2002 PLP 1311 (YLR)

(2) Whether the suit is not maintainable in its present form? OPD (3) Whether the suit is time‑barred? OPD (4) Whether the plaintiff has filed this suit with mala fide intention just to harass the defendant, if so, with what effect? OPD (5) Whether the defendant is entitled for special cost in case the suit is dismissed? OPD (6) Whether the suit is wrongly valued for the purposes of court-fee and jurisdiction, if so, what is correct valuation for both the purposes and with what effect? OPD (7) Whether the suit is bad for non joinder of necessary parties, if so, with what effect? OPD (8) Whether the plaintiff had paid price of the suit‑land which was purchased in the name of the defendant through registered sale‑deeds, dated 3‑4‑1975 and 19‑6‑1978 and thus the defendant is benami owner of the suit land and the plaintiff is rep owner of the suit‑land? OPP (9) If Issue No.8 is proved in affirmative, whether the plaintiff is entitled to the decree for possession of suit‑land as prayed and claimed in the plaint? OPP (10) Relief. The learned trial Court after recording oral as well as documentary evidence of the parties proceeded to dismiss the suit vide judgment and decree, dated 1‑4‑1991, hence the present appeal.

5. Learned counsel for the appellant has mainly challenged the judgment passed by the learned trial Court on Issues Nos. 8 and 9 and has contended that the findings rendered by the learned trial Court on the said issues are not sustainable in law in view of the voluminous evidence on record produced by the appellant, which went un-rebutted and sufficiently prove the claim of the appellant as set up in the suit and further contention of the learned counsel is that in view of this unrebutted documentary evidence relief could not be denied to her as she has been proved to be the real owner of the suit‑land. He further urged that it has been proved on record that the entire consideration was paid by the appellant whereas on the contrary the respondent could not prove remittance of any amount of his income to prove that, in fact, the consideration for the purchase of suit‑land was paid by him. It has been added by the learned counsel that the learned trial Court has committed legal error in sifting the evidence on record inasmuch as, according to him, the material piece of evidence‑has either been misread or non‑read. Conversely the learned counsel for the respondent while controverting the contentions raised by the learned counsel for the appellant and supporting the impugned judgment has submitted that as the onus to prove the material crucial issues was on the appellant, which onus she could not discharge and it has been proved on record that the real owner of the land in question is the respondent and the suit as well as the present appeal are devises evolved by the appellant to grab the land in question.

6. The appellant through the filing of the plaint and production of the evidence has tried to build up a case of 'benami transaction'. It is discernible from the record that the contention of the appellant is that in fact, she purchased the land through two different sale‑deeds, dated 3‑4‑1975 and 19‑6‑1978, she paid the total consideration of the land in question, but the sale‑deeds were executed in favour of the respondent, thus, the case of the appellant is that she is the real owner whereas the respondent is a benami owner and, therefore, she is entitled for the decree of possession of the suit‑land.

7. It is settled law that in benami transaction a benami has to establish, during the trial; that the sale was with the funds of the real owner; that he is in the custody of the original documents of title and the plaintiff is retaining the possession of the suit property. In this regard the Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) has laid down criteria for determining the question whether a transaction is a benami transaction or not and according to the law laid down the following factors 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. It has already been so held in the afore-noted case that the initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness. in defence evidence does not relieve a plaintiff from discharging his burden of proof.

8. Upon the examination of the impugned judgment we find that the learned Judge has proceeded to decide the suit, out of which the present appeal has arisen, according to the parameters laid down by the Honourable Supreme Court of Pakistan regarding the Benami transaction. Although the learned trial Court has minutely examined and discussed both oral as well as documentary evidence, yet we are also inclined to re‑appraise the evidence on record. In view of the submissions of the learned counsel for the parties, we have scanned through the evidence on record, produced by the parties.

9. In the above perspective, and within the parameters laid down by the Hon'ble Supreme Court of Pakistan in Muhammad Sajjad Hussain's case (supra) regarding Benami transaction we proceed to decide this appeal.

