1. This is a Civil Revision Application moved under section 115 of Civil Procedure
2. The dispute in this litigation is between a husband and a wife over the property bearing Nos. L- 1064 and L-1065 situated in Sector Il-E, Muslim Town North Karachi. It was respondent S. Salahuddin Ahmed who filed Suit No.2741/g3 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. Muhammad 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 of 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 hip marriage with the applicant he maintained her and her daughters, and purchased in 1973 the suit property where the parties lived together. The constructor, over plots of the suit property was also raised by the respondent, as claimer. By him, after obtaining loan from House Building Finance Corpora-ion in name of the applicant.
2. Respondent claimed to have got installed electricity and Sui gas connection in the suit property.
3. His case was than 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.
4. The suit was contested by the applicant, who in her written statement challenged J the suit to be improperly valued. Applicant claimed to have sold the property bearing No.L-1065 for Rs.70,000 to Mst. Mussarat Begum while the property No.L-1064 was said to be mortgaged with House Building Finance Corporation for Rs.45,000. 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.
5. On pleadings of the parties the trial Court framed the following issues (.1)Whether the plots in suit were acquired and further construction made thereon by the plaintiff from his own' money and loans as benami in the name of his wife the defendant, who was dependent on him?
6. (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'ble Court has no pecuniary jurisdiction to try suit?
7. (4)Whether the suit is bad for non-joinder of parties?
8. (5)Whether the suit is not maintainable?I (6)What should the decree be?
9. The parties led evidence on all the issues, but: learned trial Court 'under a judgment dated 12-8- 1986 returned the plaint, after holding that it had no pecuniary jurisdiction to try the suit. Aforesaid judgment, dated 12-8-1986 'vas set aside in Civil Miscellaneous Appeal No.62/86 by the District Judge Vest 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 Court Fees Act.
10. 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 took 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 IInd Additional District Judge, who held that the suit was rightly decreed by the trial Court. Hence this Revision ^Application.
11. 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.MA. 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.
12. Admittedly the property in suit was purchased during the period when t. He parties were living together as husband and wife. In his deposition Exh. F"/5, the respondent stated that the suit plots were purchased by him in 1973 trough Punjab Estate Agency for consideration of Rs.2,500 per plot.
13. He Introduced certificates Exhs.P/6 and P/7 about the commission paid. He Produced copy Exh.P/8 of his National Identity Card. He produced copy &--xh.P/9 of Ration Card and copy Exh.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 Exh.P/11 of letter of acceptance and copy Exh.P/12 of questionnaire form to be filled by Guarantor. He produced receipts Exhs. P/ two P/22 about Sui gas which were in his name. He also produced bills Exhs.P/23 and P/24 of gas contractor and gas bills Exhs. P.26 to Exh.P.31 Respondent also produced the documents Exhs.P/32 to P/34 of Electric supply corporation. He also produced receipts Exhs.P.35 to P/40 and bills Exhs_P/.11 to P.43 about water and conservancy charges. Earlier the applicant stated 11,;,i he was getting salary of Rs.2,000 per month. He is serving in shipyard since 1955 as stated by him in cross-examination. In reply to Court question the respondent stated that he had spent Rs.10,000 to Rs.15,000 during the period 19'73 to 1980 on construction of the suit plots, besides spending Rs.9000 on gas and electric installations. He also stated that he spent Rs. 22000 to 25,000 from amount of the loan on construction of the house. In respect of the sale agreement about the suit property, the respondent stated hat it was in possession of the applicant.
14. As against aforesaid evidence, Mst. Muhammadi Begum Exh.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 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 dependent 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 Musarrat Begum. Even sale agreement about such transaction was not produced.
15. Applicant did not examine any other witness in support of her case.
16. 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 v. Yasin and others PLD 1959 Dacca 6'0 it was held that where the dispute arises between the benamidar and the real owner about a transaction being benami or nor,, 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 v. 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 wife, 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.
17. In the case of Upendra Nath Nit g Chowdhury and others v. Bhupendra Nath Nag Chowdhury and others (PLD 1914-19-1'7 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.
18. In the case of Sura Lakshmiah Chetty and others v. 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 wile 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 wife. 1t was also held that the rule of Law of England that such apurchase by a husband is to be a purchase for the advancement of wife, does; not apply in India. In the case of Mollaya Padayachi and another v. Rrish 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 proper was purchased in the name of the wife and the man purchased really next to nothing in his own name. In the case of Mirza Ahmad Baig and others' V Model Mills Nagpur Limited AIR 1926 Nag. 262, it was held that in view of the extraordinary prevalence of benami transactions in India, even slight quantity of evidence may suffice to prove it.
19. 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 t h,: 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 sayings as claimed by her in her deposition Exh.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 particular about the same have been given. Moreover, there is nothing on record to show that daughter of the applicant way; 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 Exh.P.5 that the suit property was pure :,see fro his funds looks 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.
20. Normally the High Court does not interfere with the concurrent findings of the Courts below except when the finding recorded is based no on evidence or on inadmissible evidence or on misreading of evidence or is palpably erroneous or perverse. In the cases --f (i) Muhammad Zahir Khan and another v. Muhammad Zamir Khan 1987 SCMR 114.4; (ii) Muhammad Halim v. Mst. Anayat Bibi 1988 SCM R 1977 and Muhammad Arshad v Muhammad 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.
21. In the case of Fateh Muhammad v.Mst. Sakina Bibi and others 1987 SCM R 1146 the finding of Additional District Judgedid 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 other, v. 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 so perverse that grave injustice would result therefrom.
22. In view of the aforesaid factual and legal position this Revisions pctition stands dismissed with no order as to costs.