P L D 1984 Lahore 117 (PLP)

(1) Whether the plaintiff is in possession of the disputed house? (2) Whether this suit has been improperly valued for the purposes of court‑fee and jurisdiction? (3) Whether the suit is barred by limitation? (4) Whether the plaintiff is the owner of the disputed house and whether the defendant is holding it as a benamidar? (5) Whether the plaintiff has constructed the disputed house? (6) Relief.

5. The plaintiff examined eight witnesses namely, Muhammad Shafi, P. W. 1, Sardara P. W. 2, Ghafoor P. W. 3, Muhammad Siddique P. W. 5, Sher Muhammad P. W. 6, Muhammad Ilyas P. W. 7, Sher Muhammad P. W. 8, and also relied on documentary evidence Exh. P. 1, site plan of the house of Muhammad Shafi P. W. 1, Exh. P. 2, site plan of the house of Ghafoor P. W. 3 to show that the suit house has been shown in the boundary as belonging to Sher Muhammad plaintiff. Exh. P. 3 is certified copy of the site plan for reconstruction of the suit house and Exh. P. 4 is the original sale‑deed.

6. The respondent examined Muhammad Tufail D. W. 1, Laba D. W. 2, Qadir Hussain D. W. 3 and Muhammad Sharif D. W. 4 in support of his version.

7. The learned trial Court after appreciating the evidence decided issue No. 1 in favour of the appellant, issue No. 2 against the respondent, issue No. 3 in favour of the respondent and issues Nos. 4 and 5 against the appellant.

8. The appellant assailed the findings of the trial Court against issues Nos. 3 and 4 alone in the first appeal. The first appellate Court reversed the findings of the trial Court on issue No. 3 and maintained on issue No. 4 and consequently dismissed the appeal.

9. Mr. M. Aslam Khan, learned counsel for the appellant argued that the impugned judgment is partly based on misreading of evidence and partly non‑consideration of material evidence. Ch. Muhammad Hassan, learned counsel for ‑the respondent submitted that onus probandi to prove benami character of. a transaction lies upon him who alleges it. The appellant failed to discharge the same. It is further submitted that the Courts below determined this question not merely upon oral evidence but also upon circumstances such as source of money, the possession of the property, the custody of the title deed and the motive for the benami transaction. It is submitted that concurrent findings of fact recorded by the Courts below are not open to challenge in second appeal.

10. I have heard arguments of the learned counsel for the parties and examined the evidence on record with their assistance.

11. The first question that was considered by the trial Court, when deciding the question of benami was the source of consideration. It was held that the plaintiff had not produced any witness to prove that the amount of consideration was not paid by the defendant or that he did not have means to pay it. The lower appellate Court also concurred with this finding of fact and observed that the consideration money was paid by the defendant. It is, however, well‑settled that source of purchase money is not conclusive in favour of the benami character of a transaction though it is an important criterion. While determining cases in which the object is to determine whether a transaction was of benami nature or not the Court is required to discover the intention of the parties and must give effect to it. Refer Muhammad Bibi v, Abdul Ghani (P L D 1975 Kar, 979).

12. The next question decided by the trial Court was that the title deed was in the custody of the defendant and he produced it in the Court. The lower appellate Court concurred with this finding. This finding is contrary to record. The sale-deed Exh. P. 4 was filed by the appellant to the lower Court alongwith the list of documents on 23-7-1971. These documents bear seal, date and initial of the learned trial Judge. The mere fact that in the list of documents filed by the plaintiff under Order X111, rule 1, Code of Civil Procedure, the nature of the document Exh. P. 4 was described as would not lead to the conclusion that he original title deed was produced from the custody of the respondent. Furthermore, the mere fact that notwithstanding the production of the original title deed from his custody, the appellant made no mention of it in the examination-in-chief; it was confronted to him in cross-examination by the respondent, does not mean that it was produced from the custody of the respondent. 1, therefore, hold that the original title deed was produced from the custody of the appellant.

13. As regards the possession, the trial Court recorded a finding that the plaintiff had not entered the suit property as an owner. It remained with tenants and possibility cannot be overruled that he entered it subsequently due to his relationship with the defendant. The lower appellate Court, however, held that the appellant-plaintiff was in possession of the suit house not as an owner but as a tenant or licensee under the respondent defendant. The order dated 28-6-1970, passed by the Deputy Settlement Commissioner, was also taken into consideration whereby he deleted the suit house from the auction list on the ground that it was not an evacuee property being owned by the respondent. This document was never tendered in evidence nor was it exhibited; therefore, the same could not have been made the basis of the impugned judgment. The finding that the appellant occupied the suit property as a tenant or licensee is based on no evidence on record. Neither the P. Ws. nor the D. Ws. have deposed that they appellant occupied the premises as a tenant of the respondent or on account of his relationship with the respondent. The finding is, therefore, liable to be set aside. It may be further pointed out that the Courts below have failed to take into consideration that site plan Exh. P. 1, which pertains to the house of P. W. I, wherein it is mentioned that towards the East is the house of Shera. Exh. P. 2 is the site plan of the house of Ghafoor P. W. 3, in which the house of Shera is mentioned to be situated towards the South. P. W. 3 has stated that the house of the appellant is situated towards his house. Muhammad Shafi P. W. 1 and Ghafoor P. W. 3 are next door neighbours of the house, in dispute. They reconstructed their houses and in the plan submitted by them, sanctioned by the Municipal Committee, the suit house is shown as owned by the appellant. Reference may also be made to paragraph 2 of the plaint, wherein it is stated (the underlining* is mine). The respondent in his written statement did not controvert the fact sum of repair and construction but took up the plea that he gave Rs. 1,500 to the plaintiff to carry out necessary repairs due to his pre occupation in the business. Relevant portion of paragraph 2 reads thus: - (The underlining is mine). The respondent-defendant did not lead any evidence that the repair and construction carried out by the appellant was/, at his costs and instructions. I, therefore, hold that the plaintiff was in possession of the suit house.

14. The next comes the question of motive. A concurrent finding of fact has been recorded by the Courts below that the motive is not proved. The question of motive is again an important consideration but not conclusive. It is true that onus probandi to prove benami character of transaction lies upon him who alleges it but this burden is discharged from the said person by producing even a slight quantity of evidence to show that the person in whose name the property appears to be is not the real owner thereof. Refer Tirthamayi Dassi v. Atikulla (A I R 1929 Cal. 140). Also see Kailash Pati Sahai v. Jagarnath Rai (A I R 1935 All. 884) and Benoy Krishna Sadhukhan v. Panch Sadhukhan (A I R 1935 Cal. 671), wherein it was held that direct evidence is not necessary to discharge this burden of proof, particularly when the transaction is an old one. I respectfully follow it. Keeping in view the custody of the original title deed, the possession of the property, subsequent conduct of the parties and the evidence on record, I come to the irresistible conclusion that the respondent-defendant was merely a benamidar of the appellant-plaintiff and it was the appellant-plaintiff who purchased the suit house covered by Exh. P. 4. 1, therefore, allow the appeal, set aside the judgments and decrees of the Courts below and decree the suit/ with costs throughout. Appeal allowed. *[Here in italics]