' MIAN FASIH-UL-MULK, J.---The appellant has filed this Regular First Appeal against the judgment and decree dated 30-3-2010, whereby Suit No,47/1 filed by appellant was dismissed and connected Suit No,20/1 filed by Mst. Asia Bibi respondent No,3 was decreed.
2. Briefly stated the facts of the case are that appellant filed Suit No,47/1 for declaration to the effect that he had purchased the suit house through registered sale-deed No,450 dated 29-5-1983 and is exclusive owner of Bungalow No,423 situated in Jinnahabad Township Abbottabad Cantonment and respondents 1 to 3 are occupying the same under his license and have become trespassers since they refused to vacate the bungalow- in question. Possession through ejectment of respondents, perpetual injunction and damages against respondents Nos.1 and 2 was also prayed for as relief A, B, C and respectively whereas Mst. Asia Bibi respondent No,3 filed application for impleadment, which was allowed and she was arrayed as defendant No,3.
3. Later on defendant No,3 also filed, A a separate suit for declaration to the effect that registered sale-deed No,450/1 attested on 29-5-1983 was Benami and as such she is entitled to 1/8th share out of legacy of Haji Momin Khan through partition. Both the suits were consolidated and learned Civil Judge-I, Abbottabad after recording evidence and hearing the parties vide impugned judgment and decree dated 30-3-2010 dismissed Suit No,47/1 filed by the appellant and decreed Suit No,20/1 filed by respondent No,3. Preliminary decree for possession through partition was passed in respect of suit bungalow wherein all the co-sharers were held entitled to their respective shares. Feeling aggrieved, the appellant preferred the instant appeal.
4. Learned counsel for the appellant contended that appellant purchased the suit-land through registered sale-deed No,450/1 on 29-5-1983 from one Col. Zain-ul-Abidin for a sale consideration of Rs.1,0&,000 and later on constructed house No,423 over it whereafter Cantonment Board issued certificate of ownership to the appellant in this respect. He further argued that parents of appellant wished to reside with him and his family along with brothers/sisters. The appellant acceded to his parents' desire and they started living in the suit bungalow since, 1989. The appellant used to come and reside during week ends and vacations. Subsequently when the appellant asked for vacation of house the respondents refused to hand over the vacant possession of the bungalow. He further contended that in the facts and circumstances of the case defendant No,1 has rightly submitted cognovits by admitting the claim of appellant. He lastly contended that defendants Nos.2 and 3 for the first time after filing of Suit No,47/i and after 23 years of death of their predecessor took the plea that the predecessor-in-interest of parties was the real purchaser and the registered sale-deed dated 29-5-1983 was a Benami transaction but could not establish this fact through any cogent or reliable evidence. He concluded that impugned judgment of trial court is patently illegal, based on conjectures and surmises and' contrary to evidence on record, therefore, is liable to be set-aside.
5.Learned counsel for the respondents Nos.2 and 3 contended that infact the suit plot was actually purchased by Haji Momin Khan, predecessor of parties, who managed to pay the price of plot as well as cost of construction raised thereon. The appellant is simply a benamidar and the parties are entitled to get their respective shari shares in the suit property. He argued that learned trial Court has rightly analyzed the evidence on record in its true perspective and passed the impugned decree.
6. We have heard learned counsel for the parties at great length and gone through the record.
7. A perusal of record would show that appellant obtained M.B.B.S. Degree from Khyber Medical College, Peshawar in the year, 1979. He joined Pak Army as a Captain in the year, 1980 and later on was appointed as Surgical Specialist in CMH Gujranwala in the year, 1982. Record further reveals that the appellant purchased the disputed plot vide registered sale-deed No,450/1 on 29-5-1983 from one Col. Zain-ul-Abidin for a sale consideration of Rs.1,00,000. The sale consideration was paid by the appellant vide Bank draft Ex.P.W.5/1. The registered sale-deed itself contains the payments in the same manner. The statement of account of Haji Momin Khan (predecessor-in-interest of parties) placed on file by the other side does not pertain to the period when sale-deed was, registered i,e, 1983. The appellant had amply proved that he had sufficient means of handsome salary and private practice as a Cardiologist. The appellant had gone abroad in connection with his specialization and was capable of purchase and construction of suit bungalow.
