PLJ 2004 Lahore 1165
Present: muhammad muzammal khan, J. MUHAMMAD AFZAAL-Petitioner
versus
MUHAMMAD IQBAL and another-Respondents Civil Revision No. 1288 of 2000, heard on 5.3.2004. (i) ActofCourt--
—Litigants would not be allowed to suffer for acts of the Court. [P. 1170] A (ii) Civil Procedure Code, 1908 (V of 1908)--
—-S. US-Specific Relief Act, 1877 (I of 1877), S. 42-Concurrent jurisdiction-Benami transactions-Concurrent findings of facts, how erroneous might be, were immune from interference in revisional jurisdiction in absence of any misreading of evidence-High Court upheld concurrent findings of lower Courts by which five connected suits for declaration on the basis of benami transactions had been decreed.
[P. 1170] B
PLD 1970 Dacca 414, 1979 CLC 338,1993 CLC 605, 1993 CLC 1606, 1997
CLC 176, 1994 SCMR 818, PLD 1994 SC 291, 1996 SCMR 575,1997 SCMR
1139, PLD 2000 SC 839 and 2001 SCMR 1493, referred.
Malik Noor Muhammad Awan, Advocate for Petitioner. Syed Masood Hussain Sherazi, Advocate for Respondents. Date of hearing: 5.3.2004.
judgment
This civil revision assails judgments and decrees dated 9.6.1994 and 15.5.1999 passed by the learned Civil Judge and learned Additional District Judge, Lahore, respectively, concurrently deciding lis against the petitioner.
2. Precisely, relevant facts are that Muhammad Iqbal respondent filed five suits against his father Feroze Din and brother Muhammad Afzal (petitioner) for declaration and permanent injunction regarding different properties, all to the effect that plaintiff is owner of the properties which were purchased by him in the name of his father Feroze Din as a Benamidar. Respondent pleaded that he was the eldest son of Feroze Din and having deep love and affection with his father and the younger brother, he purchased different properties, detailed in his plaints, by paying from his own pocket the entire sale consideration to the owners from whom those were purchased at the time of purchase by the respondent. It was claimed that possession of those properties were delivered to him. Respondent also asserted that he is well to do doing his own business and has been making sufficient savings. He purchased those properties in the name of his father, with his concurrence, through Benami transactions and as a matter of fact, he was owner of those properties. Both the petitioner and father of the parties being defendants in the suits resisted those by filing their written statements wherein they denied assertions in the plaints and claimed exclusive ownership over those properties. They besides contest on merits, raised certain preliminary objections regarding valuation of the suit for the purposes of Court fee and jurisdiction, asserting mala fides of the respondent to file suits and lack of cause of action and maintainability of the suits. They also pleaded in their written statements that Feroze Din father of the parties had gifted the suit properties in favour of the petitioner. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. Learned Civil Judge, who was seized of the matter, after doing the needful through detailed judgments and decrees dated 9.6.1994 decreed the five suits of the respondent declaring him to be the real owner of the properties.
3. Feroze Din father of the parties and the petitioner filed five
separate appeals challenging all the judgments and decrees of the trial Court
dated 9.6.1994 before the learned Additional District Judge, who dismissed
all the appeals aforementioned, vide consolidated judgment and decrees
dated 15.5.1995. It appears that pending appeals Feroze Din died and the
petitioner while challenging concurrent judgments and decrees of the two
Courts below through five revision petitions, impleaded Respondent No. 2
(daughter of Feroze Din as his heirs/legal representative). Other four
revisions i.e. C.R. Nos. 2811, 2812, 2813 and 2814/2000, were dismissed by
this Court vide order dated 30.5.2001 and the petitioner was directed to place
on the file of this revision petition copies of decree sheets of those civil
revisions. The decree sheets were to be received back from the office and
were to be filed with this revision petition but it was not done by the
petitioner and instead fresh copies were obtained and were placed on the
record.
