Appellant’s Property Possession Appeal Dismissed for Insufficient Benami Evidence – 2026 CLC 86.
سندھ ہائی کورٹ: بنامی ملکیت کے دعوے کی ناکامی – 2026 CLC 86
تعارف
مقدمہ کی تفصیل
ہائی کورٹ کے اہم نکات
(1) قانونی عناصر اور شواہد:
(2) بنامی لین دین کے بنیادی عناصر:
(3) سیکنڈ اپیل کا دائرہ (C.P.C. S.100):
(4) عدالت کا حتمی موقف:
حتمی فیصلہ
قانونی اہمیت
Must read judgement.
2026 CLC 86
[Sindh]
Before Muhammad Jaffer Raza, J
IQBAL AHMED SIDDIQUI -Appellant
Versus
KHALID MOUDOD SIDDIQUI and another -Respondents
IInd Appeal No. 77 of 2023, decided on 6th May, 2025.
(a) Specific Relief Act (I of 1877)-
-Ss.8 & 42-Qanun-e-Shahadat (10 of 1984), Arts. 117 & 119---Civil Procedure Code (V of 1908), S.100---Claim of benami ownership against real brother-Appellant alleging suit property belonged to deceased father and respondent/brother was only a benami holder -Validity---Evidentiary worth---Legal effect examined---Essential elements and burden of proof-Motive and source of funds, proving of-Pre-requisites---Appellant merely filing suit for possession without seeking benami declaration and cancellation of registered deed---Legality and consequences---The key legal issue before the High Court was as to "Whether the concurrent findings of courts below passing decree of possession in favour of the respondent were sustainable when the appellant's benami plea was unsupported by evidence or proper pleadings, and whether any substantial question of law arose to justify interference under S. 100 C.P.C."?---Held: Upon court's query it transpired that no suit for cancellation of registered lease deed in favor of respondent No.1 was instituted by the appellant Moreover, no suit for declaration was filed by appellant claiming or seeking a declaration that the subject property was owned by his deceased father-Further, sister of parties, who purportedly was appointed as a custodian was not made party in the suit-None of the ingredients pertaining to benami transaction were even pleaded by the appellant and the courts below correctly. observed that the entire defense of the appellant was based on his oral and unsubstantiated assertion-Trial Court correctly placed the burden of proving the benami transaction on the appellant and the same was in accordance with Arts. 117 & 119 of the Qanun-e-Shahadat, 1984---Impugned judgments of the Courts below did not suffer from any infirmity, hence, did not warrant interference by High Court under S. 100 of Č.P.C. since jurisdiction under S. 100 of C.P.C. was restricted-Appellant failed to highlight any misreading and non-reading of evidence by the courts below-Second appeal was dismissed, in circumstances.
(b) Benami transaction---
-Proof Two essential elements necessary to establish a benami transaction explained Two essential elements must exist to establish the benami status of the transaction The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration, and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party.
Ch. Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146 rel.
Manzoor Butt v. Mahmud Sufi 2016 CI,C 1284 ref.
(c) Civil Procedure Code (V of 1908)---
S.100-Second appeal-Scope-Reappraisal of evidence by second appellate court---Not permissible---Concurrent findings are not interfered with under S. 100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence---Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under S. 100 of the C.P.C.
Faqir Syed Anwar Ud Din v. Syed Raza Haider and others PLD 2025 SC 31 rel.
Syed Nadeemul Haq for Appellant.
Adnan Ahmed for Respondents.