AMEER HUSSAIN KHOKHAR Versus Mst. NARGIS KHATOON
ORDER
CH. MUHAMMAD ARIF, J. ‑‑‑Petitioner Ameer Hussain Khokhar has filed this petition under Article .185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment of Lahore High Court, Lahore passed on 14‑2‑1996 in Civil Revision No. 1573 of 1993, with the result that the judgment of the Appellate Court, favouring respondent Mst. Nargis Khatoon, was upheld and petitioner's suit for declaration and permanent injunction was dismissed.
2. The prayer clause in petitioner's suit for declaration with consequential relief in the form of permanent injunction read thus:‑‑
"Under the circumstances, it is respectfully prayed that a decree with costs may kindly be passed in favour of the plaintiff and against the defendant declaring that:‑‑ '
(i) The execution of sale‑deed by the owners of the suit plot measuring two Kanals bearing Khasra No.969/881/95 situated and falling in Mauza Shadipura, Bund Road, Lahore vide registered sale‑deed No.10682, Book No.1, Volume No.6029 dated 16‑4‑1975 registered with the Sub‑Registrar, Lahore in favour of defendant is a benami transaction and the defendant was and is only an ostensible owner or a benamidar in respect of suit property having no right to title and interests in, ownership and possession of the suit property.
(ii) That the plaintiff is the real owner in possession of the suit property as real beneficiary.
It is further prayed that as a consequential relief decree may kindly be passed in favour of the plaintiff and against the defendant restraining her permanently from claiming to be the real owner of the suit property and also restraining her from taking any step or acting in any manner whatsoever which tray amount to invasion on the rights, interest, title, ownership and possession of the plaintiff in respect of the suit property. "
Parties went on trial in the suit on the following issues:‑‑
"ISSUES
(1) Whether the plaintiff has no cause of action to bring this suit? OPD
(2) Whether the suit is beyond limitation? OPD
(3) Whether the suit is not properly valued for the purposes of court‑fee and jurisdiction? If so, what is the correct valuation and Its effect? OPD
(4) Whether the impugned transaction is 'Benami'? If so, its effect? OPD
(5) Whether the impugned sale‑deed was obtained by the plaintiff deceitfully? OPD
(6) Whether defendant is entitled to special costs under section 35‑A of C.P.C.? OPD
(7) Relief." ,
3. After recording parties' evidence on the above issues; the learned trial Judge decreed the suit of the petitioner holding that he was real owner in possession of the plot in dispute and that the respondent was a 'Benamidar'. This happened on 5‑6‑1991.
4. Respondent/defendant Mst. Nargis Khatoon successfully challened the judgment and decree of the trial Court and her appeal was accepted by a learned Additional District Judge, Lahore on 16‑3‑1995. The petitioner remained unsuccessful in his Civil Revision No. 1573 of 1993 and has now sought leave against the judgment of the learned Judge in Chambers of the Lahore High Court, Lahore, as above.
5. Mr. Abid Hassan Minto, learned Advocate Supreme Court has specifically made a reference to the judgment/decree of the trial Court to contend that the same was not liable to be reversed as done by the Appellate 'Forum. According to him, the learned trial Judge had made an in‑depth study of the material on the record and came to the conclusion that the case of his client was in order. The Settlement of Accounts between the parties came about in the year 1987 and as the disputed plot was not made the subject o: the said Settlement, the other side could not be permitted to get out of the result of such absence in the Settlement afore‑referred in the instant suit, which was tiled by the petitioner in 1984. He also made specific reference to the appearance of his client's name in the Property Tax Registers for showing that he was in possession of the disputed plot.
6. Mr. Syed Sharif Hussain Bokhari, learned Advocate Supreme Court has supported the impugned judgment and contended that the Appellate and Revisional Forums have not fallen into any error of law, muchless of jurisdiction to complain thereagainst, in these proceedings. He has also referred to Muhammad Sajjad Hussain v. Muhammad Anwar Hussain.(1991 SCMR 703) to contend that the treatment meted out to the alleged 'Benami' transaction by the High Court (as also the Appellate Forum below) is in accord with the criteria for determining the question strictly in line with the observations/ratio in the said precedent.
7. We have considered the respective pleas raised by the learned counsel for the parties and have also been taken through the available material including Parts II and III, submitted by them respective with a view to supplying the available record as the same had been burnt, during the interregnum. It is an admitted position that the disputed plot did not form part of Settlement of accounts between the present parties (and others). The plea being raised on behalf of the petitioner is without any merit in that the disputed plot was not taken into consideration in the year 1984 for the simple reason that it was not 'invested' in the business/concern and that the then dispute was only with regard to investment made by the parties in the form of legal tender/money.
8. As regards the plea that the Court of Appeal as also the High Court did not consider documentary evidence indicating that the name of the petitioner stood mentioned in the Property Tax Register/Forms, suffice it to say that in view of the statement of the petitioner himself as P.W.6 that he did .not make any application whatsoever before the concerned authorities and that the alleged entries were made by the employee official who came to conduct survey of the property, there was no need for seeking any other support for reaching the conclusion that the entries are of no avail to the petitioner/plaintiff. He had the following statement to make in his cross -examination, as P.W.6:
9. We find that the learned Judge in Chambers proceeded with upholding the judgment of the learned Additional District Judge after attending to all the facets of the case in line with the arguments addressed and that the same has not been shown to be falling short of any measure whatsoever.
10. It is not the case of the petitioner that the learned Additional District Judge was not possessed of the jurisdiction to reverse the findings of the trial Court. As already observed above, the reversal of the trial Court's decree is based upon solid grounds and in the absence of any misreading and/or non -reading of material evidence on the record, the same cannot be considered as a fit subject for treatment otherwise. This is exactly what has been done by the learned Judge in Chambers by placing reliance upon this Court's judgment reported as Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302).
11. No other point was urged.
12. Resultantly, this petition is dismissed and leave refused.
Q.M.H./M.A.K./A‑45/S Petition dismissed.