4. Learned counsel for the petitioner submitted that all the five
purchases involved in the suits by Respondent No. 1 were not Benami
transactions and in order to declare those, as prayed by him, he was required
to prove his source of income, which he could not prove. He further
contended that father of the parties Feroze Din was running a Kabab shop
for about 40/50 years and was doing other business from which it was
evident that he purchased those properties out of his own means. He further
submitted that joint family system among the parties headed by Feroze Din
father was not denied and thus income of any of the respondent will be
considered as joint earning of the family. Relying on the judgments in the
cases of Mst. Farida Malik and others us. Dr. Khalida Malik and others
(1998 SCMR 816) and Muhammad Siddiqi through Attorney vs. Messrs T.J.
Ibrahim & Company and others (2001 SCMR 1443), learned counsel for the
petitioner submitted that Respondent No. 1 could not prove his exclusive
possession over the properties and on account of joint living the possession of roperties would be considered as joint. He further referred to evidence file especially statement of DW. 4 to show that all the properties were exclusively owned and possessed by the father of the parties, who made a ful gift in favour of the petitioner.
5. Learned counsel appearing on behalf of Respondent No. 1
objected that revision petition is barred by limitation for the reason that
after objection by the office petitioner did not refile the revision petition for a
long time rendering it incompetent on account of limitation. He further
contended that other four civil revisions (C.R. Nos. 2811 to 2814/2002) were
dismissed by this Court on 30.5.2001 and the petitioner was directed to
place on file of this civil revision, decree sheets from the other files, but those
were not obtained and placed on this file and instead fresh certified copies of
the decree sheets were obtained and if limitation is counted from that date,
this civil revision to the extent of other four suits has become barred by
limitation. It has also been submitted by Respondent No. 1's counsel that
both the Courts below have exhaustively dealt with the evidence on the file
and delivered detailed judgments wherein no misreading or non-reading of
evidence can be pointed out and thus those deserve no interference in
revisional jurisdiction. It has also been contended that reappraisal of
evidence in revisional jurisdiction is not permissible and this Court is not in
a position to substitute its own viewpoint to the one taken by the Courts
below, as such, the revision petition deserves dismissal. He further
elaborated his arguments by saying that Respondent No. 1 proved through
positive evidence that the properties were purchased by him in the name of
his father, out of love, affection and respect, as Benami whereas title and
possession over the property remained that of Respondent No. 1. It has also
been claimed on behalf of Respondent No. 1 that since the father of the
parties was not owner of the properties, he was not competent to gift those
properties in favour of the petitioner and the alleged gifts on account of
absence of the required three ingredients of a valid gift, do not transfer any
right, title or interest to the petitioner.
6. I have anxiously considered the respective arguments of the
learned counsel for the parties and have examined the record, appended
herewith. Both the Courts below while deciding issue No. 7 have returned
exhaustive findings, taking into consideration the source of payment of price,
custody of original title deeds, possession over the properties and other
surrounding circumstances, but in order to satisfy myself and to ascertain
propriety of the judgments impugned, I have myself looked into the evidence
en the file. Respondent No. 1 appeared as PW.7 and deposed that he was
married in 1960, where after he purchased the properties in question
between the years 1964 to 1967. According to his deposition, he was running
a shop besides being a farmer (Zamindar). He asserted that he had been
purchasing gardens for business purposes and his father and paternal
mother used to live with him, whereas petitioner was his younger brother
and was also putting up with him. He stated that the suit properties were purchased by him out of his own source by paying the sale price but out of love and respect got the sale-deeds registered in the name of his father. He further deposed that since purchase, he is in possession of those properties and is paying all the taxes, electricity bills of the tube well and other allied government dues. He produced original sale-deeds before the trial Court, which were returned to him by retaining attested copies (Exh. P.7 to Exh. P. 11). It is also in his statement that petitioner has connived with his father to deprive him of his properties, as he has refused to retransfer those in the name of Respondent No. 1. Respondent No. 1 admitted in his cross-examination that his father was doing Kabab shop at Mochi Gate for the last 40/50 years but at the present he is doing nothing. He stated that he is running a shop of stationery in Chowk Nawab Shah, with another shop, nearby. In reply to a question by the petitioner, he stated that he purchased those properties during the years 1962 to 1967 for valuable consideration mentioned by him in his suits. In corroboration of statement of Respondent No. 1 PW. 1 stated that he sold 231 kanals 2 marlas of land to Muhammad Iqbal respondent and the sale price was paid by him. He further deposed that sale-deeds were handed over to Muhammad Iqbal. In cross-examination, while replying a question, he deposed that possession of the land was handed over to Iqbal. In another question PW. 1 replied that Muhammad Iqbal told him that he had a lot of love and affection for his father, so the suit land is being purchased in his name. PW. 2 Abdul Rashid sold 35 Kanals of land and stated that it was sold to Muhammad Iqbal for a consideration of Rs. 25,000/-. In cross-examination, he denied that possession was handed over to Feroze Din. Similarly, PW. 3 Ch. Rehmat Ullah stated that his father sold 11 Kanals 15 marlas of land to Muhammad Iqbal for a consideration of Rs. 6000/-.
