1991 PLP 1708 (CLC)

4. The petitioner‑defendant controverted the pleas raised in the plaint and pleaded that the respondent was never in possession of the land nor any money was paid by him for the purchase of the land. He asserted that he had not made report in the daily diary of the Circle Patwari on 31‑8‑1972. According to his pleas the respondent was a Girdawar Kanungo in the Revenue Department and in collusion with the Patwari had got a fictitious report entered in the daily diary of the Patwari but no mutation on the basis thereof was even entered.

5. On the pleadings of the parties the following among other issues were framed:‑-- "(3) Whether the plaintiff is owner in possession of the suit land? (4) Whether the defendant is a benamidar, if so, to what effect?"

6. In his detailed and well‑reasoned judgment the Civil Judge Faisalabad answered both the issues against the plaintiff‑respondent and dismissed the suit. The findings were reversed by the Additional District Judge in appeal.

7. Learned counsel for the respondent has raised the preliminary objection that a finding of fact had been recorded and report in the daily diary of the Circle Patwari (Ex.P.1) had been interpreted by the learned first Appellate Court, the revision petition was not competent as this Court had no jurisdiction to reappraise the evidence on a question of fact. He fortified his objection by referring to Balram Das Agarwal v. Kedar Nath (A I R 1958 All. 659), Natwal Das and another v. Nand Lai and another (A I R 1928 Lah. 284), Thakurdas Majhi v. Chend Majhi and another (A I R 1960 Cal. 538), Phul Chand Suraj Lai v. L. Chhadami Lai (A I R 1934 All. 530), Mst. Mumtaz Danish v. Akhtar Bibi and another (1988 C L C 2134) and Kanwal Nain and 3 others v. Fateh Khan and others (P L D 1983 SC 53).

8. Learned counsel for the petitioner, on the other hand, contended that the evidence oral as well as documentary had been appreciated by the learned Civil Judge in proper perspective and correct legal conclusions drawn but the appreciation of the learned Appellate Court was arbitrary, wanton and incorrect and illegal conclusions drawn were not supported by the record. He pointed out that in a Benami transaction the onus is always upon the party who asserts the Benami nature of the transaction to prove the same. This, according to him, the respondent had failed to do and the essential considerations in this regard were not fulfilled at all by the respondent‑plaintiff. He referred to the following cases to bring out the dictim laid down in this regard:‑-- Yaleswarapu Gangamma (A I R 1925 Mad. 980), Ramdhan v. Purushottam (A I R 1926 Nag. 109), Mt. Bibi Zainab and others v. Muhammad Ayub (A I R 1936 Pat. 136) and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 S C M R 703). The principle laid down in the cases relied upon by the learned counsel 'or the petitioner is that the respondent who asserted the Benami nature of the gale was to prove the same and while considering the question the following 'actors are to be taken into consideration:‑

(i) Source of consideration; (ii) From whose custody the original title deed and other documents came in evidence; (iii) Who is in possession of the suit property, and (iv) Motive for the Benami transaction.

9. It is an admitted fact on the record that the title deeds were with the petitioner‑defendant. He was also in possession of the property throughout. No evidence at all was led that the respondent had ever been in possession. When report in the daily diary of the Circle Patwari (Ex.P.1) was entered on 31‑8‑1972 possession of the respondent was got incorporated thereafter in the Khasra Girdawari in Kharif, 73 which continued to be so recorded till Rabi, 1975. The petitioner challenged this change of entry in the Khasra Girdawari from his name to that of the respondent and the Collector vide his order dated 30‑8‑1977 (Ex.D.8), restored the original position i.e. the name of the petitioner was to continue as in possession in the Khasra Girdawari. The respondent did not challenge the order of the Collector any further. The reason given by the respondent for purchasing the land in the name of the petitioner according to para.5 of the plaint was that the respondent had no sanction from the Revenue Department. This stand was contradicted in para. 8 of the plaint wherein it was pleaded that he had got the necessary sanction for the purchase of the land from the Revenue Department. No evidence was led by the respondent that he had provided the money nor the vendors or any attesting witness of the sale‑deeds was produced to support his case.

