PLJ 2009 Peshawar 211
[D.I. Khan
Bench]
Present:
Muhammad Alam Khan, J.
Haji NAWAB
KHAN--Petitioner
versus
SHAIZULLAH
KHAN--Respondent
C.R. No. 280
of 2006, decided on 27.5.2009.
Civil
Procedure Code, 1908 (V of 1908)--
----S.
115--Onus of proof regarding benami nature--Whenever a person alleges a
transaction to be of benmi nature, the initial onus lies on him to prove the
same, but the onus may shift during the evidence if he proves the ingredients
of the transaction, then the burden is on the defendant to disprove the
allegation and thus, non consideration of important evidence resulted in
placing the onus wrongly and the same was not properly placed--Case was
remanded. [P. 215] A
1971 SCMR
703, ref.
Mr. Abdul
Aziz Khan Kundi, Advocate for Petitioner.
Mr. Riaz
Muhammad Khan, Advocate for Respondent.
Date of
hearing: 30.3.2009.
Judgment
This civil
revision petition is directed against the concurrent findings of the learned
lower fora dated 31/3/2006 and 28/6/2006 respectively, whereby declaratory suit
of the plaintiff/petitioner Haji Nawab Khan was dismissed.
2. Facts of the case are that Haji Nawab Khan
had filed a suit for declaration and perpetual injunction against the
respondent Shaizullah Khan to the effect that he is owner-in-possession of the
suit shop with Balakhana bearing No. 201/1+A since its purchase in the year
1974 fully detailed in the head notes of the plaint where he runs the business
of Books Selling. In this connection letter pads and other utility bills are
also in his name, while he used to pay the property tax regularly. Besides,
being owner, he reconstructed the suit shop as a double story building with investment
of million of rupees. Being elder, as a benami owner regarding the title of the
suit shop a decree was obtained in the name of the respondent in the event of
proceedings of Civil Suit No. 305/1 decided on 4/6/1974. That when a month
prior to the institution of the suit respondent refused to transfer the
ownership of the suit shop in the name of the petitioner then he filed the
instant suit.
3. Respondent was summoned who after service
contested the suit of the petitioner by filing written statement wherein he
refused to acknowledge the ownership of the petitioner with respect to the suit
shop rather he claimed the same as his sole ownership and also claimed the
business to be joint with the petitioner and averred that the new construction
over the suit shop has been raised from joint income of joint business.
4. The learned trial Court out of the divergent
pleadings of the parties framed the following issues:--
1. Whether plaintiff has got the cause of
action? OPP
2. Whether suit is based on malafide? OPD
3. Whether suit is within time? OPP
4. Whether plaintiff is estopped to sue by his
own conduct? OPD
5. Whether in the event of dismissal of the
suit would defendant be entitled to receive compensatory cost u/S. 35-A of CPC?
OPD
6. Whether plaintiff purchased the suit shop
benami in the name of defendant? OPP
7. Whether title of the suit shop vests in the
plaintiff and defendant is only benami owner? OPP
8. Whether plaintiff has incurred huge expenses
on the construction/improvement of the suit shop? OPP
9. Whether plaintiff is entitled to the decree
as prayed for? OPP
10. Relief.
5. The parties produced their respective
evidence as they wished to adduce and the learned trial Court after hearing the
parties, consulting issues and the data available on record dismissed the suit
vide judgment and decree in suit No. 143/1 decided on 31/3/2006 with special
cost of Rs. 25,000/-.
6. Feeling aggrieved, the plaintiff/petitioner
filed appeal No. 12/13 of 2006 which came up for hearing before learned
Additional District Judge-V Bannu and the learned appellate Court vide judgment
and decree dated 28/6/2006 dismissed the appeal and hence this revision
petition.
7. Mr. Abdul Aziz Khan Kundi, learned counsel
for the petitioner, submitted that the petitioner had produced overwhelming
evidence on record to substantiate his case and has proved on record that the
possession since its inception was with the plaintiff/petitioner and he in the
presence of the respondent/defendant raised huge construction of three storied
building and no objection was raised to the said construction and the
continuous silence of the respondent amounted to estoppels on his part. It was
also argued that when the dispute arose, the compensation determined by the
Mediators was duly deposited by the plaintiff/petitioner in the account of
defendant/respondent which lay in deposit and the evidence led by the
petitioner has neither been taken into consideration by the trial Court nor
appellate Court. Reliance was placed on the case of Abdul Majeed and others Vs.
Amir Muhammad and others (2005 SCMR 577).
