2003 C L D 46

[Lahore]

Before Mian Hamid Farooq and Abdul Shakoor Paracha, JJ

Mst. IRSHAD BIBI---Appellant

Versus

MUSLIM COMMERCIAL BANK LIMITED through Manager and 3 of others---

Respondents

Regular First Appeal No.533 of 2002, heard on 29th July, 2002.

(a) Transfer of Property Act (IV of 1882)---

---S. 58(f)---Equitable mortgage---Deposit of duplicate or second copy of the title deed

---Validity---Deposit of such documents would not create equitable mortgage.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10(11), 17 & 22---Qanun-e-Shahadat (10 of 1984), Art. 84---Civil Procedure Code
(V of 1908), O.III, R.1, O.X, R.4 & O.IX, R.12---Transfer of Property Act (IV of 1882),
S.58(f)---Decree for recovery of loan amount against customers and guarantor, though
guarantor had denied execution of mortgage deed and documents regarding furnishing of
security---Validity---Guarantor in order to secure finance facility availed by customers
had executed registered mortgage deed, an irrevocable power of attorney, memo. of
deposit of title deed, and had handed over to Bank original allotment order issued by City
Development Authority---Guarantor had not appeared in Court, though was summoned
by Banking Court to get her thumb-impression compared with those on original
documents--Banking Court had itself made comparison of signatures on finance
documents with guarantor's admitted signatures on other documents on record---Banking
Court had rightly rejected guarantor's application for leave to defend the suit and
proceeded to decree the suit for her failure to raise any substantial question of law and
facts needing trial of case--No exception could be taken to such judgment---High Court
dismissed appeal in circumstances.

Mst. Rabia Bai v. National Bank of Pakistan and mother NLR 1981 CLJ 371 ref.

(c) Civil Procedure Code (V of 1908)---

----O. III, R.1, O.X, R. 4 & IX, R. 12---Personal appearance of a party ordered by Court
---Non-compliance of such order--Effect---Court could proceed against such party under
O.IX, R.12, C.P.C., which would also include passing of decree.

By virtue of proviso to Order III, rule 1, C.P.C., the Court can direct any person to appear
in person. Personal appearance can be ordered under Order X, rule 4, C.P.C. and on his
failure to do so, the Court can proceed under Order IX, rule 12, C.P.C., which also
includes passing of decree.

Ayya Nadan v. Thanammal AIR 1920 Mad. 213 and Sri Prabhu v. Dwarka Prasad AIR
1919 Pat. 36 rel.

(d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

Ss. 2(d), 7 & 18---Qanun-e-Shahadat (10 of 1984), Art.84---Signatures on

finance/banking documents, comparison of---Powers of Banking Court---Scope and
purpose.

Banking Court had jurisdiction to compare signatures of a party on finance documents

with his/her admitted signatures on documents on record.
Court in certain eventualities was enjoined with powers to itself compare signatures
alongwith other relevant material to effectively resolve main controversy.

Waqas Enterprises v. Allied Bank of Pakistan 1999 SCMR 85 fol.

Muhammad Amin Sheikh for Appellant.

Ashar Ilahi for the Bank.

Nemo for the Remaining Respondents.

Date of hearing: 29th July, 2002.

JUDGMENT

ABDUL SHAKOOR PARACHA, J.---This appeal impugns the judgment and decree
dated 25-1-2002, passed by learned Judge, Banking Court No. II, Lahore whereby a
decree for recovery of Rs.53,40,007, has been awarded in favour of respondent No. 1
/plaintiff (Muslim Commercial Bank Limited). The appellant was defendant No.4 in the
suit.

2. Brief facts of the case are that respondent No.1 Muslim Commercial Bank Limited,
Main Market, Gulberg Zone, Lahore, filed a suit for recovery of Rs.53,40,007, against the
appellant and respondents Nos.2 to 4. It was asserted by the respondent No.1 the Bank
that respondents Nos.2 to 4 had obtained finance facility from the Bank and the appellant
stood guarantor. Initially the suit was decreed ex parte but subsequently on an application
filed by the appellant for setting aside of the ex parte decree, the decree was set aside.
Thereafter, the appellant filed an application for leave to appear and defend the suit
within time and subsequently filed the amended application for leave to defend as per
requirement of the Financial Institutions (Recovery of Finance) Ordinance, 2001. The
appellant denied the execution of mortgage-deed and documents regarding furnishing of
security. The appellant maintained that the documents have been forged and fabricated by
the, respondent-Bank in collusion with other respondents.

