AMIN-UD-DIN KHAN, J. Through this single judgment I intend to decide the above captioned three matters.
2. Precisely, the facts are that on 8.10.1984 Syed Nazar Hussain Shah filed a suit for declaration contending therein that he is real owner of property mentioned as "URDU and URDU" in the suit. The predecessor of defendants Nos. 1 to 11 , namely, Syed Khadim Hussain Shah his real brother was a 'Benamidar' of these properties. The plaintiff also challenged in the suit sale-deed No. 1683 registered on 23.6.1988 by defendants Nos. 1 to 11 in favour of defendants Nos. 12 to 14 with regard to property i.e. Shop No. 836 fully described in the head note of plaint..
Both the sets of defendants filed their written statements. The defendants Nos. 1 to 11 pleaded that their predecessor was real owner of suit property purchased by him through registered sale-deed in the year 1964 and before the purchase he (their predecessor) entered into an agreement to sell dated 24.12.1963 with the previous owner Muhammad Ramzan in his favour and further that the plaintiff filed a similar suit with regard to the agricultural land in Chak No. 249 Tehsil Rahim Yar Khan in the year 1979, therefore, this suit is not maintainable u/O. II, Rule 2 of the C.P.C. The defendants Nos. 12 to 14 also filed written statement, wherein they stated that through sale-deed they have purchased the suit property from real owner and suit is not maintainable.
From the divergent pleadings of the parties, Trial Court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. Vide judgment and decree dated 30.1.1996 suit was dismissed by the Trial Court but the findings on issues Nos. 1 and 2 were partially recorded in favour of plaintiff/respondent No. 1 and partially in favour of defendants. Two appeals were preferred, one by Syed Tasadduq Hussain, etc. And the other by Syed Nazar Hussain Shah (plaintiff). Vide judgment and decree dated 5.10.1998 the first Appellate Court dismissed the appeal filed by Syed Tasadduq Hussain, etc., whereas accepted the appeal filed by Syed Nazar Hussain Shah, in consequence whereof, suit filed by Syed Nazar Hussain Shah for declaration stood decreed.
The Civil Revision No. 475 of 1998 has been filed by Muhammad Latif, etc., who are the purchasers of suit property through registered sale-deed from legal heirs of Syed Khadim Hussain Shah. The second Civil Revision No. 93 of 1999 has been filed by the legal heirs of Syed Khadim Hussain Shah.
3. The facts relevant to Writ Petition No. 6526 of 1998 are that Syed Nazar Hussain Shah on 18.7.1992 also filed a suit u/S. 9 of the Specific Relief Act, 1877, for return f possession of impugned shop, against Muhammad Latif, muhammad Shabbir and Muhammad Sabir (purchasers of -uit property), who are defendants Nos. 1.2 to 14 in his other uit.
The written statement was filed by the defendants. The rial Court framed issues and vide judgment/decree dated 0.1.1996 suit was dismissed. The revision was filed before he Revisional Court (Additional District Judge), which was Iso dismissed vide judgment dated 5.10.1998.
4. Learned counsel for the petitioners of C.R.
75-1998 states that case of plaintiff-respondent No. 1 (Syed azar Hussain Shah) is that he was real owner and his real rother Syed Khadim Hussain Shah (predecessor of defendants Nos. 1 to 11) was a 'Benamidar', therefore, under the law plaintiff was bound to plead the ingredients necessary to prove the transaction to be a 'Benami' transaction; that after pleading plaintiff-respondent No. 1 was bound under the law to prove the transaction to be a enami' one on the basis of strong, convincing and reliable evidence upto the mark settled by the superior Courts of the country.
Further states that as against a registered document plaintiff is asking the Court to believe him and declare the transaction otherwise than what is written in the ale-deed, therefore, evidence was also required to that standard. Learned counsel submits that the admitted facts are that the impugned transaction, registered sale-deed No. 653 registered on 1.1.1964, of suit shop No. 836 by Muhammad Ramzan is in favour of Syed Khadim Hussain Shah and therein it is mentioned that prior to this sale-deed, an agreement arrived at between the parties which was written on 24.12.1963 showing that Rs. 1,000/- was received by the vendor at the time of agreement to sell and Rs. 5,000/- at the time of sale-deed.. Further, Syed Khadim Hussain Shah died in the year 1978 and plaintiff retired from his service in the year 1972. The legal heirs of Syed Khadim Hussain Shah sold suit shop through registered sale-deed No. 1683, dated 23.6.1988 in favour of defendants Nos. 12 to 14 i.e. Revision petitioners.
