1988 PLP 806 (SCMR)

JAVID IQBAL, J.‑‑The appellants in this ‑ case are legal representatives of Hussain Bakhsh. The facts are that in 1936 their predecessor‑in‑interest namely Hussain Bakhsh purchased certain lands and got the sale transactions entered in the Revenue Record in the name of his daughter's son Dost Muhammad respondent herein, who at that time was a minor. Hussain Bakhsh worked as a clerk in the Revenue Department from 1909 to 1945. He retired in 1945 but after more than ten years filed a suit for declaration against Dost Muhammad respondent to the effect that he was the real owner of the suit lands and the entries of sale transactions in the Revenue Record in favour of Dost Muhammad respondent were Benami. He also prayed for the issuance of injunction in order to restrain Dost Muhammad respondent from interfering with his possession of the suit lands, but during the pendency of the suit this prayer was substituted with a prayer for possession of the suit lands on the ground that pending the suit Hussain Bakhsh had been dispossessed by Dost Muhammad respondent. His case before the trial Court was that he had purchased the said lands from his own resources but since he was in Government service at that time, in the Revenue Record the ownership of Dost Muhammad respondent was shown as he was his grandson and he had no male issue. The sales in question, according to him, were oral and were entered in the Revenue Record in 1936, before the Mukhtiar‑e‑Kar on the statement of Hussain Bakhsh that the sale transactions had been made in favour of Dost Muhammad respondent who was a minor at that time. The defence of Dost Muhammad respondent was that Hussain Bakhsh was not the real owner of the disputed lands which had been purchased by the father of Dost Muhammad respondent in the name of Dost Muhammad‑ respondent as he was a minor at that time. Thereafter during his minority his father died and his uncle acting as his guardian looked after the said lands the possession of which was taken over by Dost Muhammad respondent on attaining majority. It was further contended on his behalf that the suit had been filed by his maternal grandfather as a result of his annoyance for the reason that Dost Muhammad respondent had divorced Mst. Hajra a niece of Hussain Bakhsh and had married for the second time a girl out of the family. The trial Court decreed the suit in favour of Hussain Bakhsh on the finding that since the consideration for the purchase of the suit property had been paid by Hussain Bakhsh, Dost Muhammad respondent was a mere Benamidar. On appeal the District Judge while agreeing with the finding of the trial Court to the effect that the consideration for the purchase of the said lands had been provided by Hussain Bakhsh predecessor‑in‑interest of the present appellants, held, that the same had been purchased for the total benefit of Dost Muhammad respondent and consequently Dost Muhammad respondent was not Benamidar but the real owner of the property in question. He had arrived at this conclusion on the basis of an admission made by Hussain Bakhsh in his statement to the effect that the entry in the Revenue Record had been got made by him in the name of Dost Muhammad respondent as he was his grandson and he had no male issue. Thus, according to the District Judge the suit lands had been purchased by Hussain Bakhsh for the benefit of his daughters son Dost Muhammad respondent who was a minor. He found support of his conclusion also from the fact that Hussain Bakhsh had purchased other lands for his brothers. It was in this background that the appeal was allowed and the suit of Hussain Bakhsh was dismissed. In the second appeal filed by the present appellants (being the legal representatives of Hussain Bakhsh), learned Single Judge of the High Court of Sind reappraised the evidence relied upon by the District Judge but took a different view of the statements made by Hussain Bakhsh therein. The reasoning of the learned Single Judge was that according to Hussain Bakhsh he intended the lands purchased by him to stand in the name/names of male members of his family including Dost Muhammad respondent by way of Benami transactions as he was in Government Service. Thus, the learned Single Judge arrived at the conclusion that the suit lands were in fact purchased with the money provided by Hussain Bakhsh and that, therefore, he was the real owner of the same. It was also held that Dost Muhammad respondent had at no stage set up a case of advancement as was made out by the District Judge and that in any case the principle of advancement of English law was not applicable to Pakistan. Hence the learned Single Judge allowed the appeal of the present appellants. This judgment was challenged by Dost Muhammad respondent and his mother by way of an appeal under Article 10 of the Letters Patent before the Sind High Court at Karachi and a Division Bench of that Court accepted the same. As a result the judgment of the learned Single Judge of that Court was set aside and that of the District Judge was restored. Leave to appeal against the judgment passed by the Letters Patent Bench was granted by this Court to consider the points raised by the learned counsel for the appellants to the effect that the learned Single Judge had upheld the decree passed by the trial Court on the ground that both the Courts below had concurrently held that the consideration for the purchase