3. The learned Banking Court No. II, Lahore proceeded to dismiss the application of the
appellant for leave to defend the suit and passed the judgment and decree dated 25-1-
2002 against the appellant and respondents Nos.2 to 4, and it was observed that the
decretal amount is payable by all the defendants jointly and severally.

4. Before us, the learned counsel for the appellant has contended that neither any
mortgage was created through deposit of title deed nor the appellant stood guarantor for
any finance facility. It was further contended that signatures of the appellant Mst. Irshad
Bibi on the documents are forged and the learned Judge, Banking Court No-II had no
jurisdiction to compare the disputed signatures of the appellant on the documents with
her admitted signatures available on the record. He has relied on the case reported as Mst.
Rabia Bai v. National Bank of Pakistan and another (NLR 1981 CLJ 371) to substantiate
his argument that second copy of the title .deed creates no equitable mortgage.

5. Conversely, the learned counsel for the respondent-Bank has drawn our attention
towards para. 6 of the plaint and contends that as an acknowledgement of and to secure
repayment of the said finance, the defendants including the appellant executed the
following documents in favour of the Bank:--

(1) Certified sale-deed regarding Property/Plot No.104 B-1, Gulberg-III, Lahore.

(2) PT I regarding said property.

(3) LDA letter regarding the share of Mst. Irshad Begum.

(4) Transfer letter of LDA in favour of Irshad Begum.

(5) Clearance Certificate.

(6) Attested copy of decision of Arbitration.

(7) NEC dated 7-1-1997.

(8) Irrevocable General Power of Attorney.

(9) Photo copy of NIC of Mst. Irshad Begum.

(10) Registered Mortgage-deed.

(11) Agreement to create registered mortgage.

(12) Approved plan by LDA.

(13) Lien got recorded with LDA.

Further contends that Mst. Irshad Begum appellant was ordered to appear before the
Court so that her thumb-impressions may be compared with her thumb-impressions on
the documents. The Bank brought the original record but the appellant did not appear
before the Court. He argued that under Article 84 of the Qanun-e-Shahadat Order, 1984
the Court had the jurisdiction to compare the signatures of the appellant on the documents
with her admitted signatures available on the record. The Court has itself compared her
signatures and found no difference.

6. There is force in the contention of the appellant that deposit of duplicate or second
copy of the title deed creates no equitable mortgage, but in the present case the mortgage
has been created through a registered mortgage deed signed by the appellant. She also
signed an irrevocable general power of attorney, memo of deposit of title deed, the
original allotment order issued by the L.D.A. have also been handed over to the Bank. In
this view of the matter, the finance facility was availed by the respondents Nos. 2 to 4. In
order to secure the said finance facility the appellant mortgaged her Property No. 104-B-
1, Gulberg-III, Lahore, and executed mortgage-deed as described in para.6 of the plaint.

7. The appellant has denied the execution of any finance document including the
mortgage deed. She was summoned by the Court to appear before it so that her thumb-
impressions may be compared with the thumb-impressions on the documents. The Bank
brought the original record but the appellant did not appear before the Court. In this view
of the matter, the Banking Court rightly resumed that she is not interested to get her
thumb-impressions compared with her thumb-impressions on the finance documents.

8. By virtue of proviso in Order III, rule 1, C.P.C. the Court can direct any person to
appear in person. Personal appearance can be ordered under Order X, rule 4, C.P.C. and
on his failure to do so the Court can proceed under Order IX, rule 12; C.P.C. which also
includes passing of decree. See the case reported as Ayya Nadan v. Thanammal (AIR
1920 Mad. 213) and Sri Prabhu v. Dwarka Prasad (AIR 1919 Patna 36). In the present
case the Court made comparison of signatures itself despite that the appellant did not
appear in compliance of the Court order.

