A suit for declaration with consequential relief filed by Muhammad Anwar, respondent, that he was owner of the suit property, was contested by the petitioner/defendants and was decreed by the trial Court vide judgment, dated 9-1-1995. Appeal preferred there against was dismissed by the learned Additional District Judge, Sheikhupura on 28-4-1998. This is revision petition against the same.
2. It is contended by the learned counsel that Sakina Bibi, the erstwhile were of Muhammad Anwar, respondent, was the owner of the suit property vide sale-deed, dated 23-8-1980 (Exh.P-1) which was purchased by her and that the Courts below have acted illegally in granting decree to the respondent/plaintiff. It is contended that the two Courts below have misread the evidence on the record in particular the statement of Muhammad Amin, P. W .1, who had acted as attorney for the vendor. According to the learned counsel, the judgments rendered by the Courts below stand vitiated being contrary to the evidence and the law. The learned counsel for the respondents supports the judgments of the Courts below and contends that the respondents/plaintiff was the real owner of the property who had paid consideration on behalf of Sakina Bibi. According to him, Sakina Bibi (the then were of the respondent/plaintiff) was an illiterate, house were having no resources and the transaction was Benami. It is contended that the findings recorded and the conclusions drawn by the Courts below are fully borne out from the evidence on the record. Relies upon Salman Ashraf v. Begum Asmatun Nisa (1997 CLC 176).
3. Concurrent findings recorded by the Courts below particularly on questions of fact are ordinarily considered as final and binding, and re-appreciation of the evidence is not undertaken by this Court in revisional jurisdiction, however, the learned counsel for the parties have gone through the pleadings and the evidence produced by the parties in the case to support their respective pleas and contentions. Issues Nos.3, 4 and 5 in the context of the controversy are of importance and were decided in favour of the respondent/plaintiff by the trial Court as also the Appellate Court. In a cage of this nature where the dispute is as to whether a transaction is a Benami or not, following factors are to be taken into consideration:---
(i) Source of consideration;
(ii) From whose custody the original title deed and other documents came in evidence; (i.e) Who is in possession of the suit property; and
(iv) Motive for the Benami transaction.
1991 SCMR 703) it was considered as "a well-settled law that the initial burden of proof is on the party who alleges that an ostensible owner is a benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed." Keeping the above criteria and factors in view it may be observed that though prima facie the sale consideration passed on to the vendor through Sakina Bibi, who was then the were of Muhammad Anwar, respondent, yet the source of consideration was Muhammad Anwar, respondent. Such an assertion of Muhammad Anwar finds support from the testimony of Muhammad Ameen P.W.1, who had acted as attorney for the vendor and had stated clearly that the bargain was struck with Muhammad Anwar, respondent, who had paid the money, but the sale-deed was executed in the name of his were Sakina Bibi. Jafar Hussain, P.W.2, is attesting witness of the sale-deed (Exh.P-1) who also supports the assertion of respondent/plaintiff.
To the same effect are the depositions of the other witness. In his statement as P.W.5, Muhammad Anwar makes mention of the fact, that he had purchased the suit property in the name of his were because he was a Government servant. In her statement as D.W.5, Sakina Bibi who had by then left Muhammad Anwar, respondent/plaintiff and married Abdul Ghafoor, petitioner No.2, stated that she had paid the consideration money for the suit property which she had been saving and had sold a buffaloe. It was however, admitted by her that she was illiterate house-were. It was also admitted that her relations with her husband Muhammad Anwar had been strained and she had no resources. The depositions of the witnesses were considered by the trial Court and quite carefully over again by the learned Additional District Judge who then recorded a finding that the respondent/plaintiff was in possession of the suit property which was built by him and that the original sale-decd (Exh.P-1) was also in possession of the respondent/plaintiff who produced the same in Court. It was on consideration of the evidence in its totality that a finding was recorded about Benami nature of the transaction. The respondent/plaintiff had by producing convincing evidence fulfilled the criteria and proved that he was the real owner ad Sakina Bibi was Benamidar.
There is no misreading or non-reading of any material piece of evidence which could render the findings of the Courts below unworthy or illegal. Such a declaration and decree granted by the Courts below in favour of the respondent/plaintiff hardly calls for interference by this Court.
As a result of the above, the petition s is dismissed. No order as to costs.