of lands had flowed from Hussain Bakhsh and Dost Muhammad respondent who at that time was a minor was a Benamidar; that the case of Dost Muhammad respondent was not that the suit lands had been purchased for his benefit by Hussain Bakhsh but on the contrary his father had purchased the said lands in his name and that this assertion could not be accepted as correct because Dost Muhammad respondent was one year old when his father died. Before us learned counsel for the respondents raised preliminary objections that the lower appellate Court after full consideration of the evidence on record had given a finding of fact that the sale transactions did not amount to Benami transactions and that Dost Muhammad respondent was not Benamidar. This finding of fact should have not been set aside by the learned Single Judge. Furthermore since the controversy between the parties had been concluded by the findings of fact arrived at by the lower appellate Court, this could have not been set aside in the second appeal by the learned Single Judge. Learned counsel in support of his preliminary objections placed reliance on P L D 1969 S C 617 Madan Gopal etc. v. Maran Bepari etc. Learned counsel for the appellants argued before us that when it had been concurrently held by both the Courts below that consideration for the purchase of lands had flowed from Hussain Bakhsh and that Dost Muhammad respondent who at that time was a minor was a Benamidar, then this finding of the learned Single Judge should have not been upset by the Letters Patent Bench. But the Letters Patent Bench appears to have correctly arrived at the conclusion that the District Judge as well as the learned Single Judge had omitted to take into consideration an important piece of evidence having a bearing on this aspect of the case and this was the testimony of Muhammad Bakhsh P.W.7 who had been nominated by Hussain Bakhsh himself as an arbitrator. The statement of this witness was rightly considered as positive evidence of admission by Hussain Bakhsh that at the time of the purchase of the property in question his intention was to purchase it for the benefit of Dost Muhammad respondent but thereafter he changed his mind due to some "moral principles" and he was not prepared to give the same Whim. According to the Letters Patent Bench this piece of evidence lent support to the plea of Dost Muhammad respondent that the suit had been filed against him by the grandfather, as he had divorced his wife belonging to the family and had married an outsider. There was also evidence on record which indicated that Dost Muhammad respondent himself paid land revenue assessment for the said lands. At the time of the pendency of the suit Dost Muhammad respondent was in possession of the disputed A property which likewise indicated that he might have enjoyed its physical posses‑ion even before the suit was filed. Futhermore Hussain Bakhsh had retired in 1945 but he allowed the name of Dost Muhammad respondent to continue to remain as the owner of the said lands in the Revenue Record until the year 1958 when he set up a claim fore the first time to be the real owner before the trial Court. According to the record Dost Muhammad respondent attained majority in 1946‑471 and entered service in 1949 but the lands remained in his name as owner. There was no assertion in the entire record of evidence that lands purchased by Hussain Bakhsh in the names of his brothers were not for their beneficial interest and that, therefore, the sale transactions in favour of Dost Muhammad respondent were also not for his beneficial interest. The onus of proving the same was on Hussain Bakhsh that these transactions were Benami and this onus he could not discharge. Thus, the Letters Patent Bench correctly arrived at the conclusion that Hussain Bakhsh had failed to establish the Benami character of the transactions and that the evidence indicated that his intention was to purchase the disputed property for the beneficial interest of Dost Muhammad respondent. The learned counsel also argued before us that Dost Muhammad respondent had not taken up the plea that the suit lands had been purchased by Hussain Bakhsh for his benefit but on the contrary he had claimed that his s father had purchased the suit lands in his name. This argument had also been advanced before the Letters Patent Bench and had been meticulously attended to. It has correctly been pointed out that in the written statement submitted by Dost Muhammad respondent he had denied the allegation that Hussain Bakhsh had purchased the lands or that he was the owner of the same. He had asserted that the Khata was mutated in his favour as real purchaser and not as Benamidar for Hussain Bakhsh. Thus, it was sufficient that in the written statement he had denied the title of Hussain Bakhsh. Dost Muhammad respondent was a minor when the property was purchased. If i:ussain Bakhsh had purchased the property ostensibly in the name of Dost Muhammad respondent then the burden of proof was on Hussain Bakhsh to prove his case as pleaded by him and he could ' not succeed on the weekness of the cafe put up by Dost Muhammad respondent. In the light of the above discussion, in our considered opinion the impugned judgment of the Letters Patent Bench is unassailable and calls for no interference. The result is that this appeal is dismissed but there shall be no order a, to costs. M.Y.H./S-122/S Appeal dismissed.