' Ameer Hussain petitioner, Mst. Nargis Khatoon the respondent, Jehangir Abbas her husband and his mother, alongwith 27 others were shareholders in a limited company "Messrs Technico (Pvt.)
Ltd.", Shadipura, Bund Road, Darogawala, Lahore. The petitioner as well as Jehangir Abbas are retired employees of Pakistan Air Force. Both the families had good terms with each other.
Petitioner had retired prior in time and was subsequently Chief Executive of the abovesaid Company. On his offer the respondent, her husband and her mother-in-law had made investment in the said company, when they were living in Karachi.
2. A Plot No,NE-XX-2-S-45 bearing Khasra No,969/881/95 measuring 2 Kanals adjacent to the premises of the said company was purchased in the name of the respondent, vide a registered sale-deed dated 84-1975 for a consideration of Rs,19,500 out of which consideration Rs,10,000 had been paid as earnest money, whereas Rs,9,500 was paid at the time of the registration of the sale- deed before the Sub-Registrar, when Ameer Hussain petitioner signed the certificate of registration on behalf of Mst. Nargis Khatoon respondent and also made payment of the balance amount on her behalf.
3. The plot purchased by the respondent was mortgaged with the United Bank Limited, Badami Bagh Branch, Lahore, in order to obtain loan for the Company. Mortgage deed is signed by the respondent. However, the loan was obtained in the name of the company by the petitioner being its Chief Executive.
4. Business differences arose between the parties after sometime which were settled by them vide a document of settlement executed in the year 1987. In the said document neither there is mention of any dispute nor any settlement with regard to the above-referred plot.
5. On 224-1984 the petitioner filed a suit in the Civil Court seeking 'a declaration with consequential relief of permanent injunction to the effect that it is the plaintiff who is the real owner of the plot referred to above and that the respondent is merely a benamidar, therefore, she may be restrained from claiming to be the real owner, or claiming any right, interest, title over the suit plot. Suit has been contested. Plea taken in the written statement is that the plot in question has been purchased by the respondent with her own funds and that the plaintiff has absolutely no title/interest therein, hence the suit is. Liable to be dismissed.
6. On the basis of pleadings of the parties learned Trial Court settled following issues: Issues:
(1) Whether the plaintiff has no cause of. Action to bring this 'suit? OPD
(2) Whether the suit is beyond limitation? OPD
(3) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation and its effect? OPD
(4) Whether the impugned transaction is "Benami", if so, its effect? OPD
(5) Whether the impugned sale-deed was obtained by the plaintiff deceitfully? OPD
(6) Whether the defendant is entitled to special costs under section 35-A of C . P . C . ? OPD
(7) Relief.
7. In support of his case the petitioner/plaintiff produced Mehmood ul Hassan an ex-employee of the Technico Company as P.W.1 who deposed that the plot in question was purchased by the plaintiff in the name of respondent for the reasons that Muhammad Ishaq his brother-in-law demanded Rs,10,000 from him as debt which he refused to pay and, therefore, after purchase of two Kanals of plot with the said amount he transferred it in the name of Mst. Nargis Khatoon which plot is presently in his possession. He has shown ignorance about the fact that the respondent, her husband and other members of his family are shareholders in the company, and also about the total sale price for which the disputed plot was purchased. Muhammad Ishaq P.W.2 who is the brother-in-law of the plaintiff has stated that he does not know as to whether the plaintiff had purchased the plot in dispute for the purposes of factory however, he states that he demanded Rs,10,000 as debt from the plaintiff but he refused to pay and further that God knows better why the plaintiff had refused to make payment. Muhammad Bashir P.W.3 stated that in the year 1975 the plaintiff had purchased 2 Kanals of land out of which over an area of 12 Marlas there is big hall and further that there is boundary wall around the plot. According to him it is the plaintiff who has got the work done and made the payment for raising of above-referred construction. In cross- examination he stated that the disputed plot is situated beside the premises of the Technico Company and that the plot whereupon the Technico factory is built is owned by the plaintiff which he had purchased in the year 1971. He has shown his ignorance about the business relationship between the parties and also about the revenue entries regarding its ownership. He, however, has admitted that in-between the factory and plot there is a wall which was subsequently demolished and further that the main gate of the plot is separate. He has admitted that he has been working as an employee of the petitioner. Sh. Abdul Majeed P.W.4 has stated that in the year 1973-74 he had asked the plaintiff to purchase the plot which was adjacent to his factory and that he got the deal settled and signed the sale-deed Exh.P1 as an attesting witness; in his presence the earnest money was paid by the plaintiff and that no other person came in till the registration of sale-deed, and that the sale-deed was executed in the name of respondent. The witness admits that the plaintiff is his friend since 1973-74. He has shown his ignorance about the relationship of the parties. He has admitted that Muhammad Aslam Vasiqa Navees has executed the sale-deed Exh.P1, who is alive.
