' MUHAMMAD AKHTAR SHABBIR, J.--- This judgment will dispose of Civil Petitions Nos.834 and 835 of 2008 arising out of the impugned consolidated judgment passed in Civil Revisions Nos.37 and 38 of 2005 by a learned single Judge of the Islamabad High Court, Islamabad.
2. The facts giving rise to the present petitions are to the effect that Mst. Surriya Begum widow of Muhammad Sabir Minhas had instituted a suit with regard to property basement of House No,1241, St. No,84, Sector G-9/4, Islamabad with prayer of mandatory injunction and seeking, direction to the defendant to pay the arrears of benefits enjoyed from October, 1998 to 1999 Qa Rs,3,000 per month i,e, :Rs,36,000 and also claimed compensation for use of unauthorized possession of property in the Court of Civil Judge, Islamabad asserting in the plaint that her husband was the owner of the house, who transferred 'the same in her favour and before the said transfer, her husband allowed the defendant to reside in the basement of the house on his request. It was further asserted in the plaint that Muhammad Sabir Minhas, her husband, while staying in Middle East (Kuwait) executed a general power of attorney in favour of his brother/defendant Muhammad Babar Minhas and on the basis of this authority, he got installed sui gas connection, telephone connection and electricity connection in his own name in the basement of the house. Power of attorney executed by the husband of Mst. Surriya Begum had been cancelled thereafter.
3. While Muhammad Nawaz Minhas-petitioner, Muhammad Babar Minhas, Muhammad Riaz Minhas, Muhammad Fayyaz Minhas, Mst. Iqbal Begum (brothers and mother) of Muhammad Sabir Minhas had also filed a suit against Muhammad Sabir Minhas and Mst. Surriya Begum for declaration to the effect that they are actual owners of the house (property subject-matter of the petition) claiming Muhammad Sabir Minhas as "Benamidar" seeking declaration that transfer of house by him in favour of his wife Mst. Surriya Begum was void. It was also averred in the plaint that they had applied for the allotment of plot to the C.D.A. In the name of Muhammad Sabir Minhas and they paid the price of plot claiming that the construction of plot had also been raised by them.
4. Both the suits were consolidated by the learned trial Court, vide order, dated 16-5-2001. Parties contested the suit and from the pleadings of the parties, the trial Court led to frame various consolidated issues. The trial Court after recording, appreciating the evidence of the parties pro and contra, dismissed the suit for declaration filed by Muhammad Babar Minhas-petitioner etc. And decreed the suit filed by Mst. Surriya Begum respondent. The judgment and decree of the trial Court had been challenged through two separate appeals by Muhammad Nawaz etc. Before the Appellate Court which were entrusted to learned Additional District Judge, Islamabad for disposal who had dismissed the same, vide judgment, dated 22-12-2004. Feeling aggrieved, Muhammad Nawaz Minhas, etc. And Muhammad Babar Minhas assailed the judgment of the Courts below by filing two separate civil revisions, which had been dismissed, vide impugned judgment by the High Court.
5. Learned counsel for the petitioners contended that the application for allotment of plot was filed by Muhammad Nawaz Minhas, etc. In the name of their brother Muhammad Sabir Minhas and price was paid by them. The construction on the said plot has been raised through their own funds.
Muhammad Sabir Minhas was staying in Middle East (Kuwait) and remaining family members were in Pakistan, they had purchased the plot for their own residence. Further contended that the payment of the plot by Muhammad Nawaz, etc. Is established on record. Further contended that the Courts below have misread the evidence on record. Further contended forcefully that purchase of plot in the name of Sabir Minhas as "Benamidar" construction on the same by petitioners is proved on record.
6. While on the other hand, the learned counsel for the respondents vehemently opposed the arguments of the learned Advocate Supreme Court for the petitioners and supported the impugned judgment.
7. We have heard the learned counsel for the parties, perused the record with their kind assistance.
8. The question for determination before the Court was the ownership of the house/property in dispute. The plaintiffs-respondents had pleaded that Muhammad Sabir Minhas, husband of Mst.
Surraya Begum was "Benamidar" while the defendants-petitioners Muhammad Nawaz Minhas etc. Were the actual purchasers and they from their own funds/source of income made the payment/price of the plot and also raised construction on the same. While Mst. Surriya Begum/respondent has taken the stand that her husband himself had applied for allotment of the plot to the C.D.A., which had been allotted in his name through open balloting and made construction over the said plot from his own funds through his attorney, thereafter transferred the same in her name.
