MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, petitioners have challenged the judgment and decree of learned Additional District Judge/Izafi Zila Qazi-II Swat dated 09.02.2018 whereby the appeal filed by the petitioners was dismissed and the judgment and decree of learned Civil Judge-III/Illaqa Qazi Swat dated 05.05.2017 was maintained who vide the same had decreed the suit in favour of respondent/plaintiff No. 1 namely Muhammad Saeed.
2. Precisely the facts of the case are that the parties are brothers inter-se and legal heirs of Haji Gul Zarin. Respondent/plaintiff namely Muhammad Saeed brought a suit for declaration to the effect that he is owner of the suit property on the basis of a registered sale deed No. 229 dated 18.02.1986 and that the petitioners then defendants are not entitled to deny his ownership with respect to the suit property or to make any interference in the same or to make any transaction or to execute any document with respect to the suit property and if any document has already been executed the same would be ineffective upon the rights of the respondent/plaintiff. The respondent/plaintiff has also prayed for the issuance of permanent injunction to the effect that the petitioners/ defendants be restrained from interference in the suit property and he has also prayed for the cancellation of deeds respectively dated 26.06.2001 and 07.07.2001 and the respondent/plaintiff has also prayed for possession if he could not prove the same.
3. Petitioners then defendants were summoned who are brothers of the respondent/plaintiff and other legal heirs of their common predecessor namely Haji Gut Zarin and out of them petitioners/ defendants Nos. 1 to 4 submitted their written statement whereby they raised various legal and factual objections including that, the suit property was purchased by their Common predecessor namely Haji Gul Zarin and as such the same has to be treated as legacy of the said Haji Gul Zarin and not as an absolute property of repondent/plaintiff namely Muhammad Saeed. In view of the controversies between the parties, the learned trial Court framed as many as fifteen (15) issues including an additional issue and thereafter the parties were required to produce their evidence and who have accordingly produced the same and as such after hearing arguments of both the parties the suit of respondent/plaintiff namely Muhammad Saeed was initially decreed by the learned trial Court vide judgment and decree dated 30.09.2011, however, on appeal filed by the present petitioners the said judgment and decree was set aside and the case was remanded with the directions to the learned trial Court to decide it afresh in the light of observations contained in the judgment of learned appellate Court including a direction to appoint commission to inquire as to how many sale deeds and by whom the same have been executed about the suit property since its purchase of the year 1986 with further direction to look into the matter as to in which shape and status the houses are present on the disputed property which were given by the respondent/plaintiff to his sisters and with further direction to satisfy itself as to how much property out of the one purchased in year 1986 is in possession of the petitioners/defendants on the spot and in what status. After remand, the commission was appointed as per aforesaid directions of the appellate Court and who submitted his report, to which respondent/plaintiff did not raise any objection, however, the petitioners/defendants raised certain objections regarding the commission report. Thereafter, the statement of worthy commissioner was recorded as CW-1 and thereafter the learned trial Court confirmed the report and as such after hearing the parties the suit of respondent/plaintiff was decreed by the learned trial Court vide one of the impugned judgments and decree dated 05.05.2017. Petitioners then defendants felt themselves aggrieved of the aforesaid judgment and decree, preferred an appeal to the Court of learned Additional District Judge/Izafi Zila Qazi-II Swat, however, the same was also dismissed vide the second impugned judgment and decree dated 09.02.2018. Petitioners have now challenged the aforesaid judgments and decree of the two Courts below before this Court through the instant petition
4. Arguments of learned counsel for both the parties were heard in considerable detail and the record perused with their able assistance. The main contention of the learned counsel for the petitioners/defendants was that the respondent/plaintiff has not been able to prove the essential ingredients for the proof of Benami transaction. He further submits that the respondent/plaintiff has not been able to prove the motive behind the Benami transaction. As against this, the learned counsel for the respondent/plaintiff argued that in-fact all the witnesses of the petitioners/defendants have themselves admitted the execution of the deed as well as ownership of the respondent/plaintiff on the basis of aforesaid deed.
5. The record would show that it is the case of respondent/plaintiff that the suit property is the portion of the property which he had purchased vide deed No. 229 dated 18.02.1986, whereas the case of petitioners/defendants is that in-fact the purchaser of the aforesaid property was their father namely Haji Gul Zarin Khan and that the name of respondent/plaintiff appeared in the said sale deed as Benamidar, so, in-fact it is this deed which is the bone of controversy between the parties, however, with its different interpretation and effects as both the parties derived their title from the same deed but the respondent/ plaintiff is deriving his right as sole owner, whereas the petitioners/ defendants claimed their right being the legal heirs of Haji Gul Zarin. therefore, to this extent both the parties are on one page that in-fact this deed was executed and that the suit property was purchased through the same deed and as such respondent No. 1 who was plaintiff before the learned trial Court was not required to prove the execution and authenticity of the deed dated 18.02.1986 as the execution of the same has been admitted throughout by the petitioners/defendants and their witnesses.
