Muhammad Asfraf Vs Nasrullah

JUDGMENT SHEET

PESHAWAR HGIH COURT, D.I.KHAN BENCH

(Judicial Department)

C.R.No.139-D/2026.

Muhammad Ashraf...Versus...Nasrullah

JUDGMENT

For petitioner: M/s Ghulam Hur Khan Baloch and Muhammad Mohsin Ali, Advocates.

For respondent: Nemo (motion case).

Date of hearing: 09.7.2026.

SADIQ ALI, J.- Through the instant Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908, the petitioner has assailed the judgment and decree, dated 19.05.2026, passed by the learned Additional District Judge- VI, D.I.Khan, whereby the appeal preferred by the petitioner was dismissed and the judgment and decree, dated 22.01.2025, passed by the learned Civil Judge-VI, D.I.Khan, dismissing the suit of the petitioner, was maintained.

2.The petitioner/plaintiff instituted a suit for declaration coupled with permanent and mandatory injunction in respect of land measuring 09 Kanal, situated at Mouza Pota, Tehsil and District D.I.Khan, fully detailed in the head note of the plaint. The case set up by the petitioner was that although the registered sale deed (Wasiqa No.761, dated 28.06.1995) and Mutation No.734, dated 28.07.1995, stood in the name of the respondent, who happens to be the real brother of the petitioner, yet the transaction was allegedly benami. It was

pleaded that the entire sale consideration had been paid by the petitioner. The respondent had no independent financial resources to purchase the property. A General Power of Attorney had been executed in favour of the petitioner by the original owner. The petitioner remained in possession of the property, and that during subsequent mediation (Jirga), the respondent had agreed to transfer the property in favour of the petitioner.

3.The respondent contested the suit by filing written statement, wherein he denied all material assertions and maintained that he himself had purchased the property from the original owner through a valid registered sale deed and had been recorded as owner in the revenue record since 1995.

Various legal objections including limitation were also raised.

On the divergent pleadings of the parties, the learned trial Court framed necessary issues. Both sides led evidence. Upon appreciation of the entire evidence and hearing learned counsel for the parties, the learned trial Court dismissed the suit vide judgment and decree, dated 22.01.2025. Feeling aggrieved, the petitioner preferred an appeal which too was dismissed by the learned Additional District Judge-VI, D.I.Khan, vide judgment, dated 19.05.2026. Hence, the present Civil Revision Petition.

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

5.The pivotal controversy in the present case is whether the petitioner successfully discharged the heavy burden of proving that the registered transaction in favour of the respondent was merely a benami transaction. A registered sale deed and the mutation sanctioned on its basis carry a presumption of correctness. Such presumption cannot be displaced merely on assertions or family relationship between the parties. The person alleging a benami transaction must establish, through clear, cogent and convincing evidence, the essential ingredients of such a transaction, (i) payment of consideration by the alleged real owner; (ii) intention behind purchasing the property in the name of another person; (iii) custody of title documents; and (iv) possession and enjoyment of the property. The petitioner has asserted that he alone paid the entire sale consideration. However, except for his own oral statement, there is no documentary evidence whatsoever showing payment of the sale price by him. No receipt, account, independent documentary proof or other reliable evidence has been produced to establish that the consideration actually proceeded from the petitioner. Mere allegation, howsoever strongly made, cannot substitute legal proof. Significantly, the official witnesses produced by the petitioner do not advance his case. Rather, they affirm the validity of the registered transaction. PW-1, the Registry Moharrir, categorically testified that the registered sale deed was executed in accordance with law in the presence of the

Registrar and the marginal witnesses. PW-2, the Patwari Halqa, produced the revenue record and stated that Mutation No.734 was correctly attested in favour of the respondent and that the respondent continues to be recorded as owner in the revenue record. PW-3 also verified the mutation and its correspondence with the registered sale deed. Thus, the official documentary evidence relied upon by the petitioner itself supports the legality and genuineness of the transaction standing in favour of the respondent. Learned counsel has laid much emphasis upon the alleged absence of financial resources with the respondent at the relevant time. Even if such circumstance is assumed in favour of the petitioner, the same, by itself, cannot establish a benami transaction in the absence of affirmative evidence proving that the petitioner himself paid the consideration and intended to retain beneficial ownership. Suspicion, however strong, cannot take the place of proof. Likewise, the alleged General Power of Attorney also does not materially improve the petitioner's case. The mere existence of such document does not establish that the registered sale deed in favour of the respondent was fictitious or nominal. A power of attorney authorizing dealings with property cannot override a duly executed and registered conveyance in favour of another person unless fraud, sham transaction or absence of consideration is independently proved through convincing evidence, which is conspicuously lacking in the present case.

