' IRFAN SAADAT KHAN, J.---This High Court Appeal has been filed against the judgment dated 25.1.1994 passed in Suit No,316 of 1985. A decree was also prepared in the said case on the same date i,e, 25.1.1994. The suit was filed by the present appellant for partition, possession and injunction, valued at Rs,3,54,200/-, which was dismissed by the learned Single Judge with costs.
2. Briefly stated, the facts of the case are that the appellant and respondent are real brothers inter se. It was the claim of the appellant that the property bearing No,C-38, measuring 666.67 square yards situated in Block 'N', North Nazimabad, Karachi, was purchased jointly in equal shares by both the brothers. It was alleged that thereafter the respondent with mala fide intention denied to accept the half share of the appellant and then when left with no option the appellant filed the above referred suit. The matter proceeded before the learned Single Judge, who framed the following issues:-- "I. Whether the plot in dispute viz Plot No, C-38, Block 'N' Scheme No,2, North Nazimabad, Karachi was purchased by the Defendant from his own resources and funds or the said plot was purchased by the plaintiff and the Defendant by incurring expenses in equal shares?
2. Whether the construction on, the plot in question was made by the defendant exclusively from his own resources and funds or the plaintiff shared with the said Defendant, the cost of construction in equal shares?
3. Whether the KMC and Property Taxes were paid by the defendant from his own resources and funds?
4. Whether the property in dispute is the exclusive property of the Defendant and the plaintiff is only benamidar of the defendant and the plaintiff has no right or interest in the said property?
5. Whether the plaintiff has ever been in possession of any portion of the property in question?
6. Whether the plaintiff has not paid the proper Court Fee and the plaint is liable to be rejected?
7. Whether the plaintiff is entitled to any relief as claimed in Suit?
8. What should the decree be?"
3. The learned Single Judge thereafter examined as many as eleven witnesses and through his exhaustive judgment decided all the issues against the appellant and in favour of the respondent and dismissed the said suit with costs. It is against this judgment that the present High Court Appeal has been filed.
4. Mr. Muhammad Saleem Khan Advocate has appeared on behalf of the appellant and submitted that the judgment and decree passed by the learned Single Judge was contrary to the law and facts. He submitted that the learned Judge has wrongly assumed that the entire purchase consideration was paid by the respondent and further erred in observing that the property was purchased by the respondent from his own resources and that the appellant has not contributed towards the purchase consideration. He submitted that the appellant was residing in Larkana and was doing his business and was financially sound whereas the respondent was a Lecturer in D.J.
Science College with a very meager earning. He submitted that the respondent with the intention to buy a property approached the appellant who financially helped him in purchasing the property under question in 1973 with 'the condition that the property would be purchased in the joint name and would be considered to be the property of both the brothers. Since the appellant used to reside in Larkana the respondent took control of the entire property and when the appellant demanded from the respondent to give him his half share in the property the respondent refused to do so and involved the area SHO who had also harassed the appellant and his son. The learned counsel further submitted that the appellant not only financially helped the respondent in purchasing the property but also in the construction of the same. He submitted that ample documentary evidences were produced before the learned Single Judge, but were not considered.
He submitted that PT-1 form would prove the joint ownership of the appellant in the property. He stated that the learned Single Judge has not even considered the deposition of the witnesses who have stated that the appellant is a joint owner of the property. He further stated that the respondent after purchasing the property rented out the same to some person and enjoyed the rent from which he used to pay the property taxes, etc. He submitted that when the appellant asked the respondent to give the account of the rent received by him the respondent became annoyed and rather than furnishing the account started harassing the appellant. He submitted that from the date the property was purchased the respondent was enjoying the possession of the property. The counsel stated that due to this reason a suit for partition, possession and injunction was filed. He stated that all these facts were brought to the knowledge of the learned Single Judge who failed to consider the same and decided all the issues in favour of the respondent. According to learned counsel the judgment passed by the learned Single Judge is legally and factually incorrect who has not considered the evidences brought on record, hence the judgment and the decree may be set aside and this appeal may be allowed by decreeing the suit in favour of the appellant.
