AZIZ ULLAH KHAN Versus GUL.MUHAMMAD KHAN

ORDER

CH. MUHAMMAD ARIF, J .---In this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, leave is claimed against judgment dated 22-10-1997 passed by the Lahore High Court, Multan Bench, whereby petitioners' Civil Revision No. 344-D of 1994 was dismissed with the result that concurrent judgments/decrees of the learned trial Court and the Appellate Court were upheld.

2. The backgroi!nd in which this petition has arisen is that the parties in this litigation are real brothers and/or their successors. A Partnership Deed was executed between them on 2-6-1947. The gravamen of this Deed (Exh.D-1) revolved around setting up of a business by them in the name and style of M/s. Saleem Motor Works, Multan. It was on 12th September, 1955 that the disputed premises were purchased through Exh. P1 -registered sale deed for Rs.27,000, in the name of the Firm.

3. Petitioner-Aziz Ullah JAn (now deceased) and Saleem Ullah Khan brought a suit for declaration against Saleem Motor Works (not party here) and respondents-Gul Muhammad Khan and Muhammad Haleem on 23-7-1975, title whereof reads thus:

After obtaining written statement/s from the respondents, striking issues, recording evidence and hearing the parties in detail the trial Court dismissed petitioners' suit vide judgment and decree dated 2-2-1988. The issues in the case were couched in the following words:

" ISSUES :

WWI

"(1) Whether the suit property is owned and possessed excluding by the plaintiff? OPP

(2) Whether the consideration Rs.27,000 was paid to the plaintiff for the purchase of suit land and thereafter a whole construction expenses were incurred also by plaintiffs? OPP

(3) Whether there is a fudicuary relation in-between plaitniff - and defendants Nos.2 and 3 as stated in para No.2 of the plaint?. If so its effect? OPP.

(4) Whethr the sale deed dated 12-9-1955 is benami in its character and inception and real owners are the plaintiffs? OPP

(5) Whether the suit matter is properly valued for the purchase of court fee and jurisdiction? OPP

(6) Whether the suit is not maintainable in view of preliminary objection No. l raised by defendant No. l? OPD-2.

(7) Whether the suit is not within time?

(8) Whether the description of map attached with the plaint is incorrect? OPP.

(9) Whether suit is bad for non joinder of the party as stated in preliminary para. No.1 of written statement of defendant No.2? OPD-2.

(10) Whether there is no accrual of cause of action in favour of the plaintiffs? OPD.

(11) Whether the plaintiffs have no locus standi to maintain this case? OPD-2.

(12) Whether the suit is not maintainable in view of preliminary objection No.6? OPD-2.

(13) Whether the suit is result of mala fides? OPD-2.

(14) Whether the description of suit property is incorrect if so, its effect? OPD-2.

(15) What is the effect of underchanged entries in the revenue papers? OPD-2.

(16) Whether the parties to the suit are co-owners of the suit property? OPD-2.

(17) Relief."

Issues Nos. l and 2 were taken up by the learned trial Court together and it was in paras.6 and 7 of the judgment dated 2-2-1988 that the same were decided in favour of the respondent/defendants. These paras. read thus:

"6. In rebuttal of plaintiffs' evidence, from defendant No.1 side. D.W.1 Farooq Akbar Bukhari has deposed that in Saleem Motors Works, plaintiffs and defendant No. l have been doing their business jointly. He has been corroborated by D.W.2, Muhammad Sharif and D.W.3 Gul Muhammad defendant No.l. On documentary side besides copy of partnership deed Exh.Dl, assessment order of Income Tax Office for the year 1960-61 Exh. D2 in which defendant No.l has been shown as partner of the firm, copy of application against the order of assessing authority of property tae Exh. D3 have been produced, in which, alongwith plaintiffs, defendants have been shown as owners of the suit property. Had the names of defendants banami one, then there was no need to include defendants in this revision petition before Commissioner Multan Division, Multan. Receipts about depositing of property tax Exhs.D-5 to D8 have been produced by defendant No.l and its possession by him reveals that these were paid by Gul Muhammad defendant No.l as joint owner of the suit property. Further defendant No.l's possession upon part of the suit property is admitted and if his status was not of an owner of it, then it was incumbent upon plaintiffs to have get executed a writing from defendant No.l before delivery of possession to him, but, admittedly no such document was required to be executed by plaintiffs from defendant No.l and this conduct of plaintiffs negate their version. "

