The petitioner has called-in-question the concurrent findings of facts recorded by both the learned Courts below , whereby her suit for declaration with permanent injunction was dismissed vide judgment and decree dated 06.03.2013 by the learned trial Court and appeal preferred against the same by the petitioner was also dismissed by the learned Additional District Judge, Lahore, vide judgment dated 14.10.2019; hence, this revision petition.
2. The petitioner disputed the ownership of her brother-respondent No.1 with the assertion that half portion of the suit property , purchased by their father , in fact, was got registered in the name of respondent No.1 as benamidar out of love and affection. The said fact, as rightly noticed by the learned lower appellate Court, was dawned upon the petitioner after the death of Barkat Ali, her father , in the year 2003 and she instead of filing of suit within the prescribed limit of three years woke-up to claim the same in the year 2008, which was hopelessly time barred.
Besides, the learned first appellate Court has elaborately discussed the issue involved vide para 12 of its judgment, which is as under:- "The plea raised by the appellant in supp ort of benami transaction was that respondent No.1 namely Shaukat Ali was minor at the time of execution and registration of sale deed and the amount for the purchase of property in dispute was paid by her father but in this regard she has miserably failed to produc e any documentary evidence or independent witness who did not support her stance that the consideration was paid in totality by Barkat Ali himself.
She was even not in knowledge about the market price of the property in dispute at the time of its purchase and the consideration which has been paid by her father . The plea of minority was also not proved because she was not in knowledge about actual date of birth of her brother that is respondent No.1 who produced his identity card during the course of evidence which speaks volume that he was born in the year 1956 and when sale deed was executed and registered in the year 1977 he was 21 years of age."
In the above context, on Court query as to what illegality and irregularity has been committed by the learned Courts below , learned counsel for the petitioner emphasized that the ownership documents were presented by the plaintif f- petitioner in Court to establish that the transaction was a benami transaction but this aspect of the case alone is not enough to declare the transaction as benami one Hon'ble Supreme Court in Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577) laid down the guidelines/essentials to be taken into consideration for determination of 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.
By virtue of said case-law , learned counsel for the petitioner contends that missing of any of the ingredient will affect merits of the case disentitling the respondent/defendant to maintain the ownership.
3. Law in this regard has already been settled by Hon'ble Supreme Court in the judgment, referred supra, which un-equivocally and un-ambiguously says as under:- "The question whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid test uniformally applicable in all situations, can be laid down. Following are considerations for deciding the question of Benami character of a transaction.
(i) It is the duty of the party who raises such plea to prove such plea by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness . The court is not required to decide this plea on the basis of suspicions, however , strong they may be. (underline supplied).
(ii) That Court is to examine as to who has supplied the funds for the purchase of property in dispute. If it is proved that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction.
(iii) The character of a transaction is to be ascertained by determining the intention of the parties at the relevant time which are to be gathered from all the surrounding circumstances i.e. the relationship of parties, the motives underlying the transactions and any other subsequent conduct.
(iv) The possession of the property and custody of title deed.
It is also held in the said case-law that 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 plaintif f from discharging the above burden of proof. However , 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 plaintif f on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintif f shall succeed.
4. In light of the above settled principle of law, record reveals that the property-in-dispute was in the name of respondent No.1 from its inception and contribution, even if is admitted to be made by father of both the parties, same cannot be said to be sufficient to declare it a benami transaction as the alleged vendee has neither claimed its ownership nor ever considered this property in the name of respondent no.1 as benamidar in his lifetime, therefore, the present petitioner has no locus standi to challenge that transaction as she had not inherited any sort of ownership from the legacy of her fathe r, who was co-owner with respondent No.1 concerning half portion of the property-in-question, nor she inherited any litigation initiated by her father claiming himself to be owner of suit property because he never instituted any suit or disputed/agitated any such matter . In such eventuality , I am fortified by a judgment reported in Zafar alias Mumtaz & another vs. Mst. Sajjad Begum, Widow & others [PLJ 2015 SC (AJ&K) 14] wherein vide its paragraph No.15, it has been held as under:- "According to the injunctions of Shariah, i.e. Holy Qur'an and the Sunnah, the bequest of the deceased will be treated as property which was in his ownership and not the property of the others whether it was under his control or possession as Manager , Trustee, Benami, Ostensible or under some partnership or contract etc. The Allah almighty has in this regard clearly warned that no one should usurp the property of others. We would like to refer here the English translation of the Qur'anic verses No.29 to 33 of Surah Al Nisa, which almost deal with the material legal proposition involved in this case which reads as follows:- 29-30 "O believers, do not devour one another 's property be unlawful ways; (instead of this) do business with mutual consent. And do not kill yourselves; believe it that Allah is Compassionate to you. We shall throw into the fire the one who commits such acts of aggression and injustice; and this is very easy for Allah.
31. If your abstain from the heinous sins which you are being forbidden, We will remit your trivial offences and admit you to a place of honour .
32. And do not cover what Allah has given some of you more than others: the men shall have their due share according to what they have earned and the women shall have their share according to what they have earned. So pay to Allah for his bounty; most surely Allah has perfect knowledge of everything.
33. We have pointed out rightful heirs to the inheritance which is left by parents and relatives. As for those, with whom you have made a pledge, do give them share: most surely Allah is watching over everything."
In the light of hereinabove reproduced translation of the verses of Holy Qur'an, it will be disobedience and violation of the Almighty' s command to claim inheritance of property which was not owned by the deceased or it was in the joint ownership with others and he was holding it as benami transaction or being a manager of the community ."
5. In the presence of view taken by Hon'ble Supreme Court, it leaves no room in my mind that for determining the question of transaction, Benami in character or not a cogent, legal, relevant and unimpeachable evidence of definitiveness has to be required to be led by the parties which is missing and without that, this question cannot be concluded on the basis of mere assertions of the parties.
6. The learned counsel has failed to dilate upon either validation/deviation of criteria set-down by the superior Courts to establish a benami transaction or point-out any misreading and non-reading of the evidence. In such eventuality , finding no illegality or irregularity in the concurrent findings of two Courts below , it is held that the judgments, impugned herein, are in consonance with the law; hence no interference is warranted, thus, this revision petition having no merits is dismissed-in-limine.