IN THE HIGH COURT OF SINDH AT KARACHI

IInd. Appeal No.63 of 2010

Rizwan Ahmed Siddiqui

Versus

Mst. Afsari Begum & others

A N D

IInd. Appeal No.67 of 2010

Muhammad Jawaid & others

Versus

Rizwan Ahmed Siddiqui & others

Date of hearing:	17.04.2018
Appellant in 63/2010 and for respondent No.1 in 67/2010:	Through Mr. Nasir Rizwan Khan Advocate
Respondents No.2 to 5 in 63/2010 and appellants in 67/2010:	Through Mr. Muhammad Zoonnoon Khan Advocate.
Respondents No.10 and 11 in 63/2010 and Respondents No.8 and 9 in 67/2010	Through Mr. Muhammad Aqil Zaidi Advocate.

J U D G M E N T

Muhammad Shafi Siddiqui, J.- These are two connected Second Appeals arising of two connected Civil Appeals No.133 and 138 of 2006 respectively. The appeals before the first appellate Court impugned a judgment and decree passed in Civil Suit No.513 of 2004. Being aggrieved of the judgment both the appellant and respondents preferred appeals before the first appellate forum which maintained the judgment and decree of the trial Court hence these two Second Appeals.

I have heard the learned counsel for the parties and perused the material available on record.

For the purpose of convenience Second Appeal No.63 of 2010 is considered as leading appeal for identification of the parties.

Appellant Rizwan Ahmed Siddiqui filed Civil Suit No.513 of 2004 in respect of plot bearing No.R-60, Sector 15-A/3 Bufferzone, North Karachi, measuring 120 sq. yards. He sought declaration that he is real owner of the property whereas it was held benami in the name of his mother namely Afsari Begum. He further sought cancellation of an oral gift in favour of one of his brothers Muhammad Jawaid (respondent No.2).

It is the case of the appellant that he was working since 1973 in different hotels as Assistant Steward Trainee and then proceeded abroad in the year 1975. He continued there up till 1985 and then joined Hotel Intercontinental Abu Dhabi as Bar Attender from 03.10.1987 to 12.01.1997. It is his claim that subject property was purchased out of his funds, which he remitted to his maternal uncle (Mamoo) namely Dilshad as no one else in the family had any bank account in Pakistan. He was brought up by his maternal uncle (Mamoo) since childhood, as claimed.

The summary of the account, as attached with the plaint disclosed that by November 1979 appellant claimed to have sent a sum of Rs.9000/- only i.e. Rs.1000/- Rs.2000/- in the months of February and April, 1979 and Rs.6000/- in the month of November 1979. The subject property was purchased in the month of November 1979 in the name of respondent No.1 Afsari Begum, the mother of the appellant. Subsequent alleged remittance is therefore prima facie out of consideration.

The appellant filed his affidavit-in-evidence and he was subjected to cross-examination. Qamaruddin, Shamim Ahmed, Muhammad Sarwar and Syed Liaquat also filed their affidavit-in-evidence as witnesses of plaintiff/appellant. All the witnesses were subjected to cross-examination. From the respondent’s side respondent No.2 Muhammad Jawaid Siddiqui who is also brother of the appellant, recorded his examination-in-chief and was also subjected to cross-examination. Respondents also examined Azra Jawaid wife of Muhammad Jawaid, Rabia Begum and Mubina Parveen. The witnesses of respondents were also subjected to cross-examination.

The case of the appellant Rizwan Ahmed Siddiqui dependent upon remittance of funds utilized to acquire the property. All the witnesses of the appellant and respondents examined themselves. However none of them was summoned by the Court. Somehow one way or the other they have their association with appellant and respondents. The evidence of the witnesses from both the sides is not confidence inspiring. It is only hearsay.

Appellant’s witness Qamaruddin Siddiqui in his cross-examination stated that he was not aware as to how much amount was sent by the appellant. Another witness of the appellant Shamim Ahmed disclosed in his cross-examination that appellant was his friend and stated that he did not remember the period for which he (appellant) remained abroad.

The next witness of the appellant Muhammad Sarwar disclosed that the appellant used to send money from Dubai in the name of his maternal uncle Dilshad as he had no account. However, witness Qamaruddin Siddiqui stated in her cross-examination that respondent No.1 (the mother of appellant namely Afsari Begum) had opened an account bearing No.66 in UBL Darakhshan Branch hence the question arises as to why the appellant did not directly transferred the amount in the account of her mother. Another witness Muhammad Sarwar further stated that he was not aware as to how much amount was sent by the appellant. He deposed that the property was purchased in the year 1975 whereas the sale deed of the immovable property in the sum of Rs.25000/- was executed in November 1979. He was also unaware as to why the appellant had not purchased the property in his own name despite the fact that he had purchased a flat in Shadman Town in his own name while he was in service in Dubai. This fact of purchase of flat in Shadman Town has been very specifically stated in the affidavit-in-evidence of this witness (Muhammad Sarwar) in following terms:-

“7. That, I say that, the plaintiff also purchased a residential Flat bearing No.D-48, IIIRd Floor, situated in Sector No.14-B, Shadman Town, known as KDA Flats, North Karachi, Karachi, in the year 1995 from his funds ……”.