8. The parents of appellant along with brothers/sisters, were allowed to reside in the suit bungalow with his permission since 1989. This position was admitted by defendant No,1 by submitting cognovits and admitting the claim of appellant. The plea of defendants Nos. 2 and 3 that in fact Haji Momin Khan, the predecessor-in-interest of parties, actually purchased the suit plot and the registered sale-deed attested in favour of appellant was a benami transaction and that the appellant was not the real owner of the suit plot could not be substantiated by leading any cogent or reliable evidence, though onus of sale transaction as benami heavily rested on defendants Nos.2 and 3, as the plea was raised by them.
9. Benami is neither a law nor a rule. Extreme caution is, therefore, to be observed. It simply amounts to challenging a genuine transaction made in good faith. The findings of trial Court cannot be sustained for the following reasons:--
(a) Best person(s) to challenge a transaction are the parties to the transaction. Not only that none of the parties have challenged the transaction but a third party having I no locus standi has done so. It is pertinent to mention that the predecessor-in-interest of parties has never, in his life time, alleged the transaction as Benami though he died 23 years after the sale. During this life long period no prospective legal heir could make such claim.
(b) No Benami could be alleged even by the financer, if the purchase is made in good faith with positive application of mind by one in the name of other.
(c) The learned trial Court has been swayed with considerations other than judicial and relied upon those aspects of the case which were irrelevant and alien to law. In that the documents i,e, registered sale-deed in favour of appellant, certificate of ownership from Cantonment Board issued in favour of the appellant, cognovits of defendant No,2 admitting the claim, of appellant, all utility bills coming in evidence through appellant, testimony of very natural and confidence inspiring P.Ws were altogether ignored without even any discussion and while referring to the various ingredients of benami transactions (though not proved) non- suited the appellant.
(d) Considering the issue of limitation, this transaction could be challenged either by the vendor or by the predecessor-in-interest of parties. Both of them never did. The vendor was never produced as a witness, so not only the best evidence was withheld, but from evidence it appears that it was within the knowledge of every one from day one. It is challenged as benami after 27/28 years. What else can be more time barred than the suit of the defendant No,3.
(e) No findings were given by the trial Court on the issue of motive. In the case of Ghulam Murtaza v. Mst. Bibi Asia anti others reported in PLD 2010 SC 569 it has been held by the august Supreme Court in paras 7 & 8 of the judgment in the following words:--
(7) At this juncture, we may clarify that the motive part in the benami transactions is the most important one. A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of the other. We come across innumerable transactions where a father purchases property with his own sources for his minor son or daughter keeping in mind that the property shall vest in the minor. Such transaction subsequently cannot be challenged by father as benami simply because the amount was paid by him. There are people who, with positive application of mind, purchase properties in the name of others with intention that the title shall vest in that other.
(8) As said earlier, there are certain transactions in peculiar circumstances of those peculiar cases where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without the intention that the title shall so vest permanently. If such motive is available and also is reasonable and plausible, a transaction can be held as benami, otherwise not. A property purchased with ones own sources in the name of some close relative like wife, son or daughter cannot be dubbed as benami when purchased with full intention of conferring title to the purchaser shown. If this principle is denied and that of benami attracted simply because the sources of consideration could not be proved in favour of the twined vendee, it would shatter the most honest and bona fide transactions thereby bringing no end to litigation".
