' Through this revision petition, the petitioner has challenged the judgment and decree dated 21- 02-2013 of the learned District Judge, Bannu vide which he accepted the appeal of the respondent, set aside the judgment and decree dated 27-07-2011 of the learned Civil Judge-IX, Bannu and decreed the suit of respondent, whereas the petitioner's Cross-Objection Bearing No, 2/2011 was also dismissed with costs.
2. Facts briefly are that Haji Nawab Khan plaintiff, predecessor of the respondents herein, had instituted a suit for declaration and perpetual injunction against Shaizullah (defendant-petitioner herein) to the effect that he is owner in possession of the suit shop alongwith balakhana Bearing No, 201/1+A, situated at Chowk Bazar, Bannu since its purchase in the year,1974, wherein he is running the business of bookselling/stationery and in the capacity of owner, he used to pay all the government property taxes regularly; that he reconstructed the suit shop as double storey with investment of million of rupees; that being elder, as a benami owner regarding title of the suit shop, a decree was obtained in the name of respondent-defendant in the event of proceedings of Civil Suit No, 305/1 of 1974 decided on 04-06-1974; and that prior to the institution of suit when the defendant refused to transfer the ownership of the suit shop in the name of the plaintiff, hence he filed the instant suit.
3. On appearance, the defendant contested the suit by filing his written statement wherein he denied the ownership of the plaintiff with respect to the suit shop, rather he claimed the same as his sole' ownership; that the business was claimed to be joint with the plaintiff; f 1' and averred that new construction had been raised from the income of joint business. On divergent pleadings, the learned trial Court framed the following issues:--
1. Whether the plaintiff has the cause of action?
2. Whether the plaintiff s suit is based on mala-fide?
3. Whether the suit is within time?
4. Whether plaintiff is estopped to sue by his own conduct?
5. Whether in the event of dismissal of suit would defendant be entitled to receive compensatory costs under Section 35-A, CPC?
6. Whether the plaintiff had purchased the suit shop as benami in the name of defendant?
7. Whether the title of suit shop vests in the plaintiff and defendant is only benami owner?
8. Whether the plaintiff has incurred huge expenses on the construction/improvements of the suit shop?
9. Whether the plaintiff is entitled to decree as prayed for?
10. Relief.
4. The parties produced their evidence. After the conclusion of trial and hearing arguments on both sides, the learned Civil Judge-III, Bannu dismissed the suit of the plaintiff vide judgment and decree dated 31-03-2006. The said judgment was upheld by the learned First Appellate Court vide its judgment and decree dated 28-06-2006. However, the revision petition Bearing No, 280/2006 filed by Haji Nawab Khan was accepted by this Court at D.I. Khan Bench. The judgments and decrees of the learned Courts below were set aside and the case was remanded back to the learned trial Court for decision afresh within three months with directions to comply with Order XX Rule 5, CPC vide judgment dated 27-05-2009.
5. After first remand, the statement of the petitioner was recorded as CW-1. After hearing arguments on both sides, the learned Civil Judge-IX, Bannu, again dismissed the suit of the plaintiff-respondent with compensatory cost of Rs,25,000/- vide judgment and decree dated 23- 12-2010. However, the learned appellate Court, accepted the appeal, set aside the said judgment and decree and remanded the case back to the trial Court with directions to re-write the judgment in accordance with the observations of the. High Court vide appellate judgment dated 28-06-2011.
After remand, the learned trial Court exhaustively dealt with all the issues, however, dismissed the suit of the respondent vide judgment and decree dated 27-07-2011. Again, the appeal of the respondent found favour with the learned appellate Court and the case was sent back to the trial Court with directions to re-write the judgment vide judgment dated 12-05-2012.
