' MUHAMMAD ALAM KHAN, J.---This civil revision petition is directed against the concurrent findings of the learned lower fora dated 31-3-2006 and 28-6-2006 respectively, whereby declaratory suit of the plaintiff/petitioner Haji Nawab Khan was dismissed.
2. Facts of the case are that Haji Nawab Khan had filed a suit for declaration and perpetual injunction against the respondent Shaizullah Khan to the effect that he is owner-in-possession of the suit shop with Balakhana bearing No,201/1+ A since its purchase in the year 1974 fully detailed in the head notes of the plaint where he runs the business of Books A Selling. In this connection letter pads and other utility bills are also in his name, while he used to pay the property tax regularly.
Besides, being owner, he reconstructed the suit shop as a double storeyed building with investment of million of rupees. Being elder, as a Benami owner regarding the title of the suit shop a decree was obtained in the name of the respondent in the event of proceedings of Civil Suit No, 305 of 2001 decided on 4-6-1974. That when a month prior to the institution of the suit respondent refused to transfer the ownership of the suit shop in the name of the petitioner then he filed the instant suit.
3. Respondent was summoned who after service contested the suit of the petitioner by filing written statement wherein he refused to acknowledge the ownership of the petitioner with respect to the suit shop rather he claimed the same as his sole ownership and also claimed the business to be joint with the petitioner and averred that the new construction over the suit shop has been raised from joint income of joint business.
4. The learned trial Court out of the divergent pleadings of the parties framed the following issues:- -
(1) Whether plaintiff has got the cause of action? OPP
(2) Whether suit is based on mala fide? OPD
(3) Whether suit is within time? OPP
(4) Whether plaintiff is estopped to sue by his own conduct? OPD
(5) Whether in the event of dismissal of the suit would defendant be entitled to receive compensatory cost under section 35-A of C.P.C.? OPD
(6) Whether plaintiff purchased the suit shop Benami in the name of defendant? OPP
(7) Whether title of the suit shop vests in the plaintiff and defendant is only Benami owner? OPP
(8) Whether plaintiff has incurred huge expenses on the construction/ improvement of the suit shop? OPP
(9) Whether plaintiff is entitled to the decree as prayed for? OPP
(10) Relief
5. The parties produced their respective evidence as they wished to adduce and the learned trial Court after hearing the parties, consulting issues and B the data available on record dismissed the suit vide judgment and decree in Suit No,143 of 2001 decided on 31-3-2006 with special cost of Rs,25,000.
6. Feeling aggrieved, the plaintiff/ petitioner filed Appeal No,12/13 of 2006 which came up for hearing before learned Additional District Judge-V Bannu and the learned appellate Court vide judgment and decree dated 28-6-2006 dismissed the appeal, and hence this revision petition.
7. Mr. Abdul Aziz Khan Kundi, learned counsel for the petitioner, submitted that the petitioner had produced overwhelming evidence on record to substantiate his case and has proved on record that the possession since its inception was with the plaintiff/petitioner c and he in the presence of the respondent/ defendant raised huge construction of three storeyed building and no objection was raised to the said construction and the continuous silence of the respondent amounted to estoppels on his part. It was also argued that when the dispute arose, the compensation determined by the Mediators was duly deposited by the plaintiff/petitioner in the account of defendant/respondent which lay in deposit and the evidence led by the petitioner has neither been taken into consideration by the trial Court nor appellate Court. Reliance was placed on the case of Abdul Majeed and others v. Amir Muhammad and others 2005 SCM R 577.
8. Haji Riaz Muhammad Khan, learned counsel for the respondent while controverting the arguments of the learned counsel for the petitioner submitted that the burden of proof that the transaction was Benami was on the plaintiff/petitioner and in this respect the onus has not been discharged. It was submitted that the plaintiff has to prove his own case and will not take benefit of the weaknesses of the defendants case. Elaborating his arguments, the learned counsel submitted that the ingredients of Benami nature of the transaction has not been proved by the petitioner and the evidence if perused minutely produced by the petitioner, an inference can be drawn that he admitted the ownership of the respondent, Firstly that substitute property was offered to the respondent for the suit shop and, Secondly pursuant to the alleged arbitration between the parties, the petitioner has deposited Rs,37,000 with accrued benefit in the suit shop in the account of the respondent and the plaintiff/petitioner cannot wriggle out of these admissions. Reliance was placed on the cases of Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui 2003 M LD 319 and Al Haaj Muhammad Rafique v. Mst. Khalida Shehzadi 2003 CLC 559.
