' CH. SHAHID SAEED, J.---This judgment shall dispose of Civil . Revisions No,847 and 986 of 2000 as common questions of law and fact are involved therein and also these arise out of one and the same judgment dated 20-3-2000 passed by learned Additional District Judge, Faisalabad who accepted the appeal of the respondents and set aside the judgment and decree dated 19-2-1994 passed by learned Civil Judge, Faisalabad whereby the suit of the respondents was dismissed.
2. Precisely stated the facts of the case are that Mst. Sharifan Bibi filed a suit for permanent injunction alleging that the house No,1299-D Type Colony, Faisalabad measuring 3 marla, 119 sq. Ft.
Was allotted to her husband namely Rasheed Ahmed and after his death, she as well as her five children are legal heirs of the said house. It was also alleged that respondents-defendants (Abdul Majeed and Nazeer Ahmed), real brothers of her husband, are extending threats to dislocate the plaintiff and her children forcibly, therefore, they be restrained to interfere in the possession and ownership of the plaintiff over the suit house permanently.
3. The respondents Abdul Majeed etc. Also filed a suit for declaration with the assertions that they are joint owners in possession in equal shares along with the predecessor-in-interest of the plaintiffs and were benami owners to the extent of 2/3 shares in the suit property. It was mainly contended that Rasheed Ahmed was their elder brother, therefore, having confidence in him, the suit quarter was got allotted in his name although the expenses for the allotment/purchase and the construction thereafter were borne jointly by all the three brothers.
4. Both the suits were consolidated by the learned trial court. Out of divergent pleadings of the parties, the learned trial court framed as many as 14 issues including that of relief and after recording oral as well as documentary evidence of the parties dismissed both the suits vide judgment and decree dated 19-2-1994. The respondents preferred appeal against dismissal of their suit but no appeal was filed by. The petitioners against dismissal of their suit. The learned appellate court vide judgment and decree dated 20-3-2000 accepted the appeal filed by the respondents holding that they are became owners in the suit property to the extent of 2/3 shares and accordingly suit of the respondents was decreed. Hence these civil revisions.
5. Learned counsel for the petitioners inter alia contends that the parties are inter se related; that the predecessor-in-interest of the petitioners Rasheed Ahmed was allotted the disputed house after payment of penalty and cost of the house; that the payment was solely made by Rasheed Ahmed that is why, the sale deed (Exh.P1) was also made only in his favour and that the respondents have contributed not a single penny in the allotment/purchase of the suit house, therefore, they have no concern, whatsoever, with the same. Learned counsel for the petitioners further avers that the respondents' suit was badly barred by time; that they have failed to produce even a single document in support of their assertion that the suit land was jointly owned by all the three brothers and that the judgment and decree passed by learned first appellate court is perverse and contrary to the law and fact. He prays that the judgment and decree passed by learned first appellate court be set aside and the suit of the respondents be dismissed.
6. Conversely, learned counsel for the respondents vehemently controverts the contentions of petitioners' side and avers that the suit house was a benami which was purchased jointly by all the three brothers and that under the rules and regulations of the department prevailing at the time of sale deed, the property could only be transferred in the name of one person, as such, the quarter with mutual consent of the parties was got transferred in the name of elder brother Rasheed Ahmed, therefore, respondents are duly entitled to the ownership of the house to the extent of 2/3 shares. Learned counsel for the respondents also asserts that the judgment and decree passed by learned first appellate court is immuned from interference until and unless there is a gross misreading/non-reading of evidence, illegality or infirmity which could not be pointed out by learned counsel for the petitioners, therefore, the civil revision deserves dismissal.
7. Arguments advanced by learned counsel for the parties have been heard and the record to the extent available on file also perused.
