' This judgment shall decide C.Rs, Nos.1974 of 2002, 1975 of 2002 and 2217 of 2002 as these proceed against a consolidated judgment and decree passed by a learned Additional District Judge, Lahore. In the first instance, the petitioner Mst. Asia Bibi filed a suit against respondent No,1 and the other respondents in C.R. No,2217 of 2002 on 12-5-1993. According to this suit she had purchased land measuring 4 Marlas and 98 sq. Ft. Described in para.No,1 of the said plaint vide registered sale-deed dated 2-12-1991 from respondent No,1 for Rs,80,000 and she had raised construction in the form of four shops in the ground floor and residential portion in the first floor and that she is in possession of the same through her tenants. Respondent No,1 was her husband. According to her, relations between the spouses became strained as he was forcing her to transfer the property in his name. She was turned out by him after snatching the two daughters. A decree for permanent injunction was sought restraining the said respondents from interfering in ownership and possession of the petitioner over the said property. This was followed by a suit filed by respondent No,1 on 26-6-1993. It was stated in this suit that respondent No,1 is the wife of the petitioner and they were married in July, 1980. Three daughters were born, two were surviving and are with respondent No,
1. In the year 1985, he purchased land measuring 4 Marlas and 98 sq. Ft. Located in Fazal Park, Lahore from one Mian Masood Ahmad vide registered sale-deed dated 20-3-1985. The third suit in the line was filed by the respondent No,1 on 3-7-1993. In the plaint of this suit after repeating the said facts about the marriage and birth of children he stated that he purchased the land measuring 4 Marlas and 25 sq. Ft. From Haji Muhammad Sharif vide registered sale-deed dated 28-6-1989.
2. In both these cases it was urged that the petitioner was a Benami and respondent No,1 was the true beneficial owner having paid the consideration for entire property in both the cases. I may further note here that regarding the Fazal Park property it was further stated that vide registered sale-deed dated 2-12-1992 half share of respondent No,1 was also transferred by him in favour of the petitioner vide registered sale-deed, dated 2-12-1992 for a consideration of Rs,80,000. This transaction was also stated to be without consideration and Benami only to please the petitioner, his wife. I may further note here that in both these plaints it was stated that six months after the marriage, respondent No,1 took the petitioner alongwith him to Saudi Arabia and thereafter they have been visiting Pakistan off and on. The petitioner resisted the suits with the contention that not only she had paid her share but partially the price of the share of respondent No,1 as he was doing nothing in Saudi Arabia and she was an earning hand. She also pleaded that she had purchased the half share of the Fazal Park property from respondent No,1 for a consideration paid before the Sub-Registrar. All the three suits were consolidated vide order, dated 9-4-1995 and the following issues were framed:-- "(1) Whether the plaintiff Ghulam Murtaza has no cause of action in Suits Nos.109/1 and 110/1? OPD
(2) Whether the suits Nos.109/1, 110/1 are instituted as counterblast? OPD
(3) Whether the Suits Nos.109/1 and 110/1 are not instituted in the present form? OPD
(4) Whether the Suits Nos.109/1 and 110/1 have been instituted mala fide? OPD
(5) Whether the suit properties in Suits Nos.109/1 and 110/1 are purchased by the plaintiff Ghulam Murtaza and the name of the defendant Mst. Asia Bibi is inserted in the capacity of Benamidar?
OPP (5-A) Whether the defendant Mst. Asia Bitri is exclusive owner of the disputed property? OPD
(6) Whether the plaintiff is entitled for relief in Suits Nos.109/1 and 110/1? OPP
(7) Whether Asia Bibi has no cause of action in Suit No,142/1? OPP
(8) Whether the Suit No,142/1 is mala fide? OPP
(9) Whether the defendant Asia Bibi being plaintiff in Suit No,142/1 is entitled for relief in that suit?
OPD
(10) Relief."
' The proceedings were conducted in the suits filed by respondent No, 1 . Evidence of the parties was recorded. Vide judgment and decree, dated 22-5-2001 the learned trial Court decreed both the suits filed by respondent No,1 and dismissed the suit filed by the petitioner. The first appeals filed by the petitioner were heard by learned Additional District Judge, Lahore who dismissed the same on 3-8-2002.
3. Mian Israr-ul-Haq, Advocate, learned counsel for the petitioner in all these cases contends that both the learned lower Courts after correctly laying down the criteria for determination of a Benami transaction proceeded to decide the matter under the assumption that it is to be presumed that the price had-actually been paid by respondent No, 1 .
' According to learned counsel there is no evidence on record that the . Consideration was paid by respondent No,1. The precise contention is that respondent No,1 failed to discharge the initial onus placed upon him. Further contends that the established fact that the petitioner is in possession of the property has been simply brushed aside by both the learned Courts below. Similarly, the reasons stated for the original documents being in possession of the respondent No,1 have been ignored. According to the learned counsel, in the first instance, the petitioner had proved her source of income and in the second any weakness in her case was not to benefit the respondent No, 1 . Ch. Manzoor Elahi, Advocate, learned counsel for the respondent No,1 objects that the concurrent findings recorded by both learned Courts below cannot be interfered with in a revision.
