 21-11-2005 and issues Nos.1 and 2 reconstituted. The following issues were framed:--- "(1) Whether Mst. Shahida Rani is owner of the property No,A-3/F, Central Point Building, Phase-I, D.H.A., Karachi, under a registered deed dated 14-9-1995 in her own right or as Benamidar Chuttal Khan? If so, its effect.
(2) Out of whose funds the sale consideration to acquire the property was paid? If so, its effect.
(3) Whether Mst. Shahida Rani is entitled for mesne profit, if so, what amount and from what date?
(4) Whether Mst. Shahida Rani is entitled for restoration of articles shown in schedule "C" to the memo. Of plaint in Suit No,243 of 2000 or otherwise?
(5) Whether the plaintiff Mst. Shahida Rani is entitled for damages, if so what amount?
(6) To what relief, if any, parties are entitled to?
12. After framing of issues, Commissioner was appointed for recording of evidence. Plaintiff has examined himself as Exh.P.1 and produced only sale-deed in respect of the said flat as Exh.P.3. He was also cross-examined by Mr. Mahmood A.H. Baloch, Advocate for defendant. Attorney of defendant No,2 Shamroze Khan has been examined as Exh.D., who was duly cross-examined by Mr. Ejaz Mangi, advocate and Mr. Mahmood A.H. Baloch, Advocate. Thereafter Mst. Shahida Rani has filed her affidavit-in-evidence and was cross-examined by learned counsel for the plaintiff Mr. Ejaz Mangi. She has produced documents as Exh.D.4 to Exh.D.19-A. Defendant Mst. Shahida Rani in support of her claim also examined two witnesses namely Shaheen Hussain as Exh.D.23 and Bashir Ahmed as Exh.D.25. They were also cross-examined by the learned counsel for the plaintiff.
13. I have heard Mr. Mahmood A.H. Baloch, learned counsel for the defendant Mst. Shahida Rani and perused the material available on record. Plaintiff and his counsel have chosen to remain absent.
14. Since all the issues are inter-connected, therefore, I will deal them jointly. My findings on the above issues for the reasons recorded are as under:---
15. The plaintiff in Suit No,1666 of 2000 and defendant in Suit No,243 of 2000 Chuttal Khan Chachar appeared in Court as his own witness (Exh.P.1) and produced his affidavit-in-evidence as Exh.P.2 and produced photo copy of registered sale-deed executed on 14-9-1995 vide Registration No,3018 with Sub-Registrar "T" Division-II-A, Karachi between Mrs. Shaheen Akhter daughter of Abdul Aziz and Mst. Shahida Rani daughter of Rahim Bux Soomro defendant No,1 in suit No,1666 of 2000 and plaintiff in Suit No,243 of 2000 as Exh.P.3. He also produced one Shamrez Khan as attorney of defendant No,2 as Exh.D. Who produced his special power of attorney as Exh.D/1 and affidavit- inevidence as Exh.D.2. The crucial issue is whether Mst. Shahida Rani is owner of property No,A-3/F, Central Point Building, Phase-I, Defence Housing Authority, Karachi under a registered sale-deed, dated 14-9-2005 in her own right or as Benamidar of Chuttal Khan Chachar. Chuttal Khan Chachar in his evidence and in cross-examination has admitted that he has not declared the said property anywhere in his statement of assets as required under Sindh Government Servant Conduct Rules, being an officer of Government and had not filed any copy of such statement or declaration in Court. He admitted that he filed Suit No,1077 of 1999 in the Court of Xth Civil Judge, South Karachi for the same property and its plaint was returned to him on 3-2-2000 for filing the same in a competent Court having jurisdiction but he has not filed that plaint in this suit. In his affidavit-in- evidence he said that his second marriage with Mst. Shahida Rani was love marriage and he decided to purchase house before Nikah therefore, he sold his one plot in D.H.A. And purchased the said property in the name of Mst. Shahida Rani. Therefore, on 10-10-1995 marriage was solemnized between them. He stated that Mst. Shahida Rani has not paid a single penny herself in purchasing the suit property. He divorced Mst. Shahida Rani on 21-10-1999 after filing the original Suit No,1077 of 1999. The allegation made by Mst. Shahida Rani in her Suit No,243 of 2000 are incorrect and false and based on mala fide intention in order to usurp the suit property. He has not taken the suit property forcefully from Mst. Shahida Rani and therefore, not liable to pay mesne profit at the rate of Rs,20,000 per month from 15-10-1999 till she is put in physical possession of suit property. During cross-examination Shamrez Khan (Exh.D) admits Exh.P.3 registered sale-deed and admits that his wife has sold the suit flat to Mst. Shahida Rani and had also signed the documents as witness and admits the contents of registered sale-deed wherein it has been mentioned that entire amount has been paid by Mst. Shahida Rani. The defendant No,2 chooses not to appear in witness-box herself to substantiate her written statement although registered sale-deed was executed by herself and no reason has been given in the special power of attorney for her non-appearing for her deposition. Evidence of Shamrez Khan Exh.D. Is not confidence-inspiring merits to be ruled out of consideration. Chuttal Khan Chachar admits in cross-examination that it is not mentioned in plaint of Suit No,1666 of 2000 or written statement of Suit No,243 of 2000 about love affair with defendant No,1 by himself and it first time mentioned in Exh.P.2. He admits that he has not signed sale-deed Exh.P.3 as a witness. He admits that he has not claimed any relief against defendant No,2 Mrs. Shaheen. He admits that he has not filed any declaration or documents in this suit regarding purchase and sell of Plot No,28/1, D.H.A. Phase-VI, Khayaban-e-Saher, Karachi. He admits that the articles shown in report of Nazir of this Court/inventory Annexure "C" are in his possession.
