' Nobody has entered appearance on behalf of the petitioner despite that the name of learned counsel has appeared in the cause list for today. The civil revision cannot be dismissed for non- prosecution in A view of the case reported as Muhammad Siddique v. Mst. Bashiran and 9 others PLD 2000 SC 820 as the same was admitted for regular hearing vide order, dated 30-10-1997.
2.. The parties were husband and wife. Their marriage was dissolved through the decree of the Court in the year 1987. The dispute relates to a plot measuring 5 Marlas .Which was allegedly purchased by Mst. Khalida Shahzadi-respondent herein, for a consideration of Rs,4,000, vide sale- deed, dated 17-8-1974. The house was constructed in the year 1978-79 which was rented out to one Ghulam Nabi Butt. Mst. Khalida Shahzadi-respondent field a suit for possession on the basis of title against Muhammad Rafique claiming that he has forcibly dispossessed her tenant and that she is the lawful owner of the house in dispute. It was further asserted in the plaint that petitioner Alhaaj Muhammad Rafique has no concern whatsoever with the house. She prayed that a decree be awarded in her favour for possession of the suit house.
3. Petitioner-defendant Alhaaj Muhammad Rafique resisted the suit by filing the written statement.
He asserted that in fact he is the real owner of the property in dispute and that he purchased the suit plot in the name of Mst. Khalida Shahzadi as they were husband and wife and had cordial relations with each other at the time of purchase of the plot. Further it was asserted that construction of the house was made by him with his own sources as he earned the money while he was working in Saudi Arabia. It was his case that he had been sending money from Saudi Arabia for construction of the house.
4. From the divergent pleading of the parties the learned Civil Judge proceeded to frame the following issues:--
(1) Whether instant suit is hit by section 10 of C.P.C.? OPD
(2) Whether suit has not been properly valued for the purposes of Court-fee and jurisdiction, if so, what is the correct valuation and its effect?
(3) Whether plaintiff has no locus standi ?
(4) Whether sale of the suit house in favour of the plaintiff was a Benami transaction and payment was made by the plaintiff ?
(5) Whether the plaintiff is entitled for the suit house?
(6) Relief.
5. The parties led evidence. The learned Civil Judge decided Issues Nos.1 and 2 against Al-haaj Muhammad Rafique petitioner-defendant holding that the suit is not liable to be stayed under section 10, C.P.C. Valuation of the suit for the purpose of court-fee and jurisdiction has been correctly assessed. Issues Nos. 3 to 5 were decided against the respondent Mst. Khalida Shahzadi and it was held that the property in dispute was owned by Alhaaj Muhammad Rafique petitioner.
He purchased the same in the name of Mst. Khalida Shahzadi, who has no concern with the house in dispute, as the transaction was Benami in her name and therefore, she is the ostensible owner as Benami and Al-Haaj Muhammad Rafique, was declared as real owner of the suit property. The learned Civil Judge proceeded to dismiss the suit of 'Mst. Khalida Shahzadi vide his judgment and decree, dated 18-1-1996.
6. The appeal filed by Mst. Khalida Shahzadi against the judgment and decree, dated 18-1-1996 was accepted by the learned Additional District Judge, Lahore by reversing the finding on Issues Nos. 3 to 5. After discussing the evidence of D.W.1 Muhammad Ibrahim, D.W.2 Abdul Karim and the statement of Alhaaj Muhammad Rafique petitioner the learned Additional District Judge concluded that: "From the above discussion, it is established that the respondent badly failed to prove that the plot was purchased by him in the name of appellant."
' He also took note of the dismissal of the earlier suit filed by Alhaaj Muhammad Rafique.
Consequently, the learned. Additional District Judge held that Mst. Khalida Shahzadi has got a good title to the suit property and Muhammad Rafique petitioner has got no right whatsoever to remain in possession of the same. The judgment and decree of the learned Additional District Judge, dated 2-10-1997 has been impugned by Alhaaj Muhammad Rafique through this revision petition.
7. The grounds to set aside the judgment of the learned First Appellate Court are that the evidence on record has been misread and that Issues Nos. 3 and 5 are not correctly decided. Further, it has been stated that the learned Additional District Judge, was wrongly influenced with the fact of filing the earlier suit by the petitioner.
8. On the other side the learned counsel for the respondent contends that Mst. Khalida Shahzadi has purchased the plot through the sale deed, dated 17-8-1974 in consideration of Rs,4,000 and the mutation of which was also sanctioned in her name vide Mutation No,272. Dated 15-6-1988.
Subsequently the respondent has constructed a house in the year 1978-79 consisting of two rooms Warandah, kitchen and a bathroom. She contended that arbitrarily, incorrect and illegal conclusion not supported by the record was drawn by the learned Civil Judge and that evidence as well as' the law on the point, has been appreciated by the learned First Appellate Court in proper prospect and correct legal conclusion has been wrong. According to the learned counsel the petitioner has failed to establish the essential condition to prove the Benami transaction.
