Mst. ZOHRA BEGUM Versus MUHAMMAD ISMAIL

On 9‑5‑1979, Taj Din, deceased predecessor‑in‑interest of the petitioners (hereinafter to be referred to as the petitioner) filed a suit against the respondent. In the plaint it was stated that the suit‑land measuring 254 Kanals and 14 Marlas described in para. 1 of the plaint was confirmed against the verified claim of one Dittu son of Muhammad; that the said Dittu had appointed Ahmad Din son of Lashkar as leis general attorney vide document dated 5‑6‑1962, registered on 6‑6‑1962; that the entire consideration amount of Rs.3,000 was laid by the petitioner to Ahmad Din, general attorney in presence of respectables of Taragarh, Tehsil and District Kasur at the time he entered into the said agreement to sell and that Ahmad Din had promised that he would execute the sale‑deed within one month and get it registered in favour of the petitioner or his nominee: that the petitioner was an employee of District Board and it was doubtful as to whether as such an employee he can buy the land in his own name and as such by way of abundant caution he decided to acquire the suit‑land Benami in the name of some near trusted relative; that the respondent is his brother‑in‑law ( ﻑﻟﺯ ﻢﻫ ), he reposed confidence in him and as such the sale‑deed was got executed on 19‑11‑1962 in the name of the respondent; that the land was lying- barren and the petitioner spent money to develop the land. In the meanwhile consolidation took place and the land mentioned in para. 6 of the plaint was given in lieu of the land mentioned in para. 1 of the plaint; that he got electric connection and installed a tube-well at his own expense. However, the documents were in the name of the respondent; that one Bagh Ali was inducted as a tenant on a portion of the land while some of the land was cultivated by his son Zahoor Nasir and the same position continues. Thereafter, the petitioner states in the plaint that the relations between the parties became estranged as the respondent refused to give the land of his daughter in marriage to a son of the petitioner and has started claiming to be the real owner of the land. With these averments he sought a decree for declaration that the petitioner is the real and beneficial owner in possession of the land and that the respondent is only Benamidar. A permanent injunction was also sought restraining the respondent from interfering with the possession of the petitioner. In his written statement the respondent denied the said allegations. He asserted that he had purchased the land for Rs.3,000 paid to Dittu through his general attorney Ahmad Din; that he obtained the possession and got the electric connection, installed the tubewell; that for this purpose he obtained loan from the A.D. B.P. and pledged his personal property other than the suit‑land and afterwards got it redeemed; that litigation is going on in the matter of transfer of the said land which is evacuee property and that he had spent thousands of rupees on the said litigation. It was further stated that the petitioner is a Dispenser in the District Council and that his pay is only Rs.200 per month; that he has five children and always found it difficult to make the ends meet and in fact had been borrowing money from him; that proceedings under section 188, P.P.C. are pending against the tenants. Regarding Bagh Ali it was stated that he is the tenant of the respondent while possession of Zahoor Nasir the son of the petitioner was denied. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 6‑6‑1988. A first appeal filed by the petitioner was dismissed by the learned District Judge, Lahore on 18‑9‑1989. This civil revision was earlier dismissed on 3‑11 -1994. The petitioner filed C.A. No.258 of 1995 which was allowed by the Honourable Supreme Court of Pakistan on 24‑6‑1997 and the matter was remitted back for fresh decision with the following directions:‑‑

"We set aside the judgment passed by the learned Judge in chambers and remand the case to the High Court with the direction that the question, whether the judgment was announced by the trial Court without first writing it, should be dealt with and decided in accordance with law. Since we have refrained ourselves to express our opinion on the alleged misreading and non‑consideration of the evidence by the learned Judge in chambers, we also direct that the question of misreading or non- consideration of the material evidence raised by the appellants shall be re‑considered by the learned Judge in chambers while disposing of the revision petition in accordance with the law. "