8. Haji Riaz Muhammad Khan, learned counsel for
the respondent while controverting the arguments of the learned counsel for the
petitioner submitted that the burden of proof that the transaction was benami
was on the plaintiff/petitioner and in this respect the onus has not been
discharged. It was submitted that the plaintiff has to prove his own case and
will not take benefit of the weaknesses of the defendants case. Elaborating his
arguments, the learned counsel submitted that the ingredients of benami nature
of the transaction has not been proved by the petitioner and the evidence if
perused minutely produced by the petitioner, an inference can be drawn that he
admitted the ownership of the respondent, Firstly that substitute property was
offered to the respondent for the suit shop and, Secondly pursuant to the
alleged arbitration between the parties, the petitioner has deposited Rs.
37,000/- with accrued benefit in the suit shop in the account of the respondent
and the plaintiff/petitioner cannot wriggle out of these admissions. Reliance
was placed on the cases of Muhammad Yaseen Siddiqui Vs. Tahseen Jawaid Siddiqui
(2003 MLD 319) and Al Haaj Muhammad Rafique Vs. Mst. Khalida Shehzadi (2003 CLC
559).
9. I have heard learned counsel for the parties
and with their valuable assistance have scanned the evidence and available
record.
10. Perusal of the record revealed that the
plaintiff/petitioner had led over whelming evidence on the record to
substantiate and prove his case, but neither the learned trial Court nor the
appellate Court has scanned the evidence. Zahid Ali Khan Record Keeper had
appeared as PW. 1 and he had produced the copies of Taxation Register, which
proved the long standing possession of the petitioner which was never
interrupted by any one. Mussarat Ali, Assistant Habib Bank, appeared as PW.2
who produced the extract from Account No. 3159-9 in which Rs. 37,000/- as
determined by the Arbitrator was duly deposited. Rahmatullah Draftsman, was
examined as PW.3 who testified to the reconstruction of the paid shop by the
plaintiff in the year 1984. Imam-ud-Din son of Zain-ud-Din appeared as PW.4 who
admitted that the said shop was initially purchased by his father for the parties,
but subsequently the sale consideration was paid by the plaintiff. PW.5 Haji
Muhammad Noor Bad Shah appeared as a witness of mediation between the parties.
Similarly, PWs 6 and 7 appeared as the two Mediators to prove the mediation
between the parties. PW.8 Asmatullah Khan testified to the fact of
reconstruction of the suit shop by the petitioner.
11. The most two important witnesses are PWs. 9
and 10, Razaullah Khan and Umer Daraz Khan. Who are also witnesses of the
mediation between the parties, out of whom PW.10 Umer Daraz Khan is the most
important witness, as he is the brother-in-law of the defendant/respondent and
his testimony cannot be doubted. PW. 11, the petitioner, has appeared and has
corroborated the version given in the plaint.
12. From the defendant side, DW-1 Patwari Halqa,
DW-2 Muhammad Imran and DW-3 Mst. Noor Gula appeared as the sole witnesses of
the defendant as attorney and recorded her statement. The respondent avoided to
come to the witness box.
13. Perusal of the judgment of the trial Court
and upheld by the learned appellate Court would reveal that the important
evidence has neither been taken into consideration nor discussed. What was the
effect of non-appearance of the defendant/respondent in the witness box is also
a fact shrouded in mystery and the findings so recorded suffers from
non-reading of evidence.
14. The onus of proof regarding the proof of
Benami nature of the transaction was also placed on the petitioner. Correct
that whenever a person alleges a transaction to be of Benami nature, the
initial onus lies on him to prove the same, but the onus may shift during the
evidence if he proves the ingredients of the transaction, then the burden is on
the defendant to disprove the allegation and thus, non-consideration of
important evidence resulted in placing the onus wrongly and the same was not
properly placed as held in the case of Muhammad Sajjad Hussain Vs. Muhammad Anwar Hussain (1991 SCMR 703).
15. The learned trial Court has taken Issues No.
6 to 8 jointly for discussion. Issue No. 6 was with respect to Benami
transaction but the rest two issues were never adverted to by the learned lower
fora nor the evidence with respect to these issues was taken into
consideration. No independent findings have been recorded on these issues
although evidence had been led by the parties on these issues and the
provisions contained in Order 20 Rule 5 CPC has been flagrantly violated.
Similarly is the position of recording finding on the issue of limitation and
imposition of compensatory costs on the plaintiff/petitioner.
16. For the reasons stated above, I am
constrained to accept the instant revision petition, set aside the impugned
judgments and decrees of the two Courts below and remand the case to the trial
Court for decision afresh after affording opportunity of hearing to the parties
and keeping in view the observations recorded above. The learned trial Court is
directed to decide the matter positively within three months excluding the
month of August 2009 in which the Courts are closed due to summer vacations.
The learned trial Court should summon the parties after receipt of record from
this Court.
(M.S.A.) Petition accepted.
