NAZIM HUSSAIN S1DDIQUI, J.- This Revision is directed against the Judgment and Decree dated 28.1.1993 and 10.2.1993 respectively passed by Mr. Hamid Ali Mirza the then learned District Judge, Karachi, South, affirming Judgment and Decree passed in Suit No.1609/84 by the then learned Civil Judge, Karachi, South. The lads relevant for decision of this Revisin are as follows:-
2. Respondent Khushi Khan Jadoon on 3.5.1984 had Tiled aforesaid suit before Civil Judge, Karachi, South, against applicant Major (Retd.) Mazhar Mahmood Khan for declaration and Injunction, stating therein that the application is his eldest son and was a cadet in 1966 at P.MA. Kakul. It is averred in the Plaint that the respondent booked two Plots one residential and the other commerciai, bearing No. 65, 23 Street, Phase V, mesuring 1000 Sq. Yds and No. 12-C Shahbaz lane measuring 200 Sqs Yds Phase VI, respectively in Defence Housing Authority in the name of the applicant as Benami due to love and affection for him and for the benefit of the entire family, which consists of 8 persons. It is alleged that the respondent purchased said plots by his own money and obtained the allotment orders for the same in the. Name of the applicant on initial payment of Rs.
5,100/- for the residential and Rs. 2400/- for the commercial plot. The respondent has claimed that all the documents concernin these plots arc in his possession. According to the plaint, the applicant since after marriage is under the influence of his in-laws and on their instigation wants to usurp these plots. Recently the applicant wanted to pay the outstanding balance of the development charges to Defence Authority and this fact came to the knowledge of the respondent, who accordingly filed the suit for declaration to the effect that he (respondnt) is the true and lawful owner of said plots and the applicant is simply a Benamidar.
3. The case of applicant is that the plots in question were allotted to him in his capacity as Captin and the respondent simply acted as his second wife wants to deprive him of his property and that the resondent, after his second marriage, always neglected him and his mother. It has been specifically mentioned by the applicant that the entire balance amount of Rs. 26,887/- was paid by him to said Housing Authority. Maintainability of suit was also challenged on certain legal pleas.
4. From the pleading of the parties, learned Civil Judge settled the following 17 issues:-
(i) Whether allotment order was obtained by the Defendant in respect of suit plots from money of the plaintiff?
(ii) Whether the allotment as obtained by the Defendant was in fact Benami?
(iii) Whether the plaintiff is entitled to suit plots?
(iv) What should be decree?
ADDITIONAL ISSUES
(v) Whether the suit has been filed in the Court of proper jurisdiction?
(vi) Whether the suit for declaraion that the Defendant is BENAMIDAR is maintinable?
(vii) Has 1he Plaintiff any cause of action on the basis of his own showing in the plaint?
(viii) Whether the Plaintiff could purchase the plots from the Defence Housing Authroity either by itself or in the naem of BENAMIDAR as the allotment of plots for leasehold rights can only be made by the Government/Authority to Armed Forces Serving/Retired Officers on becoming members of the Authority?
(ix) Whether plots were purchased in the name of Defendant by the Plaintiff? -
(x) Whether the above plots were allotted to Defendant?
(xi) Whether Plaintiff made initial payment of Rs. 7,400/- for allotment of plots to Defence Housing Authority as his agent or from his own pocket?
(xii) Whether the Plaintiffs claim is based on a letter allegedly written by the Defendant to his sister or is fabricated and designed to deprive he Defendant from valuable properties through criminal conspiracy based on fraud and deception?
(xiii) Whether the Defendant is in possession of the suit premises?
(xiv) Whether the Plaintiff is in possession of the suit premises?
(xv) Whether the Plaintiff is. The legal owner of the above plots?
(xvi) Whether Defendant is only Benamidar?
(xvii) Whether the Plaintiff is entitled for permanent injunction as prayed?
5. It is the duty of the Court to frame appropriate issues which arise from material propositions of fact or law affirmed by one party and denied by the other. Each disputed material proposition shall be reflected in a distinct issue. The point raised in one issue is not to be stretched in other isseus and unnecessary issues are not be framed. The point of Benami transaction recurs in different forms in these issues. Besides many unnecessary issues ere framed in this matter. It appears earned Trial Judge did not apply his mind and mechanically settled the issues as were proposed by the learned counsel of the parties.