2. Learned counsel for the petitioner contends that the learned trial Court had committed error which renders the judgment a nullity inasmuch as the judgment was pronounced before writing and signing the same. Also points out some proceedings that were taken by the Honourable Chief Justice of this Court on the application of the petitioners which do point to the fact that the judgment was announced before writing the same. Further contends that the evidence on record has been misread, particularly complains that evidence of P.W.4 and consequently the power of attorney Exh.P.W. have not been considered at all in the impugned judgments. Also contends that it had been proved on record that the price was paid by the petitioner and that he was the real owner of the land and was in possession thereof. According to the learned Counsel the impugned judgments and decrees suffer from material irregularities that have been committed by the learned Courts below in the exercise of their jurisdiction while passing the same. Learned Counsel for‑the respondent; on the other hand contends that it is not believable that the judgment was written by the learned trial Court in the manner alleged by the petitioner in the grounds of appeal before the learned first appellate Court or in the memo. of revision in this Court. Contends with reference to Bahadur Ali v. Syed Ghulam Sabir Gilani (1990 MLD 588) that contravention of Order XX, rules 1 to 3 C.P.C. does not render the judgment a nullity. Regarding the merits of the case argues that the evidence led by the petitioner not prove even a single criteria laid down by the superior judiciary of the country over the past decades in their several judgments. According to the learned Counsel it stands proved on record that the price was paid by the respondent, that he was in possession of the documents, that he improved the land and is in possession thereof. Thus, supports the impugned judgments and decrees.

3. I have gone through the records of the learned lower Courts which are available as also some records summoned from the office of this Court, with the assistance of the learned Counsel for the parties.

4. As to the said first contention of the learned counsel for the petitioner, I find that it has been reported by the office that there is no record of the proceedings or report of the officer deputed by the Honourable Chief Justice to conduct a raid pursuant to the application filed by the son of the petitioner. A copy of the report made by the District and Sessions Judge, Kasur on 28‑7‑1988 on the complaint filed by Mr. Zahoor Nasir, Advocate (one of the petitioners being L.R. of the deceased plaintiff) is available. According to this report the said complainant had alleged that the Senior Civil Judge (i.e. the trial Court) had heard the arguments on 6‑6‑1988 till 11‑00 a.m. Thereafter, he left the Court‑room on the pretext that he has to attend to a telephone call and remained out of the Court‑room upto 1‑45 p.m. and thereafter at 2‑00 p.m. he started recording evidence in another case in his retiring room and that it was at 3‑45 p.m. that he pronounced the judgment without dictating or writing it. It was further alleged that during this period i.e. from 11‑00 a.m. to 1‑45 p.m. the Senior Civil Judge received illegal gratification from the defendant in the suit in the sum of Rs.50,000. The Senior Civil Judge explained that on 6‑8‑1988 he received a telephonic call from the Clerk of the Court at 11‑00 a.m. to discuss the budget expenses and the balance of his office; that after the conclusion of the arguments he had come to the Court of the District Judge with Naib Nazir and records and remained there till 12‑00 noon. Then he went to his Court. His Stenographer had applied for short leave and then for casual leave for the two following days. This application was allowed and then he started writing the judgment which was completed a few minutes after 2‑00 p.m. and then he announced the same dismissing the suit. The Senior Civil Judge denied having any contact with the defendant or to have received the said money from him. The judgment was later got typed by the Stenographer on his return. On 9‑6‑1988 the file was summoned by the High Court and the judgment written in pencil was with the file.

5. The learned District Judge then recorded the statement of the complainant who proceeded to state that at about 12‑30 p.m. when he was standing outside the Court of the Senior Civil Judge, defendant Ismail came there and threatened that he will get the case decided against the said complainant even if he had to pay Rs.50,000 to the Senior Civil Judge. The complainant then stated that on 9‑6‑1988 he made a complaint before the Honourable Chief Justice when an official was deputed to collect the file but when the official came he did not find Senior Civil Judge in his Court room while the Ahmad reported that the Presiding Officer has the file. It was after half an hour that the Senior Civil Judge came to the retiring room and then proceeded to the bath room where he remained for 45 minutes. He came out and asked the Ahmad to bring the tile which was then handed over to the said Officer of the High Court.

6. Now the teamed District Judge has stated that he had called the Senior Civil Judge to his Court to discuss the said budget matter and there is then reference to the proceedings of that meeting. The District Judge also found that the complainant had made an improvement by adding that the defendant had told him that he has paid Rs.50,000 to the Senior Civil Judge. The District Judge then observed that the Senior Civil Judge had recorded the judgment with the pencil in his own hand which comprised 33 pages and it was impossible that such a judgment could be written in 45 minutes and that too while the Senior Civil Judge was in his bath room. The contention of the Senior Civil Judge regarding his Steno being on leave was also found correct. The allegations in the said complaint were found to be incorrect by the learned District Judge.

7. Apart from the said report I have gone through the relevant contents of the grounds of appeal as also of the memo. of civil revision. I find that the said relevant contents also have been reproduced in the remand judgment of the Honourable Supreme Court. Now whereas in para. 16 of the grounds of first appeal it has been stated:‑‑

"The learned trial Court heard the arguments of the learned Counsel of the parties on 6‑6‑1988 which started right from 8‑30 a.m. to 11‑00 a.m. and thereafter immediately announced the dismissal of the suit vide impugned judgment and decree."

