2017 Y L R 224

[Lahore]

Before Shahid Waheed, J

MUHAMMAD ARIF—Petitioner

Versus

Haji WAHEED-UL-HAQ—Respondent

C.R. No.3765 of 2014, decided on 22nd December, 2014.

(a) Specific Relief Act (I of 1877)—

—-S. 42—Suit for declaration—Benami transaction—Essential elements—Motive for benami transaction—Contention of plaintiff was that suit property was got transferred in the name of defendant as he was government servant—Suit was dismissed concurrently— Validity—Essential elements to establish benami transaction were agreement either express or implied between the ostensible owner and the purchaser for the purchase of property in the name of ostensible owner for the benefit of the person who had to make payment of the consideration and transaction actually entered between the real purchaser and seller to which ostensible owner was not party—Plaintiff could not prove agreement with regard to transfer of the suit property in his name by the defendant from the evidence available on record—No specific motive for transfer of suit land in favour of defendant was on record—If motive for benami transaction was to make assets through money earned illegally, the same could not be valid—Discretionary and equitable jurisdiction under S. 42 of Specific Relief Act, 1877 could not be exercised in favour of plaintiff to allow him to reap benefit of his illegal gains—Plaintiff was in government service at the time of transaction of suit property and could not get the suit property transferred in his own name—Plaintiff having not proved the nature of transaction as benami suit was rightly dismissed—Plaintiff who could not explain the source of his income, could not purchase suit property—No illegality or procedural irregularity was pointed out in the judgments and decrees passed by the courts below—Revision was dismissed in limine.

Ch.Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146 rel.

(b) Benami transaction—

—-Essential elements—Essential elements to establish benami transaction were agreement either express or implied between the ostensible owner and the purchaser for the purchase of property in the name of ostensible owner for the benefit of the person who had to make payment of the consideration and transaction actually entered between the real purchaser and seller to which ostensible owner was not party

Ch.Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146 rel.

Javed Mahmood Sindhu for Petitioner.

ORDER

            SHAHID WAHEED, J.—This is a civil revision under Section 115, C.P.C., by the plaintiff against the judgment and decree dated 3.12.2014 passed by the learned Addl. District Judge, Faisalabad (camp at Samundri) confirming the judgment and decree dated 12.4.2012 of the learned Trial Court whereby his suit for declaration along with permanent injunction was dismissed. The case of the plaintiff was that the suit land falling in Khata No. 25 Khatuni Nos. 42 and 43 measuring 82 Kanals 16 Marlas situated in Chak No. 50/GB Tehsil Samundri, District Faisalabad was purchased by him from Rehmat Ali and Yousaf Ali for a consideration of Rs.2,500,000/-; that he paid Rs. 1,700,000/- through bank draft No. OP 09333188 dated 10.16.2004 and Rs.800,000/- in cash in presence of the witnesses; that owing to personal reason, that is, being Government employee he got the sale-deed No. 622/1 dated 10.6.2004 (Ex.P1) in the benami of his real brother-defendant who was living abroad at that time; that it was settled between the parties that as and when required the defendant would get the suit land transferred in plaintiff’s name; that defendant also got executed general power of attorney No. 228/4 dated 26.5.2005 (Ex.P2) in his favour; that the said power of attorney was illegally cancelled vide deed No. 110/4 dated 15.3.2007; and, that the defendant had illegally and without any lawful justification refused to transfer the suit land in his name.

  1. The defendant contested the suit by filing a written statement with the assertion that all the sale consideration and requisite expenses were paid by him through his own bank account and he handed over the possession of the suit land to his brother Javed Iqbal (PW-4) while going abroad and, that the general power of attorney was rightly cancelled due to mala fide and misconduct on the part of the plaintiff. He, therefore, prayed for dismissal of the suit filed by the plaintiff.
  2. On divergent pleadings the learned Trial Court framed 5 issues and ultimately on his analysis of the evidence dismissed the suit vide judgment and decree dated 12.4.2012. The plaintiff assailed the above said judgment and decree through an appeal under Section 96, C.P.C. before the learned Addl. District Judge, Faisalabad (Camp at Samundri). The said appeal was dismissed vide judgment and decree dated 3.12.2014. Hence, this petition.
  3. It has been argued on behalf of the petitioner that the reasons given by the learned courts below are not borne out by the evidence on record; and, that the judgments and decrees of the courts below suffer from misreading and non-reading of evidence and, therefore, the same are not sustainable in the eye of law. I have examined the evidence and I am satisfied that there is no substance in the contentions raised by the petitioner’s counsel.
  4. The Hon’ble Supreme Court of Pakistan in the case of Ch.Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others (PLD 2008 SC 146) has held that two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement, express or implied, between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration; and, second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party. In the instant case the plaintiff in paragraph No. 3 of the plaint had stated that it was settled between the parties that as and when required, the defendant would get the suit land transferred in plaintiff’s name. This agreement is not proved from the evidence available on record. Even the plaintiff while appearing before the learned Trial Court as PW-1 had not stated a single word about the said agreement. This fact alone is sufficient to disbelieve the allegations made in the plaint and to uphold the judgments and decrees of the courts below.
  5. The other question for consideration is the motive for benami transaction. The plaintiff in his plaint had not stated any specific motive for transfer of suit property in favour of the defendant. It was maintained that it was on account of “personal reason”. The personal reason, however, was explained by the plaintiff when he appeared before the learned Trial Court as PW-1. In his examination in chief the plaintiffs stated that suit property was got transferred in the name of the defendant as he was a government servant. It is a common practice that where public servant would indulge in corruption and corrupt practices and makes assets through money earned illegally he would never purchase property in his own name to avoid charges of corruption. If that was the motive for benami transaction then it was not valid and the discretionary and equitable jurisdiction under Section 42 of the Specific Relief Act, 1877 could not be exercised in favour of the plaintiff so as to allow him to reap benefit of his illegal gains. Notwithstanding above, the motive as explained by the plaintiff is not convincing. The plaintiff in his statement had stated that his three sons were adult/major at the time of execution of sale-deed. The plaintiff had not explained the reason for ignoring his sons while transferring the suit property in favour of the defendant. It is also noted that at the time of recording of statement as PW-1 the plaintiff was in government service. It means that the factor which precluded the plaintiff to get the property in his own name was in existence at the time of institution of the suit. Therefore, the plaintiff on that account should have not made an effort to get the suit property in his own name. This is not the case here. In fact the motive for benami transaction in the instant case shrouds in mystery. The plaintiff could not discharge the onus of proving the benami transaction and, therefore, the suit was rightly dismissed by the learned Trial Court.
  6. The next question for consideration was to find out the source of the consideration. The plaintiff who is an employee of LDA/WASA in BPS-10 had not explained the source of his income. He, however, has admitted that his tax is deducted from his salary and he does not have any other National Tax Number. In these attending circumstances it is not believable that an employee of BPS-10 could purchase the suit property amounting to Rs.250,000/- from his only source of income, that is, salary. Thus, this factor also remained unproved.
  7. In view of above, the judgments and decrees of the courts below do not call for any interference by this Court as the same do not suffer from any illegality or procedural irregularity. This petition being devoid of any merits is dismissed in limine.

ZC/M-48/L                                                                                          Revision dismissed.