9. There is no force in the contention of the learned counsel for the appellant that the
Judge, Banking Court had no jurisdiction to compare the signatures of the appellant on
the financing documents with her admitted signatures on the documents on the record. In
case reported as Waqas Enterprises v. Allied Bank of Pakistan (1999 SCMR 85) the
Honourable Supreme Court itself compared the disputed signatures with the admitted
signatures on the documents available on the record by observing:--

"Court, in certain eventualities was enjoined with powers to itself compare signatures
alongwith other relevant material to effectively resolve main controversy."

The appellant has not raised any substantial question of law and facts needing trial of the
case and therefore, the learned Banking Judge rightly rejected the application for leave to
defend the suit and proceeded to decree the suit against the appellant and respondents
Nos.2 to 4 vide the impugned judgment and decree dated 25-1-2002. No exception can be
taken to the judgment and decree of the trial Court. Consequently, this appeal fails and
the same is dismissed with costs.

S.A.K./I-143/L Appeal dismissed.

1995 C L C 242

[Lahore]

Before Mian Allah Nawaz, J

Mst. ZOHRA BEGUM and 6 others---Petitioners

versus

MUHAMMAD ISMAIL ---Respondent

Civil Revision No. 2014 of 1989, decided on 3rd November, 1994

(a) Benami transaction---

---- Plea of benami transaction---Proof---Essentials---Party raising plea of benami

transaction must prove such plea by adducing cogent, legal, relevant and unimpeachable
evidence of definitiveness ---Court was not required to decide such plea on suspicions,
however, strong they might be---Court was required to examine as to who had supplied
funds for purchase of property in question---Where it was proved that purchase money
came from some person other than the person in whose favour sale was made, such
circumstances, prima facie, would be strong evidence of benami nature of transaction--
Character of benami transaction should, however, be ascertained by determining intention
of parties at relevant time which could be gathered from all surrounding circumstances
i.e. relationship of parties, motives underlying the transaction and any other subsequent
conduct---Possession of property in question and custody of title deed would also be
essential consideration in determining nature of transaction.--- [Burden of proof].

Mina Kumari Bibi v. Bejoy Singh Dudhuria AIR 1916 PC 238; Bhim Singh and others v.
Kan Singh AIR 1980 SC 727; Jaydayal Poddar v. Mst. Bibi Hazra (1974) 2 SCR 90;
Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Jane
Margrete William v. Abdul Hamid Mian 1994 CLC 1437 rel.

Messrs Shalimar Limited, Karachi v. Raisuddin Siddiqui and 3 others 1979 CLC 338;
Muhammad Asheque and others v. Chowdhary Fazlur Karim and others 1970 DLC 782;
Altaf Mahmud v. Mst. Fazal-un-Nisa alias Bilqis Insari PLD 1970 Lah. 654; Sher
Muhammad v. Muhammad Sharif PLD 1984 Lah. 117; Akram Moquim Ansari and 3
others v. Mst. Ansari Begum and another PLD 1971 Kar. 763; Muhammad Sajjad
Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Rai Rejendra Kumar Ghosh
Bahadur and others v. Rash Behari Mandal and others AIR 1931 PC 125 ref.

(b) Benami transaction---

---- Plea of benami transaction---Quantum of proof---Plaintiffs oral evidence in support

of his plea of benami transaction seemed to be thoroughly discrepant, wholly inconsistent
and did not prove any of the circumstances necessary to prove such plea---Plaintiff
himself had not ventured to go to witness-box, he being the only person who had direct
knowledge of all events starting from execution of agreement to sell in his favour to
finalisation of impugned sale deed in favour of defendant---Had plaintiff come to Court
to prove his case and made himself available for cross-examination, High Court would
have been in a position to assess his claim---In absence of plaintiffs testimony Court had
no material available to determine as to whether he had paid price of land to vendor; had
obtained possession of land in question and whether defendant was only ostensible
owner---Evidence adduced by plaintiffs original plaintiff's successors was not adequate to
demolish tenor of impugned sale deed in favour of defendant.