He admits that he has not filed any proof that he is Zamindar.
16. Mrs. Shahida Rani, the defendant No,1 in Suit No,1666 of 2000 and plaintiff in Suit No,243 of 2000 appeared in Court as her own witness Exh.D.3 and produced her affidavit-in-evidence as Exh.D.3/A, sale-deed dated 14-9-1995 as Exh.D.4, Nikahnama as Exh.D.5, the list of dowry articles as Exh.D.6, the inventory prepared by Nazir of this Court Exh.D.7, copy of plaint in Suit No,1077 of 1999 as Exh.D.8, copy of her written statement in said suit as Exh.D.9, copy of application under Order VII, rule 11, C.P.C. Read with section 151, C.P.C. As Exh.9/A, copy of its supporting affidavit as Exh.D.9/B, copy of objection by plaintiff as Exh.D.9/C, copy of order dated 3-2-1999 as Exh.D.10, copy of divorce deed as Exh.D.11, copy of appeal filed by plaintiff as Exh.D.12, copy of cross-objection as Exh.D.12/A, copy of statement filed by Advocate of plaintiff withdrawing appeal as Exh.D.12/B, copy of objection as Exh.D.12/C, copy of order in C.M.A. No,24 of 2000 as Exh.D.12/D, the copies of newspaper cuttings as Exhs.D.13 to 18. She has categorically stated in her affidavit-in-evidence that she being owner was in possession of suit property from the date of purchase Exhs.P.2 and D.4 from 14-9-1995 till 15-10- 1999 when she locked the suit property and proceeded to Lahore to see her ailing aunt. The keys of the suit property were also with her and Chuttal Khan Chachar taking undue advantage of her absence surreptitiously criminally trespassed in the suit property and broke open the locks of the house and changed the same, which house was fully decorated with precious dowry articles inclusive of gold ornaments worth lacs of Rupees as mentioned in Exh.D.6. She denied each and every allegation levelled in the Suit No,1666 of 2000 filed by Chuttal Khan Chachar as untrue, concocted, baseless bundle of lies, frivolous, mala fide, misconceived and with the connivance of defendant No,2 to usurp her valuable suit property. She repeated the entire facts of her case as mentioned in the preceding paragraph wherein she has stated that she is owner of suit property and possess entire original title documents. She purchased the suit property from her own resources. It has also come on record that Chuttal Khan Chachar misbehaved with her. In cross- examination she stated that her first marriage was solemnized with Rana Ejaz in June, 1981 and divorce taken place in 1985. He used to work in Dubai and used to pay her Rs,4,000, Rs,5,000 and some time Rs,10,000 per month. She admits that she did not engage in service or business before or after marriage with Rana Ejaz and Chuttal Khan Chachar. She states that she have three brothers namely Slim Akhter, Shahid Hussain and Shaheen Hussain is in Dubai since 23 years and engaged in business of rent a car and restaurant. He used to come Pakistan off and on. He has fish farm. She admits that she was aware that Chuttal Khan Chachar was already married and had children. She denied that her elders put condition that she would not be given in marriage unless Chuttal Khan Chachar purchases some house in her name. She admits that at that time Chuttal Khan Chachar was Superintendent of Police. She denied that police guard was already posted on the suit flat before her going to and return from Lahore. She denied that plaintiff used to reside in suit property from their marriage or thereafter 15-10-1999 or that Chuttal Khan Chachar had not trespassed into the suit flat. In support of Mst. Shahida Rani two witnesses namely Shaheen Hussain as Exh.D.23 and Bashir Ahmed as Exh.D.24 were also examined. They were also cross-examined by the learned counsel for the plaintiff and both the witnesses fully supported the case of Mst. Shahida Rani. The evidence of Mst. Shahida Rani remains consistent, straightforward and confidence- inspiring. She clearly stated on oath that Chuttal Khan Chachar is not owner or she is only Benamidar. She clearly stated that at the time of dissolution of marriage she had plenty of gold ornaments, huge handsome cash money, precious cloths, besides all household articles, which had been provided by her parents in dowry. She belongs to a respectable Soomro family and daughter of Rahim Bux Soomro (late) and niece of Mr. Ilahi Bux Soomro former Speaker National Assembly.
