Saif Ullah Khan Vs Mirza Ali Khan & 03 others

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT,

BAI\NUBENCH

(Judicial Deportmenq

C.R. No. 107-Bl20t2

Saif Ullah Khan.

Vs.

MirzaAli Khan & 03 others.

JUDGEMENT

Date of hearing: - 09.10.2023 For petitioners: Mr. Anwar-ul-Haq, advocate.

Forrespondents: Syed Mastan AliZaidi, Advocate.

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FAZAL SABHAN, J. The instant civil revision petitioner u/s ll5 ofthe Civil Procedure Code, 1908, is filed by the petitioner questioning the validity of the judgment and decree dated 13.01.2012 passed by the leamed District Judge, Bannu vide which Civil Appeal No. 76113 of 20ll against the consolidated judgment and decree dated 20.01.2011 of the leamed Civil Judge-IX, Bannu in Civil suit No. 175ll (Nim) of 2007 and Civil Suit No. 103/l (Nim) of 2007 , was partially allowed. Through the instant revision petition the petitioner has prayed for setting-aside judgments and decrees of the two courts below and suit No. 175ll

(Ntun) of 2007 may kindly be dismissed while the suit No. 103/l (Nim) of 2007 may graciously be decreed.

2 Relevant facts constituting back ground of the instant civil revision petition are that Mirzali Khan/respondent instituted a suit for possession of propety bearing Khata No. 231 Khasra No. 378 measuring 03 Kanals and 04 Marlas situated at Daud Shah Tehsil and District Bannu, decree for mesne profits of Rs. I 87,000/- @ Rs. 17,000/- per annum from the year 1996 and a decree for permanent injunction directing the petitionen to remove the construction raised on l0 Marlas land and to avoid any damage to the suit property.

3 In his suit, the respondent claimed to be the owner of the suit property and as he was residing abroad since 1996, therefore, on his return he filed a complaint u/s 3 of the Illegal Dispossession Acl,2005, and during the pendency of the said complaint, the petitioner denied the ownership of the respondent, hence, he is liable to eviction and as he was deriving benefits out of the suit property, therefore, he is obliged to pay the mesne profits since 1996. At the same time, the petitioner also instituted a suit for

declaration and permanent injunction claiming to be bonafide owner of the suit property and prayed for correction of revenue record.

4 After filing the suits, the petitioner appeared and submitted his written statement and asserted that he has purchased the suit property from Muhammad Usman Khan, father of respondent and was given to him as "Benamf'through mutation No.

8534 dated 20.04.1968 and the gift mutation No. 295 dated 24.06.1999 was without possession, therefore, the gift in his favour is incomplete, while in the suit filed by petitioner, the respondent filed written statement. Both the suit,swere consolidated and from the pleadings of the parties, the leamed trial court framed issues and thereafter, both the parties availed opportunity ofproducing their desired evidence and on conclusion of trial, the learned trial court vide its consolidated judgrnent dated 22.01.2011 decreed the suit No. 17511, whereas, suit No 103/l was dismissed.

The petitioner being aggrieved from the said judgment, filed Civil Appeal No. 76113 of 2011 and after service ofthe respondent and hearing arguments ofcounsel for the parties through its judgment dated 13.01.2012,

dismissed the appeal of the petitioner, hence, he filed the instant revision petition.

5 Arguments of leamed counsel for the

petitioners and that of learned counsel for respondents were heard and record gone through with their valuable assistance.

6.The initial burden of proof within the contemplation of Article l17 of the Qanun-e-Shahdat Order, 1984, was upon the respondent to prove that he is the owner of the suit property and the petitioner was in illegal occupation of the same and after denying his title over the suit property, the petitioner is not only liable to be evicted from the suit property but he has also to pay the mesne profits. To this effect, the respondent examined Rashid I(han Patwari Halqa who brought the relevant revenue record of Fard- Jamabandi for the year 2001-02 in respect of the suit property as Ex.PW-l/l and Shajra Kisthwar Ex.PW0- l12 and in his cross-examination nothing favourable to the petitioner was brought except to the effect that there is Abadi on l0 Marlas in Khasra No. 378 while in Khasra No. 380 there is a water drainage on 06 Marlas. Similarly, Khasra No. 381 within an area of

l0 Kanals and 15 Marlas is cultivable. Similar is the position of Klwsra No. 376 and 379 while on Khasra No. 377, 0l Kanal and 03 Marlas is wder Abadi. The respondent in support of his claim of title over the suit property, also recorded his statement and in cross- examination accepted the fact that father ofrespondent has not received any produce from the petitioner. The petitioner examined Gul Daraz Khan ADK Bannu, who produced the relevant rccord of Fard-Jamabandi for the year 1972-73, 1968-69 Ex.DW-l/l and Ex.DW-l/2 and mutation No. 295 Ex.DW-l/3. In cross-examination, he admitted that Muhammad Usman Khan son of Akbar Ali Khan has purchased 20 Kanals and 02 Marlas vide mutation No. 8534 dated 20.04.1968. The petitioner Saifullah also examined Mir Shah Jehan son of Haji Muhammad Rasan and Abizar son ofGul Shah as his witnesses and recorded his own statement as DW-4.

7 From the revenue record brought thLrough Patwai Halqa wd ADK, it is clear that in the Jamabandi for the year 2001-02,Mfuzali Khan son of Muhammad Usman Khan is recorded as owner of the suit propefi, whereas, Khasra No. 380 is recorded in

possession of the said owner while Khasra No. 378, 381, 376, 377, 379 and 373 are recorded in possession of Siaf Ullah Khan petitioner, Ghafar Khan, Naimatullah Khan, Bahadur Ali and Muhammad Saadullah etc as "Ghair DaWtlkdar" or tenant-at-will.

