AAMER FAROOQ, J. --- Through this consolidated judgment we shall decide the instant appeal as well as Regular First Appeal No. 68/2003, Regular First Appeal No. 148/2003 and C.M. No. 373/2003 (Cross objections) by Abdul Aziz as they arise out of judgment and decree dated 19.03.2003.
2. Lqbal Muhammad Khan (appellant in the present appeal) filed a suit for specific performance of agreement dated 24.05.1995 and permanent injunction with respect to House No. 119, Street No. 35, G-9/1, Islamabad (the Property) against Tariq Mehmood and Capital Development Authority (CDA): However, subsequently, Muhammad Sharif through his legal heirs and Abdul Aziz were also impleaded as defendants. The appellant claimed in the referred suit that he paid sum of Rs.
1,050,000/-(Rupees one million & fifty thousand only) to Tariq Mehmood who was to return the said amount by or before 31.08.1995 and in case of his failure to do so, he was liable to pay double of the amount received by him i.e. Rs. 2,100,000/- (Rupees two million one hundred thousand only). It was alleged in the plaint that possession of the property was handed over to the appellant at the time of execution of agreement. It was further submitted in the suit that in case of failure on part of Tariq Mehmood to return the amount in question appellant had the option to have the Property transferred in his favour by payment of a sum of Rs. 900,000/- (Rupees nine hundred thousand only). It was also alleged in the plaint that Tariq Mehmood, was owner of the property and in this behalf had been given a general power of attorney duly registered on document No. 5353, book No. 4, Volume 45, by Muhammad Sharif who was the original allottee. The plaint also alleged that property was in the name of Abdul Aziz as benami. Tariq Mehmood contested the suit and denied the allegations made therein including the fact that he is owner of the property. In the written statement filed by Abdul Aziz it was submitted that the appellant namely lqbal Muhammad Khan got possession of first floor of the property as tenant on 01.09.1994. It was further submitted that Abdul Aziz purchased the property through sale-deed dated 23.01.1992 which is registered at document No. 406 and the power-of-attorney in favour of Tariq Mehmood was cancelled through revocation deed which was registered on 23.01.1992 at document No. 286 and that Tariq Mehmood was only a Property Dealer/Estate Agent.
3. Abdul Aziz filed a suit for possession through ejectment with respect to the above-mentioned property against lqbal Muhammad Khan. It was alleged in the plaint that he is owner of the property and first floor of the same was rented out to lqbal Muhammad Khan on 01.09.1994 at monthly rent of Rs. 5000/- (Rupees five thousand only) for one year only. The ground-floor was leased out to one Muhammad Yousaf in November, 1994 at monthly rent of Rs. 7000/- (Rupees seven thousand only). In this behalf lqbal Muhammad Khan had a telephone connection installed at the premises in January, 1995. Muhammad Yousaf vacated the property in August, 1995 and thereafter lqbal Muhammad Khan trespassed and possessed the entire property without the consent of Abdul Aziz. It was also alleged in the plaint that the defendant paid rent only with effect from 01.09.1994 to 31.8.1995, therefore, in addition to possession, the referred plaintiff also sought compensation by way of mesne profit at the rate of Rs. 24,000/- (Rupees twenty-four thousand only) per month from August, 1995 to June, 1999 and Rs. 32000/- (Rupees thirty-two thousand only) per month thereafter. The said suit was contested by lqbal Muhammad Khan. Both the suits were consolidated and out of divergent pleadings of the parties following issues were framed:---
(1) Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD
(2) Whether the suit property has already been transferred in favour of Abdul Aziz in January, 1991 and defendant No. 1 has got no concern with the suit property? If so, to what effect? OPD
(3) Whether the suit of the plaintiff is not ? OPD
(4) (4) Whether the decree for specific maintainable in its present form? OPD
(5) performance, declaration and permanent injunction cannot be passed in favour of plaintiff because plaintiff has already assessed his damages in shape of recovery of money as alternate? OPD
(6) Whether the suit of the plaintiff is frivolous and vexatious and the defendant is entitled to special costs under Section 35-A, C.P.C.? OPD (5-A) Whether the plaintiff has not come to the Court with clean hands? OPD
(7) Whether the suit is bad for mis-joinder and non joinder of the parties? OPD
(8) Whether the plaint has not been verified according to law? If so, its effect? OPD
(9) Whether the defendant No. 1 is neither owner of the suit property nor has any concern with the suit property? OPD
(10) Whether the defendant No. 1 is the owner of suit property? If so, to what effect? OPP
(11) Whether the defendant No. 1 is the real owner while defendant No. 3 is merely benamidar?
