IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE FAISAL ARAB 
 
 
CIVIL APPEAL NO. 2084 OF 2016 
(On 
appeal 
against 
the 
judgment 
dated 
29.06.2016 passed by the High Court of Sindh, 
Karachi in IInd Appeal No. 85/2011) 
 
Hafiz Muhammad Iqbal 
… Appellant 
VERSUS 
Gul-e-Nasreen etc. 
… Respondents 
 
For the Appellant:  
 
Mr. Shahid Anwar Bajwa, ASC 
 
For Respondents (1 & 2(c): 
Mr. Jawad S. Sarwana, ASC 
 
Date of Hearing:  
 
28.06.2019 
 
JUDGMENT 
 
 
 
FAISAL ARAB, J.- Being in the service of Pakistan 
Army, respondent No. 2 was entitled to buy a residential and a 
commercial plot in Defence Housing Authority, Karachi (DHA for 
short). On the basis of such entitlement, she applied to DHA for a 
2000 square yard residential and a 200 square yard commercial 
plot which were allotted to her in December, 1973. All dues and 
charges for such allotments were cleared by 1983 and the plots 
were transferred in her name. In the same year she got the 2000 
square yards residential plot bifurcated, which were assigned plot 
Nos.57/1 and 57/2 having an area of 1000 square yards each. She 
retired from service in the same year i.e. in 1983.    
 
2. 
 
In 1986 respondent No.1, who is younger sister of 
respondent No.2, filed a suit against respondent No.2 and sought 
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2
declaration that she is the real owner of the plots and respondent 
No.2 is only an ostensible owner i.e. a ‘Benamidar’. The basis to 
seek such a declaration was that as respondent No.2 was neither 
interested nor had funds to pay for the plots so respondent No. 1 
offered that she would make all payments for the plots to DHA and 
became their owner to which respondent No.2 agreed. Based on 
such understanding, the respondent No.2 applied to DHA for the 
allotment of a residential and commercial plots for which the entire 
price was paid by respondent No. 1. It is also the case of the 
respondent No.1 that after respondent No.2 retired from service in 
1983, she came to live with respondent No.1 at her Karachi 
residence and when asked to transfer the plots in respondent 
No.1’s name she refused and thus the relations between them 
became estranged with the result that respondent No.2 left the 
house and went to reside with her old colleague. It was further 
stated in the plaint that in May, 1986 when respondent No.1 came 
to know that respondent No.2 has entered into a sale transaction 
with someone in relation to one of the residential plots and the 
process of transfer was pending with DHA, she got alarmed that 
gave her the cause to file the suit for declaration and permanent 
injunction. The respondent No.1 obtained injunctive orders from 
the Court against the respondent No.2 and the DHA in order to 
prevent alienation of the plots until her claim was decided in the 
suit. 
 
3. 
 
During the pendency of the suit, the appellant, a 
stranger to the above mentioned controversy between the two 
sisters, interjected in the suit by filing an application under Order 
CIVIL APPEAL NO. 2084 OF 2016 
3
1 Rule 10 CPC for his joinder as a defendant, on the strength of his 
claim that respondent No. 2 has entered into sale transaction for 
the residential plots with him. His application was allowed and the 
court joined him as a defendant. After recording of the evidence of 
the parties, the court held that respondent No.1 failed to establish 
that she is the real owner of the plot and dismissed the suit. 
Respondent No. 1 preferred first appeal which was also dismissed. 
She then filed second appeal in the High Court of Sindh, which 
was allowed vide impugned judgment. The High Court reversed the 
findings of the courts below after holding that respondent No. 1 
has established in the evidence that there was an understanding 
between the two sisters that the payments for the plots would be 
made by respondent No.1 and become the real owner which was 
accordingly paid by her to DHA and respondent No.2 became just 
an ostensible owner.  
 
4. 
 
The respondent No. 2 died during the pendency of the 
proceedings. Though her heirs were made party in the proceedings 
at the appellate stage, none of them came forward to challenge the 
decision of the High Court before this Court, hence insofar as 
respondent No.1’s claim that her proprietary interest has been 
created in the suit property has attained finality, leaving the 
appellant to file appeal in this Court on the strength of his plea 
that he was a bona fide purchaser for valuable consideration.  
 
5. 
 
Learned counsel for the appellant submitted that the 
trial court and the first appellate court, after examining the 
evidence adduced by the parties, rightly came to the conclusion 
CIVIL APPEAL NO. 2084 OF 2016 
4
that respondent No. 2 was not a ‘Benamidar’ and fully competent 
to deal with the plots as a real owner, such finding ought not to 
have been reversed by the High Court in second appeal, scope of 
which is very limited. As to the title document of plots coming in 
the hands of respondent No.1, he submitted that the address of 
respondent No. 1 was given to DHA only for the purpose of 
communication as she from time to time was posted in several 
parts of the country and on account of this fact the respondent 
No.1 came in possession of title documents of the plots which she 
was holding in trust for respondent No.2. Learned counsel 
maintained that merely coming in possession of title documents or 
demonstrating that payments have been made by her to DHA, 
which is otherwise not factually correct, would not make 
respondent No.1 real owner of the suit properties. Learned counsel 
lastly contended that the High Court also erred in holding that the 
appellant failed to establish that he is a bona fide purchaser for 
value when it has come in the evidence that he entered into sale 
transaction with respondent No.2 in whose name the open plots 
stood in her capacity as original allottee in the records of DHA and 
no steps were taken by respondent No.1 to get the plots transferred 
in her name.  
  
6. 
 
