' IJAZ-UL-AHSAN, J.--- The petitioner assails judgment and decree dated 9-10-2008 passed by the learned Civil Judge, Wazir Abad through which the suit for possession filed by the respondent was decreed in his favour. The said judgment and decree was assailed in appeal, but the same was dismissed on 14-9-2009.
2. Facts leading to the filing of the suit have elaborately been set out in the judgment of the learned trial Court and may not be reproduced in extenso in this judgment. However, by way of a brief background the important facts are being given for appreciation of the background of the controversy. The parties are real brothers. They had migrated from India at the time of partition and were allotted property measuring 18 Acres in Sheikhupura. The property in question was sold in 1968 and the parties moved to Ali Pur Chattha. The respondent purchased House No.686/H at Ali Pur Chattha and started residing there. Apparently parties were living together till then. According to the case of the respondent House No.686/H proved to be inadequate for the two families.
Therefore, the petitioner was allowed to move with his family to House No.859 situated t Ali Pur Chattha, which had been purchased by the respondent on 26-7-1974 through a duly registered sale-deed. There is divergence in the claims of the parties as to when the petitioner shifted to House No.859. While the petitioner claims that he has been in possession since 1980, the respondent's claim is that the house in question was given for temporary use to the petitioner about 10/12 years before filing of the suit. The respondent subsequently asked the petitioner to vacate House No.859 which request was refused. This led the respondent to file the aforesaid suit against the petitioner.
3. The defendant taken by the petitioner was that the house belonged to him because both the properties i.e. House No.686-H and House No.859 were purchased with the money received from the sale of the property in Sheikhupura. Although the property was in the name of the respondent, it was a Benami transaction because he was the real owner. He further took the stance that on account of a family settlement, it was agreed that House No.686-H would be retained by the respondent and House No.859 would be given to the petitioner. The petitioner accordingly took possession of the same. The petitioner alleges that the family settlement took place in 1980.
4. It has been argued on behalf of the petitioner that no independent witness was produced by the respondent before the trial Court in support of his claim. He further submits that the witnesses produced by the petitioner as well as the respondent directly or indirectly admitted the fact of a family settlement. He further submits that while the learned subordinate Courts gave findings regarding the question of limitation and issue of the petitioner holding the property as a licensee, no issue was framed in this regard. He, therefore, submits that to such extent the findings of the learned subordinate Courts are illegal and are liable to be set aside. The learned counsel for the petitioner has also drawn my attention to the evidence of D.W.2 Riaz Hussain to argue that although he specifically stated that the family settlementd taken place in his presence, he was not specifically cross-examined on the point which had the consequence of admission of the said fact on the part of the respondent. It was further pointed out that the respondent had not at any stage disclosed any source of income on the basis of which the property in question could have been acquired by them.
5. On the legal plane the learned counsel relied upon Shaukat Nawaz v. Mansab Dad and another 1988 SCM R 851, Jan Muhammad Khan v. Shah Mir Hussain and others 1985 SCM R 2029 and Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCM R 1639 to submit that concurrent findings of fact can be interfered with in exercise of revisional jurisdiction where there is misreading of evidence or the learned subordinate Courts have arrived at wrong conclusions on the basis of misreading of documents on record.
6. The learned counsel for the respondent on the other hand has pointed out that even according to the version of the petitioner, the joint property was sold in 1968. It is evident from the record that the suit property was purchased on 26-7-1974. He argued that there was nothing on record to show why the petitioner let the money stay with the respondent for six years without asking for it. It is further argued that the most important, material and pivotal question to support the defence of the petitioner was proof of family settlement. He submitted that the petitioner alleged a family settlement and based his claim on the suit property on such family settlement. Yet he did not appear in the witness box to testify about the same. He referred to Article 129 of Qanun-eShahadat Order, 1984 to assert that where the best evidence is withheld an adverse presumption can be drawn against a person, withholding such evidence.