OPP
(12) Whether the suit property was sold in favour of the plaintiff vide agreement dated 24.05.1995 and the defendant No. 1 received Rs. 10,50,000/-? OPP
(13) Whether the plaintiff is entitled to the decree for specific performance subject to the payment of the remaining sale price Rs. 9,00,000/-? OPP
(13) Relief.
4. The parties led their oral as well as documentary evidence. In this behalf lqbal Muhammad Khan, Tahir Hayat, Muhammad Farooq, Hamash Gul, Noor Muhammad, S.A. Jalal, Advocate, GuI Hassan Jadoon, Badar-ud-Din and Zagham Haq appeared as PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 respectively. On behalf of defendant Muhammad Afzal appeared as DWI, Rao Muhammad Naeem DW-2, Abdul Aziz DW-3, Umar Farooq DW-4, Talib Hussain DW-5 and Tariq Mehmood as DW-6.
5. The plaintiff-appellant produced the following documents in evidence:---
(1) Agreement dated 24.05.1995 Ex.P/1.
(2) Irrevocable general power of attorney Ex.P/2.
(3) Legal notice by lqbal Muhammad Khan Ex.P/3.
(4) Postal receipt Ex.P/4.
(5) Extract from register of entry Ex.P/5.
(6) Relevant page of register of Stamp Vendor Ex. P/6.
(7) Special power-of-attorney Ex.PW9/1.
(8) Special power-of-attorney dated 24.07.1999 Ex. PW9/2.
The defendant produced the following documentary evidence:---
(1) Agreement between Tahir Hayat and Umar Farooq dated 28.09.1992 Ex.D/1.
(2) Deed of cancellation of power-of-attorney Ex.D/2.
(3) Sale-deed in favour of Abdul Aziz Ex.D/3.
(4) Cheques and copy of demand draft.
6. The Trial Court vide judgment and decree dated 19.03.2003 dismissed the suit filed by lqbal Muhammad Khan and decreed the suit for ejectment through possession in favour of Abdul Aziz.
Lqbal Muhammad Khan has assailed the decree for possession against him in the present appeal.
The dismissal of suit for specific performance by lqbal Muhammad Khan has been assailed in Regular First Appeal No. 68/2003 and Tariq Mehmood has assailed the judgment and decree whereby he was asked to pay back Rs. 2100000/- (Rupees two million one hundred thousand only) to lqbal Muhammad Khan in terms of agreement dated 24.05.1995, in R.F.A. No. 148/2005, Abdul Aziz has also filed cross-objections by way of C.M. No. 373/2003 asking for mesne profit at the rate of double the rent from the date of default in payment of rent till vacation of the property is delivered to him.
7. The learned counsel for the appellant namely lqbal Muhammad Khan, inter alia, submitted that the impugned judgment and decree whereby the appellant has been ordered to give possession of the property to Abdul Aziz is not tenable. In this behalf it was further contended that the appellant was not in possession of the property as tenant of Abdul Aziz rather obtained the same in pursuance of agreement dated 24.05.1995. It was also submitted that during the course of Trial Court agreement dated 24.05.1995 was duly proved by him by adducing the marginal witnesses who also deposed that sum of Rs. 1050000/- was paid to Tariq Mehmood, therefore, the appellant is entitled to the decree for specific performance of agreement dated 24.05.1995.
8. The learned counsel for Tariq Mehmood, inter alia, submitted that he is not liable to pay sum of Rs. 2100000/- inasmuch as the agreement has not been duly proved and the Court refused to pass decree for specific performance due to the fact that Tariq Mehmood was not the owner of the property, therefore, he cannot be burdened with the amount he never received and for which no cogent evidence, on record, exists.
9. The learned counsel for Abdul Aziz, inter alia, submitted that Abdul Aziz is owner of the property and the possession of First Floor of the same was given to lqbal Ahmed Khan as tenant in 1994 and subsequently he was in possession of the entire property, as a trespasser. It was further contended that there is nothing on record to show that Tariq Mehmood is owner of the property; Abdul Aziz became owner through registered sale-deed in 1992. The learned counsel also emphasized that Abdul Aziz is entitled to compensation by way of amount to the tune of double the rent on the basis of case-law. The learned counsel in support of his contentions placed reliance on cases titled "Muhammad lqbal v. Muhammad Zubair and two others" reported as (2012 YLR 2246), "Dawood Hercules Chemicals Limited v. Water and Power Development Authority' (1991 CLC No te 269 Lahore), "Malik Naveed Ahmed v. Mrs. Nasren Hameed (2005 SCM R 357). The learned counsel also placed reliance on case titled "Rahim Dad & three others v. Abdul Karim and three others" (1992 M LD 2111) to substantiate that Abdul Aziz became the owner of the property through registered deed which constituted notice to the Public at Large.