Learned counsel for the respondent No. 1 in rebuttal 
submitted that his client has sufficiently established in evidence 
that based on the understanding between the two sisters she alone 
paid the entire amount for both the plots in the name of the 
respondent No.2 and was also given possession of the original title 
documents thereby disentitling the respondent No. 2 from 
CIVIL APPEAL NO. 2084 OF 2016 
5
subsequently claiming to be the real owner. He next contended 
that the burden to prove that the appellant was a bona fide 
purchaser was on the appellant, which he failed to discharge as in 
absence of examining the original title documents of the plots, 
which were with respondent No.1, he paid the entire sale 
consideration to respondent No.2.  
 
7. 
 
After the High Court reversed the findings of the courts 
below and declared respondent No.1 to be the real owner and 
respondent No.2 merely a ‘Benamidar’ no appeal has been 
preferred by any of the heirs of respondent No.2 after her demise 
before this Court though they were made party in the first 
Appellate Court as well as in the High Court. Notwithstanding the 
finding of the High Court, which creates proprietary interest of the 
respondent No. 1 in the suit plots, the fact remains that the plots 
were allotted to respondent No.2 only for the reason that she was 
in service of Pak Army. This entitlement for allotment of plots by 
itself has its own value, apart from the price that is paid to DHA. 
Had the plots in question been purchased by respondent No.1 from 
the open market, the price would have been much higher than 
what was actually paid. Therefore, irrespective of the fact that it 
was held by the High Court that respondent No. 1 paid the entire 
amount to DHA for both the plots from her own source, as held in 
second appeal, the fact remains that the plots were allotted, not at 
their full market value but at concessionary price only for the 
reason that respondent No.2 was in the service of Pak Army. In 
this peculiar circumstance, the monetary contribution made by 
respondent No.1 cannot be regarded as the true reflection of the 
CIVIL APPEAL NO. 2084 OF 2016 
6
entire value of the suit property and hence cannot be regarded as 
sufficient to treat respondent No.1 full owner of the suit property 
though she paid the entire price. Therefore, in our assessment, 
respondent No. 1’s share in the plots on account of her financial 
contribution cannot be considered more than half and the 
remaining half has to be attributed purely to respondent No. 2 on 
account of the privilege which she enjoyed in seeking allotment 
from DHA at much lower rate than the true market value. Based 
on such distinction, respondent No.2 was entitled to sell one of the 
two residential plots. She in fact got the original residential plot 
bearing No. 57 bifurcated into two in 1983 i.e. plot No.57/1 and 
57/2 and entered into sale transaction with regard to plot No.57/1 
in 1986. The respondent No.2 in equity was justified in entering into 
sale transaction with the appellant for the first plot i.e. plot No.57/1.  
 
8. 
 
As regards the sale transaction relating to plot No. 
57/2, the appellant has claimed that he purchased plot No.57/2 
and sale consideration was shown to be Rs.250,000/- paid 
through pay order No. AO/C192426 dated 05.05.1986. If the sale 
consideration of Rs.250,000/- had already been settled for plot No. 
57/2 on or before 05.05.1986 then it is surprising that the 
agreement which was executed for this plot on 06.05.1986 neither 
refers to any pay order nor the price that was settled was printed 
with the remaining text of the agreement as the consideration of 
Rs.250,000/- for plot No.57/2 is written in a handwriting after 
erasing the printed matter whereas in the same situation, the 
consideration of Rs.425,000/- settled for plot No.57/1 in the first 
agreement executed on the same date i.e. 06.05.1986 was printed 
CIVIL APPEAL NO. 2084 OF 2016 
7
along with the remaining text. Secondly, there is a marked 
difference in the sale consideration of both the plots as well i.e. 
Rs.425,000/- for plot No.57/1 and Rs.250,000/- for plot No.57/2. 
This casts some doubt as to the genuineness of the agreement 
relating to plot No.57/2 and probably the deal for plot No.57/2 was 
belatedly came up to defeat the claim of respondent No.1 as the 
factum of two separate agreements is neither mentioned in the 
application filed by the appellant for joinder under Order 1 Rule 10 
CPC application nor in his written statement and in the first 
instance respondent No.2 in her counter affidavit to injunction 
application also denied sale transaction with regard to  plot 
No.57/2. Even otherwise, ample discretion lies with the Court to 
deny the relief to a purchaser of an immovable property keeping in 
view the circumstances of each as he cannot claim specific 
performance of a contract as a matter of right even where it is 
lawful to do so. In this regard, reliance can be placed on the 
judgments of Ghulam Nabi Vs. Muhammad Yaqoob (PLD 1983 SC 
344), Sirbaland Vs. Allah Loke (1996 SCMR 575) Muhammad 
Sharif Vs. Nabi Bakhsh (2012 SCMR 900), Farzand Ali Vs. Khuda 
Bakhsh (PLD 2015 SC 187), Adil Tiwana Vs. Shaukat Ullah Khan 
Bangash (2015 SCMR 828) and Muhammad Abdur Rehman 
Qureshi Vs. Sagheer Ahmad (2017 SCMR 1696) where this 
principle has been laid down by this Court.   
 
9. 
 
For what has been discussed above, the impugned 
judgment is modified to the extent that the appellant is entitled to 
plot No.57/1 whereas the respondent No.1 has become entitled to 
plot No.57/2 and 50% share in the 200 yards commercial plot. The 
CIVIL APPEAL NO. 2084 OF 2016 
8
remaining 50% in the commercial plot shall devolve upon the heirs 
of respondent No.2 in accordance with law of inheritance, which 
include respondent No.1 being one of the heirs of respondent No.2.  
 
10. 
 
This appeal was partly allowed vide short order dated 
28.06.2019 and the above are the reasons for the same.  
 
 
  
 
JUDGE 
 
JUDGE 
Karachi, the 
28th of June, 2019 
Not Approved For Reporting 
Khurram 
