1. ' The dispute in this case relates to a building comprising of one shop and two rooms constructed on Plot No. 276, Survey Sheet No. K-6/A, Shah Baig Lane, Liyari Quarters, Karachi. Mst. Fatima since deceased claimed to have purchased it on 7-4-1947 from its Hindu owners for a consideration of Rs, 1,500. After the purchase of the premises in question, she permitted her husband Mulla Faiz Muhammad since deceased to live with her in that house and carry on business in one of the shops on the ground floor. In the year 1966 disputes arose between husband and wife and she was divorced. After her divorce her husband started claiming ownership of the said premises which necessitated her to file a suit for possession.
2. ' Mulla Faiz Muhammad admitted the purchase of the premises in name of Mst. Fatima and contended that she was a Benami holder of the property on his behalf as the consideration was paid by him. On the basis of pleadings of the parties the Trial Judge framed 13 issues. Out of them Issue No.1, "whether the plaintiff is a Benami Holder", was an important issue for the decision of the dispute. Parties led evidence and the suit was dismissed by the Trial Judge on 31-10-1975. Mst.
3. Fatima being aggrieved by this judgment and decree of the Trial Court preferred an Appeal which was allowed and the suit was remanded for decision on all the issues instead of one or two issues decided by the Trial Court. During the pendency of the suit it was pointed to the Appellate Court that the lease of the plot of the premises in question was executed in favour of Mulla Faiz Muhammad and, therefore, the Appellate Court framed an additional issue, "what is the effect of the lease granted in favour of the respondent", and directed the Trial Court to decide the suit afresh on all the issues. After the remand the parties did not lead any further evidence and the Trial Judge once again dismissed the suit on 30th September, 1980. Mst. Fatima then filed an appeal which came to be decided by the VIth Additional District Judge, Karachi (Civil Appeal No. 449/80). The appellate Court by its judgment dated 18th January, 1984 dismissed the appeal. It is against these judgments that the present Revision Application under section 115, C.P.C. has been filed.
4. ' During the pendency of the Revision Application before this Court both Mst. Fatima and Mulla Faiz Muhammad expired and their legal heirs were brought on record.
5. ' Mr. Mirza A. Rashid, Advocate for the applicant, has mainly contended that both the Courts below have shifted the burden of proof on the nature of the property in question to Mst. Fatima. Under the circumstances of the present case when the purchase of the property in her name is admitted, the burden of proof would shift to Mulla Faiz Muhammad who had claimed that he was the real owner while Mst. Fatima was only Benamidar. On the point he has referred to the cases reported in Indian Cases, Vol. 176, page 535 and AIR 1950 Orissa 143. He further contended that the lease of the plot was granted in the name of Mulla Faiz Muhammad during the pendency of the suit and the plaint in the suit was not amended by Mst. Fatima to include the prayer for cancellation of such lease by K.M.C. and joining K.M.C. as necessary party. According to him, this will not be fatal to the suit itself because Mst. Fatima had claimed to be the purchaser of the structure as at that time previous owners of the structure did not have a right in the soil. In case suit is decreed in favour of applicants they shall have changes made in the record of K.M.C. in their favour.
6. ' Mr. Ataur Rehman, Advocate for the respondent, contended that Mst. Fatima has not been able to disclose any source of her income and has failed to prove that the payment was made by her. He further contended that in case the decision is made in favour of Mst. Fatima, it will involve the parties into further litigation.
7. Both the counsel after arguing their points at length agreed that both the Courts below have wrongly shifted the burden of proof that the premises in question was Benami to Mst. Fatima and, therefore, it is a case for remanding it to the Trial Court for fresh decision. They further agree that the remand order may contain a direction to the Trial Judge to permit the parties to amend the plaint and/or lead additional evidence if permitted by law.
8. ' In view of the foregoing reasons both the judgments of the lower . Courts are set aside and the Revision Application is allowed with no order as to the costs and the case is remanded to Trial Court for deciding it within a period of six months from today as indicated in the preceding paragraph.