9. Admittedly, the plot measuring 5 Marlas situated in Mauza Sanda Kalan, Lahore, was purchased in the name of Mst. Khalida Shahzadi in consideration of Rs,4,000 vide sale deed, dated 17-8-1974 and the mutation of which was also sanctioned in her name on 15-6-1988.
10. Subsequently the house was constructed on it which was rented out to tenant Ghulam Nabi Butt. Whether the transaction of sale dated 17-8-1974 and the house constructed on it on the land purchased was Benami in the name of the respondent Mst. Khalida Shahzadi or not is a question which has been decided by the two Courts below by recording divergent findings. The learned Civil Judge held that transaction was a Benami in the name of Mst. Khalida Shahzadi, whereas, the learned Additional District Judge observed that she was the real owner of the house in dispute.
Since, both the Courts below have recorded divergent finding of fact on the question of Benami transaction on the basis of the evidence on record, therefore, seeking guidance from the case reported as Mst. Kaniz Fatima through legal heirs v. Muhammad Salim 2001 SCM R 1493, wherein it, has been held that the Revisional Court can appreciate the evidence when the two Courts have recorded the divergent finding in disputed question of fact. I have gone through the evidence. But before I discussed the evidence on the file on the question of Benami transaction it is important to observe that it is settled principle of law that whosoever asserts the Benami nature of the sale has to prove the same and while considering the question of following factors are to be taken into consideration:---
(i) Source of consideration.
(ii) From whose custody the original title deed or other document came in evidence.
(iii) Who is in possession of the suit property and
(iv) Motive in the Benami transaction.
11. The question whether a transaction is a Benami in character or not has to be decided keeping in view a number of factors/consideration which have been re-established through a number of judicial pronouncements. At first, I would refer the case of Yeleswarapu Ganjamma (1925 Mad.
980), in which while discussing on the nature of Benami transaction it was held that the source of purchase money is only one criterion though an important criterion; similarly, the custody of documents is also not conclusive criterion. In case of Ramdhan AIR 1926 Nag. 109, it was observed that onus of proof is on party raising plea of Benami, strong evidence is necessary. Source of purchase money and other circumstances must also be considered besides oral evidence. In the case of Mst. Zohra Begum and 6 others v. Muhammad Ismaeel 1995 CLC 242, it was held that 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 test uniformally applicable in all situations can be laid down.
However, in the light of the rules laid down in the case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703, Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437 and Muhammad Ramzan v. Sheikh Abdul Hameed 2002 CLC 1209, the Court highlighted four considerations for deciding the question of Benami character of a transaction. These considerations are as follows:---
(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 circumstance, prima facie, 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.
11-A. From the above-quoted judgments and precedents it can be gathered that the following factors/considerations are relevant tor deciding the Benjamin character of a transaction:--
(i) The source of consideration and its payment.
(ii) Motive for Benjamin transaction.
(iii) Real intention of the parties.
(iv) Possession and production of original title deeds.
(v) Possession and use of property in dispute.
(vi) Subsequent conduct of the parties including any act done in exercise of right of ownership.
12. On the touchstone of the above case law and the factors/considerations which are relevant now I will proceed to examine and discuss the evidence for determining the nature and character of the transaction in question.
(i) The source of consideration and its payment ' Muhammad Ibrahim appeared as D.W.1. He has stated that he is not marginal witness of the sale deed. The consideration was paid as Rs,4,000 and this witness has stated the price of the plot as Rs,3,000. He was unaware about the income of Al-Haaj Muhammad Rafique and the learned Additional District Judge discarded his statement. The next witness is Abdul Karim D.W.2. According to him the sale-deed was completed in the year 1977, whereas, the sale-deed is dated 17-8-1974.
The sale price has been wrongly shown by this witness as Rs,40,000. This witness was also not present at the time of payment of sale price and the registration of the sale-deed. Respondent was also failed to prove the source of money through which the disputed plot was purchased. He stated that he went out of Pakistan at the end of 1974, meaning thereby he proceeded for Saudi Arabia in the month of November/December, 1974, whereas, the disputed plot was purchased in the name of the respondent-Mst. Khalida Sahhzadi vide sale-deed, dated 17-8-1974. He has stated that the price was paid at the time of registration of the sale-deed in the presence of one Malik Usman who was a Property Dealer. It is important to mention here that Malik Usman has not been produced as E a witness. No doubt the respondent also could not prove the source of purchasing the plot, the (sic) as stated above, in a Benami transaction the source of consideration and its payment to the vendor is always on the F person, who alleges Benami character of the transaction, which the petitioner has failed to prove in this case. In cross-examination it was suggested to the respondent Mst. Khalida Shahzadi by the learned counsel of the petitioner that Dollars were sent to her by the respondent from Saudi Arabia and that the amount for purchase of the plot was sent through draft from the Saudi Arabia. It is not understandable that how the Dollars were sent from Saudi Arabia when the petitioner went Saudi Arabia on the end of the year 1974 and the currency of Saudi G Arabia was Riyal and was not the Dollar and not a single receipt or draft has been produced in the evidence to show that the amount was sent through draft.