7. Feroze Din father of the parties appeared as DW.l and deposed that he purchased suit land in his own name by paying sale price from his own pocket. He stated that he was running Kabab shop for the last 70 years and was also doing business of gardens. He stated that he has gifted away the suit property in favour of the petitioner. In the year 1971 Muhammad Iqbal Respondent No. 1 left his house and while leaving he took along the registered sale-deeds. According to him, he is paying the electricity bills etc. In cross-examination, he could not tell the names of the persons from whom those properties were purchased. He also could not tell the area of land which he purchased or of other properties. He was not aware of the prices paid by him. He deposed that he had gifted the property in favour of the petitioner but could not produce the gift-deed. DW. 1 also stated in his cross-examination that the title documents were with Muhammad Iqbal and he did not proceed against him for any criminal action for removing those deeds. DW.2 claimed to have bargained land of Muhammad Sharif with Feroze Din father of the parties, at the rate of Rs. 1300/- per Begah, but he was not aware that through what means the land was transferred, mutation or sale-deed. Shaukat Ali DW. 3 simply stated that previously Muhammad Iqbal and Feroze Din had been cultivating the land jointly. Muhammad Riaz V 4 deposed that Muhammad Iqbal was employed in transport company a: s. 30/35 per month. He stated that Feroze Din is in possession of the zr;p ernes but has never visited those properties. Statement of DW.5 is similar to that of DW. 4. Petitioner appeared as DW.6 and supported averments in the written statement. This is the entire evidence on the file, scan of which shows that witnesses appearing on behalf of the petitioner could not reply the material questions, negatively reflecting on their statements. Petitioner or for that matter, Feroze Din could not prove their exclusive possession over the properties they did not proceed against Respondent No. 1 for any criminal or civil action for removing title documents inspite of litigation between them, Feroze Din could not name any of the persons from whom he purchased those properties. He could not specify the sale prices paid by him. He admitted that Respondent No. 1 left his house in 1971 and till the time, suits were filed in the year 1989 Respondent No. 1 had been dealing with those properties. Both of them i.e. Feroze Din and petitioner, could not place any original receipt of utility bills paying Government taxes and as compared to it Respondent No. 1 produced voluminous documents including bills and receipts in original, even relating to the period after 1971 during which he, according to DW.l, deserted the house.
8. Respondent produced all the vendors from whom the properties
were purchased who categorically deposed that they received to
consideration from Muhammad Iqbal and delivered possession to him under
the sale. Respondent No. 1 was the eldest son and his attachment as claimed
by him, with his father was not denied by the petitioner or his father Feroze
Din, which lends support to the stand of Respondent No. 1 that the
purchases must have been made in the name of father out of love and
respect. It is not believable that a person vending Kabab may be for two
centuries, could generate that much money for purchase of such huge landed
property as involved in all the five suits. Source of income of Respondent No. 1
has not been seriously refuted by the petitioner, who claimed involvement in
purchase of gardens besides running his shops. Feroze Din his father has not
pleaded in the written statement that he was doing business of purchase of
gardens in his written statement, but in his own feelings, not coming up to
the mark through sale of Kababs, he stated for the first time in his statement
as DW.l that he was also doing business of purchase of gardens.