He also admitted that the appellant visited Pakistan when the suit property was purchased by his mother. In the 10^th line from bottom the witness deposed as under:-

“The plaintiff used to visit Pakistan when the suit property was purchased by mother.”

Perhaps the witness means that he (appellant) was in Pakistan when the suit property was purchased by his mother. This is very surprising that despite the appellant visiting Pakistan, he never attempted to have the subject property transferred in his name during any of his visits to Pakistan when his mother was alive.

The last witness of appellant Syed Liaquat Ali in his cross-examination deposed that he knew parties since 1982 which is much after the property was purchased. He deposed that he was not aware as to when the suit property was purchased and had no knowledge about the suit plot. In the 9^th line from bottom this witness disclosed that the suit property was in the name of plaintiff’s mother and voluntarily stated that the construction over the suit plot was carried out from the amounts sent by the plaintiff (appellant) as his mother had no source of income.

On the other hand respondent No.2 Jawaid recorded his examination-in-chief and disclosed that since 1973 no amount was sent by the appellant to their mother through their maternal uncle; that he was working in a factory and his mother used to stitch cloth. He has stated that at the time of migration, she (the mother) brought around 80 Tolas of gold which was used and sold for purchase of the suit property. However he has not filed any receipt and/or any documentary proof insofar as sale of subject 80 Tolas of gold was concerned from which the suit property was claimed to have been purchased. The other witness Azra Jawaid since closely related to respondent Jawaid may not be a prime witness of the relevant time therefore her evidence is not confidence inspiring.

The other witness of respondent No.2 Rabia Begum has also not been able to depose confidence inspiring evidence. She only stated that the suit property was purchased from the proceeds of sale of 80 tolas of gold which could be termed as hearsay. This witness also deposed that appellant’s father used to send money through people travelling from India to Pakistan however had failed to examine and summon any of these persons.

Mst. Mubina Parveen is the last witness of the respondent. She deposed in her examination-in-chief that since last about 20 years (from the date of recording of the evidence) she knew the parties.

I have minutely gone through the examination-in-chief as well as cross-examination of both the parties as well as their respective witnesses despite the fact that these are Second Appeals and the scope is limited to reappraise the evidence. For appellant it was important that he should have established the remittances as well as the execution of sale deed out of his funds. From his own showing the appellant had remitted Rs.9000/- w.e.f. February to November 1979. He may have send the money thereafter but that may not be relevant for the issue in hand as the suit property was purchased in November 1979 in the sum of Rs.25000/- as sale consideration. Besides, the money was sent to Mamoo (maternal uncle) and not to mother directly. The sale deed is silent as to any other payment that he (seller) has received previously. It was only a sum of Rs.5000/- paid as token money and Rs.20,000/- at the time of registration of the sale deed. On this point there are concurrent findings of two Courts below that the amount allegedly sent by the appellant was not utilized to buy the suit property and no other view could be formed at this stage in the light of the evidence that has come on record and discussed above.

Similarly, insofar as alleged gift which is subject matter of Appeal No.138 of 2006 is concerned, the same could not have been executed when no special love and affection was shown disregarding other legal heirs. The respondent N.2 in the connected appeal as appellant has failed to prove his absolute possession along with original title documents. He has not even produced the original gift deed or any witness to substantiate the facts of alleged in the affirmation as far as alleged gift is concerned.

It is immaterial if other brothers and sisters, except respondent Muhammad Jawaid, have not appeared in the witness box as it would benefit no one either appellant or respondent. They have to succeed in their respective cases on their own strength rather than non-appearance of any other party, as arrayed.

The judgment of trial Court and that of appellate Court are based on evidence and such facts in this Second Appeal cannot be re-appreciated to form another opinion. The suit property was neither held to be a benami in the name of mother of the parties nor it is deemed to have been rightly and/or lawfully gifted to one of the brothers (respondent No.2). As such no interference or indulgence is required to disturb the findings of the two Courts below. The appeals are accordingly dismissed along with pending applications.

Above are the reasons of my short order dated 17.04.2018.

Dated: 27.04.2018 Judge