According to the learned counsel it stands proved on the record that consideration amount was paid by respondent No,1 who was the earning hand because admittedly, he was in Saudi Arabia and it is to be assumed that he was working for gain there whereas there is no evidence that the petitioner was so working in Saudi Arabia. Learned counsel insists that all the ingredients of a Benami transaction stand established, in this case.
4. I have gone through the trial Court records which have been requisitioned, with the assistance of the learned counsel for the parties. I have also examined the impugned judgments with the assistance of the learned counsel for the parties. I may state here that the judgment of the learned Additional District Judge dated 3-8-2002 is almost verbatim copy of the judgment of the learned trial Court passed on 22-5-2001. Both the learned Judges have reproduced the criteria for determining the Benami nature of transaction. Thereafter it has been observed in both the judgments that admittedly respondent No,1 had been working in Saudi Arabia. With these observations, they had started discussing the evidence pertaining to the source of income of the petitioner and they concluded that she had not proved any source of income. In the process they have further assumed that the consideration, in fact, has been paid by respondent No,1 to the vendors. Thereafter they have referred to the production of the original documents by respondent No,
1. The question of possession had been bypassed and they have ultimately concluded that respondent No,1 is the beneficial owner of the said property.
5. Before I proceed further I may quote here the observations of Honourable Mr. Justice Ajmal Mian (as the Honourable .Chief Justice then was) in the case of Muhammad Sajjad Hussain v.
Muhammad Anwar Hussain 1991 SCM R 703. His Lordship recapitulated some case-law and observed as follows:-- ' "Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia the 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;
(iii) who is in possession of the suit property; and
(iv) motive for the Benami transaction.
(7) It is also 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. However, it may also be stated that 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."
' I intend 'to examine the records in the light of the said dictum of the Honourable Supreme Court of Pakistan.
6. Now regarding the Tajpura property purchased from Haji Muhammad Sharif vide registered sale-deed dated 28-6-1989 (Exh.P.W.7/2). The said vendor Muhammad Sharif appeared as P.W.1.
He stated that he knows respondent No,1 but does not know the petitioner. In 1989 respondent No, I purchased the house from him and this was through a dealer namely Muhammad Sharif.
Respondent No,1 had paid the earnest money and stated that he will send the remaining amount from abroad. The remaining amount was paid by respondent No,1 through Muhammad Siddique and Muhammad Sharif. In his very examination-in-chief this witness stated that he does not know as to wherefrom the amount came. He, however, got the sale-deed registered in favour of two persons and the names were provided to him by the dealer. Now in his cross-examination, he states that he does not know as to what does the respondent No,1 do. He does not remember the date on which the earnest money was paid. However, this was 2/3 months before the sale.
According to him a document was executed by him in favour of respondent No, 1 . Ultimately he does not remember as to what was the amount he took as earnest money. According to him the sale was effected for Rs,1,00,000 but the registration was effected at Government rates. Regarding Muhammad Siddique he stated that he cannot identify him. Then he stated that he was told by Muhammad Siddique and Muhammad Sharif that the amount has been sent by respondent No, 1.
He expressed ignorance that the parties had jointly purchased the land and had jointly paid for it.
He did not know that the petitioner was also working in Saudi Arabia.
7. Now the said Muhammad Siddique was not produced. However, the said Muhammad Sharif dealer was produced as P.W.2. He has stated that he knows respondent No,1 since 20 years as he is his old neighbour. 'According to him father-in-law of respondent No,1 was a poor person who used to sell vegetables. The said property was purchased by respondent No,
1. First an agreement was written then respondent No,1 went abroad. Thereafter he sent money through Muhammad Siddique and the sale-deed was registered. Now a copy of the said agreement Mark "C" was put to this witness and he admitted that he signed this document and he did so upon the asking of Muhammad Siddique. He did not remember as to what was the amount of consideration. He did not know as to what was the earnest money. According to him, the agreement was written in favour of respondent No, 1 . He did not know as to who are the tenants and what is the rate of rent.
Ultimately, this is how he responded to the crucial questions:- {{URDU TEXT}} ' Now the original of said agreement with which the said Muhammad Sharif P.W.2 was confronted is Exh.D.6/5 and according to this document the said Tajpura property was agreed to be sold to Mst.