9. It is well-settled by the superior Courts that the onus of the particular sale/purchase if "Benami" and the apparent purchaser is not the real owner, always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of "Benami" or establish circumstances reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick 'veil', which cannot be easily pierced through.
Despite that such difficulties do not relieve the person taking the plea of "Benami" transaction to be Benami of any part of the serious onus that rests on him. The question, whether a particular sale, is Benami' or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, yet in determining the probabilities and for gathering the relevant indicia, the courts have usually laid down the criteria to determine the `Benami' transaction. Determining factors to be taken into consideration are enumerated as under:-
(i) Source of construction;
(ii) from whose custody the original title, bill and other documents came in evidence;
(iii) who is in possession of the suit property; and
(iv) motive for Benami transaction. In this context, reference can usefully be made to the cases of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703, Muhammad Siddiqi through Attorney v. Messrs T.J. Ibrahim & Co. 2001 SCM R 1443, Abdul Majeed and others v. Amir Muhammad and 'others 2005 SCM R 577, Mv. MD. Abdul Majid and others v. MD. Jainul Abedin and others PLD 1970 Dacca 414 and Jane Margrete William v. Abdul Hameed Mian 1994 CLC 1437.
10. The initial burden of proof is on the party that an ostensible owner is a "Benamidar" and to establish the "Benami" transaction, the petitioners in evidence have not proved their permanent source of income to justify the purchase of the plot or constructing the house on the same. P.W.2 deposed that he was doing tailoring in 1974 and P.W.11 Muhammad Nawaz deposed that he was in Kuwait and on his return home, he started business of property and opened a PCO shop in Abpara, Islamabad. In support of their assertions, no documentary evidence has been produced to establish their income. While on the other hand, it is established on the record that Sabir Minhas, husband of Mst. Surriya Bibi had been in Kuwait and after earning he had been sending money to his elder brother Babar Minhas for construction of the house. It is also proved on the record that on the advertisement inviting applications for allotment of plots, plaintiff No,2 Babar Minhas and Sabir Minhas, who was abroad, sent two separate applications for allotment of plots in their own names separately. Luckily the plot was allotted in the name of Sabir Minhas and he being the actual owner paid the whole amount regarding the suit plot. The plaintiff Babar Minhas failed in balloting, had not been allotted plot by the C.D.A. It is sufficient to infer that husband of respondent Mst. Surriya Minhas applied for allotment of the plot in his own name which when allotted to him, he sent money to his elder brother Babar Minhas for payment of price of the plot and for raising construction over the same. Two meters of electricity, one sui gas connection were got installed in his name as admitted by the petitioners in paragraph No,11 of their plaint. It is also admitted position that Sabir Minhas, defendant No,1 was residing in the ground floor of the building and plaintiff No,2 Muhammad Babar Minhas was residing in basement and the remaining plaintiffs had been residing in the first floor of the building.
11. The documents of title of property; letter (Exh.D.1), application for loan (Exh.D.2), permission for mortgage of the same (Exh.D.3), notices regarding illegal construction (Exhs.D.4 and 5), completion certificate (Exh.D.6), transfer application (Exh.D.7) and transfer letter C (Exh.D.10), had been produced in the Court by the defendants-respondents. As to the motive for "Benami" transaction, the petitioners miserably failed to assert the reasons for purchase of the plot as "Benami" transaction in the name of Sabir Minhas, husband of the petitioner. The respondent, Mst. Surriya Bibi has successfully proved that her husband himself filed application for allotment of the plot, mortgaged the plot with a financial institution and obtained loan for raising construction over the same and also sent money from Kuwait to his elder brother who was his general attorney also, their possession over the ground floor of the house and produced relevant documents of their ownership and title.. The petitioners had failed to discharge onus of proof on issues regarding defendant being "Benami" owner of the suit property. The trial Court, Appellate Court and High Court in revision found the evidence of the defendants-respondents more weighty, plausible and convincing after perusal of the same in "juxtaposition" to the evidence of plaintiffs-petitioners. The findings of all the three Courts on question of fact did not suffer from any illegality, infirmity, misreading or non-reading of evidence. In such-like cases, this Court is always reluctant to interfere with the judgments of the lower Courts. In this context, reference can be made to the case of Khalid Mehmood v. Abida Perveen 2003 SCM R 18.
12. For the foregoing reasons, we do not find any substance in these petitions which are dismissed and leave to .
Leave to .