(c) Benami transaction---

---- Plea of benami transaction---Evidence to controvert such plea ---Effect--Defendant

had produced evidence to the effect that apart from registered sale deed in his favour, he
had been paying land revenue of property in question, and was in cultivating possession
thereof as owner exercising full proprietary rights thereon---Courts below on basis of
material available on record were eminently correct in holding that defendant was owner
of land in question on basis of sale-deed and that such sale-deed was not benami in
nature. Concurrent finding of fact arrived at by two Courts below was eminently correct,
just and in consonance with well-established principles of assessment of evidence which
neither suffered from any jurisdictional defect nor from any legal error, nor was the result
of misreading or non-reading of evidence calling for interference in revisional
jurisdiction of High Court---Concurrent findings of Courts below were maintained in
circumstances.

Ch. Muhammad Farooq alongwith M. Rafi Siddiqi for Petitioners.

S.M. Masood and Asif Majeed Awan for Respondent.

Dates of hearing: 28th February; 1st, 5th, 7th and 8th March, 1994.

JUDGMENT

The only question, falling for determination in this revision petition, is whether the sale
of property in dispute made by Dittu in favour of Muhammad Ismail/respondent vide
registered sale-deed dated 20-11-1962 is Benami in nature and Taj Din/predecessor-in-
interest of the petitioners was its actual purchaser.

2. The facts, which form the background of this petition, are that one Dittu came to
Pakistan as a displaced person from India on the eve of petition. He got his claim bearing
No. 2715 verified from the Central Record Room in lieu of agricultural lands abandoned
by them in India. On 5-6-1962 he agreed to sell his claim in favour of Taj Din at the rate
of Rs.4 per unit, received Rs.2,000 as earnest money from Taj Din and covenanted to get
the above agreement to sell registered before the Sub-Registrar. He, thereafter, executed
registered deed of attorney dated 5-6-1962 in favour of one Ahmad Din (P.W.
4)/authorising the so constituted attorney to transfer/sell the land allotted in lieu of claim
of Dittu to Taj Din or any person on his directive. Dittu, thereafter secured allotment of
Agricultural land measuring 254 Kanals 14 Marlas situated in Mauza Taragarh, Tehsil
and District Kasur (it shall be hereinafter described as "suit land" or "property in
dispute"). Dittu consequently made the sale of it in favour of Muhammad Ismail by
registered deed dated 20-11-1962. Feeling aggrieved, Taj Din/predecessor-in-interest of
the petitioners brought a suit for seeking declaration that he had purchased the suit land
from Dittu; that he had paid its price to him; that he had been in its possession from the
execution of sale-deed; that the sale transaction in favour of Muhammad Ismail embodied
in deed dated 20-11-1962 was nominal in nature. The respondent, on the contrary,
maintained that the sale-deed dated 20-i1-1962 was genuine transaction; that it was not
ostensible; that he was not Benamidar, but was, in fact, the real vendee of the suit land.

3. On the pleas of the parties, necessary issues were framed. Upon the consideration of
the evidence adduced by the parties, the learned trial Judge found that the petitioners had
failed to substantiate their plea of Benami; that respondent was the actual purchaser/order
of suit land. On this conclusion the learned trial Court dismissed the suit. Feeling
aggrieved, the petitioners preferred appeal, which too, was dismissed by the learned
appellate Court. This is how this revision petition has come to this Court.

4. The learned counsel for the petitioners, while assailing the decision of the two Courts,
below raised the following points:--