8. The record highlights that the suit house was allotted on 31-12-1963 to predecessor-in-interest of the petitioners Rasheed Ahmed who is one of the brothers of Abdul Majeed and Nazeer Ahmed (respondents). No dispute arose during the lifetime of Rasheed Ahmed, however, after his death, his wife Mst. Sharifan Bibi filed suit for permanent injunction for restraining the respondents from interfering in their possession and ownership while Abdul Majeed and Nazeer Ahmed filed a suit for declaration wherein they sought a decree on the basis of benami transaction claiming that the suit house was actually owned by all the three brothers, therefore, they are entitled to get the share out of the suit house to the extent of 2/3 share. It was further maintained by the respondents that they had remained in possession of the house jointly with the successors of Rasheed Ahmed who expired prior to the institution of the suit. Both the suits were consolidated, issues were framed and ultimately, both the suits were dismissed by learned trial court vide judgment and decree dated 19- 2-1994. The respondents, who were plaintiffs in the suit for declaration the sale transaction as benami, filed appeal against dismissal of their suit, which was allowed by the learned first appellate court. It is pertinent to mention here that both the parties have confined themselves to issues Nos.10, 12 & 13 only, which issues are reproduced below:.
"10. Whether the defendants have no cause of action and locus standi to file their suit? OPP
12. Whether the plaintiffs are Bai-Nami up to the extent of 2/3 share of the disputed property? OPD
13. Whether the defendants are entitled to the decree as prayed for? OPD"
9. The contention of learned counsel for the petitioners is that .The judgment and decree dated 19- 2-1994 passed by learned trial court is well-reasoned. There are four ingredients to prove a benami transaction:
(i) source of consideration;
(ii) from whose custody the original title deed and other documents came in evidence;
(iii) who is in possession of the suit property; and
(iv) motive for the Benami transaction.
10. The respondents have failed to prove all the above four ingredients in their benami suit through cogent evidence, therefore, the suit was dismissed by the learned trial court. The learned appellate court only on oral evidence reversed the judgment and decree of learned trial court on the ground that the respondents have throughout been residing jointly with the petitioners which is not in accordance with the law and fact. It is also claim of the petitioners that the respondents are in possession of only one baithak out of the whole house.
11. The record shows that the title deed was issued in favour of predecessor-in-interest of petitioners Rasheed Ahmed who had died before the institution of the suits by both the parties.
During lifetime of Rasheed Ahmed, no claim, whatsoever, was alleged by the respondents.
However, when after the death of Rasheed Ahmed, his widow Mst. Sharifan Bibi filed a suit for permanent injunction for restraining the respondents from interfering into their ownership and possession of the house, then, the respondents filed the suit for declaration claiming that the house was benami, therefore, suit of the respondents seems to be a counterblast. The respondents have miserably failed to produce any documentary evidence in support of their assertions that they are joint owners with Rasheed Ahmed. Furthermore, the allotment was made on 31-12-1963 in favour of Rasheed Ahmed, for which, the respondents who purport to share the government dues did not raise any objection till 4-1-1987 when the suit for benami transaction was filed. The maximum time available to the respondents to file a benami suit was six years under the law but they remained mum for a long period of more than 24 years. No satisfactory explanation could be offered by the respondents for such a long delay, as such, the suit was hit by section 3 of the Limitation Act, 1908 and was badly barred by time.
12. The best evidence in this case might be that of the parents who admittedly remained alive when the evidence of the respondents was being recorded from 27-6-1989 to 20-4-1994. According to Exh.D3, father Ghulam Qadir died on 20-10-1992 while the mother Mst. Sughra Bibi expired after the conclusion of the suit before the learned trial court. Both the father and mother were impleaded as party in the suit but were not produced before the court. The father and mother made a very short consenting written statement which is not sufficient to prove the claim of the respondents.
Thereafter, they remained alive for a reasonable long time and by producing them before the court, the truth regarding the ownership of the house could be ascertained which was not done.
There were also other brothers and sisters of the parties but they were also not produced before the court. Only D.W.3 Jalal Din resident of the same locality, put appearance before the court and deposed that the respondents and the, petitioners are living jointly in the suit house but he does not know who paid the dues of the house, which is the crucial point. Furthermore, the assertions of respondents are based on verbal assertions only, they could not produce any documentary evidence which could prove their title upon the house in question, they have only produced Voters List, National Identity Cards and Ration Cards, Employment. Letter etc. Which can only prove that they were living in the house but do not show their title in any manner regarding the suit quarter.
