MIANGUL HASSAN AURANGZEB, J:- Through the instant appeal, the appellant, Muhammad Israr, impugns order dated 05.07.2023 passed by the Court of the learned Additional District Judge, Islamabad, whereby the appellant's application for interim injunction filed along with his suit for declaration, cancellation of ownership etc., was dismissed.
2. The plaintiff/appellant and respondents/defendants No.1 to 4 are real brothers. On 20.01.2023, the appellant filed a suit for "declaration, cancellation of ownership and recovery of possession through partition along with mense profit, mandatory and permanent injunction" against respondents No.1 to 4 before the Court of the learned Civil Judge, Islamabad. The position taken by the plaintiff in the said suit was that the properties listed in paragraph-6 of the said suit ("the Suit Properties") were purchased with funds contributed by all the brothers and that each brother had 1/5th share in all the properties. It was also pleaded that all the properties were purchased in the name of respondent No.1 and the factum as to the joint ownership of all the brothers has been acknowledged by respondent No.1 in the affidavit executed on 20.10.2004. In paragraph-7 of the said suit, it was pleaded that the five brothers, including respondent No.1, are the real joint owners of the properties, whereas respondent No.1 is just a benami/ostensible owner.
3. The said suit was contested by respondent No.1 by filing a written statement. In paragraph-5 of the written statement, respondent No.1 has admitted the factum as to the issuance of the said affidavit. It was however, pleaded that in the said affidavit, respondent No.1 has not admitted that all the properties were purchased with the amounts contributed by all the brothers.
4. Respondents No.2 to 4 filed a separate written statement. The contests whereof support the appellant's position against respondent No.1 but it has also been pleaded that the properties which have been purchased in the appellant's name are also equally owned by all the brothers. The said respondents prayed for the suit to be decided in terms of the contents of the affidavit dated 20.10.2004.
5. From the divergent pleadings of the contesting parties, the learned trial Court vide order dated 08.05.2023 framed the issues. Till date, the appellant has submitted his affidavit in evidence and he is yet to be cross-examined.
6. Along with the suit, the appellant had filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 ("C.P.C.") praying for an interim injunction to restrain the respondents from changing the nature of the Suit Properties or alienating the same. Vide impugned order dated 05.07.2023, the said application was dismissed by the learned Civil Court. The said order has been assailed by the appellant in the instant appeal.
7. Learned counsel for the appellant, after narrating the facts leading to the filing of the instant appeal, submitted that the Suit Properties are owned in five equal shares by the appellant and respondents No.1 to 4; that these properties were purchased with the funds provided by all the brothers; that respondent No.1 is the benami/ostensible owner of the shares of the appellant and respondents No.2 to 4 in the said properties; that the fact that respondent No.1 is only a benami/ostensible owner of the Suit Properties has been duly acknowledged by him in the affidavit dated 20.10.2004; and that if the injunction sought by the appellant is not granted, respondent No.1 would create third party interest in the Suit Properties which may cause irreparable harm to the appellant and respondents No.2 to 4. Learned counsel for the appellant prayed for the appeal to be allowed and for the impugned order dated 05.07.2023 to be set aside.
8. On the other hand, learned counsel for respondent No.1 submitted that although in his written statement, respondent No.1 had admitted the factum as to the execution of the affidavit, but the same was executed at the instance of the appellant and contains no admission on respondent No.1's part that the Suit Properties were purchased with the funds provided by all the five brothers; that the burden is on the appellant to prove the four essential ingredients for obtaining a declaration to the effect that respondent No.1 is a benami / ostensible owner of the appellant and respondents No.2 to 4's shares in the said properties; that the appellant will have to prove through cogent evidence that he is in possession of the Suit Properties as well as their title deeds; that he will also have to prove that all the brothers had provided the consideration for the purchase of the said properties in equal shares; and that unless the appellant discharges such burden, respondent No.1 cannot be deprived from his exclusive ownership rights over the said properties. Learned counsel for respondent No.1 prayed for the appeal to be dismissed.
9. Learned counsel for respondents No.2 to 4 adopted the arguments of the learned counsel for respondent No.1.
10. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraph 02 to 06 above and need not be recapitulated.
11. Through the suit instituted by the appellant, he is seeking a declaration to the effect that he along with his four brothers, i.e. respondents No.1 to 4 are the real owners having equal shares in the Suit Properties whereas respondent No.1 is only an ostensible/benami owner of the appellant and respondents No.2 to 4's shares in the said properties. The trial in the suit is underway and in order for the appellant to obtain the declaration sought by him in the suit, he will have to prove that the consideration for the purchase of the said properties was provided by the appellant and respondents No.1 to 4 in equal shares, and that all the said parties are in possession (constructive or actual) of the said properties. He will also have to explain the motive for the execution of a benami transaction under which respondent No.1 was made the exclusive owner of the said properties.
12. In order to ascertain if the transaction was a benami or not, there were 5 important ingredients that needed to be proved, i.e. (1) motive, (2) source of money with which the property was purchased, (3) the possession of the property, (4) the conduct of the parties as to how the property was dealt with and (5) possession of the original title documents. The burden of proof is on the person raising the plea of benami. This burden has to be strictly discharged by adducing evidence of a definite character.
13. The vital question that needs to be answered is whether before the appellant has discharged the burden of proving that the purchase of the Suit Properties were jointly owned by all the five brothers, the learned Civil Court should have issued an interim injunction to restrain respondent No.1, who is presently the owner of the said properties, from changing their character or alienating the same.
14. True, the affidavit dated 20.10.2004 on which the appellant and respondents No.2 to 4 place heavy reliance is yet to be produced in evidence. Its veracity is also to be determined by the learned Civil Court at the conclusion of the trial. Learned counsel for the appellant, during his arguments, had submitted that possession of the said affidavit is not with the appellant and that it was given to respondent No.1 for safe custody. There is not a single document attached with the file of the instant appeal to show that the consideration for the purchase of the Suit Properties had been paid jointly by the five brothers. There is also no averment in the suit as regards possession of the title deeds of the said properties. Bearing all this in mind, it is my view that the stage which the proceedings in the suit had reached, the learned Civil Court did not commit any illegality by dismissing the appellant's application for interim injunction. The superior Courts have been reluctant in granting interim injunctions in suits where declaration is sought that the recorded owner of immoveable properties is just an ostensible/ benami owner. Reference in this regard may be made to the law laid down in the cases of Muhammad Ali Vs. Mahnga Khan (2004 SCMR 1111), Mst. Haleema Vs. Muhammad Kassam (1999 MLD 2934), Muhammad Ibrahim Vs. Mst. Naseem Khushi (2009 MLD 1031), and Khurram Zafar Vs. Mst. Sarah (2021 YLR 91).
15. Since the dispute between the parties pertained to immoveable properties, the doctrine of lis- pendens adequately protects the appellant.
16. In view of the above, I do not find any merit in the instant appeal which is dismissed with no order as to costs. The learned trial Court while deciding the suit shall be uninfluenced by any observations made herein above.