10. We find from the contents of the plaint that the plaintiff has alleged that she has a personal Bank Account No.630 maintained with Habib Bank Limited, Haveley Bahadur Shah and that she purchased the land measuring 157 Kanals and 17 Marlas from Mst. Rashida Khanum, in April, 1975, for a total consideration of Rs.1,35,000, she further purchased a land measuring 424 Kanals from Raza Ali Khan for a total consideration of Rs.2,00,000 in June, 1978, and the total consideration price mentioned therein for both the sale‑deeds was paid from her Account No '.630. In order to prove the source of funds and the payment of consideration of both the lands, the plaintiff has produced Exh.P.1, which is the statement of account pertaining to Account No.630, maintained by the appellant, which shows that a sum of Rs.1,10,000 was paid through Cheque No.299039, on 2‑7‑1978. The case of the appellant is that she paid this amount to the vender when she purchased the land from Raza Ali Khan vide sale‑deed, dated 28‑6‑1978. Apart from this, entry of Rs.1,10,000 in Exh. P.1, we do not find any other entry showing the payment made by the appellant to any other person because the statement of accounts ends from the said transaction, dated 2‑7‑1978. According to the appellant while purchasing the other property vide sale‑deed, dated 3‑4‑1975. from Mst. Rashida Khanum, vide Exh.P.4, a sum of Rs.1,00,000 was paid through Bank Draft No.DEW‑210641, dated 2‑4‑1975, issued by Habib Bank Limited, Haveley Bahadur Shah Branch, whereas the rest of the amount of Rs.35,000 was paid in cash. The plaintiff has not produced any record of the bank showing that at the time of the preparation of the aforesaid bank draft whether she had that amount in the bank or the draft was drawn after the receipt of the cash' payment. No such proof regarding the payment of Rs.1,00,000 through bank draft is forthcoming from the record of the bank. From the perusal of Exh.P.1, it is evident that there is no debit entry of Rs.1,00,000 which will go to show that the said draft of Rs.1,00,000 was issued on the basis of the amount paid by the appellant from her account. It is not the case of the appellant that she is maintaining different accounts as it has been specifically asserted by her in para. 4 of the plaint that she is maintaining Account No.630 with Habib Bank Limited of its Haveley Bahadur Shah Branch anti Exh. P.1 is the statement of account pertaining to the said Bank Account No.630 of the appellant. The case of the appellant is that as a matter of fact she has made all the payments for the purchase of the total land in dispute and in that regard, the defendant did not pay any amount towards the consideration price. In this regard, it would be pertinent to refer to the statements of P.W.2 and P.W.3, which are as follows:‑‑ So far as the statement of P.W.3 is concerned, who is the real brother of appellant, he is not even aware that from whose income the amount of consideration was paid: The relevant portions from the statement of P.W.3 are reproduced below:‑‑ P.W.4 has said nothing about the payment as he produced the statement of account, which is Exh.P.1. P.W.5 has just said that the land was purchased from the income of the plaintiff, however, no details are forthcoming from the statement of this witness. It has been admitted by the appellant, while appearing as P.W.6 ‑ that the entire amount of Account No.630 was remitted by Mian Farzand Ali, however, she asserted that the said amount was paid from the income of the appellant. Apart from the above evidence, there is no other evidence produced by the appellant in order to discharge the onus of the most crucial aspect of the case that, in fact, the amount of consideration was paid from her account No.630. From the perusal of the aforesaid evidence, it is evident that the amount remitted in Account No.630, maintained by the appellant, was sent by the respondent and this fact has duly been proved even from the statements of P.W.2, P.W. and P.W.6 as narrated above. From the examination of the statement of account, it is evident that except for the withdrawal of a 'sum of Rs.1,10,000 through cheque No.299039, no other payment is proved to be withdrawn and transferred from the said account. Although the appellant, while producing certain certificates from the Police Department from Birmingham, has tried to prove that she was working in C.I.D. Police of U.K. and was earning her income from the service yet the respondent has specifically asserted that these are the forged documents and at that time, the appellant was not working in the Police Department. Even if those certificates are presumed to be correct, even then in view of the statements of P.W.2, P. W.3 and P. W .6 it can safely be inferred that the amounts, out of which the land in question was purchased, were remitted by the respondent in the account maintained in the name of the appellant bearing Account No 630 and, thus, the appellant purchased the land in question from the said amount. In view of the above, we have come up the irresistible conclusion that in view of the voluminous evidence on record and by the statements of P.Ws. that the land in question was purchased from the income oaf the respondent.

11. The other requirement of Benami transaction is that from whose custody the original title deeds and other documents came in evidence. As regards the said ingredients of the Benami transaction we find, that the appellant has produced the certified copies of the sale‑deeds (Exhs. P‑4 and P‑5) and the original sale‑deeds were not produced on record by the appellant. Under the law the onus lies upon the appellant to prove that she was in possession of the original documents. From the reading of the plaint it is discernible that the appellant did not even mention about the possession of the original documents. The case of the appellant is that she purchased the land in dispute from her own earnings, then the presumption would be that she should have been in possession of the original‑sale deeds and this is the intention of law. In the absence of production of original documents by the appellant the presumption in law would be that all the original documents were in possession of the respondent. It is evident from the record that the appellant did not serve any notice upon the respondent calling upon .him to produce the original documents. From the evidence on record, it appears that at the time of the execution of the sale‑deeds, the appellant was it Pakistan and if it is so then she should have been in possession of all the documents, moreso when she asserts that she is the real owner of the land in question. According to the appellant the respondent, a few y6ars back, while taking away the other house‑hold articles from the possession of the appellant has also taken away the original title documents, but the said fact has not been proved on record. It appears that the appellant lodged a complaint against the respondent under sections 420/506/406/148/149, Pakistan Penal Code, but she did not mention the alleged fact about taking away the said original title documents by the respondent, in the said complaint, even otherwise the said complaint was dismissed by the Magistrate. It appears from the evidence on record that initially the land was purchased in the name of the respondent with the mutual consent‑of the parties, therefore, in all probabilities the original title documents are in possession of the respondent, moreso when the appellant could ‑not produce the original title deeds.