It has been further argued by learned counsel for the petitioners that plaintiff has not proved through the evidence the contentions made in his plaint; that the findings recorded by both the Courts below on issues Nos. t and 2 are absolutely against the evidence available on the file; that plaintiff was bound under the law to succeed on the, basis of positive evidence produced by himself and he cannot take benefit of weaknesses of the defence; that both the Courts below have misread and misinterpreted the evidence available on the file and therefore reached to a wrong conclusion. Learned counsel states that the Courts below mainly discussed and revolved around the alleged affidavit given by Muhammad Saleem, the tenant of suit property, at the time of sale in their favour and have, given undue weight to his alleged affidavit, which was otherwise required to be proved on the record in accordance with the requirement of law. Further argued that even the eviction order was passed against said Muhammad Saleem on 16..2.1992 on the application filed by the petitioners-defendants Nos. 12 to 14 and that before purchasing the suit property a publication was got published in the newspaper for cautionary measures and this valuable evidence has been ignored by the Court below.
5.. Learned counsel for the petitioners of C.R. 93- 1993 states that he supports the arguments advanced by learned counsel for petitioners of C.R.
475-1998. He also states that plaintiff-respondent No. 1 miserably failed to prove his case, despite that the Trial Court fell in error while recording the findings on issues Nos. 1 and 2 and first Appellate Court decreeing the suit in his favour.
6. On the other hand, learned counsel for the plaintiff/respondent No. 1 states that plaintiff was a Tehsildar and being in service he purchased the suit property in the name of his brother. It has been further submitted that other suits were also filed by him with regard to various other properties for declaration, wherein the declaration was sought that the transactions be declared as `Benami' transactions. Learned counsel further submits that legal heirs of Syed Khadim Shah only submitted written statement and they have not produced any evidence to support the said written statement; that the record with regard to taxation department has been produced which shows the entry of name of plaintiff as owner of suit property and that he has produced receipts of payment of rent; that sale-deed was with him which was stolen from his house; that there are findings of two Courts below in favour of plaintiff which need not be interfered by this Court. Lastly states that petitioners-defendants have not proved that they are bona fide purchasers.
7. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
8. First of all, I discuss the nature' of transaction that whether the plaintiff/respondent No. 1 succeeded in proving the transaction to be a 'Benarni' transaction on the touchstone of law declared by the august Supreme Court reported as "2009 SCM R 124 (Muhammad Nawaz Minhas 'and others Vs. Mst. Surriya Sabir Minhas and others)", wherein the august Supreme Court has set some principles, as well as in the judgment reported as "2005 SCM R 577 (Abdul Majeed and others Vs. Amir Muhammad and others)" the august Supreme Court has considered the basic points that plaintiff must prove: "(i) Source of consideration;
(ii) From whose custody the original document came; ,(iii) Who is in possession of suit property;
(iv) Motive for Benami transaction."
9. Now the point remains the motive for `Benami' transaction. The facts that transaction is dated 1.1.1964 and plaintiff/respondent No. 1 retired from the service in the year 1972. The alleged 'Benami' owner died in the year 1978 and shop was reconstructed by the petitioners of C.R. 99/1999 in the year 1984, which was sold in the year 1988 and when it was sold in favour of petitioners/defendants Nos. 12 to 14, then the suit for declaration was filed and admittedly before filing of that suit, other suits were also filed by the plaintiff with regard to the agricultural land situated in Rahim Yar Khan for seeking a declaration from the Court that those transactions are Senami' transactions and he be declared real owner. From the above- said admitted facts and evidence produced by the parties, a clear picture comes out that plaintiff/respondent No. 1 has not failed to prove but also his pleadings are not upto the mark to declare a transaction to be 'Benami' one and clear evidence of the parties is sufficient to hold that claim of plaintiff/respondent No. 1 is against the evidence on record. As I have earlier noticed that the Courts below mainly relied upon the record of property tax register, which is not per se admissible. Even otherwise, this record has no evidentiary value with regard to ownership and has also no value more than the entries for collection of property tax. Even the entries of this record are self-contradictory, which cannot held the plaintiff in any manner. Further, the record from the eviction petition and the affidavit given by Muhammad Saleem, who was in possession of suit property as tenant, at the time of sale in favour of petitioners also does not give any benefit to plaintiff/respondent No. 1. In this view of the matter, when plaintiff/respondent No. 1 miserably failed to prove his case, there is no clog upon the sale-deed No. 653, dated 1.1.1964 in favour of Syed Khadim Hussain Shah and further sale of suit property by the legal heirs of Syed Khadim Hussain Shah in favour of petitioners/defendants Nos. 12 to 14 through registered sale-deed No. 1683, dated 23.6.1988, is valid one. The plaintiff cannot dispute this second sale-deed. The plaintiff has admittedly no right in this property to ask the petitioners/defendants Nos. 12 to 14 to show the bona fide purchase of suit.
10. The crux of above discussion is that Civil Revisions Nos. 475 of 1998 and 93 of 1999 are allowed, in result of which, the findings in favour of plaintiff/respondent No. 1 as well as the impugned judgments and decrees dated 5.10.1998 and 30.1.1996 passed by two Courts below are set aside. The Writ Petition No. 6526 of 1998 is dismissed. The result would be the suit for declaration filed by plaintiff/respondent No. 1 (Syed Nazar Hussain Shah) shall stand dismissed with costs throughout.
Civil .