6. At Trial the respondent examined himself, Syed Feroz Shah, Mushtaq Hussain, Hassan Ali, Tariq Narcjo, Fakhruddin and Muhammad Kamal Khan Jadoon. The applicant examind himself and to Mrs. Zubeida Jadoon and Capt (Retd.) Masood-ul-Haq.
7. On assessm ent of the evidence brought on record learned Trial Judge decided Issues Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10, 15, I6 and 17 in affirmative. For Issue No. 11 he held that the respondent made initial payment of those plots to Defence Housing Authority from his own pocket: For Issue No. l2, he held that the letter in question was genuine: Issue Nos. 13 an 14 were decided in negative. On the absis of above fidning, he decided Issue No. 4 in favour of the respondent and decreed the suit as was prayed.
8. Learned District Judge maintained the Judgement and Decree passed by learned Civil Judge with an observation that, since the applicant had paid/deposited final instalment of.Rs. 26000/- towards the consideration of those plots, therefore, said amount would be a charge over those plots payable to the applicant.
9. Mr. Raja Haq Nawaz learned counsel for the Applicant contended that entire proceedings before the Trial Court were corunm non-judice, without jurisdiction, and void ab initio for the reason that pecuniary jurisdiction of the Trial Court, at the relevant time, was upto Rs. 15,(MX)/-, whereas the value of both the plots, even in the year 1984, was more than Rs. 5,00,000/-. In support of his contention, he cited (1) Muhammad Siddiq and others v. Haji Ahmed & Co. PLD 1967, Karachi-648
(2) Government of Sindh and others v\ Saiful Haq Hashmi and others 1993 SCMR-956.
In Muhammad Siddiq's Case, it was held that ordinarily in suits falling Under Section 7(iv)(c) of the Court-Fees Act, 1870 the Plaintiff is entitled to put his own valuation, but in case the Court comes to the conclusion that it is abitrarily fixed it can put its own valuation and ask the plaintiff to pay Court-Fee on said valuation. It was further observed that to hold otherwise would mean to give unlimited power to litigants in drafting their prayers so as to include or exclude relief with a view to confer jurisdiction on the Court to try the suit. In Govemment of Sindh's Case, Hon'ble Supreme Court observed that when the value of the suit is beyond the pecuniary jurisdiction of the Court such Court would refuse to proceed with the matter. Learned counsel submitted that the respondent illegally valued the suit for the purpose of Court Fees and jurisdiction at Rs. 7,500/- and for declaration at Rs. 200/-. He also argued that in view of Section 7(iv-a) (Added by Sindh Finance Act (XII) of 1974) and as amended by Sindh Finance Act (XV) of 1975) in a suit for declaratory decree with or without consequential relief as to right in or title to immovable property based on alleged sale, gift, exchange, or mortgage thereof, the valuation was to be fixed accoridng to the value of the property. For appreciating the respective contentions of the parties said Caluse is so reproduced below: - " (iv-a) Notwithstanding anything (Contained in clause (iv), in suit for a declaratory decree with or without consequential relief as to right in or title to, immovable property based on alleged sale, gift, exchange or mortgage thereof-according io tiie value of the property."