"7. In these circumstances when plaintiffs have failed to establish on record their contention and defendant No. l's partnership and his joint business in Saleem Motor Workshop with plaintiffs is proved, it is decided that defendant's status was not benami one and they are declared to be owners in the suit property alongwith plaintiffs. Both these issues are decided in favour of defendants against plaintiffs." '

As no evidence was produced by the defendants/respondents on Issues No.5, 6, 8, 9, 12, 13, 14 and 15, the same were decided against them. Issue No.7 was decided against the plaintiffs/petitioners as below:

"

11. Contention of counsel for defendant No. l is that plaintiffs have challenged the validity of registered sale-deed executed in 1955, through this suit filed in 1975, while, period of limitation is only six years under Article 120, hence, suit is barred by limitation. After going through the record I agree with this contention of defendant No. 1. Admittedly sale deed was executed on 12-9-1955 and plaintiffs' knowledge from that date about the incorporation of defendants's name in it, is not disputed, so, plaintiffs must have challenged the status of defendants Nos. l and 2 within six years under Article 120, but, they have filed this suit in 1975 almost after twenty years, which is hopelessly time-barred and issue is decided, against plaintiffs."

4. The learned trial Court also resolved Issue No. 10 against the plaintiffs/petitioners as its findings in Issues Nos. l and 2 were against them.

5. Petitioners/plaintiff;; remained unsuccessful in their appeal before a learned Additional District Judge, Multan who upheld the findings of the trial Court on all the issues after making an in-depth study of the entire material in line with the criteria for determining the question whether a transaction is benami or not by considering: (i) Source of consideration; (ii) From whose custody the original title deed and other documents have come in evidence?. (iii) Who is in possession of the suit property? and (iv) What was the motive for such transaction?

6. The learned Judge in Chambers of Lahore High Court, Multan Bench, Multan attended to the arguments of the then learned counsel for the petitioners that both the Courts below had misread and/or non-read the record and came to the conclusion that such allegation could not stand a detailed scrutiny of their judgments when considered in juxtaposition with the material- on the record. As regards the afore referred four-fold criteria and question of limitation, it was held as below:--

"4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record with the assistance of the learned counsel. It is pertinent to mention here that both the Courts below concurrently gave finding ., of fact against the petitioners. It is better and appropriate to reproduce the findings of the leaned Additional District Judge which are as

(i) Consideration of Rs.27,000

It can safety be concluded that the appellants/plaintiffs have failed to substantiate their version that they had exclusively managed and paid Rs.27,000 as consideration amount of the said sale deed.

(ii) Custody of the original title deed other documents

In view of the above discussion mere possession of title deed by one of the vendees is inconsequential;

(iii) Possession

It is, therefore, held that the appellants/plaintiffs have not been able to prove their alleged exclusive possession over the suit property.

(iv) Motive ,

The appellants/plaitniffs having taken up a specific plea in the plaint could not have set up the case inconsistent in their evidence to the said plea, therefore, they failed to discharge the burden of proof with regard to motive for the alleged benami transaction.

(v) Limitation

The appellants/plaintiffs have not pleaded their ignorance about the contents of sale deed Exh. P.1 arid as such their suit was also barred by limitation as well as laches. The contention of the learned counsel for the petitioners is that the documents brought on record by the respondents/defendants are in violation of the mandatory provisions of Order 13, rule 4, C.P.C. .."