Firstly, that the learned Courts below had not objectively assessed the cumulative effect
of Exhs. P.1, P.2 and D.1. According to learned counsel, the original allottee/owner made
agreement to sell of the property in dispute in favour of Taj Din by means of agreement to
sell P.1 on 5-6-1962. By this instrument he agreed to sell the property in dispute to Taj
Din for a sum of Rs.3,000, received Rs.2,000 as earnest money, delivered its possession
and agreed to get the sale-deed completed in favour of Taj Din, or anybody else in
consequence of his directive. On the same day, he executed the power of attorney in
favour of Ahmad Din. Continuing he argued that Ahmed Din (P.W. 4) appeared in the
witness-box and stated that the original allottee/owner had received the purchase-price of
the property in dispute from Taj Din and not Muhammad Ismail. On the basis of these
circumstances, it was fiercely represented that the registered sale-deed dated 20-11-1962
was Benami in nature and did not depict the true picture. Reliance was placed on Messrs
Shalimar Limited, Karachi v. Raisuddin Siddiqui and 3 others (1979 CLC 338);
Muhammad Asheque and others v. Chowdhary Fazlul Karim and others 1970 DLC 782;
Altaf Mahmud v. Mst. Fazal-un-Nisa alias Bilqis Insari PLD 1970 Lah. 654; Sher
Muhammad v. Muhammad Sharif PLD 1984 Lah. 117; Akram Moquim Ansari (rep. by
heirs) and 3 others v. Mst. Asghari Begum and another PLD 1971 Kar. 763; Muhammad
Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) and Rai Rejendra
Kumar Ghosh Bahadur and others v. Rash Behari Mendal and others (AIR 1931 PC 125).

Secondly, that the two. Courts below, while dealing with the question of Benami nature of
sale transaction, had not correctly read the evidence of the petitioners and had overlooked
the evidentiary value of Exhs. P.1 and P.2.

Thirdly, that the learned two Courts below have ignored the evidentiary value of Khasra
Girdawari pertaining to years 1978 to 1984/Exh.P.3 which clearly established the
possession of Taj Din over the suit land through his tenants. ,

5. The learned counsel for the respondent, on the other hand, vigorously supported the
impugned decisions. He, at the outset, raised a preliminary objection to the
maintainability of the revision petition by saying that the question as to whether the
impugned sale was Benami or not and did not represent the correct position, was
essentially of fact and could not be interfered with by this Court under section 115,
C.P.C.. On merits, he contended that the evidence produced by the petitioners was not
sufficient in quantity and quality to prove that the impugned sale transaction was Benami
in nature. Continuing, he maintained that Taj Din had not entered into witness box in
order to support the plea of Benami. According to learned counsel, Taj Din who had filed
the suit, had closed his affirmative evidence on 3-5-1984 and intentionally did not appear
as witness and so failed to make him available for cross-examination. On the basis of this
circumstance, it was contended that this Court was entitled to draw inference against Taj
Din under section 115(g) of the Evidence Act/Article 114 of the Qanun-e-Shahadat (10 of
1984).

6. The question relating to Benami transaction came into consideration as back as in the
year 1916 before the Privy Council in the year 1916 before Privy Council in Mina
Kumari Bibi v. Bejoy Singh Dudhuria (AIR 1916 PC 238). Speaking for the Bench, Sir
Lawrence Jenkins observed:--

"...Though in cases of alleged Benami transactions, there may be grounds for suspicion,
yet the Court's decision must not rest upon suspicion but upon legal grounds established
by legal testimony. In cases of this character, the determination of the question must
depend not merely upon direct oral evidence, but also upon circumstances, such as the
source of the purchases-money, the possession of the disputed property, the custody of the
title-deeds, the adequacy of consideration and like facts. The burden of proof lies on the
person who claims against the tenor of the deed."

This question cropped up before the Supreme Court in Bhim Singh and others v. Kan
Singh (AIR 1980 SC 727) and was answered in the following manner:--

"The principle enunciated by Lord Macmillan in the case of Manmohan Das (supra) has
been followed by this Court in Jaydayal Poddar v. Mst. Bibi Hazra (1974) 2 SCR 90
where Sarkaria, J. observed thus:

`It is well settled that the burden of proving that a particular sale in Benami and the
apparent purchaser is not the real owner, always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite
character which would either directly prove the fact of Benami or establish circumstances
unerringly and reasonably raising an inference of that fact. The essence of a Benami is
the intention of the party or parties concerned; and not unoften such intention is shrouded
in a thick veil which cannot be easily pierced through. But such difficulties do not relieve
the person asserting the transaction to be Benami of any part of the serious onus that rests
on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for
proof. The reason is that a deed is a solemn document prepared and executed after
considerable deliberation and the person expressly shown as the purchaser or transferee
in the deed, starts with the initial presumption in his favour that the apparent state of
affairs is the real state of affairs. Though the question, whether a particular sale is Benami
or not, is largely one of fact, and for determining this question, no absolute formula or
acid tests, uniformally applicable in all situations, can be laid down; yet in weighing the
probabilities and for gathering the relevant indicia, the Courts are usually guided by these
circumstances: (1) the source from which the purchase money came; (2) the nature and
possession of the property, after the purchase; (3) the motive, if any, for giving the
transaction a Benami colour; (4) the positions of the parties and the relationship, if any
between the claimant and the alleged Benamidar; (5) the custody of the title deeds after
the sale and (6) the conduct of the parties concerned in dealing with the property after the
sale.'

The principle governing the determination of the question whether a transfer is a Benami
transaction or not may be summed up thus: (1) The burden of showing that a transfer is a
Benami transaction lies on the person who asserts that it is such a transaction; (2) if it is
proved that the purchase money came from a person other than the person in whose
favour the property is transferred, the purchase is prima facie assumed to be for the
benefit of the person who supplied the purchase money, unless there is evidence to the
contrary; (3) the true character of the transaction is governed by the intention of the
person who has contributed the purchase money and (4) the question as to what his
intention was, has to be decided on the basis of the surrounding circumstances, the
relationship of the parties, the motives governing their action in bringing about the
transaction and their subsequent conduct, etc."

7. The above rules were expounded in Muhammad Sajjad Hussain v. Muhammad Anwar
Hussain (1991 SCMR 703) and Jane Margrete William v. Abdul Hamid Mian (1991 CLC
1437).

8. The ratio, deducible from the foregoing examination, is that the Court, while dealing
with the plea of Benami is to take into consideration the following circumstances:-

(i) It is the duty of the party who raises such plea to prove such plea by adducing cogent,
legal, relevant and unimpeachable evidence of definitiveness. The Court is not required to
decide this plea on the basis of suspicions, however, strong they may be.

(ii) That Court is to examine as to who has supplied the funds for the purchase of
property in dispute, it is proved that purchase money from some person other than the
person in whose favour the sale is made, that circumstances, prima facie, would be strong
evidence of the Benami nature of the transaction.

(iii) The character of a transaction is to be ascertained by determining the intentions of

the parties at the relevant time which are to be gathered from all the surrounding
circumstances i.e. the relationship of parties, the motives underlying the transactions and
any other subsequent conduct.

(iv) The possession of the property and custody of title deed.

