Succinctly, the petitioners instituted a suit for declaration against the respondents with the averments that the petitioners purchased the disputed house measuring 10-Marlas and with intent to gratify Allah Almighty get it transferred in the name of their father/respondent No.1 as benamidar and thereafter the petitioners, from their own pocket raised constructions and maintained the house in question; that the respondent No.1 spent most of his life abroad at Maskat and was not in cordial relations with the petitioners; therefore, the respondent No.1 used to live with his brothers at District Bahawalpur on arrival in Pakistan, hence, with intent to blackmail and harass the petitioners, the respondent No.1 transferred the suit house in the name of respondents No.2 and 3 vide registered sale deed No.15140 dated 19.10.2018; that the respondent No.1 was not real owner of the suit house and was only benamidar. The petitioners prayed for declaratory decree with further prayer to cancel the registered sale deed NO.15140 dated 19.10.2018. The respondents contested the suit. Out of the divergent pleadings of the parties, the leaned trial Court framed issues and evidence of the parties was recorded. On conclusion of trial, the learned trial Court dismissed suit of the petitioners vide impugned judgment and decree dated 24.05.2022. The petitioners being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 24.02.2023 by the learned appellate Court; hence, the instant revision petition.
2. Heard.
3. 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 as elaborated in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703):-
(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.
The ratio of the said judgment has again been affirmed and reiterated in a recent judgment, by the Apex Court of the country, reported as Muhammad Yousaf and others v. Muhammad Ishaq Rana (Deceased) through LRs and others (2023 SCMR 572) and it has further observed that:- " It goes without saying that the case of benami dispute is not one in which the authenticity of the document is in question, but in such cases the execution of the document is an admitted fact and the seeker only intends rectification of the document and wants that in it the name of the Benamidar be deleted and instead his name be written. How can this be done? The determination of this question depends not only on direct oral evidence but also upon circumstances and surroundings of the case concerned. It has been held repeatedly that the burden of proof lies heavily on the person who claims against the tenor of the document or deed to show that the ostensible vendee (owner) was a mere name-lender and the property was in fact purchased only for his benefit. Such burden would be discharged by satisfying the well-known criteria, to wit, (i) source of purchase money relating to the transaction; (ii) possession of the property, (iii) the position of the parties and their relationship to one another, (iv) the circumstances, pecuniary or otherwise, of the alleged transferee, (v) the motive of the transaction, (vi) the custody and production of the title deed and (vii) the previous and subsequent conduct of the parties. Each of the above-stated circumstances, taken by itself, is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But a combination of some or all of them and a proper weighing and appreciation of their value would go a long way towards indicating whether the ownership has been really transferred or where the real title lies."
The initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar. But in the present case, the petitioners have failed to discharge the onus placed on their shoulders, because it is evident from the record that the petitioners could not produce the agreement with the original owners/sellers so as to establish that in actual they purchased the property out of their own pockets in the year 2003 and got the same transferred in the name of the respondent No.1/their father. Moreover, the petitioners could not substantiate their source of income by producing any proof in this regard. Admittedly, at the time of disputed transaction P.W.1 was aged about 25/26 years and was working as tailor, whereas Tariq Nawaz, petitioner was aged about 12 years and Asif Nawaz was 21 years of age at the relevant time. This shows that the petitioners were not having any sound source of income at the time of purchase of the disputed property, rather admittedly the respondent No.1 remained abroad in order to earn livelihood for upbringing and maintaining the petitioners; however, when the respondent No.1 returned, his relations with his wife i.e. mother of the petitioners turned strained, which culminated in filing of the suit in question.
Moreover, the petitioners could not produce the original owners and the attesting witnesses of the document so as to support their stance. Furthermore, the petitioners have also failed to bring on record anything disclosing motive of such benami transaction. Mere possession of the disputed property and title document is not sufficient, especially when it is an admitted fact that the respondent No.1 was living abroad, so the possession of the petitioners over the disputed property and having title document being sons of the respondent No.1 has rightly been adjudged to be on behalf of their father/respondent No.1.
4. The respondent No.1 has established through oral as well as documentary evidence that in actual he purchased the disputed property by spending amount and he has now sold the same to the respondent No.2 namely Muhammad Akmal against consideration of Rs.2,400,000/- through sale deed No.15140. The ownership of the disputed property was recorded in the name of the respondent No.1 in the revenue record.
5. Pursuant to the above, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion that the petitioners/ plaintiffs have miserably failed to prove their case through trustworthy and reliable evidence. The impugned judgments and decrees do not suffer from any legal infirmity rather law on the subject has rightly been construed and appreciated. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), CANTONMENT BOARD through Executive Officer, Cantt. Board Rawalpindi v. IKHLAQ AHMED and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that :- 'There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.'
Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has invariably been held that:- 'Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.'
6. For the foregoing reasons, the revision petition in hand comes to naught and the same stands dismissed in limine.