Mst. Bahr-e-Falak VS Fazal Subhan & another.

-) SHEET

PESHAWAR IHIGH COURT, MINGORA BENCH

(Dan-ul-eAZA), swAT.

JUD+CIAL DEPARTMENT

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Civil Revis[on Petition No. 305 -N.(.l20l4 With C.M 564120t4

JUDGMENT

Date ofhearingl...... ...18.01.2018....

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Petitioners: 1V$t. eahre Falak) by Mr. Muhammad Yar Malezai, Advocate.

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Respondents:(F - Subhan and another), by Mr. Fazal Advocate.

,f***rf** J:- This civil

revision petiti dn under section 115 of Civil Procedure Codd, 1908 ("CPC") read with paragraph

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I0 sub parag(aph 8 of Shariah Nizam-e-Adal

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Regulation, 2009 is directed against the judgment and decree date[ 13 .07.2011, passed by the learned Civil Judge-V/tituqu Qazi, Dir Lower at Timergara, whereby, suit the petitioner was dismissed and the judgment and decree dated 29.04.2014 of the leamed Additi District Judgellzafi Zilla Qazi, Samarbagh, Lower, whereby the appeal of the petitioner was d[smissed and judgment and decree of rl

learned trial court was upheld,

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2 Brilef and essential facts leading to the

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present petitionl are that, father of petitioner filed a i

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suit against the respondent No.l which was

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contested by the respondent by submitting their l

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written statement. During pendency of the suit, the -j petitioner ameniled the suit with permission of the court to which ithe respondent submitted amended i

written t too. After framing of issues evidence of the parties were recorded and after

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hearing both the partres, the suit filed by the father

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of the petiti oner/olainti ir ff was dismissed by the i

learned trial vide judgment and decree dated t3.07.201r. A$grieved from the said order the petitioner pre an appeal before the learned Additional strict Judgellzafi Zrlla Qazi, Samarbagh, D Lower, who dismissed the appeal vide judgment decree dated 29.04.2014 and the order of the trial court was maintained, l

hence this peti tion

a J Valuable arguments of the worthy counsel for thd: parties were heard and available record carefully perused.

4 Father of petitioner instituted a suit for declaration on 26.03.2004 alongwith permanent injunction and possession as alternate relief. The /fr]- cause of alleged to have accrued when respondent No l/defendant refused to accept his ownership in suit property. Alongwith the said plaint there a list of disputed properties 07 in

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4v- numbers. On 1 3.05.2005 father of the petitioner submitted plaint which was allowed to

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proceed for tri d1 and partial evidence of petitioner

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was recorded imc luding the father of petitioner himself as During proceedings, respondent No.2 submitted an application for his impleadment as party which was allowed and therefore the petitioner was directed to submit yet another amended plaint 'wtrictr was submitted on 13.03.2010. i

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Even in this annended plaint the cause of action is stated to have 'accrued after refusal of respondent i

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No.l to acceptlhis ownership of the suit property.

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Father of petitidner and respondent No.l are brother inter se but the plaintiff died during pendency of the

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suit and has pr[duced 06 witnesses in addition to

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himself appearidg as PW-4.

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5 It v[as the case of deceased plaintiff that he has servedi in foreign countries and earned

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income in Bangladesh as well as in Dubai and l

Karachi. He uspd to send money to his brother as they were joinlly residing in the same house and i

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thereafter he had contracted second marriage, was i

living with his wife.

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6 Crtlx of the evidence of petitioner is that the he used to earn was sent to his

v brother who purchased the suit property in his own name andl therefore being purchased through Benami transaction he is cntitled to his half share in the suit property. PW-l Abdul Qahar has produced sale deed dated 01.01 .1994 as Ex PWl/l in support of the transactign of sale made by respondent No.1 regarding the guit property previously owned from him. PW-2 J ehbnze b stated to be marginal witness

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of a comprornise deed dated 26.05.2002 Ex PWzll whereby Jirga members had settled the dispute wherein the rigtit of present petitioner to his share in

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the sutt propert! was accepted by respondent No.1.

PW-3 is also niarginal witness of this deed. PW-5 l

Sikandar Khan has also urged that father of petitioner and he used to work together in Dubai and he has not gi ven any dehnite statement to support the contentions ol' IJenami transaction having been made in the name of respondent No.l. PW-6 Jehanzada has dl so stated nothing about the Benami /& transaction.