9. Guided by the above considerations, I now turn to evidence of the parties. The case of
the petitioners hinges upon the testimony of Bashir Ahmad (P.W.1), Bagh Ali (P.W.2),
Zahoor Nasir (P.W.3), Ahmad Din (P.W.4), Abdul Rashid (P.W.5) and Anwar Baig
(P.W.6) apart from the documentary evidence. P.W.1 entered into witness-box to prove
the execution of agreement to sell dated 5-6-1962. He, however, candidly, admitted that
no consideration was passed from Taj Din to Dittu in his presence. He, in cross-
examination, admitted that Dittu, thereafter, executed registered sale-deed in favour of
Muhammad Isamil. Bagh Ali (P.W.2) testified that he had been in cultivating possession
of the suit land under Dr. Taj Din and not under Muhammad Ismail. As already noted that
Dr. Taj Din, during his lifetime, did not appear as his own witness. It was in this context
that Zahoor Nazir/his son appeared twice as witness. His testimony is of significance and
needs fuller examination. Appearing as P.W.7, he deposed that Muhammad Isamil was
the husband of sister of Dr. Taj Din; that he had purchased the suit land from Dittu and
had got executed the impugned sale-deed in the name of Muhammad Ismail as he was
man of his confidence due to close relationship. In cross-examination, he admitted that
Ahmad Din (P.W.4) was neither related to Dr. Taj Din nor was a man of his confidence.
He further stated that Dr. Taj Din was a Government employee and was entertaining
feeling that he was not eligible to purchase the property in dispute; that he, accordingly,
summoned Muhammad Ismail three days before the registration of sale-deed and asked
him to lend his name to sale-deed. Continuing, he stated that this
conversation/negotiations between Dr. Taj Din and Muhammad Ismail had taken place in
the drawing room of their house and only the members of the families were present there.
He admitted that he himself was not present at the time of above
conversation/negotiations. He frankly conceded that connection of tubewell was in the
name of Muhammad Ismail. Ahmad Din (P.W.4) had deposed that Dr. Taj Din was the
real purchaser and not Muhammad Ismail, of the property in dispute. Similarly P.W.6
Anwar Baig stated that he had signed the sale-deed on the asking of Dr. Taj Din. This is
in all the oral evidence of the petitioners in support of their plea of Benami nature of the
impugned sale. When judged the touchstone of abovenoted principles, the aforenoted
evidence seems to be thoroughly discrepant, wholly inconsistent and does not prove any
of the circumstances which are necessary to prove the plea of Benami. Neither Bashir
Ahmad (P.W.1) nor Ahmad Din (P.W.4) could say with exectitude that the price of the
property in dispute was paid by Dr. Taj Din and not by Muhammad Isamil. Bashir Ahmad
specifically stated that no consideration was paid in his presence. So, is the evidence of
Ahmad Din. In so far as Zahoor Nasir is concerned, he was neither a witness to
instrument Exh.P.l nor Exh.P.2 13 nor Exh.D.l. He had banked upon a knowledge
gathered from the members of his family, who were not produced as witnesses. There is
one more striking feature of the case. Dr. Taj Din who had raised the plea of Benami, had
not ventured to go to witness-box. He was only person who had direct knowledge of all
the events starting from execution of Exh.P.l to finalisation of the impugned sale-deed.
Had he come to Court to prove his case and made himself available for cross-
examination, this Court would have been in a position to assess his claim. This being the
position, the Court had no material available to determine as to whether Taj Din paid the
price of land to Dittu, had obtained the possession of suit land and Muhammad Ismail
was only ostensible purchaser. The evidence adduced by petitioners, in my estimation is
not adequate to demolish the tenor of impugned sale-deed.

10. On the contrary, Muhammad Ismail produced in evidence D.W.1 Ijaz Ahmad, sD.W.2
Muhammad Latif, D.W.3 Fateh Muhammad and appeared himself as D.W.5. He also
improved in evidence the receipts of payment of land revenue relating to Kharif
1978/1979 Exhs.D.2 to D.11, certified copy of registered sale-deed by which Tai Din
purchased agricultural land measuring 670 Kanals 17 Marlas in favour of his son. He
furthermore brought on record mortgage deed Exh.D.13 dated 19-11-1968 by which he
mortgaged his shop situated in-Lahore in favour of Agricultural Development Bank for
the purpose of getting loan of Rs.4,600 for the sake of installation of tubewell.

11. The receipts Exhs.D2 to D.11 clearly show that respondent had been paying land
revenue of property in dispute to revenue authorities. It makes clear that respondent was
in cultivating possession of suit land as owner and was exercising full proprietary rights
over it. Exh.D.13 conclusively demolishes the motive set out by Taj Din. This document
makes it clear that Taj Din earlier purchased agricultural land in favour of his issues
without entertaining any fear of being Government servant. On the material available on
record the learned two Courts below were eminently correct in reaching the conclusion.
That Muhammad Ismail/respondent was the owner of the suit land and transaction of sale
embodied in the registered sale-deed was not Benami in nature. This concurrent
conclusion of fact arrived at by the two Courts below is eminently correct, just and in
consonance with the well-established principles of assessment of evidence. Neither it
suffers from any jurisdictional defect nor any legal defect, nor is the result of misreading
or non-reading of evidence calling for interference in the revisional jurisdiction of this
Court.

12. As a result of the above discussion, this revision petition is found to be wholly devoid
of merit and is accordingly dismissed. The petitioners shall bear the costs of proceedings
throughout.

A.A./Z-138/L Revision dismissed.