' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeals Nos.1012 to 1015 of 2005 as they are directed against the same judgment dated 10-6-2005 vide which a learned Judge of the Lahore High Court allowed R.S.A. Nos.65, 66, 67 and 68 of 2004 and thereby dismissed suit for declaration filed by appellant Muhammad Yousaf Mirza and the suit filed by respondent- plaintiffs for administration of properties, subject matter of the suit, was decreed.
2. Facts in brief are that predecessor-in-interest of the parties Rehmat Ullah died in 1992 and was survived by six sons and two daughters. At the time of his death, he was owner of the following properties:-- "(1) Property No,8/434; (2) Property No,35/183; (3) Property No,8/449-452"
3. Three sons and two daughters of Rehmat Ullah other than Muhammad Yousaf Mirza appellant filed a suit for administration and partition of the afore-mentioned properties. Muhammad Yousaf Mirza also filed a suit claiming that he was the real and beneficial owner of Property No,8/434 and that his father was only a Benami owner. These two suits were consolidated. In terms of the divergent pleas, following issues were framed:--
(1) Whether the defendant No,1 paid price of property mentioned in para No,1(i) of the plaint and he is owner in possession of the same and that Rehmatullah was only a Benamidar? OPD-I
(2) Whether the defendant No,1 spent a sum of Rs,7,00,000 on the construction of building of the property mentioned in para 1(i) of the plaint from his own pocket? OPD-I
(3) If the above issues are not proved in affirmative, what will be the respective shares of the parties in disputed property and that the plaintiffs are entitled to possession through partition of their respective shares? OPP
4. The subject matter of these appeals is only Property No,8/434 (hereinafter described as "the property"). In terms of a common judgment dated 19-10-2000, learned trial Court dismissed appellant's declaratory suit and decreed the suit for partition and administration of properties filed by respondent-plaintiffs. However, the learned Court while dismissing the suit and observing that he had expended a sum of Rs,700,000 on improvements made on the said property held him entitled to a claim for the said amount. This judgment was challenged in appeal by both the parties and the learned Additional District Judge vide a consolidated judgment dated 26-2-2004 while reversing finding of the learned trial Court in the declaratory suit filed by Muhammad Yousaf appellant held that Property No,8/434 was not part of the estate of Rehmat Ullah deceased and that he was merely a Benami owner. The afore-referred judgment was challenged in appeal by the respondents which has been allowed vide judgment dated 10-6-2005. While reversing the finding on Issue No,1, learned High Court came to the conclusion that the same was based on inadmissible evidence; that possession of the property in question by Muhammad Yousaf Mirza by itself was not sufficient proof of its ownership; that Muhammad Yousaf Mirza along with three brothers had filed a suit during the life of their father namely Rehmat Ullah deceased qua the same property claiming that their father was a Benami owner and that brothers were the real owners to the exclusion of their sisters; that if Muhammad Yousaf Mirza claimed exclusive ownership, he could have filed the suit at that stage. His omission to do so would adversely reflect on his claim in the instant suit.
The learned High Court repelled appellant's clim for having expended Rs,700,000 on the suit property on the ground that even if it was proved that the money was spent there was nothing in evidence to show that there was an agreement between the two that Rehmat Ullah would pay the money spent by Muhammad Yousaf.
5. Learned counsel for the appellant submitted that the learned High Court in reversing the judgment has not taken into consideration material evidence led by the appellant i,e, D.W.11, D.W.15, D.W.16 and D.W.18; that there was overwhelming evidence to show that the appellant was in possession; that documents of title were in his possession; that he had made the payment of the purchase price of the property and that Benami nature of transaction was totally not adverted to while passing the impugned judgment.
6. The learned counsel for respondents Mr. Gul Zarin Kiani, Advocate Supreme Court defended the impugned judgment by submitting that the property in question was evacuee property which was purchased by Rehmat Ullah, predecessor-in-interest of the parties; that payment was niade by him which is duly recorded in PTD; that after purchase a construction plan was approved in the name of the said Rehmat Ullah; that during latter's life time, appellant never raised any claim of his exclusive ownership; that while appearing as D.W.19, the appellant gave evasive replies on material questions which clearly reflected that he had neither made the payment for purchase of the said property nor he had any valid claim on its title. He lastly submitted that although no claim was made by him for mesne profit earlier on but this Court in the interest of justice can grant the same or award special costs:
7. We have considered the submissions made and have gone through the impugned judgment as also the evidence led.
8. The only material witness other than appellant Muhammad Yousaf Mirza himself who deposed that Payment for purchase of the property was made by the latter- is D.W.11 Muhammad Shafi but his evidence does not inspire confidence as during cross-examination he admitted that he was not aware as to whether Rehmat Ullah deceased had purchased the said property against his claim or in auction. He further admitted that the payment was not made in his presence. Appellant himself appeared as D.W.19 but his testimony does not advance his case. In answer to questions during cross-examination, he claimed that he Participated in the auction for purchase of property in question but could not tell as to how many time the auction call for bid was made by the concerned official of the Settlement Department. He refuted the suggestion that his father had rented out the property at a certain stage to a third party and instead claimed that he had let out the property to Kaloo Traders but did not remember when he rented out the property and what was the rent agreed between him and the said tenant. With regard to money spent on construction on the property he showed his complete ignorance as to when the construction was raised and how many masons and labourers were engaged. The afore-referred ignorance and evasive replies of the two important witnesses of appellant considered in the light of the documentary evidence tendered by the respondents would indicate that petitioner had failed to prove his claim of Benami ownership of his father Rehmat Ullah and his own beneficial ownership qua the suit property.
Learned counsel for the appellant has failed to point out as to why Rehmat Ullah had made purchase of the property a Benami transaction. No convincing rebuttal was led in evidence against the following documents:--
(i) Exh.D.36 to 34 reflecting payment of the disputed property made by Rehmat Ullah himself to the Settlement Department.
(ii) Issuance of PTD dated 17-6-1968 Exh.D.18.
(iii) The site-plan approved by the Municipal Committee in favour of Rehmat Ullah dated 21-10-1971 Exh.D.51.
(iv) Exh. D.55 indicating that Rehmat Ullah let out the property in favour of Kaloo Traders.
9. Learned counsel has not pointed out any misreading or non-reading of evidence which could persuade us to interfere with the findings of fact. The judgment is well-reasoned and is in accord with the weight of the evidence led.
10. For what has been discussed above, we do not find any merit in these appeals which are dismissed and judgment of the learned High Court is upheld.