6. In view of the above stance of both the parties the only question which is required to be adjudicated upon that as to whether the name of respondent/plaintiff is found mentioned in the aforesaid deed as Benamidar or in-fact it was he who purchased the suit property. In such state of affairs, it is the yardstick as provided for proof or otherwise Benami transaction is to be applied to the case of the parties.
7. It is a matter of record that the respondent/plaintiff in his plaint has specifically mentioned that in-fact he has lost the original copy of the deed which was a registered deed and has requested that the Sub-Registrar Tehsil Babuzai may be summoned to prove the availability and execution of the aforesaid deed. This stance of the respondent/ plaintiff has not been controverted by the petitioners/defendants in their written statement and they too have not been able to produce the original deed, but since the respondent/plaintiff in his very plaint had disclosed the very fact of missing of the original sale deed and had requested for production of Sub-Registrar Tehsil Babuzai, therefore, he could not be non-suited for the non-production of the original deed especially when the petitioners/defendants too could not produce its original. The record further shows that the aforesaid stance of the respondent/plaintiff turns out to be true when he produced Muhammad Nazir, Senior Clerk of the office Sub-Registrar as PW-7 and who produced the said deed as Ex.PW- 7/1, therefore, to this extent the respondent/plaintiff has discharged his burden of proof.
8. As far as the execution of the said deed is concerned, the same has been alleged by the respondent/plaintiff and all the DWs have admitted the same in their statements. Haji Muhammad Saddique who appeared as DW-1 in his cross-examination has admitted the existence of the same deed in the following words;- He further admitted in his cross-examination as under:- Similarly, DW-12 namely Usman Ali in his cross-examination has made the following admissions;- Likewise, DW-14 namely Liaqat Ali has also admitted the execution of the aforesaid in the following manner;- In view of the above admissions made by nobody else but the petitioners/defendants themselves and their witnesses which show that in-fact they have admitted the execution and status of the aforesaid deed and these admissions become more significant when it is seen that they were made by persons who are nobody else but real brothers of the respondent/plaintiff.
9. The record further shows that though defendant No. 3 namely Muhammad Irshad has pleaded in his written statement that the father of the parties namely Haji Gul Zarin has divided his entire property in his lifetime amongst the children of his two wives and in this regard he has also produced the partition dated 05.10.1980, however, bare perusal of the aforesaid partition deed would show that the same does not include the suit property and thus this plea of the defendant has fired back to the effect that had it been the common property then it should have been reflected in the aforesaid partition deed being a common ownership of all the legal heirs of Haji Gul Zarin.
10. Yet another aspect of this case is that the suit property was purchased by respondent/plaintiff and in this regard the respondent/ plaintiff has been able to establish that it was in-fact he who paid the sale consideration. It is a matter of record that the respondent/plaintiff has produced Muhammad Qasim as PW-9, who stated that it was in fact he who struck a bargain between the respondent/plaintiff and the vendor and for his services he has also charged both the parties for Rs. 6,000/- each. He has also stated that he received the sale consideration amount from the respondent/plaintiff and paid the same to his vendor. He has also identified his signature on the said sale deed as correct, therefore, to the extent of payment of sale consideration the respondent/plaintiff has discharged his burden of proof. As against this, DW-14 namely Liaqat Ali though has stated that the payment was made by the father of the parties, however, in the cross- examination he has stated that in-fact he has not witnessed the payment of sale consideration by the father of the parties to the vendor, therefore, his evidence being based on hear-say is of no benefit for the petitioners/defendants. Similar statement was also recorded by DW-24 namely Suliman Khan who too has stated that the amount was paid by the father of the parties, however, he has admitted in his cross-examination that he has not witnessed the payment of sale consideration by their father to the vendor.
11. It is also a matter of record that the petitioners/defendants have not even alleged any motive what to speak of proving of the same that what consideration prompted their common predecessor to purchase the property in the name of respondent/plaintiff. They have neither proved such fact nor they have established the same, therefore, what could be gathered from this admitted position is that the stance taken by the respondent/plaintiff is prima facie established as against the claim of petitioners/defendants.
12. As far as the possession of suit property is concerned, as stated hereinabove that since all the rival claimants are brothers inter se, therefore, the respondent/plaintiff has set a very clear case that in-fact the house and Giraj was handed over to defendant No. 1 being his real brother as he was in need of the same. Similarly, regarding another house he has categorically stated that it is in the possession of his tenant but the defendant No. 1 is threatening him to pay the rent to him.
Likewise, regarding some property in the shape of two plots the respondent/plaintiff has stated that it is in his possession, however, the defendant No. 1 is interfering in the same and to establish the factum of his possession a commission was sent who has submitted his report and highlighted the aforesaid fact regarding the possession of respondent/ plaintiff. The record would also show that all the meters of electricity and gas over the disputed property are in the name of respondent/ plaintiff, which prima facie shows that he is in possession of the same.