10. Before aforesaid amendment under Section 7(i)(c) of the Court Fee Act for a declaratory decree with or without consequential relief the suit was valued according to the amount at which the relief was sought. It would be seemed that Clause C Sub-section 1 of Section 7 of the Court-Fees Act is still a part of Section 7 and would be applicable in case Clause (iv-a) does not apply. Clause (iv-a) would apply in case of Sale, Gift, Exchange or Mortgage. The question of applicability of aforesaid clause was examined in the case of Bashir Ahmed v. Mushtaq Ahmad PLD 1985 Lahore-112. Above case was referred by a D.B. Of this Court in the case of Ghulain Hussain through Legal Heirs and another v. Mahboob Alam and Others 1991 MLD-437. In Bashir Ahmed's Case, It was observed that the plaintiff is obliged to pay Court-Fee accordng to the value of immovable property if his claim is based on alleged sale, gift, exchange or mortgage. Further, it was observed that if claim of plaintiff is not so based and is founded on something else, the plaintiff would not be required to pay Court- Fee according to value of property and would be at liberty to state, under Section 7(iv)(c) the amount at which he vlucs the relief sought. In the instant case, the claim of the respondents not bscd on sale, gift, exchange or mortgag, but on a Benami transaction, which emanates from the allotments of those pots by the Defence Housing Authority, In Benami transaction the factum of sale by itself is not disputed and the controversy virtually remains confined to the fact that who is the nominal or real owner of the property characteristically the issues involved in Benami transaction are different from the simple sale, gift, exchange or mortgage. Therefore, finding of learned District Judge and the Trial Court that, under the circumstances, Cluse (iv-a) is not attracted to the circumstances of the case is perfectly correct and no exception can be taken to it.
It being so, the conclusion would be that the Trial Court had jurisdiction in the matter.
11. Learned counsel for the applicant next argued that the findings of the two Courts below arc based on misreading of evidence, suspicion, and conjecture and on that score the Impugned Judgments and Decrees are liable to be set aside. In support of this contention he relied upon the case of Ch. Masood Akhter v. Muhammad Siddiq and Others 1991 SCMR-199. In this matter, it was observed by the Hon'ble Supreme Court that High Court was fully justified in setting aside concurrent findings of two Courts with regards Superior rights on pre-emption of Plaitniff because Courts below did not appreciate evidence produced by the parties correctly. Learned counsel submitted that in this case also both the Courts below have failed to appreciate the evidence brought on record.
12. On merits the point under consideration is if the transaction in question was Benami or not. At the outset, it is noted that a Benami transaction is not a sham transaction. Benami transaction is a custom of country and is recognized as such. In such cases, a person purchases the property in the name of another but for his own benefit. The nominal owner is the Benamidar.
13. Coming back to the facts of this case, it is observed that, as per record, initial payment after allotment of the plots in question was made by the respondent. As a cadet, the applicant was getting of Rs. 150/- only per month and at the relevant time was not in a position to pay the price of the plots. In his note (Ex-24) which is admittedly in his hand writing, he has stated that the plots in question belong to the respondent and were only allottd in his name. Original documents concerning the plots were produced by the respondent before the Court. There is substantial evidence on record to show that the respondent is the real owner of the plots in question.
14. Mr. S.M. Noor-ul-Hassan learned counsel for the respondent submitted that in case of concurrent findings of the Courts below said findings in revision cannot be disturbed, unless it is shown that such findings are based on no evidence, in admissible evidence, or so perverse as to cause injustice to the concerned party. In support of this contention, he cited Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 S.C. 53 (2) Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 S.C. 88 (3) Guldar Khan v. Isa Khan by his legal Heirs and others 1993 SCMR-209n. In Kanwal Nain's Case, it was observed by Hon'ble Supreme Court that revisional powers under section 115, CPC? Are primarily intended for correcting errors made by the subordinate Courts in exercise of their jurisdiction. Further, it was observed ordinarily erroneous decisions of the1 fact are not revisable, except in case where the decision is based on no evidence or inadmissible evidence or so perverse that grave injustice would1 result there-from. In Haji Muhammd Zaman's Case, also the above view has been reiterated by the Supreme Court. In fact, rule laid down in Kanwal Nain case was followed in this matter. In Guldar Khan's Case, it was observed that High Court had no jurisdiction to interfere in concurrent findings recorded by to Courts below.
15. Section 115, CPC canbe invoked only in case of gross and palpable errors of subordinate Courts so that justice be done in case where appeal is not provided.
16. In the instant case, the findings of the Courts below are neither based upon inadmissible evidence nor are perverse in nature. On the contrary, these findings are supported by competent oral and documentary evidence and warrant the conclusion dra'wn by the Courts below. No exception can be taken to said findings.
In consequence, I do not find any merit in this Revision and the same is dismissed with costs.