MUHAMMAD RAZA QURESHI, J. Through this Civil Revision under Section 115 of the Code of Civil Procedure, 1908 ("C.P.C."), the Petitioner has challenged the Judgments and Decrees dated 20.12.2012 and 29.05.2014 passed by the learned Trial Court and the learned Appellate Court respectively, whereby learned Courts below concurrently dismissed the Suit for declaration of 'benami' transaction.
2. On 11.03.2005 the Petitioner, Riaz Ahmad filed a Suit seeking declaration that his brother Nasir Ahmad, Defendant be declared as `benamidar' and it is actually the Petitioner who is the owner of the suit property admeasuring 08 Kanals 14 Marlas situated in Chak No.96-GB, Tehsil Jaranwala. In his Suit, the Petitioner contended that he is a government servant and serving as Drawing Teacher, who purchased land from one Nazeer Ahmad and upon seeking possession, the said land was transferred through Mutation No.905 dated 24.12.1997. According to the contents of the plaint the Petitioner claimed that Defendant is his brother and he is only a 'benamidar' and not the real owner.
3. The motive expressed in the Suit for purchasing the property in the name of his brother was that the Petitioner being a government servant cannot hold property in his name and since he had ongoing controversy and litigation with his wife, therefore, he transferred the subject matter property in the name of his brother. According to the contents of plaint, the Petitioner asserted that the Respondent being not a man of income could not have purchased the property in his name.
4. Through written statement the Respondent vehemently contested the Suit and, inter alia, contented that the Petitioner being a school teacher had no means of income and it was the Respondent who paid the price for purchasing the property which is a joint Khata and accordingly property stood transferred in the name of the Respondent. Out of divergent pleadings of the parties the learned Trial Court on 08.07.2006 framed as many as 11 Issues duly discussed in the Judgments passed by the learned Courts below.
5. Learned counsel for the Petitioner submits that both learned Courts below erred in law and committed material illegality while passing the Impugned Judgments and Decrees and failed to advert that the Petitioner had discharged his onus, whereas the Respondent failed to justify his income for purchasing the subject matter property. Learned counsel submits that Impugned Judgments and Decrees are liable to be set aside and consequently Suit of the Petitioner is liable to be decreed in his favour.
6. Conversely, learned counsel for the Respondent submits that there are contradictions in the evidence of the Petitioner and his pleadings and Petitioner throughout failed to satisfy the tests laid down by the provisions of law as well as the Judgments and therefore, both learned Courts below lawfully dismissed the Suit filed by the Petitioner.
7. I have heard the learned counsel for the parties and perused the record. Obviously, in order to ascertain if the transaction is `benami' or otherwise, there are important ingredients which need proof or disproof, these are the motive; source of money with which the property was purchased; the possession of the property; the conduct of the parties, as to how, the property was dealt with; and possession of the original title document.
8. It is to be borne in mind that keeping in view the afore-noted tests the initial burden of proof is on the party who alleges that ostensible owner is a 'benamidar' for him and therefore, the weakness in the defence evidence would not relieve a plaintiff from discharging the burden of proof. There is no cavil to the well established principle that the burden of proof may shift from one party to the other during the course of trial of a suit but that burden only shifts once the initial burden is discharged by the plaintiff. Reliance in this regard is placed upon the case of "Abdul Majeed and others v.
Amir Muhammad and others" (2005 SCMR 577), wherein at page 585 the Hon'ble Supreme Court held as under:- "(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.
(ii) That Court is to examine as to who has supplied the funds for the purchase of property in dispute, 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 intentions of the parties at the relevant time which are to be gathered from the surrounding circumstances i.e. the relationship of parties, the motives underlying the transaction and any other subsequent conduct.
(iv) The possession of the property and custody of title deed."
9. This Court has examined the evidence with the able assistance of learned counsel for the parties and in the light of the above noted criteria this Court holds that there is no evidence on record that the consideration paid emanates from any monetary source of the Petitioner. Likewise, the purported motive canvassed in the Suit can hardly be considered creditworthy or trustworthy. So far as the title documents are concerned, the Petitioner had only produced in evidence the certified copy of the title in favour of the Respondent which can hardly be considered to satisfy the tests applicable for 'benami' transaction i.e. that from whose custody the original title deed and other document came in evidence.
10. In oral deposition PW-1 namely Nazeer Ahmad during his cross-examination conceded that he partially received money on the day of transfer from the Respondent Nasir and he gave statement before Tehsildar that he received money from the said Respondent. He also admitted that he handed over possession to Nasir. To the extent of motive, he simply stated that he was informed that the property was being transferred due to ongoing dispute of the Petitioner with his wife. The Petitioner who appeared as PW-2 conceded in his cross-examination that he did not pay money from his own account rather for the payment of consideration he borrowed money from his friends.