5. Mr. Khalid Javed Advocate has appeared on behalf of the respondent and has vehemently denied the averments made by the learned counsel for the appellant and submitted that from the material available on record and the documents produced before the learned Single Judge it was proved that the property under question, though in the joint name, was purchased out of the funds of the respondent. He stated that since the appellant is elder brother of the respondent just to show good gesture and gratitude to the appellant the property was purchased in the joint name. He submitted that not only the funds required for purchasing the plot but that of construction also were arranged by the respondent from his resources. He submitted that enough material comprising of bank statement and other necessary details were produced before the learned Single Judge by the respondent to prove that the property was purchased from the funds of the respondent and not a single penny has been contributed by the appellant in that behalf. He further submitted that giving the property on rent was the exclusive domain of the respondent, being the owner of the property, hence the question of furnishing the account of the rent hardly arises. He further submitted that though the appellant is the elder brother of the respondent but is a greedy person and has misstated the facts that the house has two independent units rather it is a one unit house with four bed-rooms, two drawing cum-dining rooms, two kitchens, lavatory and four bath- rooms. He further submitted that the learned Single Judge has threshed out each issue in a detailed manner and thereafter has rightly come to the conclusion that the appellant has miserably failed to prove his case; whereas from the various documents furnished before the learned Single Judge it was established by the respondent that he is the exclusive and absolute owner of the property though the same was purchased in a joint name. He, therefore, stated that this appeal being misconceived and based on mala fide may be dismissed with cost.
6. We have heard both the learned counsel for the parties at considerable length and have perused the record.
7. The deposition of the appellant shows that he has stated that he and his brother have jointly purchased the property from one Mst. Hamida Begum through her duly constituted attorney Abdul Haleem for a sum of Rs,36,000/- and the entire sale consideration was paid by him and thereafter an application was given to the KDA for mutation in their names which was duly made. He has further stated that an application thereafter was given to HBFC which granted loan of Rs,40,000/- for construction purposes and thereafter from those funds and through the joint efforts the house was constructed. It was stated that a sum of Rs,2,50,000/- was spent on the construction out of which a sum of Rs,2,10,000/- was contributed by him. He further deposed that after the completion of the house, half portion of it was handed over to him which remained in his possession for about one month. Thereafter, since his wife went back to Larkana his elder son started living there.
However, according to the appellant the respondent in collusion with the area police brought his son to the police station where he remained for a night. It is stated that the appellant upon knowing this incident that his son had remained with police for one night came to Karachi but the respondent with the help of some Ghunda elements trespassed into his portion of house and assaulted him, his other elder brother Ibadur-Rehman and his son and these Ghunda elements even locked them in the house and thereafter they were rescued by the police. However, it is noted that in the cross-examination the appellant has accepted that there is no agreement between him and the respondent prior to the purchase of the plot of land about giving of any amount to the respondent for purchase of the said plot of land. He has also stated that there is no proof available with him with regard to handing over any amount to the respondent for purchase of the property. It was also admitted that he does not have any document in his possession to show that he has contributed any amount in the construction of the house, however, stated that these amounts were paid in cash. He has also admitted that he has no idea that in what shape and form the amount was paid to Mst.
Hamida. Begum whether it was in the form of cash or cheque. He has also admitted that he has not remembered that who had singned the sale deed on behalf of Mst. Hamida Begum. He has also admitted that he does not remember the amount of sale consideration mentioned in the agreement of sale. He also did not remember that how much amount was paid to the seller as sale consideration. He also did not remember that how much amount over and above the sale consideration was paid to Mst. Hamida Begum. He also did not know that what amount of cheques were issued by the respondent to the seller. He also admitted that all these documents including receipts, etc., were kept by the respondent and not by him. He also admitted that no record in respect of construction and the amount spent by him for this purpose has been kept by him to prove the alleged construction cost contributed by him. He also admitted that he did not remember that what were the terms on which loan was taken from the HBFC. He also did not have any document in his possession with regard to obtaining loan from HBFC and stated that the file of the same was maintained by his brother. He also did not know the name of the contractor who made the construction on the property and also have no receipt with him with regard to payment of a single amount to the said contractor. He also did not remember the different stages of construction as to which portion of the house was constructed first. It is also an admitted position that no utility meter is in the name of appellant and all the meters are in the name of the respondent. The appellant in the cross-examination also did not remember that when the half portion of the house was given on rent and have no idea that how the loan of HBFC was paid off. He also did not remember the date of obtaining the loan from HBFC and signing the agreement. It is noted that the bank account of the respondent clearly proved that the amount of the purchase consideration was paid from his account, which was even endorsed by the Bank Manager Muhammad Ishraq in his evidence. The bank statements and other necessary details now form part of the paper book. It is also a matter of record that receipts, now forming part of the paper book, about the construction were in the name of respondent.
