' CH. MUHAMMAD MASOOD JAHANGIR, J. --- The facts of the case as narrated in the plaint are that Muhammad Amin plaintiff (predecessor of the present petitioners) and Muhammad Rasheed are real brothers, that respondent No, 1/defendant No, 1 had been living with the plaintiff, who also arranged his marriage and in the year of 1984 respondent No, 1/defendant No, 1 had sent his four children from Lahore to live with the plaintiff for getting education whereas he himself stayed with his others kids and wife in his house at Lahore, that Housing and Physical Department Bahawalpur had advertised for auction of plots for shops and the plaintiff/petitioner purchased shop No, 9-C in his name and got recorded the name of his brother respondent No, 1-defendant No, 1 as vendee of plot No, 8/C as benamidar and the petitioner/plaintiff himself deposited the amount of the said plot before the concerned department. It is further pleaded in the plaint that the plaintiff/petitioner had deposited the installments of balance auction money before the Housing and Physical Department Bahawalpur, that the plaintiff is exclusive owner of the dispute- plot, that thereafter disputes arose between the plaintiff and defendant No, 1 and ultimately the parties agreed for settlement of their disputes through the six Arbitrators, who made the Award in writing on '16.11.1985, that in the light of said Award dated 16.11.1985 the petitioner/plaintiff agreed to sell the disputed plot to Dr. Muhammad Tariq and received the earnest money from the said purchaser, that respondent No, 1-defendant No, 1 also acknowledged the said agreement by receiving part payment through receipt, that in pursuance to the said agreement respondent No, 1-defendant got recorded his statement for transfer of disputed plot in favour of Dr. Muhammad Tariq, but the departmental authorities did not act upon the same as the purchaser was not present in person and the attorney was not possessing any power-of-attorney executed by Dr. Muhammad Tariq in his favour, that thereafter respondent No, 1-defendant No, 1 backed out from the Award and in fact transferred the suit property in favour of defendant No, 2, which necessitated of filing the suit for declaration before the learned Trial Court.
2. The suit was resisted by said Muhammad Khalil respondent No, 2/defendant No, 2 with the assertion that he was a bona fide purchaser for value and without notice. He further pleaded in the written statement that respondent No, 1/defendant No, 1 was the actual owner of the disputed plot and that the petitioner/plaintiff has failed to allege any reason and motive in the plaint regarding benami transaction in favour of respondent-defendant No:,
1. He further submitted that contradictory pleas have been raised by the petitioner/plaintiff and that respondent No, 1/defendant No, 1 remained in possession of the disputed plot since after its purchase. The defendants/respondent No, 3 to 6 who are functionaries of government department also contested the suit by filing their separate written statements with the assertion that the disputed plot had been purchased by the respondent No, 1 in open auction and thereafter he transferred the same to defendant/respondent No,
2. However, defendants-respondents No, 1, 7 & 8 were proceeded ex parte.
3. Factual area of dispute is reflected in the issues framed by the learned Trial Court after the remand of the case by the learned Additional District Judge, which are reproduced hereunder:-
(1) Whether the defendant No, 1 was benamidar of the suit property and the plot No, 9/C was in fact purchased by the plaintiff? OPP
(2) If issue No, 1 is proved in affirmative, whether the plaintiff is owner in possession of the suit plot?
OPP
(3) Whether the arbitration between the parties took place and for the violation of the terms arbitrated by defendant No, 2, the plaintiff has become full owner of the suit property? OPP
(4) Whether the plaintiff is entitled to the decree for specific performance of the agreement arbitrated and alternative. If so on what terms and conditions? OPP
(5) Whether the alienation of the property by defendant No, 1 in favour of defendant No, 2 is illegal, collusive, void and thus inoperative? OPP
(6) Whether the defendant No, 2 Khalil Ahmad is a bona fide purchaser of the suit property without notice and for the consideration paid? OPD
(7) Whether the plaintiff's suit is not maintainable in view of preliminary objections No, 2 and 3 raised by defendant No, 2 in his written statement?
OPD
(8) Whether the plaintiff's suit is incompetent for the inconsistent pleas pleaded by the plaintiff in his plaint. If so, with what effect? OPD
(9) Relief.