10. The case of lqbal Muhammad Khan as made out in the suit filed by him was that the property is in the name of Abdul Aziz as benami and Tariq Mehmood is the actual owner of the same as he has general power-ofattorney in his favour duly executed by Muhammad Sharif. The referred plaintiff had alleged benami; the burden was on him to prove the same. Nothing was alleged in the plaint substantiating the elements required to successfully prove benami and even in the evidence nothing was brought on "record to substantiate the claim, therefore, lqbal Muhammad Khan failed to prove the referred fact. The property in question was purchased by Abdul Aziz through deed which is registered with the relevant authority at document No. 406 on 23.01.1992. This fact has also been accepted in evidence. Abdul Aziz has also tendered evidence to prove that the token amount for purchase of the property was paid by him. In this behalf Rao Muhammad Nadeem, Officer Habib Bank Limited, Khadimabad, Azad Kashmir appeared as DW-2 and tendered the record of Bank Draft bearing No. 16-112/499550, dated 23.09.1991. He also deposed that the referred Draft was for the sum of Rs.
1.8 million and was in the name of Tariq Mehmood. The said draft was prepared on the basis of two cheques, the copies of which were also tendered in evidence. Abdul Aziz while appearing as witness (DW-3) deposed that Tariq Mehmood is a Property Dealer and property was purchased by him through referred Dealer. It was further deposed that since he was not present in Pakistan at the time of transaction, therefore, Tariq Mehmood signed the deed on his behalf. After the purchase, according to Abdul Aziz, the property was given on rent through Tariq Mehmood to lqbal Muhammad Khan in 1994 and in this behalf upper portion of the property was given on rent whereas the appellant-lqbal Muhammad Khan trespassed the whole property in the year 1995 and is in possession since then. The power-of-attorney in favour of Tariq Mehmood was cancelled by Muhammad Sharif through cancellation deed on 23.01.1992 which was duly registered at document No. 286.
11. In light of the documentary as well as oral evidence it is clear that Abdul Aziz is owner of the property and purchased the same through sale-deed mentioned above which was registered on 23.01.1995 and Tariq Mehmood is not owner of the property but was given general power of attorney by Muhammad Sharif which before transfer of the property to Abdul Aziz was cancelled.
The agreement between lqbal Muhammad Khan and Tariq Mehmood can be treated as a loan agreement whereby Tariq Mehmood obtained sum of Rs. 1050000/- from lqbal Muhammad Khan and had to return double the amount in case of failure to return the same on the due date i.e. 30.08.1995. The execution of the agreement by the parties is not denied and same has been tendered in the evidence and proved in accordance with Article 79 of Qanoon-e-Shahadat Order, 1984, therefore, no exception can be taken to the findings of the Trial Court that Tariq Mehmood has to return the sum of Rs. 2100000/- to lqbal Muhammad Khan.
12. Abdul Aziz through evidence has successfully proved that the property was given on rent to lqbal Muhammad Khan. In this behalf Abdul Aziz while appearing as DW-3 has specifically deposed to the effect whereas there is no cogent evidence on record which challenges veracity of evidence by Abdul Aziz. Insofar as the entitlement of Abdul Aziz to mesne profit as compensation for use of the property by lqbal Muhammad Khan is concerned the case-law relied upon by the learned counsel for Abdul Aziz is instructive. In 2005 SCM R 357 supra it was held as follows:- "No exception could be taken to the liability of the petitioner for payment of mesne profits at double the amount of rent for the period he continued to occupy the suit property by sufferance after determination of lease."
Similarly in 1991 CLC No te 269 it was held as follows:--- "Where tenant was holding over premises wilfully and contumaciously after lawful determination of his tenancy, mesne profits, could be claimed and recovered from him at double the rate of rent; to which double the normal rent was taken as a suitable measure of damages in case where possession of tenant over premises was wilful and contumacious, though was based on English Law, but having been consistently followed in Pakistan could not be deviated from."
13. In view of foregoing discussion the instant appeal as well as Regular First Appeal No. 68/2003 and Regular First Appeal No. 148/2003 are dismissed.
14. C.M. No. 373/2003 is hereby allowed. Consequently, Abdul Aziz is entitled to manse profit at the rate of double of the amount of rent from the date of expiry of lease till physical possession of the property is handed over to him. Therefore, the decree of the Trial Court is modified to the referred extent. There is no order as to the costs. R.F.A. Dismissed.