13. In view of the above discussion, when the plea of the respondent/plaintiff regarding the execution of the deed and when he being the real owner of the suit property has not only been established by him but the same has also been admitted by the witnesses of the petitioners/defendants and when the payment of sale consideration is also established by the respondent/plaintiff and when he is prima facie in possession of the suit property, then the two Courts below have rightly non-suited the petitioners/defendants. It is relevant to mention here that for the determination of the controversy that as to whether the disputed transaction is a Benami transaction or not it is settled since long that the beneficiary has to prove his source of consideration, custody of the original deed and other relevant documents, who paid the consideration of the property in question and who was in-fact enjoying possession over the property and that as to what was the motive for the Benami transaction. The financial position of the respondent/plaintiff has not been challenged by the petitioners/defendants and regarding the missing of original deed he has categorically disclosed the same fact in his plaint and since the same was a registered deed, therefore, the custodian of the deed was produced in the Court. The respondent/plaintiff has also proved the payment of consideration to the vendor through his positive evidence, whereas the plea of petitioners/ defendants regarding the payment of sale consideration by their father is based on hear-say evidence and when the petitioners/defendants have neither alleged nor proved the motive of Benami transaction, then in such state of affairs, the said transaction could not be termed as a Benami transaction. In the case of "Mst. Asia Bibi v. Dr. Asif Ali Khan and others" reported as PLD 2011 Suprem e Court 829, it was held by the apex Court that the relevant factors for determination of benami transaction are source of consideration; who exercised custody over the original title deed and other relevant documents at the time they were introduced as evidence in court; who undertook the consideration of the property in question who was in point of fact enjoying qua possession over the suit property and motive for benami transaction. Similarly, in the case of "Syed Khursheed Ahmad Shah v. The State" reported as PLD 2022 Suprem e Court 261 it was also observed by the apex Court that there is no sufficient incriminating material to show that the properties held by the persons who are not the family members of the petitioner, but are alleged to be his benamidar, are actually of the petitioner.
Although, as held by the constitutional courts of the country that a number of factors arc to be considered to determine the question whether a particular transaction is benami in character yet perhaps the most crucial factors, in the criminal law context are: (i) who is in actual possession, or control of possession of the property, and (ii) who receives the profits arising out of the property.
The NAB has failed to deal with these factors nor has pointed out to us, any material, which could reasonably show that the properties alleged to be held by the petitioner, in name of other persons. as his benamidar, are in his actual or constructive possession and/or he receives the profits of those properties. This view has further been affirmed by the apex Court in the case of "Mst. Attia Bano and v. Abdul Majeed" reported as 2020 SCMR 1396 by holding that burden had satisfactorily been discharged by the plaintiff to establish that his deceased brother was merely an ostensible player, with resources assigned by the plaintiff to conveniently manage the purchase of the land for construction of a house thereon.
14. It is also settled law that civil cases are to be decided on the basis of preponderance of evidence. In the present case the same surely tilts in favour of respondent/plaintiff and as against this petitioners/ defendants could not succeed to put in any legal weight in their scale to turn it in their favour and thus they have to face its consequences. In the Case of "Abdul Rehman and others v. Mst. Allah Wasai and others" reported as 2022 SCMR 399 Hon'ble apex Court has held that in civil dispensation of justice, courts are to adjudge the /is on the standard of preponderance of probability of evidence produced by the parties and the decision of the court would tilt in savour of the party having preponderance of evidence. As far the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.
15. In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/ defendants and in favour of the respondent/plaintiff, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non-reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115, C.P.C. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon'ble apex Court in its recent judgment titled Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, it was also held that section 115, C.P.C. empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in tie concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C. Similarly, in the case of Salamat Ali and others v.
Muhammad Din and others reported as PLD 2022 Suprem e Court 353, it was also held 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. Similar view also reiterated by the Hon'ble apex Court in case titled Muhammad Sarwar and others v. Hashmal Khan and others reported as PLD 2022 Suprem e Court 13, where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction-and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. It was also held by the Hon'ble apex Court in para-10 of the judgment rendered in the case of Mst. Zarsheda v. Nobat Khan reported as PLD 2022 Suprem e Court 21, that in the case of Shahbaz Gul and others v.
Muhammad Younas Khan and others (2020 SCMR 867), this Court declared that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115 C.P.C. Between two possible interpretations, the one adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. In the case of Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933, it was also held by the Hon'ble apex Court that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.
16. In view of the above discussion, the impugned judgments and decree respectively dated 05.05.2017 and 09.02.2018 are neither the result of misreading and non-reading of evidence nor petitioners could pointed-out any jurisdictional defect in the same, therefore, the same are upheld and maintained and accordingly the instant revision is dismissed.