It may be mentioned that after considering the case-law on the subject the learned Judge in Chambers came to the following conclusion:

'...The judgments referred to by the learned counsel for the petitioners are not attracted because the Supreme Court has given another observation in 1996 SCMR 1918 arid 1989 SCMR 1414 that when the First Appellate Court re4erses the finding of the trial Court without adverting to the reason of the trial Court that this Court can interfere but in the present case as mentioned above both the Courts below concurrently decided against the petitioners while exercising jurisdiction under section 115, C.P.C. I have very limited jurisdiction to disturb the findings of fact recorded by both the Courts below unless and until the findings are based on misreading or non-reading of the evidence on record. Learned counsel for the petitioners failed to point out any piece of evidence which was mis-read or non-read by both the Courts below, therefore, both the Courts below did not commit any material irregularity .... ".

7. Mr. Muhammad Ishaq Khan, learned Advocate Supreme Court appearing in support of this petition, has pressed into service the general principle of law that the jurisdiction of the High Court under section 115 of the Code of Civil Procedure, 1908 does extend to reversing the findings of the trial Court and/or the Appellate Court if the same are the result of misreading or non-reading of the evidence. He was also of the view that the learned trial Court was in error in not considering all the issues in the case separately and that as it had lumped together the majority of the issues in the case and decided them in that form. The learned Judge in Chambers of the Lahore High Court, Multan Bench should have taken into consideration the said deficiency and reversed the findings of both the trial Court and the Appellate Forum, to advance the cause of justice.

8. We have considered the arguments addressed by the learned counsel and are not inclined to the view that the petitioners have succeeded in making out a case for interference by this Court in these proceedings. Learned counsel, was asked to point out any part of the evidence on the record to substantiate his plea that the same was either misread or escaped the notice of the Courts below. He was content with making a reference to the deposition of petitioners' own witness namely Abdul Gharii Siddiqui (P.W.1) and submitted that the said witness has supported the case of the petitoners/plaintiffs " ~..i ,~y ". Finding the above observation as totally insufficient to lend credence *to his arguments, we asked the learned counsel to point out any bit of the statement of P.W.1 and/or any other witness whether produced by his clients' side or by the other faction but he was not in a position to substantiate his plea to any substantial extent. We find that the findings recorded by the trial Court withstood the scrutiny, and that too a detailed one made by the learned Additional District Judge. There is no cavil with the proposition that a judgment rendered by the Civil Courts, whether at the trial or the Appellate level, without considering evidence on the record and/or misreading the same, is a fit subject for the exercise of the A Revisional Jurisdiction of the High Court. The learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan was quite right in observing that the Courts below had left no stone unturned in reaching the conclusion that the petitioners/plaintiffs had failed to make out a case for interference in their judgments. We also do not find any misreading and/or non-reading of the evidence by Courts below and are left with no other option but to uphold the impugned judgment.

9. As regards the alleged failure on the part of the learned trial Court not to consider each issue separately in terms of Rule 5 of Order XX, C.P.C., suffice it to say that Issues Nos. l and 2 are inextricably linked with 8 each other and their consideration together was not at all violative of the mandate contained in Rule .`i of Order XX, C.P.C. It is not the case of the petitioners that the evidence led by the parties on the said issues was capable of division in watertight compartments for consideration thereof separatel% while deciding the lis. As regards the remaining issues, except Issue No.7, we suffice by observing that it is the case of the parties themselves that they did not lead any evidence on them with the result that the Courts below were left with no other option but to decide them against the side which did not C produce evidence on the issues, onus of proof which was on them, respectively. It may also be noticed that Issues Nos. 10 and 11 were rightly disposed of by all concerned in terms of the findings under Issues Nos. l and 2.

10. Before parting with this matter, we cannot help observing that the contents of Exh.Dl go a long way in establishing co-ownership of the parties in the suit property. Further the defendants having failed to establish that the names of defendants Nos. l and 2 were incorporated in Exh.DI as benami, therefore, the petitioners and the respondents were rightly declared as co owners of the suit property. The petitioners are still within their right to pursue the matter further for available relief in the suit property to them.

11. For all that has gone before, the instant petition is dismissed and D leave refused.

.A.K./A- Petition dismssed.