10. None of the factors being in favour of the respondent, the onus was not discharged. In other words, it was not proved by him that the sales were Benami, he was the real owner and the petitioner only the ostensible one. The only A consideration which weighed with the learned Appellate Court for reversing the finding was the construction placed upon the report of the Circle Patwari (EX.P.1). After hearing the learned counsel for the parties and going through the record, the appreciation in this regard seems to be wanting in judicial content and the conclusions deduced are just arbitrary, wanton and perverse.

11. The respondent admittedly was a Girdawar Kanungo. Muhammad Siddiq Retired Revenue Patwari (P.W.2) had entered the report in the daily diary on 31‑8‑1972 (Ex.P.1) in Chak No.51/JB at the Dera of Fazal Karim Sarbrah Numberdar (P.W.3) where the said Numberdar and Bashir Ahmad (not produced) were present. The alleged thumb impression of the petitioner on the daily diary of the Patwari is superimposed. It was not got identified to be that of the petitioner. The Patwari admitted in cross‑examination that he was residing in Mai Ki Jhuggi and Chak No.47/JB (wherefrom the petitioner hails and where the land is situate) was 6/7 miles therefrom, his Patwarkhana was in Chak No.3/JB which was two miles from Chak No.47/JB. He had gone to Chak No.51/JB for the recovery of land revenue and settlement of accounts with the Numberdar. He admitted that no revenue had been recovered nor he had made any report in the daily dairy about the settlement of the accounts. He claimed that the report as to the settlement of the accounts was entered in the daily diary vide report No.471 dated 31‑8‑1972. He also admitted that he had entered Report No.351 in the daily diary on behalf of Mst. Janat Bibi, the wife of the petitioner and sister of the respondent with respect to her 42 Kanals and 17 Marlas of land as of oral gift in favour of the respondent but no mutation had been entered on its basis nor any sanction given till he retired in the year 1973. Fazal Karim (P.W.3) supported him. Fazal Karim stated in cross‑examination that Bashir was married to his sister, he had no special relationship with the respondent but under the stress of cross‑examination had to admit that his cousin's sister Mst. Ahmadan was married to a nephew of the respondent. Ali Muhammad (P.W.4) was produced to say that there was a Punchait where both the parties to the suit had taken oath on the Holy Qur'an and according to it the petitioner had taken the oath that the land was of the respondent, the money had been spent by the respondent, that he (the respondent) may obtain the possession of the vacant land. In cross‑examination he admitted that no person from the Chak of the petitioner was present in the Punchait. He asserted that the petitioner had been paying rent to the respondent. He has tried to make statement which is not even the case of the respondent himself. Abdul Ghani petitioner (D.W.2) deposed that he had purchased the land himself and was in its possession and enjoyment since purchase. He admitted that his wife was the real sister of the respondent who (the respondent) was a Government servant. He denied having made a report to Muhammad Siddiq, Patwari in the daily diary. Muhammad Shafi respondent (P.W.5) stated that he had confidence in the petitioner, so purchased the property at various times in the petitioner's name Benami and he had paid the amount of Rs.26,

175. He further stated that as he could not get the permission to purchase the land, so it was purchased in the name of the petitioner. He admitted that all the registered deeds were in possession of the petitioner. He also admitted that the land had been in the cultivating possession of the petitioner. He denied that he had got the entries in the Khasra Girdawari changed in his name, rather claimed that the petitioner had himself got the change effected. This is incorrect statement, had the petitioner got the change made himself, he would not have appealed to the Collector for correction. He also stated that his total land was 21 Kanals. He also admitted that he had moved an application on 7‑6‑1965 for grant of permission to purchase. the land which was granted. If the permission had been granted once, there was no reason why the permission for purchase as to the disputed sales should not have been asked for or granted.

12. From a detailed analysis of the pleadings of the parties and the evidence led it is clear that the essential ingredients to prove the Benami transaction are lacking. The respondent could not prove any of the essential ingredients and the reliance upon the report of the Patwari (Ex.P.l) by the learned Additional District Judge was just arbitrary and wanton. The result is that the revision petition is accepted, the decree granted by the learned Additional District Judge is set aside and that of the learned Civil Judge restored. The suit stands dismissed with costs throughout. AA./A‑1319/L Revision accepted.