' MUHAMMAD MUNIR KHAN, J.--This civil appeal arises from the facts that on 14-1-1975 Lt.-Col. M.
Sadiq Malik/respondent filed a suit for declaration to the effect that he was the real owner of the Bungalow No,26, Hill Road, F-6/3, Islamabad and Mrs. Kishwar Malik appellant/defendant was only a Benamidar of the same, in the Court of Administrative Civil Judge, Rawalpindi. As a consequential relief it was prayed that the appellant/defendant be restrained from alienating the suit property in any manner or creating any charge or encumbrance on it and also from recovering the rent of the suit-property. The suit was resisted. In the written statement legal objections were raised and the averments in the plaint were denied. The trial Court framed as many as seven issues. The respondent/plaintiff produced seven witnesses. He himself appeared as P.W.7 and also produced Muhammad Ishaq (P.W.1), Bashir Ahmed (P.W.2), Fazal Ahmed (P.W.3), Ilyas Beg (P.W.4), Abdul Rehman (P.W.5) and Haji Ghulam Sarwar (P.W.6). On the other hand, Mrs. Kishwar Malik petitioner/defendant produced Muhammad Asghar (D.W.1), Muhammad Irshad (D.W.2) and Muhammad Hussain (D.W.3). She herself appeared as D.W.4. The parties also produced documents in proof and disproof of issues.
2. The trial Court decreed the suit on 3-2-1980. The appeal filed by the appellant/defendant was dismissed by the District Judge, Islamabad, on 30-8-1981. Feeling aggrieved thereby, the appellant/defendant filed a Revision before the Lahore High Court, Rawalpindi Bench, Rawalpindi which was dismissed on 28-11-1993. Feeling still dissatisfied, Mrs. Kishwar Malik filed a petition for leave to appeal wherein leave was granted on 10-5-1994 to consider, inter alia, whether in view of the evidence on record the concurrent finding of the Courts below that the appellant/defendant was only a Benamidar of the disputed property was the result of misreading of evidence in the case.
3. Learned counsel for the appellant has argued that in view of the evidence on record - the plot whereon Bungalow has been constructed was allotted to the appellant; the conveyance deed and the completion certificate, were in her name; she obtained loan on collateral security of the property; she let out the Bungalow on rent and had been receiving the rents, the conclusion arrived at by the three Courts below that the respondent was the real owner and the appellant was only benamidar was based on disregard of the evidence. He has also relied on the provisions of section 49-E of the Capital Development Authority (Amendment) Act, 1966 (hereinafter referred to as the Act) to contend that since the appellant was absolute owner of the property, the Civil Court was not competent to go into the question of its ownership.
' Learned counsel for the respondent has supported the impugned judgment.
4. Having carefully examined the oral/documentary evidence on record, the attending circumstances, the impugned judgment, the judgments of the trial and appellate Courts, and considering the arguments addressed by the learned counsel for the parties, we feel declined to interfere with the concurrent finding of the three Courts below that the appellant was a benamidar and respondent was the genuine/true owner of the bungalow. We have been very much impressed by the pains taken by the learned Judge in Chambers in determining the true nature of the transaction in dispute and in his efforts to find out the true owner of the property. Learned counsel appearing for the appellant/defendant before the High Court had raised almost the same contentions now raised before us by the learned counsel for the appellant. In his elaborate judgment on facts and law, the learned Judge in Chambers has repelled the contentions raised before him giving cogent reasons. His finding that the relationship between the parties was that of husband and wife; that the property was purchased during the period when the parties were living together; that the application for allotment of plot was filed by the respondent/husband; that the payment of the price of the plot on which the bungalow is raised was made by the respondent through cheque from his own account; and that the appellant had no independent source of income and no funds of her own, are fully supported from evidence on record. While attending to the evidence favouring the case of the appellant that the, disputed plot was allotted by the Capital Development Authority in the name of the appellant, that the title deed of the property came from her possession, the entire construction process on the plot was supervised by her, she raised loan on collateral security of the disputed property to finance the construction and that after construction, the property was left-out on rent by her and she has been receiving the rent of the bungalow from the tenants, the learned Judge has stated:-- "Mr. Fakhruddin has contended that not only the sale-deed was in the name of the defendant but the property was recorded in her name with the City Deputy Collector and that she was a party to all the documents relating to the mortgage of this property for the purpose of raising money from Joth Singh or the Mercantile Cooperative Bank. I have dealt with this contention in connection with issue No,5 and I repeat that the sale-deed being in the name of the defendant, the existence of these documents are not inconsistent with the case of the plaintiff that he was the true owner of the property and that the defendant was a mere benamidar. These documents would naturally be of the kind of which they are because if this property was being offered as a 'security for the loans, defendant's name would naturally appear in all the subsequent documents. On the other hand there are many circumstances subsequent to the sale-deed which do not support the case of gift in favour of the defendant. All the estimates, bills, vouchers, receipts in connection with the reconstruction of the house and the fittings and fixtures are in the name of the plaintiff alone. There are Exhs.57/1, 57/15 and 57/17 to 57/27. These amongst other consist of the tender by the Architects H.R. Thakhar & Co. Receipts of the payment to them, bills of Hinudstan Sanitary and Drainage Works indents from Eastern titles, and concrete work etc. The contract for the furnishing Company Exh.18 is also in the name of the plaintiff only and all receipts of payment to them in respect of this work is in his favour alone. These are Exhs. 19/1 to 19/9. There are other receipts by Engineers and Contractor for other work done in connection with this property. These are Exhs. 20/1 to 20/12. All this evidence is far more consistent with the ownership of the property by the plaintiff instead of the defendants."