12. So far as the possession of the appellant qua the land in question is concerned, she has herself admitted in the plaint that although she remained in possession of the land in question till two years before the date of institution of the suit, yet later on the respondent has taken over the possession of the land in question. In her statement she has admitted that five years prior to the filing of the suit she was in possession of the land, but the same was taken over by the respondent from her tenants. No other evidence has been produced to substantiate the contentions of the appellant. Admittedly, the appellant is out of possession. Furthermore, the Revenue Record produced by the respondent is ample proof of the fact that he through his tenants, is in cultivating possession of the suit property. Additionally, the land in question was purchased in the name of the respondent and since then he is recorded as the owner of this ‑ land and deemed to be in possession through his tenants.

13. As regards the motive, the appellant did not even allege m the plaint that what was the intention for purchasing the property the name of the respondent, on the other hand, the appellant m the plaint has stated that, the name of the respondent was incorporated in the sale‑deeds due to connivance of Mukhtar Ahmad and simultaneously states that the respondent is only a Benami owner. Even the appellant while appearing as P. W.5 did not state any thing about the motive. The learned trial Court while adverting to this aspect of the case has rightly considered the statement of the appellant given before the Magistrate the conclusions arrived at by the learned trial Court from the said statement accordance with the facts and circumstances. The fact remains that appellant m the present proceedings neither in plaint nor through the production of the documentary evidence nor through adducing the oral evidence has anywhere stated that why the land in question was purchased in the name of the defendant, when according to the appellant the entire consideration was paid from her income, thus the ingredient of motive and intention is completely lacking in this case, which the plaintiff has failed to even assert in the plaint.

14. Another aspect of the case, which cannot be ignored at this juncture, is that in para. 7 of the plaint the appellant has asserted that although the land was purchased by her through his brother Mukhtar Ahmad, yet instead of mentioning the name of the appellant in the sale‑deeds, the defendant, in connivance with Mukhtar Ahmad was able to incorporate his name in the sale‑deeds. For ready reference para. 7 is reproduced below:‑‑

15. Apart from the fact that it has proved on record and even from the statement of the appellant that at the time of the execution of both the sale‑deeds, the respondent was not even in Pakistan, we are of the view that the said assertion of the appellant demolishes her case, which she has made regarding the Benami transaction. As discussed above, in the cases of Benami transaction the alleged real owner purposely and with motive purchased the property in the name of the ostensible owner and she is conscious about the fact that the property was intentionally I being purchased in the name of the ostensible owner. In view of the reproduction of the above para. it appears that not only one ingredient .necessary to constitute the Benami transaction is lacking, yet the appellant by incorporating the said para. in the plaint has completely ravished her case. If that was the case, we are afraid that the suit for Benami transaction was not at all maintainable under the law and in view of the said contents, the appellant should have filed a suit for declaration or cancellation of documents, as the case may be. On this ground too, the appellant has failed to make out a case or Benami transaction.

16. Admittedly, the sale‑deeds regarding the land in question were executed and registered on 3‑4‑1975 and 19‑6‑1978 and according to the evidence on record in the presence and to the knowledge of the appellant. In the said perspective the learned trial Court has rightly taken into consideration that although the appellant was divorced in the year 1984 (although she has not asserted this fact in the plaint and has alleged that even in the year 1986, the appellant and the defendant are husband and wife) whereas the suit was filed on 3‑5‑1986 and during all this period she did not challenge execution of the sale‑deeds. Even according to her they remained as husband and wife till 1984 and although she was aware about the sale‑deeds, yet she failed to challenge the sale‑deeds or to file the present suit for such a long time, thus, the conclusions arrived at by the learned trial Court that the suit is belated are not open to exception.

17. We have examined the impugned judgment and decree and find that the learned trial Court while ably tabulating the facts of the case, taking into consideration the evidence on record and after discussing the oral as well as the documentary evidence in depth has rightly come to the conclusion that on account of the reason given in the said judgment, the appellant was not able to make out a case and, thus proceeded to dismiss the suit. The said judgment is legal, unexception able, apt to the facts and circumstances of the case, based on reasons and does not call for interference by this Court and we have no reasons to disagree with the findings given by the learned trial Court which we do maintain. For the foregoing reasons and discussion, we see no merits in this appeal, which is hereby dismissed while maintaining the impugned judgment and decree with no order as to costs. Q.M.H./M.A.K./H‑76/L Appeal dismissed.