Shaikh Muhammad Rafique vs Shaikh Muhammad Jameel

Sh. Muhammad Rafique Sh. Muhammad Jameel 22.07.2014 Mr. Imtiaz Hussain Khan Baloch, Advocate.

The controversy between the parties who are real brothers is about a house near Railways Station, Street Sheikh Nazir Ahmad Guard Wali, Sambrial District Sialkot, (property in dispute) sale deed of which was registered in the name of the respondent on 07.02.1976.

Regarding the property in dispute, respondent filed a suit for declaration, possession and perpetual injunction against the petitioner that he is owner of the property in dispute. Some 21/22 years back he rented out the same to the petitioner who has been paying rent to him for about 10 years, whereafter he stopped paying rent because of which in 1995 an ejectment petition was preferred by respondent against the petitioner which was subsequently withdrawn.

Thereafter, it has been alleged that petitioner started paying rent to the respondent. Subsequent thereto, in 2004 yet another ejectment petition

was filed by respondent against the petitioner in which, petitioner denied the relationship of land lord and tenant, in view of which, ejectment petition was withdrawn and on 15.04.2005, a suit out of which these proceedings emanate was filed by respondent against petitioner. In his written statement, petitioner alleged that in fact the property in dispute belongs to the petitioner and respondent is only a “Benamidar”. It was the case of the petitioner that through hard work and labour he managed to save Rs.10,000/- whereafter he entered into a agreement to sell with Muhammad Bashir son of Muhammad Din (vendor) for purchase of property in dispute but the sale deed was registered in the name of respondent. It was further alleged that after registration of sale deed, vendor handed over the keys of the property in dispute to the petitioner and since then the possession of the property in dispute is with the petitioner. He also alleged that he raised construction thereupon after getting site plan approved and also got installed telephone, water and other utility connections in his name.

He further asserts that his name has been entered in the record of property tax in the prescribed form PT-1. He averred in his written

statement that respondent is only Benamidar and this fact was unearth for the first time when in 1993, ejectment petition was filed by respondent against petitioner wherein the petitioner denied the relationship whereupon, said ejectment petition was withdrawn. He further alleges that another ejectment petition was filed in 2004 by the respondent against the petitioner which was also withdrawn due to denial of relationship and thereafter, the present suit was filed, therefore, the suit is not maintainable.

2.This shall not be out of place to mention here that in the plaint, respondent categorically asserted that he being the owner of the property obtained loan from House Building Finance Corporation, and has been regularly paying back the same in installments, receipts whereof have been appended alongwith the plaint and are also exhibited (Exh.P-6).

3.Out of divergent pleadings of

parties six issues were framed, upon which oral as well as documentary evidence was produced by the parties. Vide judgment and decree dated 23.04.2011 suit filed by the respondent was decreed as prayed for. Feeling aggrieved, petitioner preferred appeal before the District

Judge, which was dismissed vide judgment and decree dated 18.03.2014, hence, this revision petition.

4.Learned counsel for the petitioner has reiterated the stance taken in his written statement and submitted that since the date of purchase of the property in dispute, petitioner remained to be in possession of the same; he after approval of site plan, (Exh.D-10) raised construction without interruption, got installed telephone connection (Exh.D-9), electricity connection (Exh-D-8) and also got his name incorporated in the record of property tax (Exh.D-5 and D-6), therefore, he was and is the owner of the property in dispute and these material documents have been ignored by both the courts below. Learned counsel has vehemently argued that in fact, petitioner was the owner in possession of property in dispute and respondent is only a benamidar and in fact he paid Rs.10,000/- out of his savings as consideration for purchase of property in dispute.

He alleges that petitioner being an illiterate person and being the younger brother the respondent lured him to get the sale deed registered in the name of respondent who was literate person and in fact

he hoodwinked the petitioner. He further averred that no proof of tenancy has been given by respondent which could established that property in dispute was leased out to petitioner by respondent. He while relying on Mst.Asia Bibi Vs Dr.Asif Ali Khan and others (PLD 2011 SC

829)argues that he fulfilled all the requirements of proving a benami transaction but the courts below fell in error. Moreover he while relying on Malik Muhammad Khaqan Vs Trustees of the Port of Karachi (KPT) and another (2008 SCMR 428) and Nabi Bakhsh Vs Fazal Hussain (2008 SCMR 1454) argues that concurrent finding of fact can be looked into by this Court, therefore in view of the fact that both the courts below have ignored material evidence available on record, therefore, interference by this Court is mandatory.

5.I have heard the learned counsel for the petitioner and have gone through the record.