9. It is correct that four civil revisions of the petitioner C.R. Nos.
2811 to 2814/2000 were dismissed by this Court vide order dated 30.5.2001
and he was required to place on file of this civil revision, copies of the decree
sheets by getting those from the office, back but he did not receive back those
decree sheets and instead applied for fresh certified copies thereof in the
month of March, 2003 vide Serial Nos. 3920, 2957. 4231 and 4430, which was
supplied to him just after few days in the same month of March, 2003. Copy
of the decree sheet originally filed with the judgment when instant revision
petition was filed, was applied on 19.5.1999 and was received from the Copying Agency on 29.5.1999, which shows that the subsequent four certified copies were obtained by him after lapse of four years, though, if the limitation is counted from the date of receipt of fresh decree sheets, the revision petition against other four decrees, is time barred, yet it occasioned under an order of this Court, petitioner cannot be penalized for it because he originally filed all the five revision petitions within limitation. It is settled proposition that litigants should not be allowed to suffer for acts of the Court and consequently I am not ready to dismiss this revision petition as time barred. Similarly, the other objection of Respondent No. 1 that the revision petition was refiled by the learned counsel for the petitioner after expiry of time fixed by the office for its refiling, I have examined the objection sheet. There is no material objection and the only one raised, is regarding filing of better written/typed copies of the annexures appended with the petition. Office raised objections on 25.10.1999 and fixed seven days for removal of those. Petitioner refiled the revision petition on 30.5.2000, but there is nothing on the file to show that when it was received back by the learned counsel from the office. There is also no notice available on the file to show that petitioner was informed that his petition was under objection. Be as it may, the objections were of no substance and the revision petition having originally been filed within limitation, petitioner in order to remove office objection filed an application under Section 5 of the Limitation Act, 1908 which otherwise was not needed, I am not ready to treat this petition as barred by limitation. Objections regarding limitation of the respondent are turned down.
10. From above resume, scan of evidence on the file shows that
Respondent No. 1 has.discharged onus of proving the transactions, involved,
in all the five suits, as "Benami" in the name of his father by establishing all
the ingredients of such transactions like proof of source of consideration,
custody of title documents, possession of the properties and motive of the
transactions, set forth by the alighted judgments relied by the petitioner in
the cases of Mst. Farida Malik and others (supra) and Muhammad Siddiq
(supra) besides the cases of Mv. MD. Abdul Majid and others vs. MD. Jainul
Abedin and others (PLD 1970 Dacca 414), Messrs Shalimar Ltd. Karachi vs.
Raisuddin Siddiqui and 3 others (1979 CLC 338), Miss Qamar All vs. Syed
Nadir Ali and others (1993 CLC 605), Moinuddin Paracha and 6 others vs.
Sirajuddin Paracha and 23 others (1993 CLC 1606) and Salman Asharf vs.
Begum Asmatun Nisa (1997 CLC 176).
11. Findings of facts concurrently returned by the two Courts below,
after proper appraisal of evidence on the file, are not only immune from
interference in revisional jurisdiction, in absence of any misreading but this
Court is also not competent to substitute its own viewpoint, in place of the
one formed by Courts within their lawful framework, even if it may be
erroneous, thus no case for interference, in the petition in hand is made owt
My this view gets support from a consistent chain of judgments by the
Honourable Supreme Court, a few of those are in the cases of Mst. Shumal
Mst. Gulzar Begum and3 others (1994 SCMR 818), Secretary to C-:.ment of the Punjab, Education Department, Lahore and another us. 5-i-:i Ahmed Khan (PLD 1994 SC 291), Sirbalandvs. Allah Lake andjothers 1996 SCMR 575), Abdul Hakeem vs. Habibullah and 11 others (1997 SCMR 1139.1, Mst. Ameer Begum vs. Muhammad Naeem Khan 'and another (PLD 2000 S.C. 839) and Mst. Kaniz Fatima through Legal Heirs vs. Muhammad Salim and 27 others (2001 SCMR 1493).
12. For what has been discussed above, I am clear in my mind that both the Courts below have passed rightful judgments which are- in consonance with the evidence on the file which has not been shown to have been misread or non-read. Both the Courts' below have committed no illegality or irregularity in concluding the dispute between the parties, in absence of which no interference in revisional jurisdiction is permissible under law. This revision petition has no merit in it and is accordingly dismissed with no order as to costs.
(J.R.) Civil Revision dismissed.