Sh. Waheed Zafar P.W.5 who'has been working as an Accountant in the company has stated that the plot in question was purchased by the plaintiff in the year 1975. Payment of the earnest money as well as balance sale amount was paid by him to Muhammad Asharf; that the plaintiff was in possession of the plot; that the sale-deed was executed in the name of Mst. Nargis Khatoon for the reason that he treated her as his sister and that brother-in-law of the petitioner had demanded money as debt but he refused to pay as agreement for purchase of the plot had been entered into at that time, therefore, in order to avoid displeasure of his brother-in law he got the sale-deed executed in the name of the respondent. The witness has admitted that he has been an employee of the firm up to the year 1988 and that even now he is looking after the Income Tax problems of the, plaintiff without pay. The witness has stated that in the company the respondent, her son and her daughter were shareholders. He has shown his inability to show the exact book value of the assets of the firm. He has denied the suggestion that the respondent has been receiving the rent for the user of the two Kanals plot from the company. He has admitted that for a long time there has been a separate wall between the factory and the plot both of which premises had separate gates. He has stated that husband of the respondent was an employee in Karachi in the year 1975 and was sending money for investment through bank and that there was friendship between the respondent's husband as well as the plaintiff. According to him the total investment from the respondent side was 6-1/2/7 lacs of rupees. According to the witness when earnest money was paid a cheque was issued which he had written whereas out of the balance sale amount Rs,5,000 was paid through cheque and rest was paid in cash. He has stated that in the Revenue 'Record the plaintiff is entered as owner of 4 Kanals of the land. This fact is belied by the Revenue Record and it is not the case of the petitioner 'even. Ameer Hussain himself appeared as P.W.6 and has corroborated his own version saying that he purchased the plot in dispute in the name of the respondent to avoid the displeasure of his brother-in-law. In cross-examination he has admitted the business relationship between the respondent, her husband and other family members and also his old relations with them. He has also admitted that the plot is adjacent to the previous premises of the factory and that he has never applied to the Excise Department for transfer of the plot in his name and further that except Muhammad Aslam and Malik Muhammad Ashraf he had not told about the benami nature of the transaction in question.
8. As against the above evidence the respondent has produced Muhammad Aslam scribe of the sale-deed as D.W.1 who has stated that the respondent is real purchaser of the plot in question which was purchased by her from Mst. Hameeda Begum. He has categorically denied the suggestion that Exh.P1 was got written by Sh. Abdul Majeed and Ameer Hussain. Shaukat Ali D.W.2 has stated that the plot is purchased and owned by the respondent who has been visiting the same and that the same is situate at the distance of 1-1/2 miles from his shop. D.W.3 Arshad son of Sardar Ali Patwari Halqa has deposed that the Mutation No,823 regarding sale of the plot in question was sanctioned in the name of Mst. Nargis Khatoon. Jehangir Abbas D.W.4 husband of the respondent has corroborated the version of the respondent and has categorically stated that the plot was purchased by the respondent with her sources. Mst. Nargis Khatoon has appeared as D.W.5 and has corroborated her version to the effect that she purchased the plot in question with her own sources in her own name and that it is she who is the real owner of the plot and the plaintiff has nothing to 'do with the plot, therefore, he has no right or interest therein. As regards the possession of original sale-deed she states that it was taken by the plaintiff for the purposes of submission in the bank to obtain loan. She has further stated that she, her husband and her mother-in-law were the shareholders in the company. As regards the possession of the plot she has stated that the factory and the plot are separated by a boundary wall and the possession of the plot cannot be said to be exclusively that of the plaintiff for the reasons that keeping in view the situation whereof and business relationship between the parties, it was being used for some time by the Technico Company and such user being permissive and joint the plaintiff cannot claim exclusive possession thereof. As regards her absence at the time of registration of the sale-deed before the Sub-Registrar she has explained that she had come from Karachi with money which was paid to the plaintiff to get the sale-deed registered as the deal was being settled through him and there are close relations between the parties.