8. Ibadur Rehman, elder brother of the appellant as well as respondent, in his deposition has stated that the property was purchased by the respondent and the entire cost of construction was also borne by the respondent, which belies the statement of the appellant that he had contributed in the construction of the said house. The said Ibadur Rehman further admitted that at no point of time the appellant had supervised the construction, which was done by the respondent. He also stated that when the son of the appellant demanded possession of the house from the respondent thereafter dispute between them 'arose to the extent that the area police had to be called who took away the son of the appellant. Ibadur Rehman has also accepted that the appellant might have spent some money on the construction but he has no knowledge in this behalf. He has also admitted that the appellant had not stayed in the house and the statement of the appellant that he had stayed in the house for about one month appears to be incorrect since according to him the appellant used to live in Larkana. He also admitted that the house is one unit only.
9. Aftab Ahmed Yousfi, the respondent, in his deposition has stated that the plot under question purchased through his resources and in support thereof produced the bank statement. He also stated that due to his efforts he obtained a loan from the HBFC. He stated that to show his love and affection towards his elder brother, the present appellant, he purchased the property in the joint name but the appellant had not contributed a single penny either for the purchase or for the construction of the said property.
He had produced before the learned Single Judge a number of receipts showing his name on those receipts. It is also noted from his deposition that after the construction of the said property, since he was running short of funds, he gave a portion of the property on rent @ Rs,1,500/- per month hence according to him the question of giving any account in respect of the rent received by him to the appellant hardly arises. He stated that the son of the appellant forcibly tried to enter into the house and started giving threats of dire consequences to him and the position got so worse that the police had to be called who then rescued the respondent C by taking away the son of the appellant. He also produced before the learned Single Judge various receipts of HBFC loan payments, receipts of payment of property taxes, utility bills and other relevant documents to prove that the property was in his exclusive use. The respondent has Categorically denied that he has sought any assistance from the appellant for construction and the entire construction from plinth level up to the finishing level was done and supervised by him. The respondent has also produced evidences before learned Single Judge to prove obtaining of various loans either from the HBFC or from some private persons.
10. From the deposition of laved Iqbal, brother-in-law of the respondent, it is noted that time and again he has advanced some amounts to the respondent for construction of the house and also stated that the appellant has not invested a single penny in the construction of the house.
11. The contractor Muhammad Ahsan in his deposition has also affirmed that the construction work was started on the instructions of the respondent and the entire construction process was supervised by the respondent alone. He has further stated that all the funds required for construction were provided to him by the respondent and at no point of time a single amount has been paid to him by the appellant.
12. In the depositions of Sadiq Ali, Assistant Manager of Quality Steel Works Ltd., Syed Selman Hyder Kazmi, Assistant Accountant Sterling Plywood Industries, Abdul Latif, Electrical Contractor and Abdul Razzaq, Bank Officer of UBL, also affirmed that the construction was made by the respondent, and they have issued the bills in his name.
13. From the above depositions and the material available on record and on perusal of the judgment of the learned Single Judge, it is evident that the appellant is only a Benamidar of the respondent and the entire purchase consideration and the cost of construction was borne by the respondent and the claim of the present appellant with regard to partition, possession, etc. Appears to be misconceived. The learned Single Judge, in our view, through his exhaustive judgment has not only threshed out the issues in a detailed manner and has rightly come to the conclusion that the appellant has miserably failed to prove his case with cogent material, evidence and documents to prove partition of the said house. In our view, the learned Single Judge has rightly observed that the respondent has proved the
14. D averments made by him in his written-statement by producing amply material in the shape of bank account, receipts and other documents, which had remained un rebutted. We, therefore, find no legal infirmity in the judgment passed by the learned Single Judge and uphold the same.
The instant High Court Appeal, thus, stands dismissed.