The said Jamabandi Ex.PW-l/l also shows the entry of mortgage mutation No. 405 from Mirzali Khan in favour of Agricultural Bank, therefore, it reveals that the respondent is recorded as owner of the suit property and in this way he has discharged the onus of proving the fact that he is owner of the suit properly.

8.After proving the ownership by the respondent though revenue record, the burden of proof of the fact that mutation No. 8534 dated 20.04.1968 was a "Benami" transaction in favour of Muhammad Usman Khan shifted to the petitioner and to this effect the petitioner examined Mir Shah Jehan who alleged in his statement that the suit property was purchased by five persons, i.e, Muhammad Rasan, Saif Ullah Khan, Muhammad Shah Jehan, Muhammad Saadullah Khan and Haji Muhammad Usman jointly and Muhammad Usman being elder of their tibe was paid the entire sale consideration and the property was purchased @

Rs.480/- per Kanal, however, he sold the suit properfy to them @ Rs.600/- per Kanal and also handed over the possession to them. That Muhammad Usman was asked to transfer the property in their names but he convinced them not to transfer the property on the pretext of possibility of pre-emption suit against them.

In cross-examination, he replied that he has a claim over 03 Kanals and 05 Marlas and that he has now proved that they have jointly purchased the suit property. Though he denied that they are entered as "Ghair Dakhlkdar"ltenants but further replied that they have no proof that they are in possession as owners. He also answered in cross-examination that after the death of Muhammad Usman, he has neither approached the civil court nor the revenue officials for transfer of the property in his name. He also admitted it correct that he has not challenged the transfer in the name of Mirzali Khan/respondent. Similar statements were also recorded by Abizar and petitioner Saif Ullah Khan.

9 The evidence, therefore, recorded by the petitioner is not in consonance with the assertions made in the written statement. They have not produced

any cogent and convincing evidence to prove their claim of "Benami" transaction which requires the proof of source of arrangement of consideration, the possession oforiginal title deed or any other document in their favour, the person(s) who iVare in possession of the property and the purpose and reasons for creating a "Benami" transaction. In this respect, guidance is taken from the case of "Abdul Majeed and others V Amir Muhammad and othetsD, reported in 2005 SCMR 577, wherein the august Supreme Court has held that:-

"9.-Some of the criteria for determining the questton, whether a trdnsaction is a Benami transaction or not, inter alia the following factors are to be takzn into consideration:-

(i)source of consideration;

a (ii) frotn whose custody the original title deed and other documents came in evidence;

(iii)who is in Inssession of the suit property; and

(iv)motive for the Benami transaction. It is also well-settled lot ) the initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the wealotess in the defence evidence would not relieve a plaintiff from discharging the above burden of proof However, it may be stated thnt the burden of proof may shifi from one party to the other &ring the trial of a suit. Once the burden of proof is shified from a plaintiff on a defendant and ifhe fails to discharge lhe burden ofproofso shified on him, the plaintiff shall succeed. "

10.In the present case, the petitioner has failed to establish the source of his income at the relevant time to have arranged an amount for "Benami" nor he is in possession of any deed or document prepared at the relevant time and at the same time, it is not convincingly proved why the petitioner agreed to create a "Benami" in favour of father of respondent. Thus, the petitioner has failed to discharge his burden. In the case of "Muhammad Siddiqi through attorney v, Messrs T.J.Ibrahim & Company and others't reported in 2001 SCMR 1413 [Supreme Courl of PokistanJ,itwas held as following:- "The learned counsel for the petitioner has placed reliance upon Muhammad Sajjad Hussain v. Muhammad Anear Hussain l99l SCMR 703 wherein it has been laid down that initial burden of proof is on the party who alleges thal an ostenstble owner isw Benamidar and the plaintiff is .not absolved from discharging burden of proof, In the iwtant case M.lbrahim has laid his claim in respect of the tlat in dispute that the said property is benami owned by Alliance Motors, which was pwchased through one Muhammad Siddique, his relative and the amount was paid from the funds of Alliance Motors. Petitioner's sigtature on the power of attorney apparently difered to that on the sale deed. Petitioner claimed that he had purchased the Jlat by borrowing money, whereas his son and attorney Faisal stated that an amounl so borrowed was a loan obtained by his grandmother from his cousin, mother of M.Ibrahim, to pcy that amount lo his uncle to end the dispute between his father and uncle. Petitioner did not appear and could not produce evidence with regard to source of fands with which he is said to have purchased the property in dispute. In the circumstances the facts of the case cited are quite diferent and distinguishable from the facts ofthe instant case. "

11.In the light of available record, the ownership/title ofthe respondent over the suit property has been sufficiently and convincingly proved while so far as the claim of the respondent in respect of produce of agricultural land is concemed, the same was rightly held by the leamed appellate court to be outside the jurisdiction ofthe civil court and retum ofplaint to this extent was ordered. No illegality, irregularity or jurisdictional error has been pointed out by the petitioner in the impugned judgment, hence, the same being based on correct appreciation of record is maintained and the instant civil revision petition being devoid any merits is hereby dismissed.

Announced.

* lnrarullah PS* r, v--]so'----

JUDGE

(S.B) Hon'ble Ml Jaslice FouI Subhan

3 1 0cT.2023 ,lllw