9. Learned Trial Court vide judgment and decree dated 5-6-1991 held that the plaintiff is the real owner and transaction of sale in the name of. Respondent was benami, hence, decreed the suit in favour of the petitioner: Aggrieved of this judgment and decree the respondent filed R.F.A. Which has been accepted by learned Additional District Judge, Lahore, vide judgment and' decree dated 16-3-1993 and the suit has been dismissed by the judgment of variance rendered by learned lower appellate Court, holding that it is the respondent who is real owner of the plot and that the sale was not the benami. This civil revision has been filed by the plaintiff before this Court, against the aforementioned judgment and decree of dismissal of his suit.
10. 'Mr. Abid Hassan Minto, Advocate, has appeared on behalf of the petitioner, whereas Mr. Alamgir, Advocate, has appeared on behalf of the respondent. As the impugned judgment is a judgment of variance, hence in spite of the fact that findings of fact have been challenged in this civil revision. I have perused the evidence with the help of the learned counsel for both the parties and have also perused and compared the judgments rendered by the learned two Courts below.
11. It is contended by the learned counsel for the petitioner that except the name of the respondent appearing in the sale-deed as a purchaser nothing else is established to prove that the plot in question was in fact purchased by the respondent, therefore, there being ample positive evidence of the fact that the plot in fact was purchased by the petitioner in the name of the respondent who is just a benamidar, the learned Trial Court has rightly decreed the suit; hence, the judgment of variance is illegal and is liable to be set aside. Elaborating his arguments learned counsel contends that the original sale-deed was with the petitioner who has produced in evidence; that possession of the plot in dispute is with the petitioner; that the sale amount including the earnest money had been actually paid by him, therefore, keeping in view the law declared in cases of Md. Abdul Majid and others v. Md. Jainul Abdin and others (PLD 1970 Dacca 414) and Sh. Muhammad Sharif Uppal v.
Sh. Akbar Hussain and others (PLD 1990 Lahore 229), it stands established that the transaction in question is benathi and that it is the petitioner who is the real owner, hence the impugned judgment is liable to be set aside.
12. Mr. Alamgir, Advocate, learned counsel for the respondent on the other hand has contended that in a civil revision findings of fact even of variance cannot be interfered with unless it is a case of misreading of evidence or omission to take into consideration material portions thereof which is not the position in the case in hand as held in case of Abdul Majid and others v. Khalil Ahmad (PLD 1955 FC 38); that the possession of the plot is with the respondent as it being a vacant plot the possession will follow the title, that even if it has been used for the purpose of M/s. Technico Company, the respondent being herself a shareholder in the said company it cannot be said that it is the plaintiff who is in exclusive possession of the same; that keeping in view the business relationship between the parties there is nothing unusual if the plot was mortgaged and the sale- deed was pledged in the bank to obtain loan which has been received by the plaintiff as Chief Executive of the company who. Did not subsequently return the sale-deed to the respondent due to estranged relations, hence it cannot be said that the original sale-deed had come from the exclusive custody of the petitioner entitling him to claim the above fact as a circumstance to prove that the sale is benami and that there is absolutely no reasonable explanation as to why the plaintiff should purchase the plot in the name of the respondent as even if the explanation tendered by him is accepted as correct although the same appears to be cock and bull story, there is absolutely no . Evidence to the effect that the plot was not purchased by the respondent with her own funds as she was not a poor woman as admittedly she had invested lacs of rupees in the Technico Company, therefore, no case for interference has been made out, hence the civil revision is liable to be dismissed.