7. The learned counsel added that the plea of Benami transaction had no real basis. The petitioner neither alleged nor produced any original document relating to the suit property. As per requirement of proof of Benami transactions the petitioner did not produce any proof of having provided the funds which were used to purchase the aforesaid property. No explanation was given as to why he did not claim title documents of the property or his share of sale proceeds of Sheikhupura property. The learned counsel finally argued that the petitioner was in occupation of the suit property as licensee of the respondent and when he was asked to vacate the property, as an afterthought, he raised the plea of a family settlement after a lapse of 30 years. He finally submitted that duly registered sale-deed dated 26-7-1974 in favour of the respondent had not been challenged before any forum to date.
8. I have heard the learned counsel for the parties at length. The most material issues in the matter were Issues Nos.1 and 2. Onus to prove Issue No.1 was on the respondent and it related to the question whether the respondent was owner of the suit property and possession of the same by the petitioner was in the capacity of a licensee. The onus to prove Issue No.2 was on the petitioner, who was required to establish that he was actually owner of the suit property and the respondent was merely an ostensible owner of the same. I have perused the evidence produced by the parties with the assistance of the learned counsel for the parties. The , respondent produced evidence to show that he had purchased the suit property from Imam Din on 26-7-1974. He got the property vacated from Mst. Ghafooran Bibi and had let the petitioner to use the same on temporary basis till such time that he constructed his own house. The said statement was supported by the documents including copy of registered sale-deed Exh.P.4, documents relating to ejectment petition Exh.P.5 to Exh.P.8 and Mark "A".
9. The petitioner was required to prove that the sale price of 18 Acres of land in Sheikhupura was retained by the respondent and that Loth the aforesaid properties including the suit property were purchased with the said funds. He was further required to establish that there was a family settlement through which House No.859 was by mutual consent given to the petitioner. A perusal of evidence shows that no affirmative evidence was produced by the petitioner in support of the aforesaid two propositions. Admittedly, the suit property is registered in the name of the respondent since 1974 and knowledge of this fact has nowhere been denied by the petitioner. There is no explanation forthcoming to the question why the petitioner kept quiet regarding his share in the sale proceeds of Sheikhupura property or the fact that the sale-deed had been registered in favour of the respondent. The fact that the sale-deed has not been challenged, also goes against the petitioner's stance, who has failed to challenge the validity of the sale-deed for about 35 years.
10. The learned counsel for the petitioner tried to find support from the evidence of D.W.1 relating to the fact of private partition on account of failure on the part of the respondent to cross-examine the witness on that issue. However, in my opinion the said omission is not enough to dislodge the case based upon documentary and affirmative evidence produced by the respondent in his favour. Further the petitioner did not succeed in substantiating his assertion that the whole amount relating to sale of agricultural land situated at Sheikhupura was received by the respondent and the same was utilized for the purchase of the suit property. Likewise the petitioner could not support this plea that the respondent had fraudulently got transferred the suit property in his name and that his title deed represented only Benami transaction. The petitioner was neither successful in proving that the funds used to purchase the suit property were provided by/belonged to him nor could he explain retention of title documents of the said property by the respondent without any challenge or protest of any nature against such retention on his part for about 35 years.
11. As far as the question of failure on the part of the trial Court to frame issue regarding questions of limitation, Benami transaction and family settlement are concerned, these do not vitiate the proceedings specially so where the petitioner all along had the opportunity to seek framing of additional issues. Such opportunity was never availed. This plea cannot in my opinion be raised at this belated stage under the facts and circumstances of the present case.
12. In view of the above discussion and on the basis of preponderance of oral and documentary evidence in favour of the respondent, I am not persuaded to interfere in the findings of the lower Courts. No misreading or non-reading of evidence has been demonstrated before me that could have materially affected the outcome of the suit. I find that there is no illegality or material irregularity in the findings of the learned subordinate Courts. Therefore, this petition fails and is accordingly dismissed.