6.Considerable reliance has also been placed upon the mediation proceedings and the statements of PW-5 and PW- 6, who were members of the Jirga. In my humble view, both the Courts below have rightly appreciated this piece of evidence. At best, the mediation proceedings indicate that some dispute had arisen between the brothers and an effort was made to settle the controversy amicably. Such proceedings neither create nor extinguish title in immovable property. They do not constitute legal proof of ownership, nor can they override a registered instrument duly executed nearly two decades earlier. The petitioner has further asserted that he remained in possession of the suit property throughout. However, possession alone does not establish ownership, particularly where title stands supported by registered documents and revenue entries. Even assuming possession in favour of the petitioner, the same is insufficient to dislodge the presumption attached to the registered sale deed and mutation.

7.Another aspect which cannot escape notice is the bar of limitation. The registered sale deed was executed on 28.06.1995 and Mutation No.734 was sanctioned on 28.07.1995, whereas the suit came to be instituted on 17.01.2014, after nearly nineteen years. The petitioner neither pleaded nor proved any legally recognized ground for extension or postponement of limitation. The cause of action, if any, accrued at the time when the property stood

transferred in the respondent's name. The suit having been instituted after an inordinate delay was rightly held to be hopelessly barred by limitation by both the Courts below. The judgments passed by the learned trial Court and the learned appellate Court reveal that each material piece of oral as well as documentary evidence has been examined in detail. The appellate Court independently reappraised the evidence and recorded its own findings instead of mechanically affirming the judgment of the trial Court. I do not find any instance of misreading or non-reading of evidence warranting interference by this Court.

8.The controversy involved in the instant case also stands authoritatively resolved by the Supreme Court of Pakistan in Muhammad Yousaf and others v. Muhammad Ishaq Rana (Deceased) through LRs and others (2023 SCMR 572). The Supreme Court exhaustively examined the concept of a benami transaction and held that such transaction ordinarily involves three persons, namely, the seller, the real owner and the ostensible owner (benamidar). It was further held that, in the ordinary course of human conduct, a benami transaction comprises two complementary agreements:

firstly, between the real owner and the benamidar whereby the latter agrees to lend his name for the purchase and undertakes to transfer the property whenever required, and secondly, between the benamidar and the vendor. The Supreme Court categorically held that the plaintiff must

specifically plead these essential facts in the plaint and thereafter prove them through cogent, reliable and legally admissible evidence, failing which the plea of benami transaction is liable to fail. The Court further observed that where a party seeks to challenge the apparent title reflected in a registered conveyance, the burden of proof lies heavily upon such party and can only be discharged by establishing the recognized tests: (i) the source of the purchase money; (ii) possession of the property; (iii) the relationship and position of the parties; (iv) the financial circumstances of the alleged transferee; (v) the motive for purchasing the property in another's name; (vi) custody and production of the title documents; and (vii) the previous and subsequent conduct of the parties. It was emphatically held that none of these factors, standing alone, is conclusive; rather, all surrounding circumstances must be considered collectively. Since secrecy is the very object of a benami transaction, the evidence adduced in support thereof must withstand strict judicial scrutiny and be sufficiently reliable to justify departure from the recitals of a registered instrument.

9.The principles laid down by the Hon'ble Supreme Court squarely govern the present controversy. The petitioner has admittedly challenged a registered sale deed and the mutation sanctioned on its basis after almost nineteen years by merely asserting that the respondent, his real brother, was only a benamidar. However, the petitioner has failed to

establish the essential ingredients enumerated by the Supreme Court. No convincing documentary evidence has been produced to prove that the sale consideration proceeded from the petitioner. Likewise, no evidence has been brought on record to establish any prior understanding or agreement between the parties that the respondent would merely lend his name or would subsequently transfer the property to the petitioner. The alleged General Power of Attorney and mediation proceedings do not establish the motive or intention behind the registered transaction, nor do they displace the statutory presumption attached to a duly registered sale deed and the revenue record. On the contrary, the official witnesses consistently affirmed the genuineness of the registered transaction and the correctness of the mutation standing in favour of the respondent. Even the alleged possession of the petitioner, assuming it to be correct, is by itself insufficient to establish beneficial ownership in the absence of convincing proof satisfying the well- recognized tests governing benami transactions.

