' ZAFAR AHMED RAJPUT, J.---Through instant Civil Revision Application under section 115, C.P.C. The applicant has brought under challenge the propriety and legality of the judgment dated 13.01.2011, whereby learned Ist Additional District Judge, Karachi (Central) dismissing Civil Appeal No,108/2009, upheld the consolidated judgment and decree dated 31.08.2009 passed by the learned Vth Senior Civil Judge, Karachi (Central), thereby Civil Suit No, 261 of 1992, filed by the applicant against the respondent, was dismissed and Civil Suit No,419 of 1992, filed, by the respondent against applicant and three others, was decreed.
2. Briefly stated, facts of the case are that the applicant/plaintiff Moinuddin filed Civil Suit No,261/1992 against his ex-wife/ respondent Fahmeeda Begum for declaration and permanent injunction and respondent Fahmeeda Begum filed Civil Suit No. 419/1992 against applicant Moinuddin and three others for possession under section 9 of the Specific Relief Act, 1877. Both afore-mentioned civil suits were consolidated and decided by means of a common judgment and decree dated 31.08.2009, passed by the learned Vth Senior Civil Judge,. Karachi (Central), treating the suit of applicant bearing No, 261/1992 as leading suit.
3. The case of the applicant/plaintiff as pleaded by him in Civil Suit No,261/1992 is that in the year 1980 he purchased a house built over plot No,1-E, B 11/2 Nazimabad, Karachi on the name of his wife (respondent/defendant) as Benamindar out of love, affection and trust in her, from his sources for his own benefit as well as for the use of his parents and other near relations, who also contributed in the said transaction. It has further been alleged that at that time the respondent had no means and resources to purchase the said house and from the day of its purchase till the institution of the suit, the applicant is in continuous physical possession of suit property. It has also been alleged that the B respondent lost her love and affection for him due to some serious disease endangering his life and on the instigation of her brothers and apprehending his sudden death she left the house after disgracing him. She also lodged a false complaint against him and tried to dispossess him forcibly from his house, but she could not succeed. It is case of applicant that the respondent being Benamindar has set up a false claim casting cloud over his title in respect of suit property.
4. The suit was contested by the respondent/defendant who filed her written statement wherein, challenging the maintainability of suit, she has alleged that she was dispossessed from the suit property by the applicant; therefore, she filed a civil suit for possession bearing No,419/1992. It has further been asserted that the applicant and his other relatives are illegally residing in the suit property and in this regard an FIR was also lodged at Police Station Gulberg. It has also been asserted that the applicant was a. Clerk and was not in a. Position to purchase the house, even the applicant has no knowledge as to from whom the suit property was purchased. It has been claimed that the respondent and her mother had sold out her gold ornaments in sum of Rs.70,024/50 and Rs.1,30,088/- respectively and thereafter she purchased the suit property through her brother in the sum of Rs. 2,80,000/- from one Haji Abdul Karim. It has also been alleged that her brother got the electricity and telephone installed from his own resources and she is paying property tax. It has further been alleged that since the applicant is issueless, his parents are keeping eyes over the suit property of respondent though she is the actual owner of the suit property. She has prayed for dismissal of the civil suit filed by the appellant being No, 261/1992 and for the decree of civil suit being No,419/1992, filed by her.
5. From the pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the suit No,261/1999 is not maintainable as framed?
2. Whether the plaintiff in suit No,261/1992. Acquire the suit property in the name of defendant as Benami if so, its affect, or the plaintiff had purchased the suit property from his own financial resources?
3. Whether defendant in suit No,261/1992 had means to acquire the suit property or defendant in suit No,261/1992 contributed any sum towards purchase of the suit property or to install KESC meter and Telephone through his own expenses?
4. Whether the defendant in Suit No,261/1992 was dispossessed forcibly by the plaintiff or she left the properly at her own?
5. Whether, the possession of the plaintiff in suit No,261/1992 over the suit property remained as its owner since the date of its purchase and the defendant lived with plaintiff as his wife?.
6.Whether the plaintiff in suit No,419/1992 owned golden ornaments as claimed by her?
7.Whether the plaintiff in Suit No,261/1992 or plaintiff in Suit No,419/1992 is entitled to relief claimed?
8.What should the decree be?
6. In support of his claim, the applicant/plaintiff filed its affidavit-in-evidence at Ex: P/1, he produced deposit slips of bank account at Ex:P/2 to Ex:P/21, counter foils of cheque books and banks deposit slips at Ex: P/22 to Ex:P/134, sale receipt of truck at Ex: P/135 and certified copy of the order of IInd Judicial Magistrate, Karachi (Central) at Ex: P/136. The plaintiff also produced P.W. Najamuddin Khan as his witness, who was examined at Ex: PW-1 and .Produced statement of Bank Account No,2205 in the name of Fahmeeda Begum as Ex: P/137. The plaintiff also produced P.W Liaquat Ali Khan.
7. The respondent was examined through her attorney/brother Fasihuddin, who filed his affidavit- in-evidence. She also produced D.W Najamuddin Khan as her witness.