It is an admitted position on record that none of his friends appeared to support the version of the Plaintiff through his deposition. Since the initial onus was on the Petitioner and he failed to produce his best evidence to prove his version as a consequence thereof, he cannot contend that still his Suit was liable to be decreed. Reliance in this regard is placed upon "Muhammad Sarwar v.
Mumtaz Bibi" (2020 SCMR 276).
11. So far as the tests of production of original document and possession are concerned, both learned Courts below in the light of evidence led by the respective parties rightly held that the Petitioner in his Suit had failed to discharge his onus to satisfy that why the possession was handed over to his brother Nasir, which throughout remained with him. In terms of law once the onus is not discharged by the Petitioner, it never stood shifted to the Respondent and in such scenario, the weaknesses in the evidence of the Respondent shall not advance the case of the Petitioner. The Petitioner was bound to seek strength from his own case and not from the weaknesses of the Respondent. Reliance in this regard is placed upon "Nasir Ali v. Muhammad Asghar" (2022 SCMR 1054), "Mushtaq ul Aarfin v. Mumtaz Muhammad" (2022 SCMR 55), "Muhammad Sajjad Hussain v. Muhammad Anwaar Hussain" (1991 SCMR 703).
12. Throughout in his evidence and even before this Court the Petitioner failed to satisfy about Exh.D-1 which is a copy of an earlier suit filed by the Petitioner against the Respondent wherein he himself had conceded the status of the Respondent. This said suit was subsequently withdrawn by the Petitioner.
13. So far as the motive for purchasing the property in the name of his brother i.e. Respondent as 'benamidar' is concerned, suffice it to observe that a school teacher is not such a sensitive post that nobody can purchase the property in his own name. Likewise, having a dispute with his wife would give no justification or reason to purchase the property in the name of his brother as 'benamidar' therefore, the said story seems to be concocted and not reliable. Even otherwise, during the course of evidence and deposition no such documentary proof was produced on record justifying the motive crafted by the Petitioner. Reliance in this regard is placed upon "Malik Muhammad Zubair and 02 others v. Malik Muhammad Anwar and 02 others" (PLD 2004 Lahore 515). In view of these facts and clear position of law and in presence of such a weak evidence adduced by the Petitioner the learned Courts below rightly and lawfully considered that the Suit of the Petitioner was liable to be dismissed.
14. Therefore, this Court holds that the Petitioner failed to adduce a trustworthy oral as well as documentary evidence to prove the mandatory constituents of a 'benami' transaction, including source of consideration; the custody of original title deed and other documents which came into evidence; and creditworthy motive purportedly canvassed in the Suit; possession of the Suit Property; and the conduct of the parties with respect to the Suit Property. This Court holds that the Plaintiff even failed to discharge his initial onus.
15. In such circumstances, both the learned Courts below rightly arrived at a conclusion and dismissed the Suit filed by the Petitioner and committed no material illegally as both the learned Courts below rightly concluded that the Petitioner failed to prove his case. Upon perusal of the record, this Court has observed no misreading or non-reading of evidence by the learned Courts below.
16. In legal parlance a revisional power of the High Court is exercised for correcting an error' committed by the subordinate Courts in exercise of their jurisdiction and even mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of facts by means of re-examination of evidence and in the present case, the perusal of record would not show any misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction.
17. It must be understood that the Revisional 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 Revisional 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 is 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.
Therefore, interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction.
18. Therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered. The interference in the revisional jurisdiction can be made only in the cases in which the order passed or a judgment rendered by a subordinate Court is found to be 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. Reliance in this regard is placed upon "Hadayat Ullah v.
Murad Ali" (PLD 1972 SC 69), "Noor Muhammad and others v. Mst. Azmat-e-Bibi" (2012 SCMR 1373), "Mst. Zaitoon Begum v. Nazar Hussain and another" (2014 SCMR 1469) and "Sardar Muhammad Kamal-ud-Din Khan v. Syed Munir Syed and others" (2022 SCMR 806).
19. In view of above, the concurrent findings contained in the Impugned Judgments and Decrees of learned Courts below are neither tainted with any misreading or non-reading of evidence nor the same suffer from any material illegality or material irregularity affecting merits of the case.
20. Consequently, the Impugned Judgments and Decrees are upheld and instant Civil Revision is dismissed with no order as to costs.