Civil Revision :1807268.1747-15
MUHAMMAD RAFI VS MST. JAMILA BEGUME ETC
05-03-2021
2021 LHC 656
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
C.R.No.1747 of 2015
Muhammad Rafi Vs. Mst. Jamila Begum etc.
Date of Hearing
09.03.2021
Petitioner by:
Mr. Muhammad Ahmad, Advocate
Respondents by:
Malik Muhammad Shafique Rajpoot, Advocate for respondents No.1 to 8 & 10.
M/s. Nasir Mahmud and Tahir Mahmood Mughal, Advocates for respondent No.9.
J U D G M E N T
Ch. Muhammad Masood Jahangir,J.- Precisely, Muhammad Rafi, petitioner and late Muhammad Shafi (plaintiff) ascendant of respondents No.1 to 5, were brothers inter se, to whom suit plot measuring 14Marlas transferred by one Malik Din through sale deed dated 16.12.1964 (Exh.P3). Much thereafter, on 31.01.2007, Muhammad Shafi/plaintiff instituted declaratory suit asserting that in 1964, when suit property was transferred, the petitioner/defendant was minor; that, indeed, the former from his own funds had purchased subject plot after paying entire sale price, whereas just for love & affection, name of minor brother/petitioner being benamidar was reflected in subject instrument. The latter not only contested the suit, rather he also filed an independent suit for declaration & possession etc. According to the pleadings submitted on behalf of petitioner/defendant, his stance was that suit property had been purchased in equal shares by their late father through his own resources for both of the sons (plaintiff & petitioner). It was further defence of the petitioner that subsequently, the plaintiff/respondents by selling out some area out of his 07marlas to one Muhammad Shabbir as well as to the petitioner vide Sale Deed & Relinquishment Deed respectively had not only become landless, rather already transferred share more than his entitlement. The ultimate posture of the petitioner was that he had become proprietor of 10marlas 02Square Feet, thus possession of said area be awarded/restored to him.
2. The learned Trial Court captured disputed area of pleadings of the parties by materializing nine issues, however, subsequently issue No.1-A added as well and issues No.1, 1-A, 2, 3, 6 & 7, being pivotal for brevity sake, are reproduced here:-
1. Whether the plaintiff is entitled to a decree for declaration and permanent injunction as prayed for? OPP.
1-A.Whether the plaintiff is exclusive and sole owner of the suit property mentioned in the sale deed No.13633 dated 16.12.1964 and defendant is only benamidar?OPP
2. Whether the entries in the name of defendant in the Revenue Record and Excise and Taxation Record are based upon fraud, illegal and inoperative upon the rights of the plaintiffs? OPP
3. Whether the suit is time barred? OPD.
6. Whether the defendants Haji Muhammad Rafi etc. are entitled to a decree for declaration, possession cancellation of sale deed along with permanent injunction as prayed for? OPD.
7. Whether the sale deed No.2194 dated 29.03.2001 is illegal, void and liable to be cancelled? OPD.
The learned Civil Court tried both the suits conjunctively and ultimately after receiving/appreciating evidence of the respective parties, decreed the suit of Muhammad Shafi, plaintiff (predecessor of respondents No.1 to 5), whereas dismissed that of petitioner/defendant through consolidated judgment & decrees dated 30.11.2013. Although two independent appeals were preferred by the latter, but without any success having been dismissed on 27.04.2015, therefore, this as well as connected C.R.No.1749-2015. Since both these Civil Revisions inter se the parties have arisen out of common verdicts & decrees involving identical questions of fact/law, therefore, for all intents and purposes, it would be better to decide the same vide this single judgment. However for reference, source will be file in hand.
3. Arguments heard, record perused.
4. At the very outset, it is noticed that by filing CM No.1/C of 2018, the plaintiff/respondents prayed for production of additional evidence detailed in para No.7 thereof. No doubt in appropriate cases permission can be granted to produce the same, if found to be essential by the Court in arriving at just conclusion of the lis before it. Admittedly, the proposed documents were already in possession & knowledge of the plaintiff/respondents, who never produced the same in the evidence at the relevant time for the reasons best known. Moreover, mere placing of such documents on the record will not serve any useful purpose until & unless those are duly proved under the scheme of law. See Muhammad Yusuf Khan Khattak vs. S.M.Ayub and 2 others (PLD 1973 SC 160). Even otherwise, it is well settled principle up till now that permission to bring additional evidence cannot be accorded just to fill in the lacunas left by a party in its evidence. Reliance can be placed on the judgments reported as Muhammad Yousaf vs. Mst. Maqsooda Anjum and others (2004 SCMR 1049), Muhammad Siddique vs. Muhammad Sharif and others (2005 SCMR1231) & Rana Abdul Aleem Khan vs. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCMR 2067). Resultantly, instant application having no substance is dismissed.
5. Adverting to merits of the main lis, sale deed No.13633 dated 16.12.1964 (Exh.P3) was the original document, which vested joint & equal title to both the brothers (plaintiff & petitioner). This was a registered instrument, which prior to institution of suit on 13.01.2007 had already attained the age much over to 30 years, therefore for both the said counts attained strong presumption of correctness qua its attestation. Reliance can be placed upon Rasool Bukhsh and another vs. Muhammad Ramzan (2007 SCMR 85), Khan Muhammad vs. Khursheed (2010 CLC 970) & Muhammad Siddique (deceased) through LRs and others vs. Mst. Noor Bibi (deceased) through LRs and others (2020 SCMR 483). It is to be kept in mind that suit qua benami dispute is not the one wherein genuineness or veracity of the document is involved, rather in such like cases, the execution of the instrument is an admitted fact and the seeker intends just rectification of the document so as to eliminate/exclude the name of the benamidar. The question whether a particular transaction is benami or not, is largely one of the facts and for its determination, no absolute formula or test has been laid down, but while seeking guidance from dicta laid down in judgment reported as Muhammad Sajjad vs. Muhamamd Anwar (1991 SCMR 703), the following elements are to be affirmatively proved by the quester:-
i. Source of consideration;
ii. From whose custody original title deed came;
iii. Who is in possession of the property; and
iv. Motive of benami.
These essential elements must co-exist for proving benami transaction between ostensible owner and actual purchaser, who bought it through his own funds in the name of ostensible owner for certain reasons/motive to gain ultimate benefits.
6. As per prevailing situation emerging from pleadings of the parties under Article 117 of the Qanun-e-Shahadat Order, 1984, onus to prove the said claim was on the plaintiff, who asserted it positively. Admittedly, before recording evidence of the parties, Muhammad Shafi, (plaintiff)/alleged actual owner had already died, who was succeeded by respondents No.1 to 5. Out of them, Muhammad Taqi (PW1) in his statement neither exposed the essential detail in respect of time, date & names of witnesses, so as to prove when & before whom the consideration was paid, nor did he disclose the resources for generation of the funds. He simply stated in his examination-in-chief that suit property had been purchased by his father after making entire sale consideration, whereas nothing was invested by petitioner/defendant because he was minor. It was further worded by PW1 that subsequently some area out of suit property was alienated to one Muhammad Bashir and another 03marlas was also transferred to petitioner/defendant for additional love & affection. He though stated that remaining part of the property was transferred by his father to the younger sons through sale deeds and those were attested by the petitioner/defendant being marginal witness, yet this part of deposition was beyond the pleadings of the plaintiff. Muhammad Taqi (PW1), however, during test of cross-examination could not withstand the credibility. Some important glimpses out of his cross-examination are given below:-