8. In first round of the litigation, the learned trial Court decreed the Suit No,261 of 1992, filed by the applicant and dismissed the Suit No, 419 of 1992, filed by the respondent vide judgment and decree dated 31.03.2004. The respondent preferred Civil Appeal No, 73 of 2004, thereby the learned Vth Addl. District Judge, Karachi (Central) set aside the said judgment and decree vide judgment and decree dated 12.07.2008 and remanded the matter with directions to trial Court to decide the matter afresh after hearing the parties on legal and factual issues independently on merits.
9. On receipt of the R & P, the learned trial Court after reappraising the evidence on record considered the issue No,2 as material issue and it was held that the transaction in favour of respondent (Mst. Fahmeeda Begum) in respect of suit property was not a Benami, and that the respondent purchased the suit property from her own resources and she is the owner of the suit property. Under issue No,3, it was held that the respondent had means to acquire the suit property and to get electricity and telephone installed therein. Under issue No,4, it was held that the respondent was dispossessed forcibly by the applicant. Under issue No,5, it was held that the respondent is the- lawful owner of the suit property, thus the possession of the applicant does not appear to be as owner of suit property and he was residing in suit property as husband of respondent. Under issue No,6, it was held that the plaintiff in suit No, No,419 of 1992 belonged to a well to do family and she was operating three banks accounts; therefore, it cannot be imagined that she would not have gold ornaments to purchase the suit property. It was consequently, held under issue. No, 7 that the plaintiff in suit No, 261 of 1992 was not entitled to any relief whereas plaintiff in suit No, 419 of 1992 was found lawful, owner of suit property, therefore, respondent was held entitled to the possession of suit property. As such, Civil Suit No, 261 of 1992, filed by the applicant, was dismissed while Civil Suit No, 419 of 1992, filed by the respondent, was decreed vide judgment and decree, dated 31.08.2009.
10. The applicant preferred Civil Appeal No, 108 of 2009. The learned appellate Court reappraised the evidence and upheld the judgment and decree of learned trial Court upon all issues. As a result vide judgment dated 13.01.2011; the said appeal was dismissed. It is against the aforesaid concurrent findings of Courts below. The applicant has maintained this civil revision application.
11. Heard the learned counsel for the parties and perused the material available in record.
12. It is now well settled principle of law that the powers of High Court in revisional jurisdiction under section 115, C.P.C. Are very limited. On reappraisal of the evidence, even if a different view is possible, the High Court cannot substitute its own view and upset the findings of facts concurrently arrived at by the Courts below. Such findings can only be interfered with if the Courts below have misread and misconstrued the evidence on record or have committed any jurisdictional error or any material irregularity and illegality in arriving at such findings.
13. At very outset the learned counsel for the applicant failed to point out any misreading and non- reading of evidence or any misconceiving of fact or commission of any jurisdictional error by the learned Courts below.
14. In order to ascertain if the transaction is benami or not there are five important ingredients that need to be proved; namely, (i) the source of consideration and its payment (ii) motive for benami transaction (iii) real intention of parties (iv) possession of the property, and (v) possession and production of original title documents. In the instant case the applicant in his plaint has pleaded that he had purchased the suit property on the name of respondent from 100 tola gold of his inherited ancestral property, 1000 prize Bonds of Rs.50/- each denomination and his hard earned lifelong income. But in his affidavit-in-evidence, the applicant attempted to improve his case by saying that he had also an amount for purchasing of the suit property in his account and that his prize bond was drawn for Rs. 50,000/-, however, he admitted in cross-examination that the said prize bond was drawn after filing of suit. The applicant has admitted in his cross-examination that in 1980 he was serving as U.D.C. In the office of Controller of Export and Import and drawing salary as Rs. 1995/- and his father had already died in 1974. It has also come on record that the respondent was operating three bank accounts in three different banks with substantial transactions and the deposit slips of the accounts bear hand writing of respondent's brother. The electricity and telephone connections are admittedly in the name, of respondents' brother. No evidence has been produced by the applicant to prove the motive for benami transaction. Although, it has been claimed by the applicant in his plaint that the respondent had lost her love and affection for him due to some serious disease endangering his life and apprehending his sudden death, she left the house after disgracing him, the applicant; however, failed to produce any evidence on record to establish that he had ever suffered from such serious diseases. On the contrary, it has come on record that the respondent was expelled from the house and for that she lodged an FIR, but the case was disposed of with the observation that the case was not of criminal but civil trespass. It is also an admitted position that the original documents of the property are in possession of respondent. On the whole, the applicant has failed to prove that he is the real owner and the respondent is a benami/ostensible owner of the suit F property while, the respondent has fully proved her case for possession.
15. In view of the above, as no case is made out on the ground of any material irregularity or illegality, the impugned judgments of Courts below do not call for any interference or exercise of discretion on any point of law in this case of concurrent findings. Accordingly, this civil revision application is dismissed, along with listed applications.
16. The instant Civil Revision Application was dismissed on 06.03.2015 by my short order, above are the reasons.