MUKHTAR AHMED JUNEJO, J.- This is a Civil Revision Application moved under Section 115 of Civil Procedure Cose.
2. The dispute in this litigation is between a husband and a were over the property bearing No.L- 1064 and L-1065 situated in Sector 11-E, Muslim' Town North Karachi. It was respondent S. Salahuddin Ahmed who filed Suit No.2741/83 in Court of a Senior Civil Judge at Karachi for a declaration that he was the true owner in possession of .The suit property, where applicant Mst. Muhammadi Begum was living as his licensee and benamidar. Respondent in his suit also sought issue of perpetual injunction restraining the applicant from selling or transferring the suit property or from claiming any right, title or interest in the same or from dispossessing the respondent from the same.
3. Admittedly the respondent is second husband pf the applicant, her first husband being Mirza Muhammad Baig from whom she has two daughters, namely Ismat Bi and Malka Mah Jabeen. It was case of the respondent that after his marriage with the applicant he maintained her and her daughter, and purchased in 1973 the suit property where this parties lived together. The construction over plots of the suit property was also raised by the respondent, as claimed by him, after obtaining loan from House Building Finance Corporation in name of the applicant.
Respondent claimed to have got installed electricity and sui gas connection in the suit property. His case was that the applicant was only a benami owner of the suit property. It was alleged that the applicant was trying to sell the suit property at the behest of her previous husband, and hence the suit.
The suit was contested by the applicant, who in-her written statement challenged the suit to be improperly valued. Applicant claimed to have sold the property bearing No. L-1065 for Rs. 70,000.00 to Mst. Mussarat Begum while the property No.L-1064 was said to be mortgaged with House Building Finance Corporation for Rs. 45,000.00. Besides challenging valuation of the suit, the applicant alleged the suit to be not maintainable and bad for non-joinder of necessary parties. On merits the applicant claimed being owner of the suit property, by having purchased the same. She contended that one of her daughters was doing job, while the other one was married. She claimed to have obtained the loan in her name from the House Building Finance Corporation.
On pleadings of the parties the trial Court framed the following issues.
1. Whether the plots in suit were acquired & further construction made thereon by the plaintiff from his own money and loans as benami in the name of his were the defendant, who was dependent on him ?
2. Whether the construction and plots in suit were made and acquired by the defendant from her own sources and assets and plaintiff has not made any investment therein ?
3. Whether this Hon'able Court has no pecuniary jurisdiction to try this suit ?
4. Whether the suit is bad for non-joinder of parties.
5. Whether the suit is not maintainable ?
6. What should the decree be ?
The parties led evidence on all the issues, but learned trial Court, under a judgment dated 12.8.1980 returned the plaint, after holding that it had no pecuniary jurisdiction to try the suit. Aforesaid judgment dated 12.8.1986 was setaside in Civil Misc. Appeal No. 62/86 by the District Judge West Karachi on 18.11.1986. While remanding the suit, learned District Judge directed the trial Court to determine value of the suit for purposes of Court fees and jurisdiction under section 9 of Government fees Act.
4. After remand, learned trial Court on considering evidence of the parties, decreed the suit on 15.2.1988 under the impugned judgment and the decree. Applicant look the matter to the District Court Karachi Central through Appeal No.57 of 1988, which was dismissed under the impugned judgment dated 10.10.1989 by learned and Addl. District Judge, who held that the suit was rightly decreed by the trial Court. Hence this Revision Application.
I have heard Syed Sarwar Ali, advocate for the respondent while counsel for the applicant did not appear in the. Case on 29.8.1991 when the same was fixed for regular hearing. Subsequently, learned counsel for the applicant moved C.M.A.No. 939/91 for re-hearing of the case but did not appear to pursue said application on 15.9.1991, which was the date fixed for orders on said application and the same was dismissed for non-prosecution.
5. Admittedly the property in suit was purchased during the period when the parties were living together as husband and were. In his deposition Ex.P/5, the respondent stated that the suit plots were purchased by him in 1973 through Punjab Estate Agency for consideration of Rs. 2,500.00 per plot. He produced certificates Ex.P/6 and P/7 about the commission paid. He produced copy Ex.P/8 of his National Identity Card. He produced copy Ex.P/9 of Ration Card and copy Ex.P/10 of certificate issued by the Councillor. Respondent further stated that construction over the suit plots was raised by him, out of his own funds and from the amount of loan obtained from the House Building Finance Corporation in name of the applicant. He produced copy Ex.P/11 of letter of acceptance - and copy Ex.P/12 of questionnaire form to be filled by Guarantor. He produced receipts Ex.P/13 to P/22 about sui gas which were in his name. He also produced bills Ex.P/23 and P/24 of gas contractor and gas bills Ex.P.26 to Ex.P/31. Respondent also produced the documents Ex.P/32 to P/34 of Electric Supply Corporation. He also produced receipts Ex.P/35 to P/40 and bills Ex.P/41 to P/43 about water and conservancy charges. Earlier the applicant stated that he was getting salary of Rs.2000/- per month. He is serving in Shipyard since 1955 as stated by him in cross-examination. In reply to court questions the respondent stated that he had spent Rs.10,000/- to Rs.15,000.00 during the period 1973 to 1980 on construction of the suit plots, besides spending Rs.9000/- on gas and electric installations. He also staled that he spent Rs.22,000.00 to 25,000.00 from amount of the loan on construction of the house. In respect of the sale agreement about the suit property, the respondent stated that it was in possession of the applicant.
