1995 PLP 316 (MLD)

(iv) What should be decree? (v) Whether the suit has been filed in the Court of proper jurisdiction? (vi) Whether the suit for declaration that the defendant is BENAMIDAR is maintainable? (vii) Has the plaintiff any cause of action on the basis of his own showing in the plaint? (viii) Whether the plaintiff could purchase the plots from the Defence Housing Authority either by himself or in the name of BENAMIDAR as the allotment of plots for lease hold rights can only be made by the Government/Authority to Armed Forces Serving/Retired Officers on becoming members of the Authority? (ix) Whether plots were purchased in the name of defendant by the plaintiff? (x) Whether the above plots were allotted to defendant? (xi) Whether plaintiff made initial payment of Rs.7,400 for allotment of plots to Defence Housing Authority as his agent or from his own pocket? (xii) Whether the plaintiffs claim is based on a letter allegedly written by the defendant to his sister or is fabricated and designed to deprive the defendant from valuable properties through criminal conspiracy based on fraud and deception? (xiii) Whether the defendant is in possession of the suit premises? (xiv) Whether the plaintiff is in possession of the suit premises? (xv) Whether the plaintiff is the legal owner of the above plots? (xvi) Whether defendant is only Benamidar? (xvii) Whether the plaintiff is entitled for permanent injunction as prayed? It is the duty of the Court to frame appropriate issues which arise from material propositions of fact or law affirmed by one party and denied by, the other. Each disputed material proposition shall be reflected in a distinct issue. The point raised in one issue is not to be stretched in other issues and unnecessary issues are not to be framed. The point of Benami transaction recurs in different forms in these issues. Besides many unnecessary issues were framed in this matter. It appears learned trial judge did not apply his mind and mechanically settled the issues as were proposed by the learned counsel of the parties. At trial the respondent examined himself, Syed Feroz Shah, Mushtaq Hussain, Hassan Ali, Tariq Narejo, Fakhruddin and Muhammad Kamal Khan Jadoon. The applicant examined himself and to Mrs. Zubeida Jadoon and Capt. (Retd.) Masood‑ul‑Haq. On assessment of the evidence brought on record learned trial Judge decided Issues Nos.l, 2, 3, 5, 6, 7, 8, 9, 10, 15, 16 and 17 in affirmative. For Issue No.11 he held that the respondent made initial payment of these plots to Defence Housing Authority from his own pocket. For Issue No.12. he held that the letter in question was genuine. Issues Nos.13 and 14 were decided in negative. On the basis of above findings, he decided Issue No.4 in favour of the respondent and decreed the suit as was prayed. Learned District Judge maintained the judgment and decree passed by learned Civil Judge with an observation that, since the applicant had paid/deposited final instalment of Rs.26,000 towards the consideration of those plots, therefore, said amount would be a charge‑over those plots payable to the applicant. Mr. Raja Haq Nawaz learned counsel for the applicant contended that entire proceedings before the trial Court were coram non judice, without jurisdiction, and void ab initio for the reason that pecuniary jurisdiction of the trial Court, at the relevant time, was up to Rs.15,000, whereas the value of both the plots, even in the year 1984, was more than Rs.5,00,

000. In support of his contention, he cited‑(1) Muhammad Siddiq and others v. Haji Ahmed & Co. PLD 1967 Kar. 468 (2) Government of Sindh and others v. Saiful Haq Hashmi and others 1993 SCMR

956. In Muhammad Siddiq's case, it was held that ordinarily in suits falling under section 7(iv)(c) of the Court Fees Act, 1870 the plaintiff is entitled to put his own valuation, but in case the Court comes to the conclusion that it is arbitrarily fixed it can put its own valuation and ask the plaintiff to pay court -fee on said valuation. It was further observed that to hold otherwise would mean to give unlimited power to litigants in drafting their prayers so as to include or exclude relief with a view to confer jurisdiction on the Court to try the suit. In Government of Sindh's case. Hon'ble Supreme Court observed that when the value of the suit is beyond the pecuniary jurisdiction of the Court such Court would refuse to proceed with the matter. Learned counsel submitted that the respondent illegally valued the suit for the purpose of court‑fees and jurisdiction at Rs.7,500 and for declaration at Rs.200. He also argued that in view of section 7(iv‑a) (added by Sindh Finance Act (XII of 1974) and as amended by Sindh Finance Act (XV of 1975), in a suit for declaratory decree with or without consequential relief as to right in or title to immovable property based on alleged sale, gift, exchange, or mortgage thereof, the valuation was to be fixed according to the value of the property. For appreciating the respective contentions of the parties said clause is reproduced below:‑‑‑ "(iv‑a) Notwithstanding anything contained in clause (iv), in suit for a declaratory decree with or without consequential relief as to right in or title to, immovable property based on alleged sale, gift, exchange or mortgage thereof‑‑‑according to the value of the property." Before aforesaid amendment under section 7(i)(c) of the Court Fees Act for a declaratory decree with or without consequential relief the suit was valued according to the amount at which the relief was sought. It would be seem that clause (C) subsection (1) of section 7 of the Court Fees Act is still a part of section 7 and would be applicable in case clause (iv‑a) does not apply. Clause (iv‑a) would apply in case of sale, gift, exchange or mortgage. The question of applicability of aforesaid clause was examined in the case of Bashir Ahmed v. Mushtaq Ahmad PLD 1985 Lah.