Present: muhammad muzammal khan, J. MUHAMMAD AFZAAL-Petitioner
versus
MUHAMMAD IQBAL and another-Respondents Civil Revision No. 1288 of 2000, heard on 5.3.2004. (i) ActofCourt--
—Litigants would not be allowed to suffer for acts of the Court. [P. 1170] A (ii) Civil Procedure Code, 1908 (V of 1908)--
—-S. US-Specific Relief Act, 1877 (I of 1877), S. 42-Concurrent jurisdiction-Benami transactions-Concurrent findings of facts, how erroneous might be, were immune from interference in revisional jurisdiction in absence of any misreading of evidence-High Court upheld concurrent findings of lower Courts by which five connected suits for declaration on the basis of benami transactions had been decreed.
[P. 1170] B
PLD 1970 Dacca 414, 1979 CLC 338,1993 CLC 605, 1993 CLC 1606, 1997
CLC 176, 1994 SCMR 818, PLD 1994 SC 291, 1996 SCMR 575,1997 SCMR
1139, PLD 2000 SC 839 and 2001 SCMR 1493, referred.
Malik Noor Muhammad Awan, Advocate for Petitioner. Syed Masood Hussain Sherazi, Advocate for Respondents. Date of hearing: 5.3.2004.
judgment
This civil revision assails judgments and decrees dated 9.6.1994 and 15.5.1999 passed by the learned Civil Judge and learned Additional District Judge, Lahore, respectively, concurrently deciding lis against the petitioner.
2. Precisely, relevant facts are that Muhammad Iqbal respondent filed five suits against his father Feroze Din and brother Muhammad Afzal (petitioner) for declaration and permanent injunction regarding different properties, all to the effect that plaintiff is owner of the properties which were purchased by him in the name of his father Feroze Din as a Benamidar. Respondent pleaded that he was the eldest son of Feroze Din and having deep love and affection with his father and the younger brother, he purchased different properties, detailed in his plaints, by paying from his own pocket the entire sale consideration to the owners from whom those were purchased at the time of purchase by the respondent. It was claimed that possession of those properties were delivered to him. Respondent also asserted that he is well to do doing his own business and has been making sufficient savings. He purchased those properties in the name of his father, with his concurrence, through Benami transactions and as a matter of fact, he was owner of those properties. Both the petitioner and father of the parties being defendants in the suits resisted those by filing their written statements wherein they denied assertions in the plaints and claimed exclusive ownership over those properties. They besides contest on merits, raised certain preliminary objections regarding valuation of the suit for the purposes of Court fee and jurisdiction, asserting mala fides of the respondent to file suits and lack of cause of action and maintainability of the suits. They also pleaded in their written statements that Feroze Din father of the parties had gifted the suit properties in favour of the petitioner. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. Learned Civil Judge, who was seized of the matter, after doing the needful through detailed judgments and decrees dated 9.6.1994 decreed the five suits of the respondent declaring him to be the real owner of the properties.
3. Feroze Din father of the parties and the petitioner filed five
separate appeals challenging all the judgments and decrees of the trial Court
dated 9.6.1994 before the learned Additional District Judge, who dismissed
all the appeals aforementioned, vide consolidated judgment and decrees
dated 15.5.1995. It appears that pending appeals Feroze Din died and the
petitioner while challenging concurrent judgments and decrees of the two
Courts below through five revision petitions, impleaded Respondent No. 2
(daughter of Feroze Din as his heirs/legal representative). Other four
revisions i.e. C.R. Nos. 2811, 2812, 2813 and 2814/2000, were dismissed by
this Court vide order dated 30.5.2001 and the petitioner was directed to place
on the file of this revision petition copies of decree sheets of those civil
revisions. The decree sheets were to be received back from the office and
were to be filed with this revision petition but it was not done by the
petitioner and instead fresh copies were obtained and were placed on the
record.