Consequently, the petitioner has miserably failed to discharge the heavy burden cast upon him by law, and the plea of benami transaction is liable to be rejected on this ground alone.

10.Similar view was also taken by the Lahore High Court in Farkhanda Bibi and others v. Mehmood Munir and others (2018 CLC 685), wherein it was held that mere

payment of consideration or close relationship between the parties does not by itself establish a benami transaction unless the essential ingredients thereof are proved through cogent and convincing evidence. The learned Court further held that unexplained delay in challenging a registered transaction renders the suit hopelessly barred by limitation. The ratio laid down therein lends further support to the concurrent findings recorded by the Courts below.

11.The revisional jurisdiction of this Court is supervisory in nature and is not equivalent to appellate jurisdiction.

Interference can only be made where the subordinate Court has exercised jurisdiction not vested in it by law, failed to exercise jurisdiction so vested, or acted illegally or with material irregularity in the exercise of its jurisdiction. It is now a well-settled principle of law that concurrent findings of fact recorded by the Courts below, after proper appreciation of oral and documentary evidence, cannot ordinarily be disturbed in revisional jurisdiction unless such findings suffer from patent misreading or non-reading of material evidence, are perverse, arbitrary, or contrary to law. The Supreme Court in Pir Shah Abdul Haq (deceased) through L.Rs and another v. Muhammad Irfan and others (2026 SCMR 1019) has recently reiterated that revisional jurisdiction is not intended to convert the High Court into a third Court of fact.

The Supreme Court reaffirmed that where the Trial Court and the First Appellate Court have concurrently recorded findings

after comprehensive appraisal of the evidence, the High Court cannot reassess the evidence and substitute its own conclusions merely because another view is possible. Such interference is justified only where the concurrent findings are shown to be the result of jurisdictional error, perversity, illegality, or misreading or non-reading of material evidence.

The Supreme Court relied upon a consistent line of precedents including Sultan Muhammad and another v.

Muhammad Qasim and others (2010 SCMR 1630), Mst.

Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another (2023 SCMR 246), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim and others (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 SC 13), Mst. Zarsheda v.

Nobat Khan (PLD 2022 SC 21), Salamat Ali and others v.

Muhammad Din and others (PLD 2022 SC 353) and Mst.

Farzana Zia and others v. Mst. Saadia Andaleeb (2024 SCMR 916), wherein it has consistently been held that a revisional Court cannot upset concurrent findings of fact merely because it considers another conclusion more plausible. Unless the findings of the Courts below are demonstrably based upon misreading or non-reading of evidence, suffer from material illegality, jurisdictional defect

or perversity, the High Court must refrain from substituting its own appraisal of the evidence. In the present case, both the learned Trial Court and the learned First Appellate Court have independently appreciated the entire oral and documentary evidence, assigned cogent reasons for disbelieving the petitioner's plea of benami transaction, and concurrently held that the petitioner failed to discharge the burden cast upon him by law and that the suit was hopelessly barred by limitation. Learned counsel for the petitioner has been unable to point out any jurisdictional defect, perversity, illegality, or any instance of misreading or non-reading of material evidence in the concurrent findings recorded by the Courts below. Mere possibility of another view, therefore, cannot furnish a valid ground for interference in exercise of revisional jurisdiction under Section 115, C.P.C.

12.The cumulative effect of the foregoing discussion is that the petitioner has failed to establish that the registered sale deed dated 28.06.1995 and Mutation No.734, dated 28.07.1995, constituted a benami transaction or that the concurrent findings recorded by the learned Trial Court and the learned First Appellate Court suffer from any jurisdictional defect, material illegality, perversity, or misreading or non-reading of evidence. Both the Courts below have correctly appreciated the pleadings and the evidence in the light of the settled principles governing benami transactions and limitation, and have returned

findings which are fully supported by the record. In the absence of any ground warranting interference within the limited scope of revisional jurisdiction under Section 115, C.P.C., the impugned judgments and decrees call for no interference by this Court.

13.Consequently, this Civil Revision Petition, being devoid of merit, is dismissed, with no order as to costs.

Announced.

Dt:09.7.2026. -Sd/- Imran/* JUDGE

(S.B)

Hon'ble Mr. Justice Sadiq Ali