' The plaintiff filed this suit against defendant No, 1 who is the legally wedded wife of the plaintiff and her sister and brother, the defendants Nos. 2 and 3 respectively. The plaintiff claims to have purchased Plot No, 50, Street No, 21, Phase V, Defence Co-operative Housing Society from his own money in the name of defendant No,
1. After the transfer of plot it was subdivided and plaintiff spent Rs, 75,000 on subdivision. Half of the plot was sold away and on the remaining half which bears No, 50/1 the plaintiff constructed the house with fitting and furniture costing approximately. Rs, 4,00,000. The plaintiff claims to have purchased and constructed the house at his own cost. The defendant. No, I was also an employee of Muslim Commercial Bank. In the beginning of 1978 the relationship between plaintiff and defendant No, I became strained which resulted in serious litigation, civil and criminal, between the parties. Ultimately on 3rd September, 1978 an agreement was reached between the parties which provided disposal of properties and freedom to each party to lead the life of their choice. It has been averred in the plaint that the defendant No, 1 has been enticed away by one Shami to U. S. A. It has been alleged that the defendant No, 1 is a benami and plaintiff is the real owner of the land and house which the defendants Nos. 2 and 3 claiming to be the attorney of the defendant No, 1 trying to sell the property. The plaintiff has claimed the following reliefs : - "(a) It be declared that the plaintiff is the exclusive owner and is in lawful possession of the house on the Plot No, 50/1 Street No, 21, Phase 5, Defence Officers Co-operative Housing Society, Karachi and the defendant No, 1 is simply a Benamidar.
(b) In the alternative it be declared that the plaintiff is the owner of half of the house on Plot No, 50/1, Street No, 21, Defence Officers Co-operative Housing Society, Karachi in persuance of agreement dated 3rd September, 1978 signed and executed partly performed by the plaintiff and defendant No, 1.
(c) A decree for permanent injunction restraining the defendants her agents, employees or any or all persons working or acting on their behalf to interfere in the rightful enjoyment of property mentioned above, from selling or transferring in any manner whatsoever, and from dispossessing the plaintiff from the possession of the house o? Plot No, 50/1 Street No, 21, Phase 5, Defence Officers Co-operative Housing Society, Karachi except by due process of law.
(d) Cost of the suit."
2. The defendants Nos. 1 and 3 are ex parte. The defendant No, 2 filed written statement that she has no concern with the property and dispute and, therefore, the plaintiff withdrew his suit against defendant No,
2. In the circumstances the matter was put up for final disposal. The plaintiff has filed his affidavit and produced original documents. Affidavit of Zahid Akhtar has also been filed to prove arrangements of fund of Rs, 50,000 by the plaintiff.
3. Mr. Zia Qureshi, the learned counsel for the plaintiff has contended that the plot was purchased by the plaintiff from his own funds. The plaintiff obtained a loan of Rs, 93,000 and purchased a draft for Rs, 1,00,000 on 21st January, 1975 in his name out of which Rs, 50,000 was put in fixed deposit in the name of Lily, Ashfa and Yasmin Khan (defendant No 1) while the remaining Rs, 50,000 were passed to defendant No, 1 who was the Manager of Ladies Section at Lahore. Out of this Rs, 50,000 the defendant No, 1 made out two fixed deposit receipts in the name of Babbi Jan and Yasmin (defendant No, 1) of Rs, 18,000 and Rs, 20,000 respectively and the rest was utilised elsewhere. The afore-stated three F. D. Rs,, of Rs, 50,000 and F. D. R. Of Rs, 18,000 were encashed and together with interest total being Rs, 70,720 were transferred from Lahore to Defence Society Branch, Karachi in the account of the defendant No,
