' MAULVI ANWARUL HAQ, J.- This judgment shall decide R.S.A. No,3 of 2005 and C.R. No,631 of 2004 as both proceed against a consolidated judgment.
2. On 13-10-1999 the appellant filed a suit against the respondent. It was stated in' the plaint that he was employed in Saudi Arabia and while staying there he requested his brother i.e, the respondent to purchase a house for him. The money was sent through Bank Drafts as also paid in cash. The respondent accordingly purchased the suit house, described in the plaint, in his own name with the said money. It was then abruptly stated that the respondent handed over the possession of the house to the appellant but after promising so to do refused to transfer, it in his favour and rather sent him a notice claiming to be the owner of the house and describing him as a tenant. It was stated that the respondent had acknowledged in the presence of close relatives that he was a Benamidar and the real owner is the appellant. He has also written him letters to the said effect.
With these averments, he sought a decree that he is the beneficiary owner of the suit house and the respondent is a Benamidar. In his written statement, the respondent denied the said allegations. He explained that the Drafts sent by the appellaht prior to the purchase were spent on his marriage while Drafts sent thereafter were spent on the treatment of the wife of the appellant.
He stated that the property had been purchased by him with his own funds. He also took loan from a friend Muhammad Waseem Akhtar and elder brother Muhammad Suleman. After the purchase, he constructed a first floor and also renovated the ground floor. He specifically denied any money or drafts paid or sent in connection with the suit property.
3. On 29-11-2000 the respondent also filed a suit for possession of the suit house against the appellant stating that he had purchased the said house and explained the sources of the consideration. The suit was contested. Both the suits were consolidated and issues were framed.
Evidence of the parties was recorded. Vide consolidated judgment and decree dated 29-5-2002 learned trial Court decreed the suit filed by the respondent but dismissed the suit filed by the appellant. First appeals filed by the appellant were also heard together by a learned ADJ, Rawalpindi, who dismissed the same on 23-9-2004.
4. Learned counsel for the appellant contends that the learned Courts below have failed' to read the evidence on record. According to him, notwithstanding the fact that evidence in strict accordance with the criteria laid down by the Superior Courts to establish a Benami transaction is not forthcoming yet both the learned Courts below have completely ignored, what the learned counsel describes as an admission on the part of the respondent of the said claim of the appellant.
He refers to a portion of the cross-examination of P.W.4 and relies on the cases of Ghulam Muhammad v. Noor Muhammad 2001 CLC 174 and Jan Muhammad v. Mulla Abdul Rehman and 4 others 1999 CLC 266. Also refers to document Exh.p.6 to urge that the learned Courts below have wrongly held that the house was single storeyed when it was sold. Learned counsel for the respondent, on the other hand, relies on the case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703, later confirmed in the case of Abdul Majeed and others v. Amir Muhammad and others 2005 SCM R 577 and Hameeda Begum v. Farzand Ali 2002 YLR 1311 to urge that none of the recognized ingredients of a Benami transaction stands established in the present case. As to the said first contention of the learned counsel, relies on the case of Haji Feroze Khan and another v. Amir Hussain through L.Rs, and others 2004 SCM R 1719 and argues that the entire evidence has to be read which was absolutely consistent with the pleadings of the respondent.
Refers to the evidence on record as also the sale-deed in question to demonstrate that the contents of Exh.P.6 are not correct.
5. I have gone through the certified copies of the records, appended .With both these cases. I may note here that the RSA was earlier filed as C.R. No,576 of 2004 but later converted into an RSA under orders of this Court.
6. I have already reproduced above the respective pleadings of the parties. The registered sale- deed is dated 2-1-1990 (original produced by the respondent as Exh.D.12). It narrates that Muhammad Idrees acting for himself and as general attorney of Mst. Rahim Bibi, Mst. Anwar Ghazala, Dr. Munir Ahmad, Nasir Saeed and Khalid Javed sons and daughter of Muhammad Rafiq executed the same transferring the said house in favour of Muhammad Ikram respondent' for a consideration of Rs, 1,70,000. The receipt of the said amount of consideration was admitted before the Sub-Registrar (Urban), Rawalpindi, on 2-1-1990, when the sale- deed was registered. It was executed on 30-12-1989.
7. The case of the appellant is that he is the real owner while the respondent is a Benami. It is by now settled as held repeatedly by the Honourable Supreme Court of Pakistan as well as this Court that the following are the factors to be taken into consideration by a Court while determining the said question:-
(i) source of consideration;
(ii) from whose custody original title deed and other documents came in evidence;
(iii) who is in possession of suit property; and
(iv) motive for Benami transaction.