9. I have heard learned counsel for the parties and with their valuable assistance have scanned the evidence and available record.
10. Perusal of the record revealed that the plaintiff/petitioner had led over whelming evidence on the record to substantiate and prove his case, but neither the learned trial Court nor the appellate , Court has scanned the evidence. Zahid Ali Khan Record-keeper had appeare4 as P.W.1 and he had produced the copies of Taxation Register, which proved the long standing possession of the petitioner which was never interrupted by anyone. Mussarat Ali, Assistant Habib Bank, appeared as P.W.2 who produced the extract from, Account No,3159-9 in which Rs,37,000 as determined by the Arbitrator was duly deposited. Rahmatullah Draftsman, was examined as P.W.3 who testified to the reconstruction of the said shop by the plaintiff in the year, 1984. Imam-ud-Din son of Zain-ud-Din appeared as P.W.4 who admitted that the said shop was initially purchased by his father for the parties, but subsequently the sale consideration was paid by the plaintiff. P.W.5 Haji Muhammad.
Noor Bad Shah appeared as a witness of mediation between the parties. Similarly, P.Ws 6 and 7 appeared as the two Mediators to prove the mediation between the parties. P.W.8 Asmatullah Khan testified to the fact of reconstruction of the suit shop by the petitioner.
11. The most two important witnesses are P.Ws. 9 and 10, Razaullah Khan and Umer Daraz Khan. Who are also witnesses of the mediation between the parties, out of whom P.W.10 Umer Daraz Khan is the most important witness, as he is the brother-in-law of the defendant/respondent and his testimony cannot be doubted. P.W.11, the petitioner, has appeared and has corroborated the version given in the plaint.
12. From the defendant side, D.W.1 Patwari Halqa, D.W.2 Muhammad Imran and D.W.3 Mst. Noor Gula appeared as the sole witness of the defendant as attorney - and recorded her statement. The respondent avoided to come to the witness box.
13. Perusal of the judgment of the trial Court and upheld by the learned appellate Court would reveal that the important evidence has neither been taken into consideration nor discussed. What Was the effect of non-appearance of the defendant/ respondent in the witness box is also a fact shrouded in mystery and the findings so E recorded suffers from non-reading of evidence.
14. The onus of proof regarding the proof of Benami nature of the transaction was also placed on the petitioner. Correct that whenever a person alleges a transaction to be of Benami nature, the initial onus lies on him to prove the same, but the onus may shift during the evidence if he proves the ingredients of the transaction, then the burden is on the defendant to disprove the allegation and thus, non-consideration of E important evidence resulted in placing the onus wrongly and the same was not properly placed as held in the case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703.
15. The learned trial court has taken issues Nos.6 to 8 jointly for discussion. Issue No,6 was with respect to Benami transaction but the rest two issues were never adverted to by the learned lower fora nor the evidence with respect to these issues was taken into consideration. No independent findings have been recorded on these issues although evidence had been led by the parties on these issues and the provisions contained in Order XX, rule 5, C.P.C. Has been flagrantly violated.
Similarly is the position of recording finding on the issue of limitation and imposition of compensatory costs on the plaintiff/petitioner.
16. For the reasons stated above, I am constrained to accept the instant revision petition, set aside the impugned judgments and decrees of the two Courts below and remand the case to the trial Court for decision afresh after affording opportunity of hearing to the parties and keeping in F view the observations recorded above. The learned trial Court is directed to decide the matter positively within three months excluding the month of August, 2009 in which the Courts are closed due to summer vacations. The learned trial Court should summon the parties after receipt of record from this Court.