112. Above case was referred by a D.B. of this Court in the case of Ghulam Hussain through Legal Heirs and another v. Mahboob Alam and others 1991 MLD

437. In Bashir Ahmed's case, it was observed that the plaintiff is obliged to pay court‑fee according, to the value of immovable property if his claim is based on alleged sale, gift, exchange or mortgage. Further, it was observed that if claim of plaintiff is not so based and is founded on something else, the plaintiff would not be required to pay court‑fee according to value of property and would be at liberty to state, under section 7(iv)(c) the amount at which he values the, relief sought. In the instant case, the claim of the respondents not based on sale, gift, exchange or mortgage, but on a Benami transaction, which emanates from the allotments of those plots by the Defence Housing Authority. In Benami transaction the factum of sale by itself is not disputed and the controversy virtually remains confined to the fact that who is the nominal or real owner of the property characteristically the issues involved in Benami transaction are different from the simple sale, gift, exchange or mortgage. Therefore, finding of learned District Judge and the trial Court that, under the circumstances, clause (iv‑a) is not attracted to the circumstances of the case is perfectly correct and no exception can be taken to it. It being so, the conclusion would be that the trial Court had jurisdiction in the matter. Learned counsel for the applicant next argued that the judgment of the Court below suffered from misreading of evidence, suspicion, and conjecture and on that score the impugned judgments and decrees are liable to be set aside. In support of this contention he relied upon the case of Ch. Masood Akhtar v. Muhammad Siddiq and others 1991 SCMR

199. In this matter, it was observed of the Hon'ble Supreme Court that High Court was fully justified in setting aside concurrent findings of two Courts with regards superior rights on pre‑emption of plaintiff because Courts below did not appreciate evidence produced by the parties correctly. Learned counsel submitted that in this case also both the Courts below have failed to appreciate the evidence brought on record. On merits the point under consideration is if the transaction in question was Benami or not. At the outset, it is noted that a Benami transaction is not a sham transaction. Benami transaction is a custom of country and is recognized as such. In such cases, a person purchases the property in the name of another but for his own benefit. The, nominal owner is the Benamidar. Coming back to the facts of this case, it is observed that, as per record. I initial payment after allotment of the plot in question was made by the respondent. As a cadet, the applicant was getting of Rs.150 only per month and at the relevant time was not in a position to pay the price of the plots. In his note (Exh.24) which is admittedly in his handwriting, he has stated that the plots in question belong to the respondent and were only allotted in his name. Original documents concerning the plots were produced by the respondent 3 before the Court. There is substantial evidence on record to show that the respondent is the real owner of the plots in question. Mr. S.M. Noor‑ul‑Hassan learned counsel for the respondent submitted that in case of concurrent findings of the Courts below said findings in revision cannot be disturbed, unless it is shown that such findings are based on no evidence, inadmissible evidence, or so perverse as to cause injustice to the concerned party. In support of this contention, he cited Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53. (2) Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88. (3) Guldar Khan v. Isa Khan by his Legal Heirs and others 1993 SCMR 2099. In Kanwal Nain's case, it was observed by Hon'ble Supreme Court that revisional powers under section 115, C.P.C. are primarily intended for correcting errors made by the subordinate Courts in exercise of their jurisdiction. Further, it was observed ordinarily erroneous decisions of the fact are not revisable, except in case where the decision is based on no evidence or inadmissible evidence or so perverse that grave injustice would result therefrom. In Haji Muhammad Zaman's case, also the above view has been reiterated by the Supreme Court. In fact, rule laid down in Kanwal Nain's case was followed in this matter. In Guldar Khan's case, it was observed that High Court had no jurisdiction to interfere in concurrent findings recorded by two Courts below. Section 115, C.P.C. can be invoked only in case of gross and palpable errors of subordinate Courts so that justice be done in case where appeal is not provided. In the instant case, the findings of the Courts below are neither based upon inadmissible evidence nor are perverse in nature. On the contrary, these findings are supported by competent, oral and documentary evidence and warrant the conclusion drawn by the Courts below. No exception can be taken to said findings. In consequence, I do not find any merit in this revision and the same is dismissed with costs. A.A./M‑2021/K Revision dismissed.