4. The plaintiff appeared himself as PW9 and also got examined Fateh Muhammad (PW1), Abdul Rashid Khan, Stamp Vendor (PW2), Ghulam Sabir, Senior Clerk Housing & Physical Department (PW3), Abdul Salam Chughtai, Stamp Vendor as (PW4), Muhammad Mohsin Stamp Vendor (PW5), Amir Ali (PW6), Haji Faqir Muhammad (PW7), Akhtar Hussain Stamp Vendor (PW8) and Hafiz Abid Hassan Jamal the other Stamp Vendor (PW10). Besides the said oral evidence the plaintiff also produced the documentary evidence in the shape of Exh.P.1 to P13. In rebuttal the respondent/defendant No, 2 Muhammad Khalil himself appeared as DW1 and also produced Allah Wasaya (DW2) in his oral evidence. He tendered documentary evidence in the shape of Exh.D1 to D9.
5. After appreciating the evidence available on file the learned Trial Court vide judgment and decree dated 14.11.2000 dismissed the suit of the petitioner/plaintiff to the extent of defendants/respondents No, 2 to 5 whereas the suit of the plaintiff/petitioners was decreed against the defendant/respondent No, 1 by declaring the plaintiff/petitioners entitled for the return of 5 marlas plot in Mouza Mannawan, Lahore besides a sum of Rs, 15,200/-regarding cheque received by defendant No, 1 and Rs, 55,000/- as observed while answering issue No,
3. The plaintiff was also awarded damages of Rs, 50,000/- against defendant No, 1 for breach of contract. Feeling dissatisfied the petitioner-plaintiff filed an appeal before the learned lower Appellate Court which met with the same fate vide judgment and decree dated 31.7.2008 passed by the learned Additional District Judge Bahawalpur. Hence the instant civil revision has been filed by the successors of Muhammad Amin plaintiff, who died during the pendency of the appeal.
6. The learned counsel for the petitioners has argued that the impugned judgments and decrees are reflective of misreading and non-reading of evidence; that the judgments and decrees are self contradictory as on the one hand the plaintiff has been awarded a decree of Rs, 70,200/- in addition to transfer of plot of measuring 5 marlas from Muhammad Rasheed respondent- defendant No, 1, but on the other hand both the Courts below have dismissed the suit regarding the disputed plot/shop, which are liable to be set aside by allowing the instant civil revision.
7. Conversely the learned counsel for the respondent/defendant No, 2 has supported the impugned judgments and decrees while arguing that the respondent/defendant No, 1 had purchased the disputed plot in an open auction and thereafter the same was transferred by him to defendant No, 2, which fact has been fully supported by the functionaries of the relevant department; that defendant-respondent No, 2 is a bona fide purchaser without notice and that the suit filed by the petitioner is collusive to usurp the plot in dispute from him, and that that the suit filed by the plaintiff/petitioners being based on contradictory pleas about the ownership of the disputed plot/shop has rightly been dismissed to the said extent after appreciating the evidence available on the record in a proper manner and the concurrent findings arrived at by the learned courts below are not open to any interference in the revisional jurisdiction.
8. Arguments heard record perused.
9. In various authoritative judgments rendered by the superior Courts (BENAMI) is defined as that where a person buys property with his own money but in the name of another person or buys property in his own name and subsequently transfers it in the name of another without any intention, either in case to benefit such other person, the transaction is called Benami. Literally Benami means without name, viz. a transaction effected by a person without using his own name.
The factors to be taken into consideration are:--- i. Source of Consideration. ii. From whose custody original title deed came. Iii. Who is in possession of the property, and iv.
Motive of benami.
' The essential elements must exist for benami transaction between ostensible owner and the purchaser for purchase of property in the name of ostensible owner for the benefit of person who has to make payment of consideration and importantly existence of motive for creation of benami title is relevant. For purpose of determining whether title vesting is merely benami, absence of motive always goes against plaintiff. As per claim in the suit, Muhammad Amin plaintiff was the actual owner of the disputed plot/shop while his brother Muhammad Rasheed defendant- respondent No, 1 was only a benamidar and the heavy onus laid on the shoulder of the plaintiff to prove that actually he had purchased the disputed plot from the Housing and Physical Department after making full payment to the said department, but for some certain reason-motive he got transferred the disputed plot in the name of his brother/defendant No, 1 and he was in continuous physical possession thereof alongwith the original title documents.