Asia Bibi petitioner for a consideration of Rs,5,85,000 and a sum of Rs,1,50,000 was received as earnest money. It will thus, be seen that the learned Courts below have failed to read the complete statements of the said witnesses. To my mind, none of these two witnesses had denied that the price was not paid by the petitioner. These statements were to be considered in the light of the fact admitted in both the plaints of respondent No,1 himself that the petitioner had accompanied him to Saudi Arabia and remained there with him. I further get the impression that seeing response of these two witnesses to the cross-examination on behalf of the petitioner, no effort was made to prove the matter of payment of consideration regarding the Wassanpura property. Now the respondent No,1 appeared as P.W.7. He has made a statement in line with the contents of his plaints. I may note in the very beginning that in the entire examination-in-chief, there is not a word as to what the respondent No,1 was doing in Saudi Arabia. It has also come in the very examination-in-chief that the Tajpura property is in possession of the petitioner and she is receiving the rent forcibly. In his cross-examination, he stated that she has four brothers and a sister. He has read upto 9th class. He did not know as to what his other brothers do.
' He went to Saudi Arabia in the year, 1977. In Pakistan he used to help his father in cultivating the lands. He was employed as a Tea Boy and was paid 900 Riyals. He had not sent any money to his parents during June, 1977 to June, 1980. At the time of his marriage he had Rs,50,000 with him. He did not remember as to how much money he has saved during this period. He could not tell his exact income during the said period. He admitted that in the Family Court suit he has stated that his monthly expenses are 800 Riyals. He called the petitioner to Saudi Arabia four months after the marriage. He purchased two houses and a plot. The plot was purchased in the year, 1986 in Gulshan-e-Ravi, Lahore. Regarding the Wassanpura property, he stated that he entered into an agreement for its sale with'the vendor in the year, 1985 and then introduced the petitioner to the said vendor and left.' According to him, the consideration was Rs,55,500 and this amount was sent by him in the account of the petitioner. Regarding the Tajpura property that he purchased it in 1989 but now according to him he purchased this property for a consideration of Rs,1,00,000. The earnest money was also Rs,1,00,000 and the entire amount was paid at the time of the payment of the earnest money. In all probability he is referring to the agreement with Muhammad Sharif P.W.1.
According to him the agreement was not written in his presence and he has not read the same. He denied that he wanted to sell his share in the Wassanpura property and the petitioner purchased the same after paying him Rs,80,000 whereupon he executed the document Exh.P.W.7/16 in her favour.
8. I have examined the statements of accounts Exh.P.W.5/1 produced by P.W.5 and Exh.P.W.6/1 produced by P.W.6. No corresponding entry with reference to the timeframe of the said registered documents exist in the said account. Exh.P.W.5/1 is the account of mother of the petitioner while Exh.P.W.6/1 is the account of the petitioner. Now the evidence produced by the petitioner in the form of statements of D.W. I Tanvir Ahmad, D.W.2 Muhammad Tahseen and Zahid Saleem Malik D.W.3 has been discarded by both the learned Courts below on the ground that none of these witnesses visited Saudi Arabia. However, while so discarding the said testimony the learned Courts below very conveniently remained oblivious of the fact that there is no evidence on the side of respondent No,1 as well except his bare statement as to what he was doing in Saudi Arabia. I have already reproduced above, some portions of his statement and he has not been able to state as to how, in what manner and more important at what point of time he sent any money to Pakistan which was utilized for payment of the consideration amount. Like respondent No,1 the petitioner has also stated as D.W.6 that she had remained in Saudi Arabia for one year, then for two years and then for three years. She had been undertaking stitching work and earning and saving some money. There is nothing in her cross-examination to belie the said statement.
9. As to the possession of the original documents, she had stated that the same were stolen by her husband and his brothers and a case was got registered under the orders of this Court. She also stated in detail her possession of the property through tenants, Court decisions whereby she had been ejecting the tenants were also produced.
10. Having examined the said evidence in the light of the said dictum of the Honourable Supreme Court, I find that in this case only one element stands proved i.e, the original documents have come from the possession of respondent No,
1. There is no proof that he paid the entire consideration for both the properties. The half share in the Wassanpura property was sold by respondent No,1 to the petitioner for Rs,80,000 vide registered sale-deed Exh.P.W.7/16. The entire amount was paid in presence of Sub-Registrar and this is so recorded in his endorsement.
Respondent No,1 had not denied his signatures at the relevant places on the said documents. The possession through tenants is with respondent No, 1 No motive has been proved. Now according to their Lordships of the Apex Court initial burden of proof is on the respondent No,1 who had alleged that the petitioner is Benamidar. It has further been observed by their Lordships that any weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof.
To my mind, even there is no weakness on any count in the case of the petitioner. Both the parties are at par. Both of them had been living in Saudi Arabia and both of them stated that they have been working there for gain.
11. For what has been discussed above, I do agree with the learned counsel for the petitioner that both the learned Courts below have failed to read the evidence on record while applying the criteria noted above to determine the nature of the transaction in question. All the three C.Rs, are allowed. The impugned judgments and decrees passed by the learned Courts below are set aside.
Consequently, the two suits filed by respondent No,1 against the petitioner are dismissed while the suit filed by the petitioner against respondent No,1 is decreed. No order as to costs.
12. The trial Court record be remitted back immediately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.