IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
Mr. Justice Umar Ata Bandial 
Mr. Justice Munib Akhtar 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
 
 
Civil Appeal No.73 of 2016  
(Against the judgment dated 28.05.2015 passed by the 
Islamabad High Court Islamabad in C.R. No.392 of 2010) 
 
 
Mst. Attia Bano & others 
(in both cases) 
 
 
…Appellant(s) 
 
 
 
 
 
Versus 
 
Abdul Majeed 
(in both cases) 
 
…Respondent(s) 
 
For the Appellant(s): 
Kh. Shahid Rasool, ASC 
 
 
For the Respondent(s): 
Mr. M. Shahzad Siddique, ASC 
 
Date of hearing: 
24.06.2020. 
JUDGMENT 
 
 
 
Qazi Muhammad Amin Ahmed, J.- In the wake of series of 
consecutive failures, downstairs throughout, the appellants have resigned 
in their last ditch to defend the title over house No.2070 Sector I-10/2 
Islamabad; they are the legatees of ostensible owner of the premises, late 
Arshad Mehmood Humayun, no other than plaintiff/respondent’s real 
brother. The respondent, a U.S. resident, sought declaration with 
consequential reliefs on the plea of being the real owner through a suit 
instituted way back on 6.4.2002, averred wherein is that he had provided 
funds for the purchase of the plot as well as construction thereon, 
transacted as Benami by appellants’ predecessor-in-interest in his own 
name for procedural convenience, otherwise with no means to acquire or 
maintain an expensive dwelling in the Federal metropolis; the respondent 
further relied upon agreement dated 22.4.1993, executed by the deceased 
wherein he admitted respondent’s title with an undertaking to transfer the 
same, as and when required; the said agreement is part of the record as 
Ex.P.1 and purports to bind the appellants as well; upon their absence, 
they were proceeded ex parte, however, subsequently allowed to raise the 
   
2
contest wherein they denied the claim. The suit was decreed vide 
judgment/decree dated 29.10.2007, appeal filed by the appellants met with 
no better fate vide judgment and decree dated 16.3.2010; revision petition 
before the High Court was declined on 28.5.2015, vires whereof, are being 
assailed on a variety of grounds by leave of the Court. It is contended that 
the deceased had purchased the plot with his duly explained resources and 
himself constructed the house thereon for the family; that respondent never 
claimed ownership of the house during the lifetime of his brother and that 
agreement dated 22.4.1993 was a forged instrument, contrived to deprive 
the family of their legacy. The Courts below ran into a unanimous error in 
constructing the transaction as Benami in the face of respondent’s failure 
to establish source of fund, motive, title documents and possession of the 
premises, warranting interference by this Court, concluded the learned 
counsel, a position controverted on respondent’s behalf. 
2. 
 
Heard. Record perused. 
3. 
 
Diametrically opposite positions notwithstanding, inter se 
relationship and respondent’s U.S. residence with frequent visits are 
common grounds. It is also not seriously disputed that the family 
comprising four brothers jointly dwelled in the premises. The respondent, 
in the witness box as PW-2, asserted to have supplied the fund for the 
purchase of plot as well as construction thereon; he also claimed to have 
financially assisted his brothers, hailing from a different district in their 
business pursuit besides providing a roof to their families. Despite a 
somewhat lengthy cross-examination, respondent’s categorical claim of 
being the man behind the scene has not been seriously disputed; the entire 
exercise is structured on references to events having no bearing on the real 
issue. Transfer of funds for the purpose has been established by the cross-
examiner himself, reproduced as follows: 
 � �� �
�رز � ى� � � � 
A channel, though prohibited by law, nonetheless, has been unfortunately 
a convenient and ubiquitous mode for money transfers. The appellants, 
confronted with respondent’s sound financial position, the evidence led by 
them sans any substantial source of their predecessor’s income to support 
the hypothesis of purchase of a costly residential unit; according to them, 
the deceased had a grocery shop, a video game outlet and a commercial van 
albeit with no tangible proofs; they also claimed loan availed from unnamed 
well-wishers to carry out the construction. It is also an admitted position 
that after their predecessor’s death, no other moveable or immovable assets 
   
3
have been taken over by the family. Atia Bano, the widow, appeared as  
DW-1 and admitted as follows:  
۔� �ر � �را� �و� �ا �  G-7 
  
�رد�� روا �و� ا� � � �   1993  �   
� � � � ��� ن� �و سا � � �رد � 
She unsolicitedly volunteered explanation about the disputed house having 
been rented out again with no details to qualify the claim; her following 
admission is no less damaging to her position: 
� �ا� � � سا ن� م� � �و� ے� � � � � � ے� �و سا �� �  � � ��ا 
The above excerpts from the evidence clearly vindicate respondent’s stance 
that he had arranged the funds to his brother to manage a residence for the 
family in Islamabad; two other witnesses, a brother-in-law and a Peer Bhai, 
also fail in their joint effort to improve upon a plea, inherently flawed.  
 