8. In para.6 of the memo. of this civil revision it has been stated:‑‑

"The trial Court heard the arguments in the case on 6‑6‑1988 and announced that the judgment shall be pronounced later the same day. The learned trial Judge, in the latter part of the day, on 6‑6‑1988 announced the judgment without dictating and signing the same. "

Now I find that whereas the memo. of first appeal, apart from the learned Counsel is signed by all the appellants including the said Zahoor Nasir. The memo. of civil revision is also apart from the learned Counsel signed by the Special Attorney of the petitioner. The memo. of first appeal is‑ dated 21‑6‑1988 while the memo. of civil revision was filed in this Court on 21‑10‑1989. It will be noted that the two contentions are absolutely discrepant. Learned Counsel for the petitioner when confronted, is unable to explain the discrepancy despite consultation with the said Zahoor Nasir who is present in Court. Having thus examined the case I am not at all satisfied that the contention of the petitioner that the judgment was announced before writing it is correct.

9. Assuming that the judgment was in fact announced before writing and signing the sat Order XX, rule 1, C.P.C. provides that after hearing of the arguments of the parties the judgment shall be pronounced in open Court either at once or on some future day. However, a notice of the same shall be given to the parties or their Advocate of the said date which is not to exceed 30 days. Rule 3 of the said Order XX provides that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it. No consequence is provided in the said law for the contravention of the said provision, except that once signed the judgment shall not afterwards be altered or added to save as provided by section 152, C.P.C. or on review. Learned Counsel for the petitioner states that he had not been able to dig out any judgment in support of his contention that contravention of rule 3 renders the judgment a nullity. On the other hand, the said case of Bahadur Ali cited by the learned Counsel for the respondent fully supports his case that contravention of rule 3 of Order XX, C.P.C. does not render the judgment a nullity. On my part I have been able to lay my hands on a recent judgment of the Supreme Court of Pakistan in the case of Samiul‑Haq v. Dr. Maqbool Hussain Butt and others (2001 SCMR 1053). In the said case the contention raised was that the judgment was pronounced but was written after 11 months of the hearing and pronouncement of the judgment. Now their. Lordships were interpreting rule 31 of Order XLI, C.P.C. which are in pari materia with rule 3 of Order XX, C.P.C. inasmuch as the judgment of the appellate Court is also to be signed and dated by the Judge or the Judges when it is pronounced. Their Lordships held that since the judgment was pronounced immediately after the conclusion of the arguments by the learned Counsel for the parties and it stated all the contentions, the decision thereof and reasons for the same the judgment cannot be said to be in violation of law. In the present case as well the learned Senior Civil Judge has recorded his findings on all the issues with reference to evidence on record and has answered the same in his judgment. I, therefore, find that nothing turns on the said contention of the learned Counsel for the petitioner and the judgment of the learned trial Court cannot be said to be a nullity or in any manner violative of law for the said reason even if the same is assumed to be correct.

10. As laid down by the Supreme Court of Pakistan and this Court in several judgments, to quote for instance the case of Muhammad Sajid Hussain v. Muhammad Anwar Hussain (1991 SCMR 703). The following factors are to be taken into consideration, inter alia, while determining the question as to whether a transaction was Benami:‑‑

(i) source of consideration;

(ii) from whose custody the original title 13 deed and other documents came to evidence;

(iii) who is in possession of the suit property; and

(iv) motive for the Benami transaction.