7 Itcqprlnd,cnt No.1 while controverting the contenti ons ro f pctitioner, produced 08 witnesses in addition to himsclf appearing as DW-4. DW-1 is Registry Muhariir who has produced registered deed of 1tt.05.1968. 19.A4.1969 and some other record as

v Ex DWI/I to Fx DW y4. These deeds apparently show that respgndent No t had purchased certain

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properties but do question from these witnesses has been asked to suggest that these properties were i

purchased by (espondent No.l on the sources of

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present petitioner. DW-2 has appeared in court who alleged to confi4m the signature of his father on deed i

dated 22.08.19615 but not exhibited in court. DW-3 is also witness to deed of 1965 but not exhibited in court so his statement could not be considered i

relevant. All remaining evidence has been discussed threadbare by learned courts below before i

arriving at the fpnal conclusion while dismissing the suit as well as fhe appeal of the present petitioner.

Learned trial ,court has even taken pains to i

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reproduced the evidence in verbatim in his judgment in discussion under issues No. 3 and 4.I{ence, even if the suit is lpeld to be within time, would not ry I

change the fate of this revision.

8.It is well settled law by august Supreme

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Court of Pakistan that in order to prove a transaction i

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to be Benami, dertain essential conditions are to be fulfilled. In thiil respect the judgment reported as

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2008 scMR 143 titled uMst. Zohra Besum and 6

v' tt relevant para is

reproduced as

ttB that a sale could be declared as ami, this Court in case of ammad Sajid Hussain 1991 SCMR 7 had laid down a criteria whereby, factual aspects are to be taken into c sideration. Learned High Court also too notice of it as follow:- (D Source of consideration.

(ii)From whose custody the original title deed and other documents came in evidence.

(ut Who is in possession of the suit property, Motive for the Benami transaction".

And 1 titled "Allah Rakha

and

others" relev para is reproduced as under, ,rlt is pertinent to point out that Daulat AIi was not made party to the suit he was a necessary party to it, as could explain the settlement of tra and the execution of do uments allegedly executed in favour Ali; the rights of ownership were not trafisferred to Daulat Ali by the veridors, therefore, the acknowledgment in ifavor of third party, namely, the ry- plalntiffs could not be permitted and acciepted unless, it was endorsed and ratlfied by the vendors. The alleged ac(nowledgment of Daulat Ali in favor of laintiffs could not be acted upon un it was accepted by vendors. M , this acknowledgement was as against the subsequent pu hasers, who had no knowledge of tha[ alleged Benami nature of the

trahsaction. The ingredients necessary to irrove Benami transaction were also miSsing in the evidence. Therefore, the leaTned Courts below had rightly dismissed the suit of the plaintif?'.

And 2005 SCMR 577, titled * Abdul Maieed and dth ers Vs. Amir Muhummad and others" relevant para is reproduced as under, , in the light of the rules laid in the cases of Muhammad Sajjad H V. Muhammad Anwar Hussain I 1 SCMR 703 and Jane Margrete w V. Abdul Hamid Mian 1994 CLC 1437, the Court highlighted four corisiderations for deciding the question of Benami character of a transaction. Th ese considerations are as follows:--

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It is the duty of the party who i

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raises such plea to prove such plea by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness. The Court is not required to decide this plea on the basis of suspicions, however, strong they may be.

(ii)That Court is to examine as to who has supplied the funds for the purchase of property in dispute, it is provcd that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction.

(iii)The character of a transaction is

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to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from all the surroundings circumstances i.e. the relationship of parties, the motives undcrlying the transactions and any other subsequent conduct.

v (iv) The possession of the property and custody of title deed".

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9 I there fore, hold that instant revision petition merits dismissal as the petitioner has failed to point out jurisdictional defect or material irregularity illegality in the impugned concurrent j and decree of the learned courts below which could not be lightly interfered with unless there is glaring violation of law or

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statute as has deen held by the apex court. Hence instant revision petition is dismissed with no order as to cost

Dt. 18. 1.2018.

tdocn

(Sanaullah) (SB) Hon'blc l{r,Justicc Muhammad Nasir Mnhfooz.

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