5. Having tested the evidence on record on the criteria laid down by the superior Courts for the determination of the benamidar nature of the transaction, the High Court has come to the conclusion that-- "Keeping in view the law declared in the aforementioned judgment and the facts of the case in hand, it stands established on record that the plot in dispute was purchased in the name of the petitioner by the respondent and similarly the construction was also raised by him and, therefore, it cannot be said that it is the property in question. There is no cavil with the proposition as laid down in the cases of Muhib Ullah Khan v. Sadiq Khan 1986 SCM R 270 and Shah Gul and others v. Mst.
Shamim Akhtar and others 1990 SCM R 110 that in cases where the concurrent finding of fact are based upon misreading of evidence or omission of taking into consideration material portion thereof this Court can interfere with the said concurrent finding of fact in exercise of revisional jurisdiction yet in the case in hand the judgments rendered by the two Courts below appear to be well based on evidence on the record and there is no misreading or non-reading of any material piece of evidence. The judgments are also in accord with the principles laid down in various judgments referred to above for determining the question is benami? This case is hence fully covered by the law declared in the cases of Kanwal Nain and 3 others v. Fateh Khan PLD 1983 SC 53, Haji Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 88 and Guldar Khan v. Isa Khan and others 1993 SCM R 2099 according to which judgments the concurrent findings of fact rendered by the two Courts below are not liable to be interfered with in exercise of revisional jurisdiction of this Court.
Resultantly I hold that the findings of the two Courts below on all the issues are unexceptionable."
6. On our own independent assessme nt of the evidence including the evidence referred to in the leave granting order we find that by the admitted fact of the payment of entire price of the plot from the bank account of the respondent/husband, it is crystal clear that the transaction from its inception/beginning was a benami one. It is further supported by the facts that the appellant/wife had neither independent source of income nor had funds of her own for purchasing the plot or raising construction over it. It is by now judicially recognized that benami transactions are common in our country. Since the allotment of the plot was in the name of the appellant, appearance of her name in the allotment order, title deed, rent deed and the payment of rent to her, is quite understandable. The learned counsel for the appellant has not been able to point out misreading of any material evidence by the Courts below nor we have been able to find out any misreading of material or relevant evidence by the High Court. We are convinced that the evidence on record has correctly been appreciated and the findings recorded are correct.
7. The objection about the authority of the Civil Court to go into the question of ownership of the bungalow too is devoid of force, section 49-E of the Act reads:- "49-E. Jurisdiction of Courts barred.--Save as otherwise provided by this Ordinance no Court or other authority shall have jurisdiction to question the legality of anything done or any action taken under this Ordinance by or at the instance of the Authority."
6. The plain reading of the aforesaid section shows that the jurisdiction of Civil Court will be barred only when the legality of anything done or action taken under the Ordinance/Act by or at the instance of the Authority is questioned, whereas in the instant case/suit the legality of any action taken under the Ordinance/Act by or at the instance of the authority has not been questioned or challenged. It is only a suit for declaration about the nature of the transaction and the status of the parties with consequential relief under section 42 of the Specific Relief Act. In the suit, right to property has been contested. So, it is a suit of civil nature covered by section 9 of the Code of Civil Procedure which confers general jurisdiction upon the Courts to try all suits of civil nature. The Civil Courts are Courts of ultimate jurisdiction and unless the jurisdiction is expressly or impliedly barred, the final decision with regard to a civil right, duty; obligation and status of the parties shall be that of the Civil Court.
' The upshot of the above discussion is that there being no merit, the appeal is dismissed leaving the parties to bear their own costs.