1. This amount of Rs, 70,720 was withdrawn by the defendant No, 1 and paid to the allottee of the plot. An affidavit of Zahid Akhtar has been filed who is the Manager of Mcleod Road Branch of Muslim Commercial Bank Ltd., who has produced the photocopy of bank draft of Rs, 1,00,000. He has also stated that three F. D. Rs, worth Rs, 50,000 were taken in the name of the persons mentioned above. Muzamil Ahmad, Manager Defence Society Branch, Karachi has also filed affidavit confirming that Rs, 52,000 and Rs, 18,700 were transferred from Lahore and credited in the account of the defendant No, 1 at Karachi. He has further affirmed that Rs, 70,720 were withdrawn by defendant No, 1 by her cheque and paid to the owner of the plot. He has filed a statement of account of defendant No, 1 which bears these entries . From the statement of two bank officials the plaintiff has only proved that F. D. Rs, in the name of Lily, Ashfa and Yasmin (defendant No, 1) for Rs, 15,000, Rs, 10,000 and Rs, 25,000 were taken by the plaintiff out of the draft purchased by him. -There is no evidence about the remaining Rs, 50,000 having been passed on to the defendant No,
1. The plaintiff has stated that out of the said amount of Rs 50,000 to F. D. Rs, of Rs, 38,000 were purchased but there is no evidence to this effect. It is correct that Rs, 70,720 was transferred from Lahore to Karachi in the account of defendant No,
1. The plaintiff has furnished proof upto Rs, 50,000 which may 'have been included in the sum of Rs, 70,720.
4. The plaintiff has produced vouchers and receipts to show that Rs, 1,52,760.43 were spent on purchasing, fittings, fixtures, wood, steel bars and glass. Two receipts have been produced to the effect that Rs, 1,670 was paid for marble work and Rs, 64,159 was paid to contractor for labour charges. These two receipts are on the plain paper and do not seem to be genuine. The contractor's receipt refers to bills which have not been produced. It is pertinent to note that amongst the major items there is no receipt for purchase of cement which would have cost substantial amount.
5. Be that as it may, the plaintiff has filed an agreement between the plaintiff and defendant No, 1 which purports to settle all disputes between the parties. Clause 3 relates to the property in dispute and reads as follows : - "(3) That the house constructed jointly by Mr. Khan and Mst. Yasmin on Plot No, 50/1, Street No, 21, Phase V, Defence Society, Karachi, shall be sold out and the sale proceeds after defraying expenses, if any, shall be distributed in the following manner :-
(i) Rs, 2,07,000 (Rupees two lacs seven thousand) shall be paid to Mst. Yasmin for liquidation of loan of Habib Bank Ltd. And other liabilities.
(ii) Rs, 1,59,000 (Rupees one lac fifty-nine thousand) shall be paid to Mr. Khan for liquidation of his liabilities.
(iii) Rs, 31,000 (Rupees thirty-one thousand) shall be paid in cash to the outside creditor in the presence of the persons who witness this agreement.
(iv) The balance shall be distributed equally between Mr. Khan and Mst. Yasmin."
6. The plaintiff has stated that he is the owner of the property but to settle the dispute he entered into the above agreement. He has further stated that the defendant No, 1 is under the influence and in the company of undesireable elements who under cover of this agreement are threatening to sell the house and eject him by force. The plaintiff has not challenged the agreement nor sought any relief for its cancellation. The agreement therefore, is valid and binding upon the parties. The agreement clearly provides that the house was constructed jointly by the plaintiff and defendant No,
1. It was agreed to be sold out and after payment of liabilities the sale proceed was agreed to be appropriated in the aforestated manner. This document, therefore, clearly proves that the house belongs jointly to plaintiff and defendant No,
1. As no share has been specified both the parties shall be deemed to have equal share. This is confirmed by plaintiff's prayer (b).
7. The plaintiff is entitled to declaration that he is the owner of half of the house on Plot No, 50/1, Street No, 21, Defence Officers Co-operative Housing Society, Karachi in terms of agreement dated 3rd September, 1978. The defendant No, 1 is restrained from interfering with the plaintiff's, rightful enjoyment of the said property. The defendant No, 1 is further( restrained from dispossessing the plaintiff from or selling half portion of the said house.
8. There will be no order as to costs. Suit is partly decreed.