6.In order to prove Benami transaction the Hon’ble Supreme Court of Pakistan as well as this Court in judgments reported as Wasi-ud- Din Vs Fakhar Akhtar and 4 others (2011 SCMR 1550), Mst.Asia Bibi Vs Dr.Asif Ali Khan and others (PLD 2011 SC 829),

Muhammad Nawaz Minhas and others Vs Mst.Surriya Sabir Minhas and others (2009 SCMR 124), Muhammad Siddiqi through attorney Vs T.J.Ibrahim & Company and others (2001 SCMR 1443), Sharifan Bibi Vs Abdul Majeed Rauf (PLD 2012 Lahore 141), Muhammad Zaman Vs Sheikh Abdul Hameed (2002 CLC 1209), Qurib Ali alias Muhammad Kabir Vs Dr.Shah Nawaz (2001 CLC 1599) and Syed Habib Mahmood Vs Mrs.Balqees Fatima (PLJ 1998 Karachi 1), have set down parameters for proving a Benami transaction. The consensus of the above judgments would show that person who alleges that he in fact is the real owner of the property against a benamidar, has to prove the following:

(a)source of consideration;

(b)custody over original title deed and other relevant documents;

(c ) possession; and

(d)motive of Benami transaction.

7.In the case in hand, it is admitted that title documents were in possession of respondent who produced original sale deed (Exh.P-1). On the contrary, petitioner appeared himself and also produced one Muhammad Rauf as DW-2. Petitioner in his statement has recited

that he has been selling cloth and out of that, he has been saving money which ultimately was paid to the vendor while purchasing the property in dispute. Regarding payment of consideration, which was one of the moot point to prove Benami transaction, it was mandatory for the petitioner to have produced the vendor from whom he got the sale deed executed after payment, may be in the name of respondent.

Similarly, petitioner has not been able to prove that how he earned Rs. 10,000/-; how and when he handed over the same to the respondent or vendor and whether the consideration for sale was the same amount. It is also note worthy that according to the sale deed, sale consideration was Rs.7000/- why would petitioner pay Rs.10,000/- out of his hard earned income to the respondent.

Had the agreement to sell was arrived at between vendor and petitioner, he should have been aware of the sale price. This discrepancy is another circumstance against the petitioner qua payment of consideration. He could have produced the marginal witnesses and the identifier of sale deed who could support his case that the sale deed in fact was executed on his direction although in the name of respondent. He

has also not been able to prove the motive of Benami transaction. The only explanation given by him in this regard is that respondent deceived the petitioner and got the sale deed executed in his favour.

8.Out of four pillars upon which

edifice of the case of the petitioner could have been build, he has only got the support of one pillar by proving his possession over the property in dispute. Although, petitioner has produced the bills of utility services availed by him and the site plan yet the same will not be sufficient to over rule the other three necessary ingredients to prove a Benami transaction which in the case in hand are in favour of respondent.

9.The petitioner has miserably failed to make out a case for him through which this could be proved that the transaction was a benami transaction and in fact it is the petitioner who is the real owner.

10.Great emphasis has been laid on the fact that record of property tax is in favour of the petitioner. It is settled proposition of law that record or property tax is not conclusive proof of ownership; therefore, reliance placed by the petitioner upon Form PT-1 does not hold much

water. Reliance in this regard can be placed on Shaikh Muhammad Afzal Vs Virbai through Legal Heirs (1993 CLC (Karachi) 1702).

Similarly, the site plan produced by the petitioner (Exh.D-10) is not an approved site plan upon which reliance can be placed.

11.As regard the interference by this court in concurrent finding of fact rendered by the courts below, needless to say that according to judgments reported as Muhammad Bux Vs Muhammad Ali (1984 SCMR 504), Haji Muhammad Zaman Vs Zafar Ali Khan (PLD 1986 SC 89), Abdul Hameed Vs Ghulam Muhammad etc (1987 SCMR 1005), Haji Muhammad Din Vs Malik Muhammad

Abdullah (PLD 1994 SC 291), Dilmir Vs Ghulam Muhammad and 2 others (PLD 2002 SC 403), Haji Hussain Haji Dawood through Legal Heirs and others Vs M.Y.Kherati (2002 SCMR 343), Brig.(R) Sher Afghan Vs Mst.

Sheeren Tahira and 6 others (2010 SCMR 786) and Noor Muhammad Vs Mst.Azmat-E-Bibi (2012 SCMR 1373), the superior courts have enlarged the scope of Section 115 CPC vis-à-vis interference in the concurrent findings of fact.

The cumulative reading of the above judgments

would show that interference can be made in revisional jurisdiction in cases of concurrent finding rendered by the courts below provided they suffer from misreading or ignorance of material piece of evidence or a jurisdictional error.

12.For what has been discussed above, petitioner has miserably failed to prove that respondent was merely a benamidar and therefore sale made in his favour is void. He has also not been able to prove that the requirements as laid down in the judgments mentioned supra to prove a benami transaction, which either could enable this Court to interfere in concurrent findings recorded by the courts below. Even otherwise no misreading, perversity or a jurisdictional error has been highlighted in the orders of the courts below warranting interference of this Court.

13.For what has been discussed above, I find no merit in this petition, and the same is therefore dismissed in limine.

(FAISAL ZAMAN KHAN)

JUDGE

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