17. Heavy burden is upon the Chuttal Khan Chachar to prove these issues. In my humble opinion there is absolutely no evidence that the suit property belonging to Chuttal Khan Chachar. The allegations are vague, and not substantiated by any cogent evidence. Chuttal Khan Chachar miserably failed to discharge his burden under the peculiar facts and circumstances of the case.
18. The Suit No,1077 of 1999 and Suit No,1666 of 2000 were filed by Chuttal Khan Chachar in fact is for cancellation of disputed document viz. Registered sale-deed executed on 14-9-1995 (Exhs.P.2 and D.4) in favour of Mst. Shahida Rani on the ground that transaction was Benami transaction. Article 91 of the Limitation Act provides limitation of three years for filing a suit to cancel or set aside the instrument not otherwise provided for. The limitation is to run, when the fact entitling the plaintiff to have instrument cancelled or set aside becomes known to him. The instrument was admittedly executed on 14-9-1995. Therefore, the period of limitation in respect of suit property started running from the date of execution of document from 14-9-1995 which has expired on 13-9-1998. The earlier Suit No,1077 of 1999 was filed on 20-10-1999 which was time-barred and the plaint was returned for filing in competent Court. Whereas Suit No,1666 of 2000 has been filed on 14-12-2000. Thus, suit is liable to be dismissed as time-barred as well as on merit.
19. It is well-settled by now that for determining the question, whether a transaction is a Benami transaction or not, inter alia, the following factors are to be taken into consideration:---
(i) Source of consideration;
(ii) From whose custody the original title deed and other documents come in evidence;
(iii) Who is in possession of the suit property; and
(iv) Motive of Benami transactions.
' Reference is invited to Abdul Majeed's case 2005 SCM R 577 and Muhammad Sajjad Hussain's case 1991 SCM R 703.
20. In the case of Halima v. Muhammad Kassam 1999 M LD 2934, it has been held that burden to prove is on the real owner, because, prima facie, the person in whose favour the document or instrument of title has been registered would be regarded as the owner.
21. In the case of Muhammad Siddiq v. T.J. Ebrahim & Co. 2001 SCMR 1333 Honourable Supreme Court of Pakistan has held that initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar.
22. I am able to lay my hand on Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146, Syed Ansar Hussain and 2 others v. Khawaja Muhammad Kaleem and 4 others 2006 CLC 732, Kaleem Hyder Zaidi v. Mehmooda Begum and 4 others 2006 YLR 599 and Abdul Hameed Khan v.
Mrs. Saeeda Khalid Kamal and others PLD 2004 Kar. 17, wherein inter alia it has been held time and again that a transaction can be recognized and declared as Benami only if there is clear agreement or express understanding in that respect between the person who claims to be purchaser as owner and the person in whose favour the property is purchased. The agreement should be clear to the extent that property is in fact owned by the person having paid the price thereof and not by the person in whose name it has been purchased. In the present case Chuttal Khan Chachar have not pleaded or claimed anywhere expressly that at the time of purchase of suit property in the name of Mst. Shahida Rani there was a clear agreement or understanding between them that suit property was owned by Chuttal Khan Chachar and Mst. Shahida Rani was simply Benamidar. In absence of proof of such agreement/understanding Chuttal Khan Chachar cannot be recognized judicially Benami owner of suit property as even if the same was purchased from his funds in the name of Mst. Shahida Rani.
23. In view of the above the registered sale-deed in favour of Mst. Shahida Rani was not proved to be Benami. The most important tile document coming from the possession of Mst. Shahida Rani is the registered sale-deed. It is registered on 14-9-1995. The possession of this document and possession of property from 14-9-1995 till 15-10-1999 does have some evidentiary value. This document was executed before marriage between the parties and there was no reason for Chuttal Khan Chachar to hand over the title document to Mst. Shahida Rani if the transaction was Benami.
24. Next I proceed to consider the circumstances of the case. As pointed out above the title document of suit property has come from Mst. Shahida Rani. Admittedly the registered sale-deed in respect of suit property was executed in favour of Mst. Shahida Rani on 14-9-1995 before her marriage with Chuttal Khan Chachar. The execution of sale-deed in favour of Mst. Shahida Rani was in the knowledge of Chuttal Khan Chachar. The evidence on record does not show that Chuttal Khan Chachar obtained any writing from Mst. Shahida Rani to show that sale-deed was Benami transaction and that the suit property belongs to him. All these facts and circumstances belied the contentions of Chuttal Khan Chachar.
25. In view of the above evidence available on record, reasons, discussion and surrounding facts and circumstances of the case all the issues merit to be answered in favour of Mst. Shahida Rani.
Consequently, her Suit No,243 of 2000 is decreed as prayed and the Suit No,1666 of 2000 filed by Chuttal Khan Chachar is dismissed with costs.