2006 PLP 732 (CLC)

MIAN SAQIB NISAR, J.

Both the Regular Second Appeal No.21 of 2000 and Civil Revision No.400 of 2000, are being disposed of together, as these arise out of the consolidated cases, decided vide same judgment and decrees.

2. Briefly stated the facts of the case are, that one Syed Israr Hussain, predecessor-in-interest of the appellants; purchased the house in dispute through a registered sale-deed dated 15-11-1983 from one Haroon Anwar Khan. He died in a road accident and his mother brought a suit for the recovery of possession against the respondents. The respondents denied the ownership of Syed Israr Hussain and claimed that the house in fact is owned by Messrs Multinational Rice Mills, a partnership firm, of' which Syed Israr Hussain was a partner. Messrs Multinational Rice Mills subsequently, also brought a suit claiming to be actual and real owner of the house in question and asserting that Syed Israr Hussain was only a partner and was a Benamidar, whereas the property is owned by the said firm. This suit was contested by the appellants. Both the matters were consolidated and the consolidated issues were framed; proceedings were conducted in the suit brought by the appellants, who examined P.W. Syed Anwaar Hussain, brother of the deceased Syed Israr Husain who explained that the deceased was the owner of the property and the respondents were occupying the same illegally. As against the above, the respondent-Multinational Rice Mills examined Abdul Waheed D.W.1, Sheikh Ghulam Ahmad D.W.2 and Khawaja Muhammad Kalim D.W.3. They also produced in evidence the agreement of sale between Khawaja Haroon Anwar Khan and Syed Israr Hussain as Exh.D.l, which is asserted to have been witnessed by Abdul Waheed D.W.1. They also brought on record the original sale-deed Exh.D.2 and an alleged affidavit of Syed Israr Hussain dated 15-11-1983 as Mark "B". On the conclusion of the trial, the learned Civil Judge dismissed the suit for possession of the appellants and allowed that of declaration filed by Messrs Multinational Rice Mills. The said judgment and decrees have been maintained in appeal as well.

3. Learned counsel for the appellants contends that for the purpose of proving that the property has been purchased Benami, strict and positive evidence is needed and onus in this behalf is heavily on the shoulders of the person who claims to be the real owner and the other as an ostensible. He has argued that the learned Court of appeal has also accepted the principle that onus is on the respondents. It is further submitted that in order to prove a transaction being Benami in nature, five ingredients are essential to be proved i.e. the motive; the source of money; the possession of the property; subsequent conduct by party relating to the property, and the possession of the title deed. In this case, the respondents have neither proved the motive nor the source of money, which are essential ingredients. It is stated that the statement of D.W.I Abdul Waheed that the property was purchased by Multinational Rice Mills and that the payment was also made b the company, is not supported by any evidence on the record; he has Mentioned that he being instrumental in getting the deal finalized with the Multinational Rice Mills, but there is no documentary proof, if he was a property dealer or in any way connected with the deal. As regards D.W.2 Sheikh Ghulam Ahmad is concerned, it is stated that he has not been able to produce his register in which according to him, an affidavit was registered, but he in order to avoid the predicament, mentioned in the cross-examination that it has been lost. As regards D.W.3, it is argued that he is the interested party and accordingly his evidence cannot be given much credence.

4. I have heard the learned counsel for the parties. As far as the proof about the Benamiship is concerned, it is settled law that onus in this regard, is heavily upon the shoulders of the person who asserts to be A real owner. The ingredient, which necessarily has to be proved in this behalf, firstly is the motive. There is nothing on the record that as to why the property was purchased by Multinational Rice Mills in the name of Syed Israr Hussain. Secondly, regarding the source of money, Multinational claims to be a partnership firm, but the entire payment allegedly has been made without any documentation. Even today, on the question to the learned counsel for the respondents, if any declaration was made in the Income Tax record about the payment to the vendor on behalf of the firm, it is conceded that there is nothing of the nature. No evidence either in the form of the Ledger/Accounts Books or even a Voucher of the Bank Account of the firm has been produced to prove that the payment was made from the firm's account to the vendor. The only statement about the payment is that of D.W. 1, who himself admitted that he is friend of one Tasneem, brother of the partner of Multinational Rice Mills. Therefore, in such situation, I am constrained to hold that the second important ingredient about the source of money has also not been proved by the Multinational. Khawaja Haroon Anwar, from whom, the property has been purchased, could have been a key and substantial witness to tell as to who bought the property from him and paid the price, but for no good reason, he has not been examined in the matter. As regards the affidavit of Syed Israr Hussain is concerned, the document has been placed by the respondents and much reliance has been put upon this document. Unfortunately, instead of helping the respondents, the affidavit goes against them, because in the first paragraph of the same, it is stated "that the deponent had taken a loan of Rs.3,05,000 from the firm namely Multinational Rice Mills, Gujranwala for the purchase of a house". This assertion is absolutely destructive of the contents of paragraph No.4 of the affidavit, which reads as follows:-- "That the deponent is a Benamidar in respect of Sale-deed No.2758 dated 15-11-1983 executed ostensibly in favour of the deponent as the consideration money was provided by the said firm and as such the said property belongs to reality and exclusively to the said firm." The affidavit is drafted in a legal and technical manner and no one has been examined to prove as to who is the scribe of the same;' obviously, it has not been witnessed by anyone, but Ghulam Ahmad, Oath Commissioner appeared as a witness; he, in the examination-in?chief, has not laid down the foundations, if he personally knew Syed Israr Hussain; he also is not the witness of the execution of the document allegedly by Syed Israr Hussain. Moreover, in the cross-examination, he concedes that the document was incorporated in his register, which was never produced. To avoid the repercussion, he very conveniently stated that the register has been lost. No proof of the loss has been established on the record. Thus, only for the reason that being a partner of the firm, the possession of the house was taken over after the death of Syed Israr Hussain by a co-partner, including custody of the documents of title, would not mean that the property was purchased by Multinational in-the name of Syed Israr Hussi;in as Benami. As stated earlier, the main ingredients about the Benamiship arc the motive and the source of money, the proof whereof is absolutely and conspicuously missing in the present case and this aspect of the matter has been grossly overlooked by the Courts below. Resultantly, the judgments and decrees of the two Courts below in the suit for declaration cannot be sustained and as conceded by the learned counsel for the parties in the Court today, if the decree is set aside, the other suit of the appellants has to be decreed. Resultantly, the same is decreed and the respondents are directed to hand over the possession of the suit house to the appellants. In the light of above, the present appeal and the civil revision are accepted and the judgments and decrees of the Courts below are set aside with the result that suit for declaration filed by the respondents about the claim of Benamiship is dismissed and that of possession filed by the appellants is allowed. M.H./A-538/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly.