' JAWWAD S. KHAWAJA, J.---The petitioner Abdul Aziz and the respondent No.1, namely, Mirza Bashir Hussain are brothers inter se. The petitioner impugns the concurrent decrees of the learned trial Court dated 25-2-2004 and of the learned appellate Court dated 30-9-2005, whereby a suit filed by the petitioner seeking possession of the suit property and cancellation of sale-deed dated 2-2-1967 has been dismissed.
2. The facts of this case are relatively simple. The aforesaid sale-deed dated 2-2-1967 is in favour of the respondent Mirza Bashir Hussain. The case of the petitioner is that Mirza Bashir Hussain was merely a name-lender while the petitioner was the real and beneficial owner of the property comprised in the said deed.
3. In an earlier declaratory suit filed by the petitioner against the respondent Mirza Bashir Hussain on 3-12-1984, the aforesaid fact had been asserted by the petitioner. Mirza Bashir Hussain had allegedly filed a conceding written statement and had purportedly appeared in Court on 7-2-1985 to record his statement that the claim of the petitioner was correct and that he would have no objection if a decree is passed in favour of the petitioner. However, the learned trial Court did not pass a decree. An order was passed on the same date dismissing the suit on the ground that the petitioner's claim had been accepted by Mirza Bashir Hussain and therefore, he no longer had a cause of action.
4. According to the petitioner, the respondent Mirza Bashir Hussain subsequently took forcible possession of two rooms in the suit property whereupon the petitioner filed an application under Order XXI, rule 32, C.P.C. Praying that the respondent be proceeded against for having committed contempt of Court.
' According to the petitioner, the respondent filed a reply to the said application in which he accepted the fact that earlier proceedings had taken place but submitted that the petitioner's suit had been dismissed. The application under Order XXI, rule 32, C.P.C. Was dismissed on the ground that no consent decree had, in fact, been passed by the learned trial Court in the earlier suit.
However, the proceedings in the aforesaid application were neither exhibited on record and nor was the respondent confronted with the same.
5. It is in the above circumstances that the petitioner filed a suit for possession and cancellation of sale-deed out of which the present revision petition has arisen. Both Courts below have non-suited the petitioner on the ground that the petitioner had not produced evidence to prove his beneficial title and interest in the suit property and, therefore, he was not entitled to the cancellation of the sale-deed dated 2-2-1967. Learned counsel for the petitioner contended that the learned Courts below have misdirected themselves because the written statement and statement of the respondent Mirza Bashir Hussain in the previous suit and the reply of Mirza Bashir Hussain in the contempt application under Order XXI, rule 32, C.P.C. Were in themselves conclusive proof of the fact that the respondent had accepted that he was more Benami holder of title while the beneficial interest in the suit property vested in the petitioner.
6. Learned counsel for the respondents has controverted the above submissions. He has, firstly, argued that the respondent Mirza Bashir Hussain had denied ever having appeared or appointed counsel in the earlier suit. He had also denied the written statement, allegedly filed by him. In these circumstances, it was ' incumbent upon the respondent to prove that the written statement in the earlier suit had been signed ,And verified by the respondent. This has not been done although the said written statement could easily have been proved through the testimony of the counsel, who had been allegedly engaged by the respondent in the earlier litigation.
7. As to the application under Order XXI, rule 32, C.P.C., the reply thereto and the decision of the learned Court, it was contended on behalf of the respondent that these documents were never adduced in evidence before the trial Court and nor was the respondent confronted with the same when he appeared as D.W.1. On this basis, it was submitted that these documents could not be pressed into service and relied upon at the revision stage.
8. Additionally, learned counsel for the respondents contended that the suit filed by the petitioner/plaintiff was based on the assertion that he was the real and beneficial owner of the suit property. However, the petitioner chose not to appear in the witness box to support his claim. Only his son appeared as his attorney and sole witness to support his case. The testimony of the son as P.W.1 has not been believed by the learned Courts below. Furthermore, even the other essential requisites for proving beneficial ownership in cases of Benami transactions, have not been proved on record.
' The contentions of learned counsel for the respondents are well-founded and have rightly been accepted by the learned Courts below. The impugned decrees are, therefore, unexceptionable.
Furthermore, learned counsel for the petitioner was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgments, which would justify interference therein while exercising Revisional jurisdiction. In these circumstances, I find no merit in this petition, which is therefore, dismissed with costs throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.