6. Aggrieved from the said appellate judgment, the petitioner filed Civil Revision Petition No, 274- B/2012 before this Court. After addressing arguments, both the learned counsel for the parties concurred with the proposition that the matter be remanded to the appellate Court for decision on merits in the light of the available evidence on record. Hence, the case was remanded to the learned appellate Court for fresh decision within a period of two months. Vide its judgment and decree dated 21.2.2013, the appellate Court accepted the appeal, decreed the suit of the respondent and dismissed the cross-objection of the petitioner.
7. Haji Riaz Muhammad Khan, learned counsel for the petitioner contended that the impugned judgment of the learned appellate Court is against law and facts and is the result of misreading and non-reading of the evidence on record; that the burden of proof that the transaction, being of benami nature, was on the respondent, who had failed to discharge the same through cogent and reliable evidence; and that the respondent has to prove his own case and cannot take benefit of the weaknesses of the petitioner's case. In support of his submissions the learned counsel places reliance on 2003 M LD 319 and 2003 CLC 559.
8. On the other hand, Mr.Abdur Rashid Khan Marwat, learned counsel for the respondent, while supporting the impugned judgment of the learned appellate Court, contended that keeping in view the overwhelming evidence on record, the respondent has not only proved the determining factors of benami transaction in his favour. He maintained that the burden of proof was shifted to the petitioner, which the petitioner failed to discharge.
9. I have gone through the record carefully and also considered the submissions advanced by the learned counsel for the parties.
10. In support of his case, plaintiff produced Zahid Ali Record Keeper, Excise and Taxation Department, Bannu as PW.1, who produced PT-1 Ex.PW.1/1 and challans Ex.PW.1/2 to Ex.PW.1/7 showing payment of taxes in respect of the suit shop by the respondent for the period from 1986 to 1995. Musarrat Ali Assistant, Habib Bank Ltd., Paredy Gate, Bannu appeared as PW.2 and submitted the statement of Account No, 3155-9 Ex.PW.2/1 alongwith certificate (Ex.PW.2/2) in respect of petitioner Shaizullah minor, for whom Nawab Khan respondent as a Guardian had opened the aforesaid account on 12-12-1970. Rehmatullah Draftsman Town Council-II, Bannu appeared as PW.3 who testified about the construction of the suit shop by Nawab Khan respondent in the year, 1984 and this fact was not rebutted by the petitioner, rather it was also admitted on record. The construction of the suit shop was further testified by Asmatullah Khan who appeared as PW.8: Imam Din appeared as PW.4 and according to him the suit shop was initially purchased by his father Hag Zainuddin for the parties but the sale consideration was paid by the Respondent Nawab Khan.Haji Muhammad Noor Badshah, appeared as PW.5 of mediation between the parties. PWs. 6 and 7 Hail Khawas Khan & Dr.Atta Muhammad Khan appeared as the two mediators. Asmatullah Khan appeared as PW.8 and testified the reconstruction of the suit shop by the respondent.
Razaullah Khan PW.9 and Umar Daraz Khan PW.10 appeared as witnesses of mediation between the parties. The respondent himself appeared as PW.11 and reiterated the same facts in his examination-in-chief.
11. Conversely to the desired claim of respondent and in order to prove his claim, the petitioner- defendant produced Naseeb Khan Patwari Helga Mamash Khel who appeared as DW. 1 and produced the record of Agricultural land of the parties. Muhammad Imran appeared as DW.2 and Mst.Noor Gula attorney of the defendant appeared as DW.3. After remand, the petitioner appeared as CW.1 and recorded his statement. He narrated the same story as averred in his written statement but admitted that taxes of the suit shop were being paid by the respondent till date. He also admitted the decision to have been made by the 'Salesan' mentioned above. He further admitted the payment of suit shop by the respondent as well as its reconstruction. He also admitted to have made payment by the respondent with respect to utility, electricity and telephone bills in the name of Nawab Khan.
12. Perusal of the evidence of both the witnesses of petitioner and respondent reveals that there is no denial of the fact that the suit shop was initially purchased by Haji Ziauddin in the name of his son and that an amount of Rs,8000/- was paid by the respondent to them. Since its purchase, the suit shop remained in possession of the respondent, who runs the business of bookselling.