' It has further been consistently held that the initial burden is upon the party alleging that die transaction is Benami. I deem it appropriate to reproduce here the following extracts from the said judgment in the case of Abdul Majeed and others 2005 SCM R 577 of the leading opinion of Mr. Justice Iftikhar Muhammad Chaudhry (as the Honourable Chief Justice then was) appearing at page 585 of the report:-
(i) It is the duty of the party who raises such plea to prove such, plea by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness. The Court is not required to decide this plea on the basis of suspicions, however, strong they may be.
(ii) That Court is to examine as to who has supplied the funds for the purchase of property in dispute, it is proved that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction.
(iii) The character of a transaction is to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from the surrounding circumstances i.e, the relationship of parties, the motives underlying the transaction and any other subsequent conduct.
(iv) The possession of the property and custody of title deed. "
8. I have examined the evidence, with the assistance of the learned counsel for the parties, in the light of the above noted criteria and I find that there is no evidence on record that the consideration paid emanated from any monetary sources of the appellant. There is no evidence of any drafts allegedly being sent to the respondent and more particularly there is not an iota of evidence as to at what point of time, the drafts were sent. The vendor has been produced as D.W.l, who has supported the version of the respondent. The original title deed Exh.D. 12 as also the title deed of the vendor Exh.D. 38 have been produced by the respondent. There is no explanation for the said possession of the title deeds by the respondent on record. The learned Courts below have correctly held on the basis of evidence on record including-the witnesses of the appellant that the additional construction was made by the respondent. It stands proved that the respondent remained in possession of the house and had been in receipt of rent on self-occupation basis from his employer i.e, GHQ Army, till his retirement in the year 1998. On the other hand,- the respondent has fully proved the sources wherefrom he acquired the said property and also constructed the same. It stands proved on record that the agreement was entered into with the vendor D.W.l in August, 1989. Out of total consideration, a sum of Rs, 1,15,000 was paid and possession was delivered. It also stands established that around the said period of time the respondent had sold a plot belonging to him. Thereafter, he had received advance rent for one year from his said employer. So far as the construction is concerned, he has mortgaged the property with his employer which was redeemed vide Exh.D.
13. Motive has not ever been alleged by the appellant.
9. Coming to the said contentions of the learned counsel, the P.W.2,'Suleman Hassan alias Muhammad Luqman a brother of the two parties appeared to state that in June, 1998 there was a dispute between the , two brothers. All the brothers, sisters and their brother-in-laws held a meeting and it was admitted by Ikram respondent that the house is the ownership of Muhammad Usman appellant and in 15 days he will deliver possession and within one month he will execute a registered sale-deed in his favour. The possession was delivered but the sale-deed was not executed. In his cross-examination, he admitted that no B money was paid in his presence by the appellant to the respondent. The reliance of the learned counsel is on the following reply given by the witness to a suggestion:-- {{URDU TEXT}}
10. The said statement in isolation does go to support the said contention of the learned counsel with reference to said judgment cited by him. However, the learned counsel for the respondent has very correctly argued that the entire evidence is to be read. In response to the following questions, the witness admitted that he has filed a suit for partition of a shop against the respondent.
Thereafter, he denied the suggestion that the respondent had purchased the house with his own money and he remained in possession as such. He denied the suggestion that Usman was inducted in the house as a tenant. Repeated suggestions were given on the said lines. The respondent appeared as D.W.4 and denied having made the said admission in presence of his brothers and sisters.
11. Having, thus, read the entire relevant evidence, I do find that nothing turns on the said first contention of the learned counsel in the over all state of evidence on record.
12. So far as the said second contention is concerned, it is true that Exh.P.6 describes the house as double storeyed. However, the contents of Exh.D.12 the sale-deed, admittedly, executed by the vendor have not been questioned. It narrates that the house comprises of three rooms and is constructed on an area of 4-1/2 Marlas. The said P.W.2 has given the description of the said house.
According to him, there are three rooms on the ground floor while two are on the first floor. There are two stores, a Kitchen and one bathroom in each of the floors. The learned Courts below have, therefore, correctly read the evidence while holding that the first floor was constructed by the respondent and it is not even the case of the appellant that he had constructed the same. Exh.P.6 stands negated by the said pieces of evidence. No other point has been urged. Both the R.S.A. No,3 of 2005 and C.R. No,631 of 2004 are accordingly dismissed.
13. The learned counsel for the appellant has requested sometime be granted for delivering the possession of the house. Learned counsel for the respondent does not object. Accordingly, the appellant is directed to deliver vacant possession of the house to the respondent on or before 3-4- 2007 failing which the respondent shall be entitled to execute the decree for possession in accordance with law. No order as to costs.