Now the case set up by the petitioner in the plaint is that while entering into the said agreement dated 5‑6‑1962 he paid the entire amount of Rs.3,000 to Ahmad Din in presence of respectables of village Taragarh and the said Ahmad Din promised that he will execute the sale‑deed within one month. In the same plaint it is stated that he had paid Rs.2,000 as earnest money to Dittu when he entered into the agreement to sell dated 5‑6‑1962. Be that as it may, Exh.P.1. is the agreement. Now this document was executed at a point of time when the claim had been verified but no land had been allotted. I find that neither the number of units is mentioned in this agreement nor of course there is any reference to the land. It states that the executants Dittu will sell the area at the rate of Rs.4 per unit and that he has received Rs.2,000 from Taj Din in the village in connection with his household needs and whatever will be the balance he will receive at the time of registration of the sale‑deed in the presence of the Sub‑Registrar. Exh.D.1 is the sale‑deed, dated 19‑11‑1962 executed by the said Dittu through Ahmad Din, attorney in favour of the respondent. Now this document narrates that the said attorney has received Rs.3,000 from the vendee i.e. the respondent and he admitted the receipt of the said consideration before the Sub‑Registrar. One thing is certain that the plea taken in the plaint as to the payment of Rs.3,000 at the time of execution of the said agreement dated 5‑6‑1962 is false as would be evident from the contents of the said document Exh.P.1. Now the said Ahmed Din attorney has appeared as P.W.4. He has stated that he was the attorney of Dittu and that Dittu had agreed to sell his land to Dr. Taj Din and received Rs.2,000 and an agreement was written; that Dittu had executed a power of attorney Exh. P.2. in his favour and that in the power of attorney Dittu had written that he should receive Rs.1,000 from Taj Din and get a sale‑deed registered in his favour; that after about five months of the agreement, the sale‑deed was registered and it was in favour of Ismail, respondent because Taj Din had stated that he is a Government employee and cannot purchase the land and since Ismail is his ( ﻒﻠﺯ ﻢﻫ ). He then states that the balance price of Rs.1,000 was received by him from Taj Din who had also paid the expenses for registration. The witness has further proceeded to state that possession was delivered to Taj Din who had made the land cultivable and is in possession till date and that he had seen Ismail for the first time at the time of registration of the deed.

11. Now the copy of the power of attorney executed by Dittu in favour of the said Ahmad Din, P.W.4 is Exh.P.2. It does state that the executant had entered into an agreement of sale with Taj Din son of Hussain Bakhsh and that the said general attorney shall be authorised to mortgage or sell the said claim in favour of Taj Din and that he will not cancel the power of attorney. There is no mention at all in this document that Dittu had authorised the said Ahmad Bakhsh, P.W.4 to sell the land in favour of Taj Din on receipt of balance price of Rs.1,000. A further examination of the agreement dated 5‑6‑1962 (Exh.P.1) reveals that no consideration was settled. The figure of Rs.1,000 accruing therein is with reference to the amount of compensation which Dittu promised to pay to Taj Din in case he does not sell the land to Taj Din after confirmation of the land.

12. A reading of the statement made by the said P.W.4 alongwith contents of documents Exhs. P.1 and P.2 would reveal that the said agreement was never implemented or enforced at the behest of Taj Din in its terms and that the terms on which the sale was made vide Exh. D.1 were independent of the terms contained in the said agreement or the power of attorney. It is in the statement of P.W.4 himself that Taj Din was present and I find that he was one of the attesting witnesses of the sale‑deed Exh.D.1.

13. Now the respondent had entered the witness‑box as D.W.5 to state that he purchased the land from Dittu through Ahmad Din, attorney to whom he paid Rs.3,000 and obtained the possession of the land. In his cross‑examination he denied the suggestion that Taj Din had paid Rs.2,000 (not Rs.3,000). He has reiterated that Ahmad Din attorney was paid Rs.3,000 by him' in presence of Taj Din. I find it rather amazing that it was suggested to him and he answered the suggestion as follows:‑‑

It is to be assumed that the said suggestion was given on the instructions of the petitioners.

14. To my mind the statement made by said P.W.4 stands fully rebutted by the respondent. It was now for Taj Din to enter the witness‑box and to state his case.

However, I find that issues in the suit were framed on 19‑1‑1984. On 3‑5‑1984 the Counsel made a statement that the evidence of the plaintiff stands closed and that he reserves right to lead rebuttal. According to the contents of the amended plaint tiled after the death of Taj Din he died on 28‑6‑1984. There is no explanation whatsoever forthcoming on record as to why the said plaintiff did not enter the witness‑box. It appears that it was realised at a much later stage that the said fatal defect has occurred in .the case of the plaintiff. On 12‑3‑1987 i.e. long after the conclusion of the evidence of the respondent an application was filed to examine one of the L.Rs. in affirmative as well as rebuttal. This application was allowed on concession of the learned Counsel for the respondent on 12‑4‑1987. On 12‑10‑1987 Zahoor Nasir, petitioner appeared as P.W.7. Now he proceeds to states that at the time of agreement his father had paid Rs.2,000 to the said Dittu and the balance amount was paid by his father at the time of registration of the sale‑deed. Needless to state that it was not even the case of his late father that balance amount was paid at the time of registration of the sale‑deed. Having thus examined the said evidence I do agree with the learned Courts below that the consideration was paid by the respondent and that he had purchased the land from Dittu vide document Exh.D.1.