10. To prove the elements of benami transaction the plaintiff produced Ghulam Sabir Senior Clerk, Housing and Physical Department (PW3), whose testimony has itself contradicted the stand taken by the plaintiff/petitioners when he categorically stated that the disputed plot had been purchased by defendant/respondent No,
1. During the cross-examination PW3 conceded that the receipts Exh.P2 & P3 contained no signature of the plaintiff whereas Abdul Salam while appearing as PW4 narrated that he had sold the stamp paper of Exh.P9/agreement and also obtained the signature of defendant-respondent No, 1 on the said stamp paper as well as in the Register maintained for the said purpose, Muhammad Mohsin PW5 stated that he is son of Stamp Vendor and he identified the signatures of his father Abdul Rasheed over the stamp paper Exh.P3 & P4.
Amir Ali while appearing before the learned Trial Court as PW6 stated that he was one of the arbitrators and defendant No, 1 had admitted the plaintiff to be real owner before the arbitrators.
Whereas the plaintiff while appearing as PW9 affirmed the stance which he took in his plaint. A minute scrutiny of the statements of the said PWs depicts that plaintiff remained fail to prove that he had actually paid the entire price of the disputed plot. Even no motive for executing a benami transaction in favour of the defendant No, 1/respondent NO. 1 was also disclosed in the entire evidence produced by the plaintiff. However the plaintiff succeeded to prove the fact that the defendant No, 1 had received certain amount from Dr. Muhammad Tariq, but there is no convincing evidence available on the record to support the plaintiff/petitioners' version that transfer of the disputed plot/shop in the name of respondent-defendant No, 1 was a benami transaction. The title documents issued by the Housing and Physical Department pertaining to the transfer of the disputed plot/shop are in favour of defendant-respondent No, 1, which carry strong presumption to negate the version of the plaintiff and the possession of the disputed property is also lying with defendant No,
2. In such facts and circumstances, the plaintiff has miserably failed to prove that defendant No, 1 did not purchase the disputed plot rather he himself had purchased the plot in dispute. So the plea of the petitioners/plaintiff that respondent No, 1/defendant No, 1 was a benamidar owner could not be proved during the Trial Court by producing convincing and cogent evidence.
11. As regards the other plea raised by the petitioners/plaintiff that he had become owner of the disputed plot/shop on account of arbitration proceedings as a result whereof award (Exh.P9) was announced, suffice it to say that a perusal of the said document itself makes clear that it was not made a rule of Court and if at all it is presumed to be so even then no lawful award had been announced in favour of the petitioners/plaintiff, which neither fulfils the requirements of an award as the same was not got registered nor the petitioners/plaintiff had ever applied for making the said award rule of the Court under sections 14 & 17 of the Arbitration Act. In such facts and circumstances, the alleged award did not create any right or title regarding the disputed plot in favour of the petitioners/plaintiff and they cannot claim decree for declaration on the basis of said award as the award only becomes effective when it is made rule of Court and until passing of such decree by the Court of law, the award has no status in the eyes of law. The unregistered award even if received in evidence will not operate to create, declare, assign, limit or extinguish, which in present or future, any right or interest whether vested or contingent to or in immoveable property.
Reliance can be placed upon HAJI NAWAB DIN V. SH. GHULAM HAIDER AND ANOTHER (1988 SCM R 1623).
12. On the other hand as defendant/respondent No, 1, who is real brother of the plaintiff, has never appeared in the Court as a witness nor contested the suit, but he was proceeded ex parte, therefore, has been rightly burdened with the partial decree of Rs, 55,000/-and Rs, 15,200/- alongwith damages for the breach of contract.
13. In the light of above discussion I am not inclined to interfere with the well-reasoned judgments and decrees passed by the courts below in exercise of revisional jurisdiction conferred upon this Court by Section 115, CPC, the scope whereof is narrower and it can be exercised only if the judgments or orders under challenge are found to be fanciful, perverse and illegal or those were passed without jurisdiction, which is not the case in hand. The instant civil revision being devoid of any merit is dismissed. Civil revision .