2003 PLP 18 (SCMR)

Nemo for Respondent, Date of hearing: 20th June, 2002. FAQIR MUHAMMAD KHOKHAR, J.‑‑‑The petitioner seeks leave to appeal against impugned judgment dated 8‑7‑1999 passed by the Lahore High Court, Lahore in Civil Revision No. 1028 of 1999.

2. The facts of the case, succinctly stated, are that the petitioner filed a. civil suit, against the respondent, for declaration that he was owner of the suit property as described in para. 1 of the plaint, having purchased by him in consideration of Rs.36,000 in the name of the respondent, his ex wife, as Benamidar. The suit of the petitioner was decreed by Civil Judge, Gujrat vide judgment and decree dated 3‑12‑1998. However, .an appeal of the respondent was allowed by the Additional District Judge vide judgment and decree dated 18‑6‑1999. The petitioner filed Civil Revision No. 1028 of 1999 there against which was dismissed by the Lahore High Court, Lahore by the impugned judgment dated 8‑7‑1999. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner submitted that there always existed a presumption in the sub‑continent that a sale transaction in the name of a wife was Benami one unless contrary was proved through cogent evidence. The inference drawn by the High Court against the petitioner regarding the real nature of transaction and source of payment was not warranted from the evidence on record and pleadings of the parties. It was lastly contended that mere detention of the petitioner in civil prison for the execution of decree of maintenance allowance of Rs.5,000 was not relevant for determining the question of sufficient means of his income at the time of purchase of suit property.

4. We have heard the learned counsel at some length. The High Court properly analyzed the statements of Suhail Ahmad, P.W.2 and of the, petitioner as P.W.4 to come to a conclusion that the petitioner had no sufficient means of income to purchase the suit property. P.W.2 had described the daily income of the petitioner to be Rs.30/35. The petitioner appearing as P.W.4 admitted to have been lodged in civil prison for execution of maintenance decree of paltry amount of Rs.5,

000. The petitioner failed to discharge onus of proof of Issue No.3 that the respondent was Banami owner of the suit property and he was in fact owner of the same. Reference may usefully be made to the case of Jaydayal Poddar (deceased) through L.Rs. and another v. Mst. Bibi Hazra and others (AIR 1974 SC 171) wherein following observations were made by the Supreme Court of India:‑‑ "It is well‑settled that the burden of proving that a particular sale is Benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties to not relieve the person asserting the transaction to be Benami of any party of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. "

5. The Appellate Court as well as the High Court found the evidence of the respondent more persuasive after scrutinizing the same in juxtaposition to the evidence of the petitioner. In the facts and circumstances of the case it cannot be said that the view taken by the High Court could not possibly be I taken. The respondent was found to be in possession of the suit property. The findings of fact recorded by the Appellate Court and High Court do not suffer from any infirmity. The impugned judgment does not call for any interference. This is not a tit case for grant of leave to appeal.

6. This petition is devoid of any merit the same is dismissed accordingly. Q.M.H./M.A.K./K‑73/S Petition dismissed.