13. Whenever a person alleges a transaction to be of benami nature, the initial onus lies on him to prove the same. If he proves the fact, the onus may shift to the opposite party to disprove it.
14. The evidence produced by PW.1 in the shape of copies of . Taxation Register proves the long standing possession of the respondent over the suit shop which has never been interrupted by any one The testimony of PW-2 proves that Rs, 37000/- as determined by the arbitrator, was duly deposited in Habib Bank Limited. Rehmatullah Draftsman PW.3 has testified to the reconstruction of the suit shop by the respondent in the year, 1984. The other close related private witnesses in the case also corroborated the version of the respondent in the presence of documentary as well as oral evidence in his favour which proved as the sale was of benami nature.
15. In the presence of proved evidence in favour of the respondent the petitioner-defendant heavily burdened with onus to disprove the same. In order to disprove the same, the petitioner-defendant produced the Patwari Halqa as DW.1, who submitted the revenue record which was not relevant in the instant case. The other two witnesses, namely, Muhammad Imran and Mst.Noor Gulla DWs.2 and 3 respectively could not disprove the claim of the respondent. Initially, the petitioner- defendant avoided to appear as a witness in Court, but after remand by this Court he appeared as CW.1, however, in his statement he admitted the possession, reconstruction and payment of utility, electricity and telephone bills by the respondent.
16. Having analysed the, evidence of both sides, the respondent-plaintiff proved his claim through overwhelming, cogent and solid evidence and successfully shifted the onus on the petitioner- defendant to disprove the same, but he could not disprove the testimony of respondent-plaintiff.
17. The august Supreme Court of Pakistan in the case reported as Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain (1991 SCM R 703) highlighted the determining factors to be taken into consideration with regard to a benami transaction and its burden of proof. The relevant paras of the cited judgment are reproduced herein below: "6. This leads us to the above first submission made by Mr.Akhtar Mahmud, namely, that since the respondent had failed to establish sufficient financial resources as to make payment of about Rs,42,000/- towards the purchase of the first and second houses, the two Courts below were not justified in decreeing the suit particularly in view of the statement of PW.1 Mst.Hanifa Yazdani that the respondent had told her that he was not in a position to pay instalments for the two houses, it may be observed that we have examined the above contention with reference to the oral and documentary evidence produced by the parties in conjunction with the case law cited by the parties, namely, the case of Ismail Dada Adam Soomar V. Shorat Banoo (PLD 1960 Kar. 852), the case of M. Md. Abdul Majid and others v. Md. Jainul Abedin and others (PLD 1970 Dacca 414), the case of Dost Muhammad and another v. Mst. Satan and others (PLD 1981 Kar. 339) and the case of Mst. Sardar Khatoon and others v. Dost Muhammad and another (1988 SCM R) 806) the cases relied upon by Mr. Akhtar Mahmud) and the case of Akram Moquim Ansari (represented by heirs) and 3 others v. Mst. Asghari Begum and another (PLD 1971 Kar. 763 referred to by Mr. Muzaffar Ali Khan. Some, of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:-
(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".
"7. It is also well settled law that the initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, it may also stated that the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed."
18. The above principles are being followed consistently by the Superior Courts of the Country.
Reference can be made to the case titled Abdul Majeed and others Vs. Amir Muhammad and others (2005 SCM R 577).
19. The learned appellate Court has minutely appreciated the entire evidence, oral as well as documentary and thereafter disagreed with the learned trial Court and rightly set aside the judgment and decree of the learned trial Court which decreed the suit of the respondent-plaintiff.
The impugned appellate judgment and order neither suffers from any misreading or nonreading of evidence nor from any jurisdictional error or defect warranting interference therewith by this Court in exercise of revisional jurisdiction.
20. Resultantly, the instant revision petition, being devoid of any merit, is dismissed with no order as to costs.