On the other hand, learned counsel for the petitioners has produced Exh.P1 which is a basic document wherefrom it can easily be ascertained that the allotment was made in the name of Rasheed Ahmed, predecessor-in-interest of the petitioners only and none else.
13. During the course of arguments, the electricity bills pertaining to the years of 1989 and 1991 as well as a letter issued by the D.C./Chairman Allotment Committee have been produced by learned counsel for the petitioners before this Court. Though these were not tendered as evidence before the trial court and are not part of record, yet the Court has seen them. The bill of year 1989 is in the name of Rasheed Ahmed while the other pertaining to the year 1901 is in the name of Mst.Sharifan Bibi, widow of Rasheed Ahmed. The letter issued by D.C./Chairman Allotment Committee shows that the house was allotted to Rasheed Ahmed solely.
14. Learned counsel for the respondents has argued that under the rules and regulations of the department prevailing at the time of sale deed, the property could only be transferred in the name of one person, therefore, the quarter with mutual consent of the parties was got transferred in the name of elder brother Rasheed Ahmed. While controverting the same, learned counsel for the petitioners has placed some documents of allotment to some others persons by the same department, i,e, Housing andPhysical Planning Department before this Court. According to these documents, the property No,Q-1121, D-Type. Colony was allotted on 20-5-1972 to Mst. Hameedan Begum w/o Irfan Ahmed, Mst. Zeenat Nasim and others jointly while Quarter No,1130, D-Type Colony was allotted on 23-6-1986 to Muhammad Rafiq and Mst. Jannat Bibi w/o Babu Khan jointly. So, it is clear that no such rule/regulation was prevailing in the Housing and Physical Department at the time when the allotment/sale deed was made in favour of the predecessor-in-interest of the petitioners Rasheed Ahmed.
15. Apropos objections of respondents that Mst. Sughra Bibi and Bashir Ahmed were not impleaded as party in the civil revision, the petitioners have already given explanation in the civil revision that Mst.Sughra Bibi died on 7-11-1998 prior to the institution of the suit while Bashir Ahmed died on 27- 11-1998 issueless, therefore, under Order XXII, Rule 6, C.P.C., the abatment of the civil revision is not made out in any manner when other contesting parties are there and the legal heirs were already included in the memorandum of parties. In the circumstances, I am, of the considered view that the learned first appellate court has failed to properly appreciate the evidence available on record and have passed the impugned judgment and decree in complete oblivion of the documentary evidence (Exh.P1) which is sale deed in favour of Rasheed Ahmed while there is nothing on record that could prove the sale transaction was a benami. It is, settled principle of law that verbal assertions cannot override the documentary evidence in any case. So, I am of the considered' opinion that the issues Nos.10, 12 & 13 could not be proved by the respondents as required under the law.
16. As regards the contention of learned counsel for the respondents regarding interference by this Court in the judgment passed by learned first appellate court, the High Court has ample powers in its revisional jurisdiction to interfere in the judgments passed by the learned first appellate court where the appellate court has disregarded the material evidence/documentary evidence and also failed to appreciate that the ingredients of benami transaction which was essential have not been fulfilled by the respondents. Thus, findings on law and fact are not immune from interference by this Court when decision is based on no evidence and due to such judgment, flagrant miscarriage of injustice had taken place. In the present case, the learned first appellate court has misread the evidence available on record and there are fatal errors on the face of the judgment, so the judgment and decree passed by learned first appellate court cannot sustain in the eye of law.
17. The epitome of the whole discussion is that the suit house was allotted to Rasheed Ahmed who paid the whole dues of the house solely and the sale deed was accordingly made only in his favour, therefore, the respondents have no concern, whatsoever, with the disputed house as they have miserably failed to prove that the sale transaction was a benami and they were owners of the house to the extent of 2/3 shares. Resultantly, this civil revision is allowed, the judgment and decree dated 20-3-2000 passed by learned Additional District Judge Faisalabad is set aside, the judgment and decree of the learned trial court is restored and the suit of the respondents is dismissed. As a consequence, Civil Revision No, 986 of 2000 also stands disposed of.