13. I have considered the arguments addressed at the Bar, have gone through the record and compared the judgments rendered by the two learned Courts. Below. The disputed plot is admittedly shown to have been purchased in the name of the respondent vide registered sale deed Exh. P1. There is a presumption, though rebuttable, in her favour to the effect that she is real owner thereof. It stands established on record that the respondent is not a poor lady and has been a shareholder in Technico Company with the petitioner, investment ,wherein is in lacs. It is also admitted by the evidence produced by the plaintiff himself that the husband of the respondent has been sending money from Karachi through banks. There is no writing regarding payment of earnest money with the petitioner. The only evidence regarding payment of sale .Amount by him is the certificate of the Registrar before whom on behalf of the respondent, the petitioner appeared and made payment. This fact has sufficiently been explained by the respondent in evidence in terms that money was brought by her from Karachi and as there were very close relations between the two families the petitioner was asked to get the sale-deed executed and hence he signed sale- deed on her behalf and also made payment of balance sale price before the Sub-Registrar. This mode of execution of sale deed is not unusual in our society particularly when a sale-deed is to be executed in the name of a lady, as it is not necessary that the purchaser should appear before the Sub-Registrar. In many' a cases male member of the family or male friend of the family represent the lady purchasers who are not readily available. Therefore, merely because the petitioner appeared before the Sub-Registrar and acted on behalf of the respondent does not prove that he was the real purchaser or that he made the payment of sale price from his own funds.
14. As regards the possession of the plot, admittedly it is separately situate than the main premises of the factory which is built on a plot which is owned by the plaintiff. It is also admitted position that there is a boundary wall in-between the factory and plot. It being a vacant plot, therefore, the possession will follow the title and even otherwise even if it is admitted that a plot had been used by the company, the possession will be deemed to be permissible and joint and not exclusive.
Hence 'it cannot be said that it is the plaintiff who is in exclusive possession of the plot.
15. As regards the production of the original sale-deed by the petitioner, sufficient explanation has come on the record that the document was with the bank which was produced by the plaintiff being Chief Executive of the company to get loan, for the company wherein the respondent was also share-holder. She herself had executed the mortgage deed. If the sale-deed Exh.P1 produced in evidence by the petitioner had been returned by the Bank to the Chief Executive of the company who was a loanee when admittedly the mortgage deed has been ,executed by the respondent herself it cannot be said that it is alone a valid circumstance to hold that the original document was in the possession of the plaintiff in his own rights which may per se be sufficient to raise a presumption in favour of the benami nature of the transaction in question.
16. As regards reasons for getting sale-deed executed in the name of the respondent, it does not appeal to reasons as to why the petitioner should get sale-deed executed in the name of the respondent, merely because his brother-in-law wanted to borrow some money, which the petitioner did not like to advance. That is why even brother-in-law of the petitioner while appearing as P.W.2 has categorically stated that he does not know as to why he has refused to lend money and as to whether he had purchased the plot for factory. Hence, there being absolutely no reasonable explanation as to why sale-deed was got executed by the petitioner in the name of the respondent without getting any writing from her it cannot be said that the respondent is merely an ostensible, owner.
17. Another very important circumstance which goes against the contention of the petitioner, is that at the time of settlement of business dispute between the parties in the year 1987 the plot in question was not at all mentioned in the deed of settlement, although, the dispute in regard thereto, had started in the year 1984. Had the plot in question been really the property of the petitioner keeping in view its value, it is almost improbable that the petitioner would have agreed to settle the business dispute, without settlement of the dispute relatable to the disputed plot.
There is no cavil with the law declared in cases of Md. Abdul Majid and others and Sh. Muhammad Sharif Uppal (supra) but, each case is to be decided on the basis of evidence, which in this case has established beyond doubt that it is the respondent who is the real purchaser and claim of the plaintiff of being the real owner is not proved. Learned first appellate Court has the same conclusions following the above stated reasons and circumstances. Judgment of the learned Trial Court suffers from application of mind to the facts and circumstances of this case vis-a-vis the law declared on the subject, therefore, has rightly been set aside by the learned First Appellate Court by writing of a judgment of variance which definitely satisfies the test as laid down in case of Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302) and hence is unexceptionable.
No other point has been argued.
18. Resultantly, I see no force in this civil revision, the same, hence, is dismissed with costs throughout.