' The only question, falling for determination in this revision petition, is whether the sale of property in dispute made by Dittu in favour of Muhammad Ismail/respondent vide registered sale-deed dated 20-11-1962 is Benami in nature and Taj Din/predecessor-in-interest of the petitioners was its actual purchaser.
2. The facts, which form the background of this petition, are that one Dittu came to Pakistan as a displaced person from India on the eve of petition. He got his claim bearing No, 2715 verified from the Central Record Room in lieu of agricultural lands abandoned by them in India. On 5-6-1962 he agreed to sell his claim in favour of Taj Din at the rate of Rs,4 per unit, received Rs,2,000 as earnest money from Taj Din and covenanted to get the above agreement to sell registered before the Sub- Registrar. He, thereafter, executed registered deed of attorney dated 5-6-1962 in favour of one Ahmad Din (P.W. 4)/authorising the so constituted attorney to transfer/sell the land allotted in lieu of claim of Dittu to Taj Din or any person on his directive. Dittu, thereafter secured allotment of Agricultural land measuring 254 Kanals 14 Marlas situated in Mauza Taragarh, Tehsil and District Kasur (it shall be hereinafter described as "suit land" or "property in dispute"). Dittu consequently made the sale of it in favour of Muhammad Ismail by registered deed dated 20-11-1962. Feeling aggrieved, Taj Din/predecessor-in-interest of the petitioners brought a suit for seeking declaration that he had purchased the suit land from Dittu; that he had paid its price to him; that he had been in its possession from the execution of sale-deed; that the sale transaction in favour of Muhammad Ismail embodied in deed dated 20-11-1962 was nominal in nature. The respondent, on the contrary, maintained that the sale-deed dated 20-11-1962 was genuine transaction; that it was not ostensible; that he was not Benamidar, but was, in fact, the real vendee of the suit land.
3. On the pleas of the parties, necessary issues were framed. Upon the consideration of the evidence adduced by the parties, the learned trial Judge found that the petitioners had failed to substantiate their plea of Benami; that respondent was the actual purchaser/order of suit land. On this conclusion the learned trial Court dismissed the suit. Feeling aggrieved, the petitioners preferred appeal, which too, was dismissed by the learned appellate Court. This is how this revision petition has come to this Court.
4. The learned counsel for the petitioners, while assailing the decision of the two Courts, below raised the following points:-- ' Firstly, that the learned Courts below had not objectively assessed the cumulative effect of Exhs.
P.1, P.2 and D.1. According to learned counsel, the original allottee/owner made agreement to sell of the property in dispute in favour of Taj Din by means of agreement to sell P.1 on 5-6-1962. By this instrument he agreed to sell the property in dispute to Taj Din for a sum of Rs,3,000, received Rs,2,000 as earnest money, delivered its possession and agreed to get the sale-deed completed in favour of Taj Din, or anybody else in consequence of his directive. On the same day, he executed the power of attorney in favour of Ahmad Din. Continuing he argued that Ahmed Din (P.W. 4) appeared in the witness-box and stated that the original allottee/owner had received the purchase-price of the property in dispute from Taj Din and not Muhammad Ismail. On the basis of these circumstances, it was fiercely represented that the registered sale-deed dated 20-11-1962 was Benami in nature and did not depict the true picture. Reliance was placed on Messrs Shalimar Limited, Karachi v. Raisuddin Siddiqui and 3 others (1979 CLC 338); Muhammad Asheque and others v. Chowdhary Fazlul Karim and others 1970 DLC 782; Altaf Mahmud v. Mst. Fazal-un-Nisa alias Bilqis Insari PLD 1970 Lah. 654; Sher Muhammad v. Muhammad Sharif PLD 1984 Lah. 117; Akram Moquim Ansari (rep. By heirs) and 3 others v. Mst. Asghari Begum and another PLD 1971 Kar. 763; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) and Rai Rejendra Kumar Ghosh Bahadur and others v. Rash Behari Mendal and others (AIR 1931 PC 125).
' Secondly, that the two Courts below, while dealing with the question of Benami nature of sale transaction, had not correctly read the evidence of the petitioners and had overlooked the evidentiary value of Exhs. P.1 and P.2.