15. It is a matter of record that the original sale‑deed Exh.D.1. has been produced by the respondent and there is not a word either in the pleading or in the evidence as to how he came in possession of the same. It will thus have to be assumed that the document remained with the respondent as he was the real purchaser.

16. As to the question of possession, it is the case of the respondent that in order to bring the land under cultivation he installed a tube-well and for this purpose he obtained loan from A.D.B.P. Document Exh.D.13 has been produced. According to this document the respondent was given a loan of Rs.4,600 by the said Bank against mortgage of property mentioned in Schedule "A" to the said document which property is a shop located in Lahore. Exh.D.14 is a document issued by the said Bank to acknowledge that the amount of loan has been repaid and that the documents of the mortgage were to be released. There is no plea and there is no evidence from the side of the petitioner that this shop was not the personal property of the respondent. D.Ws.1, 2 and 3 who are officers of the Agricultural Department who have stated with reference to their records the matter of installation of the tube-well, its maintenance and repairs. As to the electric connection for the said equipment, P.W.7 himself has admitted that the same is in the came of the respondent. Exh.D.16 is the copy of Misal‑e‑Hiqiat Ishtimal for the year 1969‑70 and records Muhammad Ismail son of Shakrola to be owner in self‑cultivating possession of the suit‑land (with reference to previous as well as post‑consolidation Khasra Nos.). Similar is the position in Exh.D.17 for 1972‑73. It is in Exh.D.18 for the year 1976‑77 that in a part of the land Zahoor Nasir son of Taj Din is recorded to be. a tenant paying produce share to the respondent while some part is recorded in his self‑possession while in the other part Bagh Ali is recorded as a tenant paying half share of produce to Muhammad Ismail, respondent. Same is the position in the Register Khasra Girdawaris produced by the petitioner as Exh.P.3. Now Bagh Ali has appeared a P.W.2 and has stated that he is cultivating the land since 11/12 years and that ever since he is paying the produce to Taj Din. In his cross‑examination he admitted that the respondent had filed an application for recovery of produce share against him but he does not know as to what was the result of the proceedings. He expressed ignorance that the petitioner is depositing the produce share in Court. The said Zahoor Nasir appeared as P.W.3 and stated that he is tenant under his father Taj Din to whom he pays the produce share. In his cross‑examination he admitted that there is a dispute and matter is pending in criminal Courts. He stated that the allegation against him is that he is not paying produce share.

17. When confronted he stated that his father got the tubewell installed and that his father had not obtained any loan from the Bank for this purpose and if Ismail respondent had obtained a loan for the tubewell then he must have installed the same in some other land. He denied that the tubewell installed on the land is in the name of Ismail and that the electric connection is also in his name. Later he was constrained to admit that the connection is in the name of Ismail. To my mind, the statements of P.Ws.2 and 3 are not sufficient at all to rebut presumption of correctness attached to the entries in the said Jamabandis. Besides it has been proved as a fact on record that the tube-well was installed on this very land by Ismail after taking a loan from A.D.B.P. mortgaging the said shop at Lahore belonging to him. Receipts for payment of land revenue have also been produced as Exhs.D.2 to D.11 by the respondent from his custody. The said evidence does indicate that the respondent is in possession of the land.

18. Coming to the motive, it has been stated in the plaint and then by P.W.7 (Zahoor Nasir) that the sale‑deed was got executed in favour of respondent because Taj Din was a Government employee. Now the respondent has managed to place on record certified copy of a sale‑deed (Exh.D.12). This document is dated 3‑1‑1963 and was registered on the same day. Now through this document land was purchased in the name of the minor sons of Taj Din and the area purchased is 617 Kanals, 7 Marls for a consideration of Rs.2,500. Both the 'learned Courts below have very correctly found that the said reason stated by the deceased plaintiff is without any basis. I may here refer to the reason stated by the petitioner in the plaint as to why the respondent started denying his title. In Para. 10 of the plaint (both original and amended) it has been stated that the respondent had refused to give the hand of his daughter in marriage to a son of the plaintiff (incidentally Mr. Zahoor Nasir, Advocate) and relations have become estranged. Now I find that in para.3 of the memo. of this civil revision it has been stated with impunity that it was Taj Din who did not agree to the proposal of the marriage of the daughter of the respondent with his said son. I, therefore, do not find any truth in the said motive as stated by the petitioner.

19. In view of the above discussion I uphold the findings of the learned Courts below on all the issues. No case stands made out for interference with the impugned judgments and decrees within the ambit of section 115, C.P.C. This civil revision is accordingly dismissed without any order as to costs.

Revision dismissed.

Q.M.H./M.A.K./Z‑96/L