4. Learned counsel for the petitioner submitted that all the five
purchases involved in the suits by Respondent No. 1 were not Benami
transactions and in order to declare those, as prayed by him, he was required
to prove his source of income, which he could not prove. He further
contended that father of the parties Feroze Din was running a Kabab shop
for about 40/50 years and was doing other business from which it was
evident that he purchased those properties out of his own means. He further
submitted that joint family system among the parties headed by Feroze Din
father was not denied and thus income of any of the respondent will be
considered as joint earning of the family. Relying on the judgments in the
cases of Mst. Farida Malik and others us. Dr. Khalida Malik and others
(1998 SCMR 816) and Muhammad Siddiqi through Attorney vs. Messrs T.J.
Ibrahim & Company and others (2001 SCMR 1443), learned counsel for the
petitioner submitted that Respondent No. 1 could not prove his exclusive
possession over the properties and on account of joint living the possession of roperties would be considered as joint. He further referred to evidence file especially statement of DW. 4 to show that all the properties were exclusively owned and possessed by the father of the parties, who made a ful gift in favour of the petitioner.
5. Learned counsel appearing on behalf of Respondent No. 1
objected that revision petition is barred by limitation for the reason that
after objection by the office petitioner did not refile the revision petition for a
long time rendering it incompetent on account of limitation. He further
contended that other four civil revisions (C.R. Nos. 2811 to 2814/2002) were
dismissed by this Court on 30.5.2001 and the petitioner was directed to
place on file of this civil revision, decree sheets from the other files, but those
were not obtained and placed on this file and instead fresh certified copies of
the decree sheets were obtained and if limitation is counted from that date,
this civil revision to the extent of other four suits has become barred by
limitation. It has also been submitted by Respondent No. 1's counsel that
both the Courts below have exhaustively dealt with the evidence on the file
and delivered detailed judgments wherein no misreading or non-reading of
evidence can be pointed out and thus those deserve no interference in
revisional jurisdiction. It has also been contended that reappraisal of
evidence in revisional jurisdiction is not permissible and this Court is not in
a position to substitute its own viewpoint to the one taken by the Courts
below, as such, the revision petition deserves dismissal. He further
elaborated his arguments by saying that Respondent No. 1 proved through
positive evidence that the properties were purchased by him in the name of
his father, out of love, affection and respect, as Benami whereas title and
possession over the property remained that of Respondent No. 1. It has also
been claimed on behalf of Respondent No. 1 that since the father of the
parties was not owner of the properties, he was not competent to gift those
properties in favour of the petitioner and the alleged gifts on account of
absence of the required three ingredients of a valid gift, do not transfer any
right, title or interest to the petitioner.
6. I have anxiously considered the respective arguments of the
learned counsel for the parties and have examined the record, appended
herewith. Both the Courts below while deciding issue No. 7 have returned
exhaustive findings, taking into consideration the source of payment of price,
custody of original title deeds, possession over the properties and other
surrounding circumstances, but in order to satisfy myself and to ascertain
propriety of the judgments impugned, I have myself looked into the evidence
en the file. Respondent No. 1 appeared as PW.7 and deposed that he was
married in 1960, where after he purchased the properties in question
between the years 1964 to 1967. According to his deposition, he was running
a shop besides being a farmer (Zamindar). He asserted that he had been
purchasing gardens for business purposes and his father and paternal
mother used to live with him, whereas petitioner was his younger brother
and was also putting up with him. He stated that the suit properties were purchased by him out of his own source by paying the sale price but out of love and respect got the sale-deeds registered in the name of his father. He further deposed that since purchase, he is in possession of those properties and is paying all the taxes, electricity bills of the tube well and other allied government dues. He produced original sale-deeds before the trial Court, which were returned to him by retaining attested copies (Exh. P.7 to Exh. P. 11). It is also in his statement that petitioner has connived with his father to deprive him of his properties, as he has refused to retransfer those in the name of Respondent No. 1. Respondent No. 1 admitted in his cross-examination that his father was doing Kabab shop at Mochi Gate for the last 40/50 years but at the present he is doing nothing. He stated that he is running a shop of stationery in Chowk Nawab Shah, with another shop, nearby. In reply to a question by the petitioner, he stated that he purchased those properties during the years 1962 to 1967 for valuable consideration mentioned by him in his suits. In corroboration of statement of Respondent No. 1 PW. 1 stated that he sold 231 kanals 2 marlas of land to Muhammad Iqbal respondent and the sale price was paid by him. He further deposed that sale-deeds were handed over to Muhammad Iqbal. In cross-examination, while replying a question, he deposed that possession of the land was handed over to Iqbal. In another question PW. 1 replied that Muhammad Iqbal told him that he had a lot of love and affection for his father, so the suit land is being purchased in his name. PW. 2 Abdul Rashid sold 35 Kanals of land and stated that it was sold to Muhammad Iqbal for a consideration of Rs. 25,000/-. In cross-examination, he denied that possession was handed over to Feroze Din. Similarly, PW. 3 Ch. Rehmat Ullah stated that his father sold 11 Kanals 15 marlas of land to Muhammad Iqbal for a consideration of Rs. 6000/-.
