1989 PLP 1563 (CLC)

(3) Whether the defendants 2 to 4 have purchased in good faith the suit house in equal share from defendant No.l, on payment of Rs.75,000 and they are in possession of the same? (4) Whether the suit is not maintainable in its present form? (5) Whether the suit is within time? (6) Whether there exist other suits filed by defendants 2 to 4 against defendant No.l? (7)Whether the intervention of defendant No.l in the suit house is illegal? (8) Whether no fraud has been effected. by defendants Nos. 2 to 4 with the plaintiff and defendant No.l regarding the suit house'? (9) Whether defendants Nos. 2 to 4 or the plaintiff is owner in possession of the suit house? (10) Whether the plaintiff is entitled to the declaration as prayed for? ?(11) Whether the plaintiff is entitled to a decree of possession as prayed for? (12) Relief.

2. Issues Nos.3, 6 and 8 were decided in favour of the appellants while issues Nos.l, 4, 7, 10 and 11 in favour of the respondent. The trial Court in accordance with the decision .on these issues, held that the respondent was the actual owner of the disputed house and was also entitled to possession thereof and accordingly decreed the suit with costs.

3. The defendant‑appellants have brought this regular first appeal to challenge the judgment of the trial Court. Mr. Khawaja Nawaz Khan, Advocate confined his arguments to issues Nos. 4, 9, 10 and

11. In the memorandum of appeal however, the learned counsel for the appellants has objected to the omission on the part of the trial Judge to frame issue as to whether the defendant was benamidar and/or ostensible owner which according to him had prejudiced the appellants in their defence. This objection is partly correct that the question as to whether appellant No.l was benamidar as such has not been reduced into a specific issue. Nonetheless the contention that to lead evidence on such point and to give decision on it without framing an issue is not of such significance. Nonetheless it may not be taken to belittle the importance of framing the proper issues in a civil suit. The process of framing of proper issues is the foundation of a civil suit. Generally the Courts and lawyers in Muffasil are not themselves clear on the concept of benami transaction. It would therefore, be appropriate to see as to what a benami transaction really is? I can do no better than borrow it from Sultan v. Mouladad PLD 1969 Karachi 221 which conveys its true nature in few words. It stated:‑ "A few words about the nature of 'benami transaction'. A transaction of this nature really consists of two transactions. One is agreement, express or implied, between the ostensible owner and the 'benamidar' by which the latter agrees to purchase the property in his name but for the benefit of the person who advances the consideration; that is, the ostensible owner. The other is a transaction between the `Benamidar' and the seller of the property, to which transaction the ostensible owner is not a privy." \

3. The crucial question that was vehemently argued on behalf of the appellants was that not only the auction deed was in the name of appellant No.l but the property remained recorded in his name in the Municipal Record and Excise and Taxation Department. This contention has no force. The deed evidencing the auction purchase and the entries in the. Municipal and Excise and Taxation Department Registers are not inconsistent with the case of the respondent that he was the true owner of the house and that the defendant was a mere benamidar. These entries would naturally be of the kind of which they are because in a transaction in the nature of benami the appellant's name would naturally appear in all subsequent records. On the other hand, there is ample oral and documentary evidence subsequent to the initial auction‑purchase of the house which does not support the claim of appellant No.l. To start with there is the plaintiff‑respondent's application copy EXh.P.W.l/1 on as far back as 21‑2?1969 to the Municipal Committee, Bannu, for reconnection of water in the disputed house and evidence of Qamar Zaman Water‑tax Inspector (P.W.1.) that this water connection still continues in the name of the respondent. The electricity charge account in respect of the house is in the name of son of .the respondent as deposed to by Nawab Khan, Senior Clerk Revenue Officer, VAIAPDA, Bannu. The evidence of Muhammad Khasrun, Junior Clerk of the office of Excise and Taxation, Bannu unequivocally establishes that right from the year 1964 the house in dispute stands recorded in the name of the respondent. In support of this assertion he filed certified extracts Exh.P.W.3/1 to Exh.P.W.3/14 from Register P.T.I. The property tar is shown to have been consistently deposited by the respondent to proof whereof copies Exh.P.W.3/3 to Exh.P.W.3/14 of receipts were brought on the file. In his cross‑examination. P.W.3 admitted that it was only during the pendency of the dispute in 1984 that appellant No.l made an application for correction of the name of the owner of the house in dispute which lends support to the assertion of the respondent rather than establish the right of appellant No.l thereto. Mushtaqur Rehman P.W.6 has testified to the fact that Bid Sheet copy Exh.P.W.6/1 revealed that the respondent had signed it for appellant No.l; further that the original receipt evidencing the. deposit of 1/4th price in respect of the house and the challan copy Exh. P.W.6/ and Notice Exh.P.W.6/4 and another treasury receipt Exh.P.W.6/5 were in th name of appellant No.l. It is, however, interesting that all these origina documents have come from the custody of the respondent rather than appellant No.l. The preponderance of oral evidence furnished by Sarfraz Khan an Muhammad Rafiq (P.Ws. 8 and 9) further reinforces the claim of the plaintiff respondent that actually he was the owner in possession of the house and that appellant No.l was benamidar.

4. The burden of proving that the respondent was the actual owner squarely lay upon him. As held m Ismail v. Shorat Bano P L D 1960 (W.P.) Karachi 852, one of the recognised tests though not the only one in such cases is to see the source of the consideration for such purchase. We have already noticed that it is conclusively proved from the evidence adduced by the plaintiff‑respondent that it was he and not appellant No.l who paid the entire bid money. It is also proved that through the years it was the respondent who has been dealing with the property at an owner should do and not appellant No.l. In Ismail's case cited above, it was also observed that custody of the title deeds of a property is a factor to be taken into account in determining the benami character of a. transaction. The defendant‑appellant No.l has not been able to produce even a single document. Conversely all the deeds and documents have come from the custody of respondent. Appellant No.l when confronted with this hurdle tried to wriggle out by stating in the cross‑examination that he could not produce the documents pertaining to the house in dispute because he had misplaced them. In the next breath, he would charge the respondent to have stolen these documents still he had lodged no report about this stealth.

5. Upon the consideration of the evidence adduced by the parties we hold that the respondent was the owner of the disputed house and the appellant No.1 was benamidar. We would; therefore, upheld the findings of the trial Judge on this issue.

6. Reverting to the claim of appellants Nos.2 to 4 that they are bona fide purchasers of the house in suit with consideration without any notice of the title of the respondent, suffice it to say that at the end of his cross‑examination appellant No.l was constrained to admit that he had executed with appellants Nos. 2 to 4 "written agreements" to sell the house but those had been cancelled due to which they had instituted suits against him. The evidence of Gharib Nawaz Khan appellant No.4 has struck the last nail in the coffin of the appellants' case when he maintained that the agreement was cancelled because the area (underneath the house) was less than that mentioned in the deed. The plea of the appellants on this score therefore, is, just a concoction and was rightly not entertained by the learned trial Court.

7. In conclusion of the above discussion, this appeal has no merit, which is dismissed with costs. AA./753/P. ???????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.