(iii) Motive for Benami transaction ' The person's motive for doing something is the basis to show as to why he has committed an act.
It has been held in the case of Muhammad Zaman v. Abdul Hameed (2002 CLC 1209) by his Lordship Mr. Justice Mian Nazir Akhtar as my Lord then was, "Act done without motive is done without any reason. Subtle difference exists in move and intention. If a person picks up a glass and drinks water, his motive is to quench thrust and intention to pick up a glass and drink water. If a person hits somebody with a weapon his intention may be to cause hurt to him although his motive may be to take revenge or create terrorism or merely to demonstrate his chivalry---. His Lordship further observed that in some cases motive and intention may coincide but generally both are distinguishable. In matters where law requires a party to prove its motive for doing an act, failure to establish motive defeats the claim made by such party". Dispute regarding Benami transaction, motive for alienation in favour of Benamidar must be proved by the person claiming to be the real owner. In the present case there was no legal hurdle in the way of Muhammad Rafique to get the sale-deed registered in his name. No reason whatsoever has been asserted by Muhammad Rafique for getting the sale-deed registered in the name of Mst. Khalida Shahzadi.
(iii) Real intention of the parties ' I have already observed that the petitioner Muhammad Rafique could not prove the source of investment. Had the respondent invested the amount in the year 1974, either he would have not obtained sale-deed in favour of the respondent Mst. Khalida Shahzadi, or he would have not waited to claim the ownership till the marriage is dissolved by the Family Court and he would have not withdrawn the suit for declaration filed by him claiming that respondent Mst. Khalida Shahzadi as Benamidar and he is the real owner. It is in the evidence that the petitioner filed the suit for declaration which was subsequently dismissed. The property was rented out by the respondent.
Though the petitioner has denied the fact of renting out the property to Ghulam Nabi Butt and taking the possession from him but the truth came out of the mouth of Abdul Karim D.W.2, who stated that one of the tenant occupied suit property had left the same and he was known as Butt.
The petitioner remained contented with his employment in Saudi Arabia and did not take any step to square his alleged title. The house was constructed in his absence. No proof of sending the cheque, money or draft has been proved by the respondent. In this view of the matter, the conduct of the petitioner shows the state of mind that he admitted Mst. Khalida Shahzadi as the real title holder of the suit property.
(iv) Possession and production of original title deeds
(v) Possession and use of property in dispute ' The respondent Mst. Khalida Shahzadi while appearing as P.W.3 has produced the attested copy of the sale-deed. No objection was raised at the time of producing the copy of sale-deed. The electricity meter (Exh.P.4 to Exh. P.12), water charges bills Exh. P.13 to Exh.P.15 were in the name of the respondent. The original document has not been produced by the petitioner. The same would have been produced by him. The house remained in the possession of the tenant. Muhammad Hussain son of Chiragh Din in his testimony proved the fact which has been corroborated by D.W.2 Abdul Karim who stated that the property was in possession of the tenant in the absence of the petitioner Muhammad Rafique. It is, therefore, proved that the possession of the house was with respondent.
It has been stated by Mst. Khalida Shahzadi that the original sale-deed in possession of the petitioner which had taken from her for attestation of mutation. This part of the statement has not been cross-examined, therefore, I conclude that not only title document of the suit house was in possession of the respondent Mst. Khalida Shahzadi but she remained in possession of the house through her tenant. She has admitted that the petitioner has sent Rs,30,000, when the leg of her son was fractured. The petitioner returned from Saudi Arabia at the end of 1976 and thereafter went in the year 1980 and remained there till 1987. The relation between the parties remained cordially till 1987 and no suit was filed by the petitioner claiming the ownership. The matter did not end here, the petitioner filed the suit for declaration claiming the ownership of the house which was dismissed and the appeal (Exh.P.16) which was dismissed by the order of the learned Additional District Judge (Exh P.7).
12. From the foregoing discussion it is held that the respondent Mst. Khalida Shahzadi was not the Benamidar of the house in dispute but she was the real owner. The findings of the learned Civil Judge, on Issues Nos.1 and 2 were against the evidence and the law of Benami transaction. The learned Additional District Judge rightly reversed the findings on Issues Nos. 4 and 5 and accepted the appeal of the respondent. No illegality or irregularity has been committed by the learned Additional District Judge, in accepting civil revision. Resultantly this civil revision fails and is dismissed with costs.