7. Feroze Din father of the parties appeared as DW.l and deposed that he purchased suit land in his own name by paying sale price from his own pocket. He stated that he was running Kabab shop for the last 70 years and was also doing business of gardens. He stated that he has gifted away the suit property in favour of the petitioner. In the year 1971 Muhammad Iqbal Respondent No. 1 left his house and while leaving he took along the registered sale-deeds. According to him, he is paying the electricity bills etc. In cross-examination, he could not tell the names of the persons from whom those properties were purchased. He also could not tell the area of land which he purchased or of other properties. He was not aware of the prices paid by him. He deposed that he had gifted the property in favour of the petitioner but could not produce the gift-deed. DW. 1 also stated in his cross-examination that the title documents were with Muhammad Iqbal and he did not proceed against him for any criminal action for removing those deeds. DW.2 claimed to have bargained land of Muhammad Sharif with Feroze Din father of the parties, at the rate of Rs. 1300/- per Begah, but he was not aware that through what means the land was transferred, mutation or sale-deed. Shaukat Ali DW. 3 simply stated that previously Muhammad Iqbal and Feroze Din had been cultivating the land jointly. Muhammad Riaz V 4 deposed that Muhammad Iqbal was employed in transport company a: s. 30/35 per month. He stated that Feroze Din is in possession of the zr;p ernes but has never visited those properties. Statement of DW.5 is similar to that of DW. 4. Petitioner appeared as DW.6 and supported averments in the written statement. This is the entire evidence on the file, scan of which shows that witnesses appearing on behalf of the petitioner could not reply the material questions, negatively reflecting on their statements. Petitioner or for that matter, Feroze Din could not prove their exclusive possession over the properties they did not proceed against Respondent No. 1 for any criminal or civil action for removing title documents inspite of litigation between them, Feroze Din could not name any of the persons from whom he purchased those properties. He could not specify the sale prices paid by him. He admitted that Respondent No. 1 left his house in 1971 and till the time, suits were filed in the year 1989 Respondent No. 1 had been dealing with those properties. Both of them i.e. Feroze Din and petitioner, could not place any original receipt of utility bills paying Government taxes and as compared to it Respondent No. 1 produced voluminous documents including bills and receipts in original, even relating to the period after 1971 during which he, according to DW.l, deserted the house.
8. Respondent produced all the vendors from whom the properties
were purchased who categorically deposed that they received to
consideration from Muhammad Iqbal and delivered possession to him under
the sale. Respondent No. 1 was the eldest son and his attachment as claimed
by him, with his father was not denied by the petitioner or his father Feroze
Din, which lends support to the stand of Respondent No. 1 that the
purchases must have been made in the name of father out of love and
respect. It is not believable that a person vending Kabab may be for two
centuries, could generate that much money for purchase of such huge landed
property as involved in all the five suits. Source of income of Respondent No. 1
has not been seriously refuted by the petitioner, who claimed involvement in
purchase of gardens besides running his shops. Feroze Din his father has not
pleaded in the written statement that he was doing business of purchase of
gardens in his written statement, but in his own feelings, not coming up to
the mark through sale of Kababs, he stated for the first time in his statement
as DW.l that he was also doing business of purchase of gardens.