یہ رست ے ہ ب تدعوییہ مین ی دردیگی وئی و دس قت یں وجودر ہ ھا۔ یرے قدد احب
نے کہا ہ سقم یں نے درد ی تھی سال 4691 یں یرےی عمر 1 چاس سال تھی یہ رست ے ہ یرے
ردرد پر چون ی رکان کرتے تھے
Meaning thereby that he being infant at the time of execution of sale deed, was not in any position to utter that when original sale settled, how much consideration paid or what was the resource of his late father to beget the sale price. While answering another question, PW1 admitted as well that his grandfather (real father of the plaintiff & petitioner) was running a shop. The said witness while further uttering as under:-
ب یرے ردرد جان پرچون ی رکان کرتے تھے و دس قت یرے قدد پڑھتے تھے مجھے یار ہ ے
ہ یرے ردرد جان نے کس سال تکپرچون ی رکا ن ی
indeed, to some extent admitted the stance of his uncle/petitioner that father of original parties (grandfather of PW1) was an earning hand, whereas his father (plaintiff) was still student. The PW1 also deposed in following terms:-
یہ رست ے ہ ہماس پا OK نودس فیکٹری ی بابت کوی نک Statement ی کی ٹ
ی ف
ٹ
یا سر
کسی دردس ی طرف سے فی دلوت وجودر ہ ے یں کل بھی یہ رستاقیزدت پیش ہ کرسکتا
وئں
and thereby factually belied his own version, which for the first time was introduced by him in his statement-in-chief that his father had been running some factory & out of its income subject property was purchased. The PW1 in further cross-examination while conceding as follows:-
یہ رست ے ہ یرے قدد نے 3تین مرلہ تقریباً کارستبرردسی نامہ محمد سفیع کے نام کرقدیا ھا۔
explicitly admitted as well that subsequent to sale deed (Exh.P3), another area of 03marlas was alienated to petitioner/defendant. If initially out of fourteen, disputed seven marlas had ostensibly been transferred to petitioner/defendant in 1964 via subject sale deed, then without demanding it back, the alienation of further 03marlas 02square feet through Relinquishment Deed No.10037 dated 22.09.2010 (Exh.P5) was an additional acknowledgement of the earlier transfer.
7. Although in further collaboration, Jaleel Hassan Madni (PW2), Shahid (PW3) & Muhammad Ashraf (PW4) were produced, but PW2 in his early lines of the cross-examination admitted that:-
یہ رست ے ہ ب پردپرٹی تدعوییہ کا سقبہ خرید کیا گیا یں دس قت وجودر ہ ھا۔
Whereas Shahid (PW3) also endorsed PW2, while acknowledging that:-
رست ے ہ پلاٹ تدعوییہ ی س قمی دردیگی کے قت یں وجودر ہ ھا۔
On the same pattern, PW4 conceded as well that:-
یہ رست ے ہ ب پردپرٹی تدعوییہ خریدی گئی یں دس قت وجودر ہ ھا۔
No other witness was examined. Thus, clear that all the four witnesses (PW1 to PW4) by admitting their absence at crucial point when sale price paid, lost their relevancy and importance, if any. Therefore, to the effect that suit plot had been exclusively purchased by plaintiff, neither any express nor implied evidence was brought on suit file. Indeed, better course for the beneficiary/plaintiff was either to summon the original vendor or the marginal witnesses of sale deed (Exh.P3), so that through this direct evidence, the basic stance could be proved. The withholding of best evidence definitely created hostile inference against the plaintiff/respondents. The emphasis of worthy counsel for the latter that in the meantime the vendor & attesting witnesses might have died, if taken to be correct, then it was not enough to exonerate the plaintiff from his failure to produce the secondary evidence. The strict compliance of scheme of law in proving the fact was to be followed, but no heed was paid. It was plaintiff, who did not institute the suit promptly or till the existence of direct evidence and filing of suit after its elimination might be an afterthought, which in no way could advance benefit to the plaintiff, rather this aspect was drastic at his end. The available evidence was not only meager, infirm & weak, rather insufficient to prove the first ingredient.
8. Another setback of the case was that the plaintiff omitted to plead and prove the motive why the subject plot was ostensibly purchased in the name of petitioner, rather only mentioned therein that for love & affection it was done so. The ingredient of motive for creation of benami transaction is essential and relevant factor for the purpose of determining, whether title vesting is merely a benami and absence of motive always goes against the party claiming to be actual owner, thus heavy onus was on the shoulders of the plaintiff to prove that actually he had purchased it, but for certain reasons ostensibly got it transferred to his brother. It was neither the case of plaintiff that he was a taxpayer and the name of petitioner was added in the Exh.P3, so that taxes could be evaded, nor it was his stance that he had black money and to save himself from the inquiries, benami transaction was effected in favour of petitioner/defendant. Even he failed to allege that his brother was required to show himself to be owner of some immovable property for his benefit and the disputed transaction was effected in his name, thus in absence thereof, the impugned partial transaction could not be declared a sham one. As far as arguments of learned counsel for the plaintiff/respondents that per contents of subject sale deed (Exh.P3) the consideration was exclusively paid by the plaintiff, therefore, the strict onus was upon the petitioner to establish that the same was generated by the father, is not well founded. Mere proof that sale price was paid by the plaintiff in such like cases is not enough and for the sake of arguments, if stance of the plaintiff that for love and affection, the half of the property was purchased in the name of his brother, is taken as correct, even then it could not be dubbed as benami. Once having purchased the suit property when there was benevolence as well as benignancy towards minor brother, thereafter plaintiff could not turn around to claim himself actual owner after liaisons became hostile and they fell apart. This view finds support from judgment of the apex Court reported as Ghulam Murtaza vs. Mst. Asia Bibi and others (PLD 2010 SC 569). The relevant paras 7 & 8 of latter one being all four corners applicable are reproduced here:-
7. At this juncture, we may clarify that the motive part in the benami transactions is the most important one. A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of the other. We come across innumerable transactions where a father purchases property with his own sources for his minor son or daughter keeping in mind that the property shall best in the minor. Such transaction subsequently cannot be challenged by father as benami simply because the amount was paid by him. There are people who with positive application of mind, purchase properties in the name of others with intention that the title shall vest in that other.
8. As said earlier, there are certain transactions in peculiar circumstances of those peculiar cases where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without they intention that the title shall so vest permanently. If such motive is available and also is reasonable and plausible, a transaction can be held as benami, otherwise not. A property purchased with ones own sources in the name of some close relative like wife, son or daughter cannot be dubbed as benami when purchased with full intention of conferring title to the purchaser shown. If this principle is denied and that of benami attracted simply because the sources of consideration could not be proved in favour of the named vendee, it would shatter the most honest and bona fide transaction thereby bringing no end to litigation.
In addition thereto, any transaction effected for love & affection can, at the most, be termed as gift and for the said motive/reason, it cannot be termed as benami. See Ahmad Sultan Khan vs. Mst. Sanin Kausar and another (1986 SCMR 1591). In said case the father purchased the property for his minor daughter at his own sake and when subsequently the transaction was claimed to be benami, the apex Court declared as under:-
***We agree with the learned Judge of the High Court that there was nothing wrong or unusual for a father, in a society to which the parties belong, purchasing a plot of land for building a house for a minor daughter in her name. The question of Benami transaction or the purchase having been made by Umar Khan for his own sake, therefore, did not arise. Reliance of the learned counsel on Iman v. Saifur Rehman 1982 PSC 1474 is of no avail to the petitioner because that case is distinguishable from the present case.
For the reasons discussed hereinabove and law already laid down by the apex Court on the subject in hand, the ingredient ‘motive’ for ostensible sale in favour of the petitioner was not established as well.
9. The apex Court while dealing with a case involving benami transaction through authoritative judgment titled as Ch. Ghulam Rasool vs. Mrs. Nusrat Rasool and 4 others (PLD 2008 SC 146) besides proving of the essential elements discussed hereinabove also introduced an additional rule that sine qua non for claimant of benami transaction to establish that there was some mutual understanding between him and ostensible owner and as a result thereof, sham transaction was germinated. For better understanding, the relevant extract of the cited judgment (supra) is reproduced here:-
“***This may be seen that two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the persons who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party. In the present case, the evidence brought on record would not directly or indirectly suggest the existence of any of the above elements to prove the benami character of the transaction of sale.***”
This aspect is also lacking in the case in hand, therefore, plaintiff failed to cross the barrier set down by the august Supreme Court, whose decisions in terms of Article 189 of the Constitution are binding on each & every organ of the State including the subordinate Courts, but in the case in hand, the learned lower fora while passing the impugned decrees not only omitted to take notice thereof, rather the available evidence was misconstrued & misinterpreted to return its findings on factual issues, which being tainted with misreading & non-reading cannot be sustained, therefore, are set aside.
10. The contention of learned counsel for the plaintiff/respondents that petitioner while putting his signatures as one of the marginal witnesses over a subsequent sale deed (Exh.P7) whereby plaintiff transferred some part of the disputed property to his son, in fact acknowledged that he had no nexus with the subject matter in hand was not persuasive. The execution of this document or affixing signature over there was specifically denied by the petitioner in his statement. The plaintiff while examining the second attesting witness or the Petition Writer of Exh.P7 could defuse the denial of the petitioner, but again the best evidence was withheld to attract adverse inference under Article 129 illustration (g) of the Qanune-e-Shahadat Order, 1984 that had they been produced, might have supported the stance of the petitioner. Moreover, the plaintiff could tender request for referring the Exh.P7 to the Handwriting Expert/Finger Print Bureau, so that genuineness of the alleged signatures of petitioner over there could be ascertained, but no such attempt initiated. Although the report of the Finger Print Bureau is not conclusive evidence, yet as held by the Supreme Court in Hamid Qayyum and two others vs. Muhammad Azeem through legal heirs and another (PLD 1995 SC 381), the opinion of an Expert is one of the modes of producing evidence, which after being properly proved, can be used as corroborative piece of evidence. By not resorting to this exercise at any stage so far, the petitioner himself incurred a hostile presumption that if any such effort was made, the report would have been given against him.
11. It is again admitted position that suit was instituted after more than forty years of the attestation of sale deed, whereas per Article 120 of the Limitation Act, 1908 maximum six years are provided to seek a right. Since inception of the litigation, it was the stance of the petitioner that he engineered the subject sale deed (Exh.P3), therefore, when it was known to him since its birth, why he took forty three years to file the suit. No plausible ground either introduced in the plaint or explored through available evidence. As such, suit on the face of it was badly barred by time. It is well settled by now that law helps the vigilant and not the indolent, whereas after expiry of the prescribed limitation, a vested right is always accrued in favour of the rivalry. See Muhammad Nawaz and 3 others vs. Mst. Saina Bibi and 3 others (1974 SCMR 223), Central Board of Revenue, Islamabad through Collector of Customs,Sialkot Dry Port, Samberial District Sialkot and others vs. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307) and Atta Muhammad vs. Maula Bakhsh and others (2007 SCMR 1446). It cannot be denied that compliance of statutory period within which a right has to be exercised or enforced is mandatory and Courts cannot ignore any lapse in this behalf, even if no such objection is raised by the adversary. The decisions of the Courts below on issue No.3 are erroneous and against the norms of justice as well as law, therefore the same are reversed as well.
12. The emphasis of learned counsel for the respondents that the concurrent findings of the Courts below cannot be disturbed by this Court while exercising revisional jurisdiction provided under section 115 of Code, 1908 is not tenable. The impugned judgments & decrees having been found to be result of misreading/non-reading of evidence as well as non-adherence to the law laid down in this behalf by the superior Courts are not sustainable. It is correct that normally this Court does not interfere in the concurrent findings of fact recorded by the Courts below, but here the impugned decrees being classic example of wrong exercise of jurisdiction & clearly suffering from material irregularity/patent illegality besides gross violation of the law floating on its surface cannot be sustained. On being faced with such situation, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings. Reliance can be placed upon the judgments reported as Ghulam Muhammad and 3 others Vs. Ghulam Ali (2004 SCMR 1001) Mushtari Khan vs. Jehangir Khan (2006 SCMR 1238), Muhammad Nawaz@Nawaza Vs. Member Judicial BoR & others (2014 SCMR 914) and Nazim-ud-Din & others Vs. Sheikh Zia-ul-Qamar & others (2016 SCMR 24).
13. For the reasons recorded hereinabove, these Civil Revisions are allowed, impugned decrees passed by the learned lower fora are hereby reversed, resultantly the suit of the plaintiff/respondents is dismissed and the rival one instituted on behalf of petitioner is decreed as prayed for. No order as to costs.
(Ch. Muhammad Masood Jahangir)
Judge
Approved for reporting.
Judge
Amjad
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