(f) Another important aspect of the matter, which lost sight of trial Court is that the transaction was made through a registered deed. This is to be read in toto and not in pieces. The fundamental principle for interpretation of document is to attempt fully to save the document rather to nullify it and no provision of document is to be read in isolation to the factum of payment made through Niaz Ali Khan defendant No,2 mentioned in the deed. It could not benefit the other side in any way with special reference to consider document i,e, G registered deed in toto. We take guidance in this respect from a judgment reported in PLD 2003 SC 215. Similarly, there is a plethora of case-law and command of Articles 102 and 103 of Qanun-e-Shahadat Order (10 of 1984) that oral evidence cannot be given preference over documentary H evidence. If any case law is required, one can refer to 2001 CLC 252.
(g) Beside this, there is yet another important aspect of the matter that after the death of Haji Momin Khan inheritance mutation was attested in favour of his legal heirs including appellant and defendants regarding his legacy back in the year, 2004. Defendants 2 and 3 did not agitate or put claim on their so-called legal share in the suit bungalow. Defendant No,3 filed her suit in the year, 2007 as a counterblast to the suit of appellant on the instigation of defendant No,2, whose wife happens to be her niece claiming mala fide title.
10. To arrive at a just conclusion as to whether a transaction is benami or not, inter alia, the following factors are to be taken into consideration as developed through case law:--
(i) Source of consideration;
(ii) From whose custody the original title deed and other documents come in evidence;
(iii) Who is in possession of the suit property, and,
(iv) Motive for benami transaction.
' We would discuss each factor in the context of present case.
(i) Source of Consideration:-- The sale consideration was paid by the appellant vide Bank draft Exh. P.W.5/1 . The registered sale- deed itself contains the payments in the same manner. The other side has failed to prove otherwise despite the onus heavily lies on them. The statement of account of Haji Momin Khan (predecessor-ininterest of parties) placed on file by the other side does not pertain to the period when sale-deed was registered i,e, 1983. The appellant had amply proved that he had sufficient means of handsome salary and private practice as a Cardiologist and was capable of purchasing and constructing suit bungalow.
(ii) From whose custody the original title deed and other documents come in evidence ' The learned trial Court was much impressed by the possession of registered deed which was with respondent No,3 (mother of appellant). The appellant left for U.K. Soon after his marriage. It cannot be prudently expected that he should have taken the registered deed to U.K He could never suspect of any ill intention. His father died 23 years after the transaction without the slightest of adverse claim. After his death the title registered deed would naturally come to the hands of mother. Such custody cannot be considered adverse to the valuable rights of appellant as she was not a stranger but mother of appellant.
(iii) Who is in possession of the suit property.
' It has been proved through the testimony of P.Ws. That possession was joint and permissive with the consent of appellant.
(iv) Motive for Benami transaction ' It is alleged that the predecessorin-interest of parties purchased the suit plot in the name of appellant in order to save the tax. Such plea was never proved. Even otherwise such a transaction cannot be justified as benami if made for an unlawful purpose. Moreover, the deed duly registered does not say so. Had this transaction been Benami, and for the sake of avoiding tax, the purpose had stood achieved simultaneously with the attestation of document. The predecessor-in-interest of parties, therefore, would have undone the transaction. He never did so till his death for 23 years.
What else could be the proof of genuineness of transaction. The other important aspect of the case is that defendant No,1 confessed judgment in favour of appellant by filing "Iqbal-eDawa". He was as good a defendant as any body else. This drastic act was against the interest of defendant No,1 but still no legal or factual importance was attached thereto by the trial Court. This was a dishonest omission. Only this occasion was sufficient to dislodge the defendants.
11. Considering the case from every angle, we are of the firm view that the trial Court seems to be totally swa yed by emotional aspect as well as utter ignorance of law. The impugned judgment, based on conjectures, surmises and hypothesis as well as contrary to evidence on record', is, therefore, set-aside.
12. Consequently, we allow this appeal, set-aside the impugned judgment and decree of trial Court and declare the appellant exclusive owner of suit bungalow No,423, direct the respondents to hand over the vacant possession of the same to the appellant within three months and they are also directed not to interfere in the ownership/possession of appellant in any manner whereas his prayer for recovery of damages is declined being not proved. Parties are left to bear their own costs.