As against aforesaid evidence, Mst. Muhammadi Begum Ex.49 deposed that the two plots in suit were purchased by her. That she sold one plot and raised construction over another plot after obtaining loan of Rs.45,000.00 in her name from House Building Finance Corporation. She claimed to be paying back the loan amount. The applicant admitted that the house in suit was constructed under supervision of the respondent who got water and electric connection installed in the house in his own name. The applicant claimed to have purchased the plots from her own savings. She did not state if she had any independent source of income besides the money she got from the respondent. Applicant admitted in her cross-examination that when she married with the respondent, she was dependant on him and her daughters were not in service. She admitted that she had no purchase receipts of the construction material. She admitted that the respondent was her guarantor for obtaining loan from said Corporation. She admitted that she had not produced any receipt showing that she had paid loan amount to the said Corporation. She admitted that she had not produced any receipt showing that she had sold one of the plots for Rs.70, 000/- to Mussarat Begum. Even sale agreement about such transaction was not produced. Applicant did not examine any other witness in support of her case.
6. Case law on the point lays stress on source of consideration money and possession of the document of title. In the case of Jamila Khatoon Vs. Yasin and others (PLD 1959 Dacca 690)) it was held that where the dispute arises between the benamidar and the real owner about a transaction being benami or not, the questions about source of consideration money and possession of the document of title, are of great force. In the case of Ismail Dada Adam Soomar Vs. Shorat Banoo (PLD 1960 Kar. 852) it was held that custody of the title deeds of a property is a factor to be taken into account in determining the benami character of a transaction but where the husband living in the house with his were, left it during his sickness, it would Be quite natural for the title deed to have remained at the house in custody of the wife.
In the case of Upendra Nath Nag Chowdhury and others Vs. Bhupendra Nath Nag Chowdhury and others (PLD 1914-1947 Calcutta 128) emphasis was laid on two principal tests viz. Source of the purchase money and possession of the property, for determining nature of the transaction being benami or not.
In the case of Sura Lakshmiah Chetty and others Vs. Kothandaram Pillai (AIR 1925 PC 181)) it was held that a purchase in India by a native of India of the property in India in the name of his were unexplained by other proved or admitted facts, is to be regarded as a "benami" transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the were. It was also held that the rule of Law of England that such a purchase by a husband is to be a purchase for the advancement of were, does not apply in India. In the case of Mollaya Padayachi and another Vs. Krishna Swami Iyer and others (AIR 1925 . Madras 95), the view taken was that the presumption in favour of benami will be strengthened if almost all the property was purchased in the name of the were and the man purchased really next to nothing in his own name. In the case of Mirza Ahmad Baig and others Vs. Model Mills Nagpur Limited (AIR 1926 Nag. 262), it was held that in view of the extra-ordinary prevalence of benami transactions in India, even sight quantity of evidence may suffice to prove it.
7. Viewed in the light of the case law discussed above, we have the evidence that the respondent was employed in Karachi Shipyard on monthly salary of Rs.2,000/- (Rupees two thousand only) while the applicant was not employed anywhere. There is no evidence if the applicant was having any source of income. Applicant did not claim so in her written-statement or in her evidence, It is difficult to believe that the plots in suit were purchased from the money of the applicant. Even if the applicant had savings, as claimed by her in her deposition Ex.49, the same could be only from the amount she was receiving from the respondent. One of the daughters of the applicant may be employed but no particulars about the same have been given. Moreover there is nothing on record to show that daughter of the applicant was in service before purchase of the suit property. All this shows that the applicant did not have her own money, from which she could have purchased the suit property. Evidence of the respondent Ex.P/5 that the suit property was purchased from his funds books sound and plausible. In this view of the matter I find that the Courts below have rightly rejected claim of the applicant to the suit property.
Normally the High Court does not interfere with the concurrent findings of the Courts below except when the finding recorded is based on no evidence or on inadmissible evidence or on misreading of evidence or is palpably erroneous or perverse. In the cases of (i) Mohammad Zahir Khan and another Vs. Mohammad Zamir Khan (1987 SCM R 1144) (ii) Mohammad Halim Vs. Mst. Anayat Bibi (1988 SCM R 1977) and Muhammad Araliad Vs Mohammad Islam and others (1987 SCM R 115) interference with concurrent findings of the courts below was declined, because the evidence was examined and there was no misreading of the evidence and the findings were supportable by evidence. In the case of Fateh Muhammad Vs. Mst Sakina Bibi and others (1987 SCM R 1146) the finding of Additional District Judge did not suffer from any infirmity And interference was declined.
Powers of this Court in dealing with a Revision Application under Section 115 of Civil Procedure Code are .Well defined, In the case of Kanwal Nain and others Vs. Fateh Khan and others (PLD 1983 SC 53) it was observed that ordinarily erroneous decisions of fact are not revisable except in cases the decision is based on no evidence or on inadmissible evidence or is no perverse that grave injustice would result there from.
In view of the aforesaid factual and legal position this Revision Petition stands dismissed with no order as to costs.