It is established that the family comprising three brothers with their 
siblings jointly resided in the premises and it is so admitted by no other 
than Atia Bano (DW-1), in the following terms: 
�� � ��� ن� �� ود � �ر � ��� ن� ہا� � � � �� روا �� �را � � � ۔�  � ��ز ں��
 �� �� �  ہا� ۔ � �ر �� �آ ر� � �� روا � �ر � ��� ن� 
 
She goes on to acknowledge that the disputed premises is the permanent 
residential address in respondent’s National Identity Card. 
 
The appellants after demise of their predecessor-in-interest were once 
evicted from the premises and re-entered the same through Court’s 
intervention. Totality of circumstances, reflected from the evidence led by 
the contestants unambiguously suggests a joint possession over the 
premises that included the respondent, strongly entrenched therein; his 
stay in the premises during his visit is also an admitted position.  
 
Respondent’s foreign residency and his admitted financial status 
appears to have been a dominant consideration behind his delegation of the 
task to his brother to conveniently transact the deal on his behalf and it is 
so evident from Ex.P-I, executed by appellants’ predecessor way back on 
22.4.1993, for the convenience of reference, it is reproduced below: 
 � � ہر� �� � � ل�� م� �د �ا �و ں�� د� �را �����2    � � ۔ں� � تا� � �� � ��اؤ� ى�
 � ��ا ل� ��اؤ� ى� � �د �ا �و �ا� �ار د� � مردا��  � � �ر � ٹ� �� ض� �ر � ��ا �
 � ٹ� � �ا � �ر �� ہ�� � ہر�� مردا� � � � �2070  ��166.6/9— � �اوI-10/2 
 
 د�آ م�ا
 � � ۔�او� � م� �ا � � � �� � ر�� مردا� �� ہ�� ٹ� ۔� � تر� �� ود � � � � �� ���
� �� � � � � �ا� �ار مردا� �� �ا � ہر�� �� ۔� راد  ن�راو روا � ى�� � ا� ��را�ا ۔� � �او
�ا� � �� ن�ا� �و�ور د� ى� �ر � ہا�او� � � سا� و ش� �� �� را�ا � � � ۔�� � � �  ر��
�آ م� ترو� �� روا �ر � �� � �د� ��  
   
4
 
The stamp vendor appeared as PW-1 to confirm purchase of stamp paper 
by the deceased whereupon Ex.P-1 was executed in respondent’s favour; in 
cross-examination, 
by 
far 
inconsequential, 
he 
vehemently 
denied 
suggestion of any foul play. Next in line is Muhammad Munir Akhtar (PW-3) 
being a real brother of the deceased as well as the respondent;  
he stands at equidistance; he established execution of Ex.P.1 as well as 
provision of funds by the respondent for the said house; his deposition 
being straightforward inspires confidence and by itself is sufficient enough 
to clinch the issue. Death intervened the entry of Nazeer Ahmed, another 
brother, signatory to the instrument, in the witness-box; he admittedly 
resided under the same roof. Evidence of aforesaid witnesses conclusively 
established execution of agreement Ex.P.1 leaving no space to entertain any 
doubt that appellants’ predecessor was merely an ostensible player, with 
resources assigned by the respondent to conveniently manage the purchase 
of land for construction of a house thereon; the burden has satisfactorily 
been discharged in accord with the law declared by this Court in cases 
reported as Abdul Majeed & others Vs. Ameer Muhammad & others (2005 
SCMR 577) and Muhammad Sajjad Hussain Vs. Muhammad Anwar (1991 
SCMR 703). Consensus, concurrently arrived at by the Courts below, 
admits no interference. Appeal fails. Dismissed with no order as to costs.  
 
 
 
 
 
Judge 
 
 
 
Judge 
 
 
 
 
Judge 
Islamabad, the 
24th June, 2020 
Not approved for Reporting 
Azmat/- 
 