' Thirdly, that the learned two Courts below have ignored the evidentiary value of Khasra Girdawari pertaining to years 1978 to 1984/Exh.P.3 which clearly established the possession of Taj Din over the suit land through his tenants.
5. The learned counsel for the respondent, on the other hand, vigorously supported the impugned decisions. He, at the outset, raised a preliminary objection to the maintainability of the revision petition by saying that the question as to whether the impugned sale was Benami or not and did not represent the correct position, was essentially of fact and could not be interfered with by this Court under section 115, C.P.C. On merits, he contended that the evidence produced by the petitioners was not sufficient in quantity and quality to prove that the impugned sale transaction was Benami in nature. Continuing, he maintained that Taj Din had not entered into witness-box in order to support the plea of Benami. According to learned counsel, Taj Din who had filed the suit, had closed his affirmative evidence on 3-5-1984 and intentionally did not appear as witness and so failed to make him available for cross-examination. On the basis of this circumstance, it was contended that this Court was entitled to draw inference against Taj Din under section 115(g) of the Evidence Act/Article 114 of the Oanun-e-Shahadat (10 of 1984).
6. The question relating to Benami transaction came into consideration as back as in the year 1916 before the Privy Council in the year 1916 before Privy Council in Mina Kumari Bibi v. Bejoy Singh Dudhuria (AIR 1916 PC 238). Speaking for the Bench, Sir Lawrence Jenkins observed:-- "...Though in cases of alleged Benami transactions, there may be grounds for suspicion, yet the Court's decision must not rest upon suspicion but upon legal grounds established by legal testimony. In cases of this character, the determination of the question must depend not merely upon direct oral evidence; but also upon circumstances, such as the source of the purchases- money, the possession of the disputed property, the custody of the title-deeds, the adequacy of consideration and like facts. The burden of proof lies on the person who claims against the tenor of the deed."
' This question cropped up before the Supreme Court in Bhim Singh and others v. Kan Singh (AIR 1980 SC 727) and was answered in the following manner:-- "The principle enunciated by Lord Macmillan in the case of Manmohan Das (supra) has been followed by this Court in Jaydayal Poddar v. Mst. Bibi Hazra (1974) 2 SCR 90 where Sarkaria, J.
Observed thus: ' It is well settled that the burden of proving that a particular sale in Benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through.
But such difficulties do not relieve the person asserting the transaction to be Benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid tests, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) the motive, if any, for giving the transaction a Benami colour; (4) the positions of the parties and the relationship, if any between the claimant and the alleged Benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.'
' The principle governing the determination of the question whether a transfer is a Benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a Benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed, the purchase money and (4) the question as to what his intention was, has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc."
7. The above rules were expounded in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) and Jane Margrete William v. Abdul Hamid Mian (1991 CLC 1437).
8. The ratio, deducible from the foregoing examination, is that the Court, while dealing with the plea of Benami is to take into consideration the following circumstances:-
(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 circumstances, prima fade, 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 all the surrounding circumstances i,e, the relationship of parties, the motives underlying the transactions and any other subsequent conduct.
(iv) The possession of the property and custody of title deed.