9. It is correct that four civil revisions of the petitioner C.R. Nos.
2811 to 2814/2000 were dismissed by this Court vide order dated 30.5.2001
and he was required to place on file of this civil revision, copies of the decree
sheets by getting those from the office, back but he did not receive back those
decree sheets and instead applied for fresh certified copies thereof in the
month of March, 2003 vide Serial Nos. 3920, 2957. 4231 and 4430, which was
supplied to him just after few days in the same month of March, 2003. Copy
of the decree sheet originally filed with the judgment when instant revision
petition was filed, was applied on 19.5.1999 and was received from the Copying Agency on 29.5.1999, which shows that the subsequent four certified copies were obtained by him after lapse of four years, though, if the limitation is counted from the date of receipt of fresh decree sheets, the revision petition against other four decrees, is time barred, yet it occasioned under an order of this Court, petitioner cannot be penalized for it because he originally filed all the five revision petitions within limitation. It is settled proposition that litigants should not be allowed to suffer for acts of the Court and consequently I am not ready to dismiss this revision petition as time barred. Similarly, the other objection of Respondent No. 1 that the revision petition was refiled by the learned counsel for the petitioner after expiry of time fixed by the office for its refiling, I have examined the objection sheet. There is no material objection and the only one raised, is regarding filing of better written/typed copies of the annexures appended with the petition. Office raised objections on 25.10.1999 and fixed seven days for removal of those. Petitioner refiled the revision petition on 30.5.2000, but there is nothing on the file to show that when it was received back by the learned counsel from the office. There is also no notice available on the file to show that petitioner was informed that his petition was under objection. Be as it may, the objections were of no substance and the revision petition having originally been filed within limitation, petitioner in order to remove office objection filed an application under Section 5 of the Limitation Act, 1908 which otherwise was not needed, I am not ready to treat this petition as barred by limitation. Objections regarding limitation of the respondent are turned down.
10. From above resume, scan of evidence on the file shows that
Respondent No. 1 has.discharged onus of proving the transactions, involved,
in all the five suits, as "Benami" in the name of his father by establishing all
the ingredients of such transactions like proof of source of consideration,
custody of title documents, possession of the properties and motive of the
transactions, set forth by the alighted judgments relied by the petitioner in
the cases of Mst. Farida Malik and others (supra) and Muhammad Siddiq
(supra) besides the cases of Mv. MD. Abdul Majid and others vs. MD. Jainul
Abedin and others (PLD 1970 Dacca 414), Messrs Shalimar Ltd. Karachi vs.
Raisuddin Siddiqui and 3 others (1979 CLC 338), Miss Qamar All vs. Syed
Nadir Ali and others (1993 CLC 605), Moinuddin Paracha and 6 others vs.
Sirajuddin Paracha and 23 others (1993 CLC 1606) and Salman Asharf vs.
Begum Asmatun Nisa (1997 CLC 176).
11. Findings of facts concurrently returned by the two Courts below,
after proper appraisal of evidence on the file, are not only immune from
interference in revisional jurisdiction, in absence of any misreading but this
Court is also not competent to substitute its own viewpoint, in place of the
one formed by Courts within their lawful framework, even if it may be
erroneous, thus no case for interference, in the petition in hand is made owt
My this view gets support from a consistent chain of judgments by the
Honourable Supreme Court, a few of those are in the cases of Mst. Shumal
Mst. Gulzar Begum and3 others (1994 SCMR 818), Secretary to C-:.ment of the Punjab, Education Department, Lahore and another us. 5-i-:i Ahmed Khan (PLD 1994 SC 291), Sirbalandvs. Allah Lake andjothers 1996 SCMR 575), Abdul Hakeem vs. Habibullah and 11 others (1997 SCMR 1139.1, Mst. Ameer Begum vs. Muhammad Naeem Khan 'and another (PLD 2000 S.C. 839) and Mst. Kaniz Fatima through Legal Heirs vs. Muhammad Salim and 27 others (2001 SCMR 1493).
12. For what has been discussed above, I am clear in my mind that both the Courts below have passed rightful judgments which are- in consonance with the evidence on the file which has not been shown to have been misread or non-read. Both the Courts' below have committed no illegality or irregularity in concluding the dispute between the parties, in absence of which no interference in revisional jurisdiction is permissible under law. This revision petition has no merit in it and is accordingly dismissed with no order as to costs.
(J.R.) Civil Revision dismissed.
No comments:
Post a Comment