The petitioner/defendant is the son of respondent/plaintiff. The latter filed a suit for declaration that he was the real owner and that the petitioner was holding the disputed property as Benamidar. A prayer for issuance of permanent injunction was made to restrain the petitioner to alienate or interfere in the possession of the respondent.
2. The suit was decreed in favour of the respondent by Mian Ghulam Hussain, the learned Civil Judge, Lahore vide his judgment dated 26-2-1994. An appeal was filed, which was also dismissed on 14-9-1995 by Mr. Muhammad Aslam Zia, the learned Additional District Judge, Lahore.
3. The present Revision is filed on the grounds that the learned lower Courts made the decisions contrary to law and based their finding on misreading and non-reading of evidence that the respondent failed to produce adequate evidence to- show that transaction in dispute was Benami and that he was, the actual owner of the property in question.
4. It was contended that to prove the ownership the respondent should have given evidence that-
(i) he had sufficient financial means to purchase the land in dispute and raise construction thereon and that he actually spent the amount from his own pocket;
(ii) he was persistently urging his ownership by constantly giving out that the petitioner was holding the property in question as a Benamidar;
(iii) he had actual and physical control over the proper in question to the exclusion of rest of the world;
(iv) the original title deed was in his possession;
(v) the respondent showed in that the land was purchased for Rs.25,000 although Rs.18,000 were actually paid as consideration. This allegedly showed that in fact the respondent was not the real purchaser; and
(vi) that the property was not properly described which also showed that the respondent was not the actual owner as claimed by him.
5. According to the learned counsel for the petitioner the aforesaid points were not considered and as such the decision of the lower Courts were riot only misconceived but perpetuated in justice.
The respondent allegedly remained silent to advance his title over the disputed property for a long period of 13 years, which showed that in fact he had given the property voluntarily to the petitioner out of love and affection being his son. In this regard, it was urged that alienation in dispute under the situation would look to be a gift rather than a Benami transaction.
6. The learned counsel for the petitioner, however, did not seriously contest the other issues.
7. The learned counsel for the respondent contended that concurrent findings of the Courts below cannot be lightly interfered on the questions of fact and law. The revisional jurisdiction can only be invoked if there is some jurisdictional error while deciding the matter in issue. It was alleged that in the instant case, there was no such error so as to call for interference on the extraordinary revisional jurisdiction.
8. Lastly it was contended that Benami transaction was proved through the evidence on record, which has been minutely discussed by the learned Courts below. There was no misreading, non- reading or mis-interpretation of the evidence produced by the parties. On the contrary it will appear that the property in dispute was in fact purchased by the respondent in the name of his minor son i.e. The petitioner for his own benefit. It was accordingly urged that the revision petition was meritless.
9. I have considered the arguments addressed at the Bar. First of all, it should be borne in mind that jurisdiction under section 115, C.P.C. Is discretionary in nature. The Revisional Court will not normally interfere where substantial justice has been done between the parties, or where the petitioner has taken shelter behind technicalities or has not come with clean hands. However, the cases involving an illegal assumption, non-exercise or irregular exercise of jurisdiction may call for interference to secure the ends of justice. Thus, it cannot be invoked against the concurrent findings of law or fact which do not in any way affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law unless the decision involves a question of jurisdiction. Reference in this regard may usefully be made to:-- (1)Kanwal Nain and 3 others v. Fateh Khan and others reported as PLD1983 Supreme Court 53;
(2) Abdul Hameed v. Ghulam Muhammad etc reported as 1987 SCMR.105 (Appellate Jurisdiction);
(3) Mst. Nabeela Parveen v. Roshan Din and another reported as 1989 M LD 1101 (Lahore).
10. The present case is to be examined in the light of the rule laid down in the above authorities.
First of all, it is to be seen, if the transaction in dispute was Benami or it constituted some other form of alienation such as gift etc. It is an admitted fact that the respondent is the father of the petitioner. The transaction took place when the petitioner was a minor and only a school going chap. It is also in evidence, which has been adequately discussed by the learned lower Courts that the respondent had been to a foreign country and on his repatriation had brought some gold with him. It, therefore, cannot be successfully urged that the respondent had no financial means to support the transaction. It is true that other sons of the respondent were also living abroad and they had sent money to purchase rest of the three portions of the property which was held by them in their names. The father i.e. The respondent might have considered that his earning sons had constructed houses but his minor son had no such property. It must have influenced---the mind of respondent to purchase the property for his minor son to bring him at par with the rest of his earning sons. The mere fact that he did not sign the sale-deed or that the same was not in his custody---Would not make any difference under the existing situation and on account of the close relationship between .The two sides. The respondent i.e. Father might have entrusted the sale-deed to his son for safe custody under implicit faith and confidence. The fact, however, remains that the respondent is still living and in Occupation of the property in question. This shows that he never parted with the possession nor it was voluntarily delivered to the petitioner, who was also living in the same house with his father i.e. The respondent. In such a situation, it cannot be delivered that in fact it was gift transaction because the essentials of gift such as proposal or acceptance followed by delivery of possession have never been proved nor can be inferred from the evidence on record.
On the contrary, the evidence examined at the trial clearly shows that the petitioner had no financial means to enter into any sale transaction particularly when he had no capacity to do so as a minor. The signature of Muhammad Siddique i.e. His brother on the sale-deed would not imply that he had purchased the property in question for the minor by supplying funds. He has not been examined to that effect to show that in fact he was the real purchaser and not the respondent. The description of the house and property is adequately' given in the plan and the objection that the property was not properly described is of no substance. There is one thing very important, which gives a clear cut clue that the petitioner admittedly sought permission of the respondent to sell the house whereupon this dispute had arisen between the son and the father. Had the respondent been not a true owner of the property in question, the petitioner would have never sought or solicited permission from him for selling the same. The mere fact that he insisted for permission to sell the property would show that the title of the property rested with the respondent otherwise the petitioner would have not asked for such permission. The dispute had only arisen after such permission was not granted by the respondent, which led to this unfortunate protracted litigation between the parties. The evidence has been correctly discussed by tote teamed Courts below and the contradiction occurring in the evidence of the petitioner have been pointed out to shatter his case regarding supply of funds for the purchase of property from some other quarter than from g the respondent. There is no misreading or non-reading of evidence nor it is case of misapplication of jurisdiction vested in the Courts below. There being no latent or patent defect in the impugned judgment of the Court below, the Revision petition has no force and the same is dismissed with cots throughout.