9. Guided by the above considerations, I now turn to evidence of the parties. The case of the petitioners hinges upon the testimony of Bashir Ahmad (P.W.1), Bagh Ali (P.W.2), Zahoor Nasir (P.W.3), Ahmad Din (P.W.4), Abdul Rashid (P.W.5) and Anwar Baig (P.W.6) apart from the documentary evidence. P.W.1 entered into witness-box to prove the execution of agreement to sell dated 5-6-1962. He, however, candidly, admitted that no consideration was passed from Taj Din to Dittu in his presence. He, in cross-examination, admitted that Dittu, thereafter, executed registered sale-deed in favour of Muhammad Isamil. Bagh Ali (P.W.2) testified that he had been in cultivating possession of the suit land under Dr. Taj Din and not under Muhammad Ismail. As already noted that Dr. Taj Dan, during his lifetime, did not appear as his own witness. It was in this context that Zahoor Nazir/his son appeared twice as witness. His testimony is of significance and needs fuller examination. Appearing as P.W.7, he deposed that Muhammad Isamil was the husband of sister of Dr. Taj Din; that he had purchased the suit land from Dittu and had got executed the impugned sale-deed in the name of Muhammad Isamil as he was man of his confidence due to close relationship. In cross-examination, he admitted that Ahmad Din (P.W.4) was neither related to Dr. Taj Din nor was a man of his confidence. He further stated that Dr. Taj Din was a Government employee and was entertaining feeling that he was not eligible to purchase the property in dispute; that he, accordingly, summoned Muhammad Ismail three days before the registration of sale-deed and asked him to lend his name to sale-deed. Continuing, he stated that this conversation/negotiations between Dr. Taj Din and Muhammad Ismail had taken place in the drawing room of their house and only the members of the families were present there. He admitted that he himself was not present at the time of above conversation/negotiations. He frankly conceded that connection of tubewell was in the name of Muhammad Ismail. Ahmad Din (P.W.4) had deposed that Dr. Taj Din was the real purchaser and not Muhammad Ismail, of the property in dispute. Similarly P.W.6 Anwar Baig stated that he had signed the sale-deed on the asking of Dr. Taj Din. This is in all the oral evidence of the petitioners in support of their plea of Benami nature of the impugned sale. When judged the touchstone of abovenoted principles, the aforenoted evidence seems to be thoroughly discrepant, wholly inconsistent and does not prove any of the circumstances which are necessary to prove the plea of Benami. Neither Bashir Ahmad (P.W.1) nor Ahmad Din (P.W.4) could say with exectitude that the price of the property in dispute was paid by Dr. Taj Din and not by Muhammad Isamil. Bashir Ahmad specifically stated that no consideration was paid in his presence. So, is the evidence of Ahmad Din. In so far as Zahoor Nasir is concerned, he was neither a witness to instrument Exh.P.1 nor Exh.P.2 nor Exh.D.1. He had banked upon a knowledge gathered from the members of his family, who were not produced as witnesses. There is one more striking feature of the case. Dr. Taj Din who had raised the plea of Benami, had not ventured to go to witness-box. He was only person who had direct knowledge of all the events starting from execution of Exh.P.1 to finalisation of the impugned sale-deed. Had he come to Court to prove his case and made himself available for cross-examination, this Court would have been in a position to assess his claim. This being the position, the Court had no material available to determine as to whether Taj Din paid the price of land to Dittu, had obtained the possession of suit land and Muhammad Ismail was only ostensible purchaser. The evidence adduced by petitioners, in my estimation is not adequate to demolish the tenor of impugned sale-deed.
10. On the contrary, Muhammad Ismail produced in evidence D.W.1 Ijaz Ahmad, D.W.2 Muhammad Latif, D.W.3 Fateh Muhammad and appeared himself as D.W.S. He also improved in evidence the receipts of payment of land revenue relating to Kharif 1978/1979 Exhs.D.2 to D.11, certified copy of registered sale-deed by which Taj Din purchased agricultural land measuring 670 Kanals 17 Marlas in favour of his son. He furthermore brought on record mortgage deed Exh.D.13 dated 19-11-1968 by which he mortgaged his shop situated in Lahore in favour of Agricultural Development Bank for the purpose of getting loan of Rs,4,600 for the sake of installation of tubewell.
11. The receipts Exhs.D2 to D.11 clearly show that respondent had been paying land revenue of property in dispute to revenue authorities. It makes clear that respondent was in cultivating possession of suit land as owner and was exercising full proprietary rights over it. Exh.D.13 conclusively demolishes the motive set out by Taj Din. This document makes it clear that Taj Din earlier purchased agricultural land in favour of his issues without entertaining any fear of being Government servant. On the material available on record the learned two Courts below were eminently correct in reaching the conclusion that Muhammad Ismail/respondent was the owner of the suit land and transaction of sale embodied in the registered sale-deed was not Benami in nature. This concurrent conclusion of fact arrived at by the two Courts below is eminently correct, just and in consonance with the well-established principles of assessment of evidence. Neither it suffers from any jurisdictional defect nor any legal defect, nor is the result of misreading or non- reading of evidence calling for interference in the revisional jurisdiction of this Court.
12. As a result of the above discussion, this revision petition is found to be wholly devoid of merit and is accordingly dismissed. The petitioners shall bear the costs of proceedings throughout.