admissibility of additional evidence, and the determination of the true ownership
The main point discussed in the judgment is the validity of the suits filed by the respondents claiming ownership of properties, the admissibility of additional evidence, and the determination of the true ownership of the properties involved in the disputes.
The court set aside the judgments of the appellate court, reinstated the decisions of the trial courts, and dismissed the appeals and applications for additional evidence filed by the respondents.
The case involves multiple civil revision petitions in the Lahore High Court, all interconnected by similar facts and legal issues. In each petition, a respondent filed a suit against a petitioner seeking declaration as the owner-in-possession of certain properties, alleging that the petitioner held the properties as benamidars. Initially, the suits were decreed in favor of the respondents by the trial courts, but upon appeal, the appellate courts reversed the decisions and decreed the suits in favor of the respondents.
The petitioners argued that the suits filed by the respondents were deficient in necessary details, and the appellate courts erred in allowing additional evidence at the appellate stage. They also contended that the motives for the alleged benami transactions, such as tax evasion, were invalid. Additionally, the petitioners questioned the authenticity of the documents presented by the respondents and argued that the necessary ingredients of a benami transaction were missing.
Furthermore, the petitioners presented evidence suggesting that the respondents acted as agents on behalf of land developers, transferring properties to them. The court found discrepancies in the respondents' statements regarding the ownership and identification of the properties, undermining their claims.
Ultimately, the court held that the appellate courts had misread the evidence and misapplied the law, setting aside their judgments and decrees. The decisions of the trial courts were reinstated, and the appeals and applications for additional evidence filed by the respondents were dismissed.
HCJDA 38
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No. 56505/2022
Farrukh Shahzad Versus Maqbool Hussain Awan.
JUDGMENT
Date of hearing: 04.04.2024.
Petitioners by:
Mr. Ali Masood Hayat, Advocate.
Respondents by: Ch. Abdul Majeed, Advocate for the
respondent in this petition assisted by Ch.
Ahsan-ul-Haq and Ch. Zahid Majeed,
Advocates.
Nemo for respondents No.2 to 5 in Civil
Revisions No.58046/2022, & 58055/2022
(proceeded against ex-parte vide order dated
01.04.2024).
Shujaat Ali Khan, J: - Through this single judgment, I intend
to decide Civil Revision No. 56505/2022 (“this petition”) as well as
Civil Revision Petitions No. 58038/2022, 58046/2022 and
58055/2022 (“connected Civil Revisions”) having commonality of
law and facts.
2.
Tersely, the factual background of this petition is that Maqbool
Hussain Awan (hereinafter to be referred as respondent No.1) filed
C. R. No. 56505/2022.
--2--
suit against the petitioner-defendant (Farrukh Shehzad Malik) seeking
declaration to the effect that he was owner-in-possession of the
properties mentioned in the heading of the plaint whereas Mutations
No.2476, 2489, 2894 and 2858 were got attested in favour of the
petitioner-defendant as Benamidar. It was also prayed that petitionerdefendant be restrained to further alienate the suit properties and to
interfere in his possession. Initially, the suit filed by respondent No.1
was decreed by the learned Civil Judge Class-II, Faisalabad vide exparte judgment and decree, dated 02.04.2016, however, on the
application of the petitioner-defendant the ex-parte judgment and
decree was set aside vide order, dated 17.09.2018 and the petitionerdefendant was allowed to join the proceedings of the suit. After
recording evidence of the parties and hearing their respective
arguments, the learned Civil Judge, 1st Class, Faisalabad (learned
Trial Court) dismissed the suit through judgment and decree dated
12.12.2020 against which respondent No.1 filed appeal in terms of
section 96 CPC. Alongwith the said appeal, respondent No.1 also filed
an application seeking permission to bring on record certain
documents in the shape of additional evidence. The learned Additional
District Judge, Faisalabad (the learned Appellate Court) vide
judgment, dated 08.09.2022, not only accepted the application of
respondent No.1 for placing on record certain documents but also
C. R. No. 56505/2022.
--3--
allowed the appeal and while reversing the findings of the learned
Trial Court decreed the suit of respondent No.1.
3.
The facts, as gleaned out from Civil Revision No.58038/2022
(one of the connected Civil Revision Petitions), are that respondent
No.1 filed suit against the petitioner-defendant (Amir Ishaq Malik)
seeking declaration to the effect that he was owner-in-possession of
the properties mentioned in the heading of the plaint whereas
Mutations No.2888, 2893, 2900, 2940, 2477 and 2991 were got
attested in favour of the petitioner-defendant as Benamidar. It was
also prayed that petitioner-defendant be restrained to further alienate
the suit properties and to interfere in his possession. Initially, the suit
filed by respondent No.1 was decreed by the learned Civil Judge,
Faisalabad vide ex-parte judgment and decree, dated 02.04.2016,
however, the ex-parte judgment and decree was set aside vide order,
dated 17.09.2018 and the petitioner-defendant was allowed to join the
proceedings of the suit. After recording evidence of the parties and
hearing their respective contentions, the learned Trial Court dismissed
the suit through judgment and decree, dated 12.12.2020, against
which respondent No.1 filed appeal under section 96 CPC. Alongwith
the said appeal, respondent No.1 also filed an application seeking
permission to bring on record certain documents in the shape of
additional evidence. The learned Appellate Court vide judgment,
C. R. No. 56505/2022.
--4--
dated 08.09.2022 not only accepted the application of respondent
No.1 for placing on record certain documents but also allowed the
appeal and while reversing the findings of the learned Trial Court
decreed the suit of respondent No.1.
4.
Insofar as factual edifice of connected Civil Revision
No.58046/2022 is concerned, respondent No.1 filed suit against the
petitioner-defendant (Zain Malik) seeking declaration to the effect that
he was owner-in-possession of the properties mentioned in the
heading of the plaint whereas Mutations No.2488, 2859, 2892, 2947,
2973, 2989, 2985, and 2977 were got attested in favour of the
petitioner-defendant as Benamidar. It was also prayed that petitionerdefendant be permanently restrained to further alienate the suit
properties and to interfere in his possession. Initially, the suit filed by
respondent No.1 was decreed by the learned Civil Judge, Faisalabad
vide ex-parte judgment and decree, dated 02.04.2016. Respondent
No.1, in the first instance, got transferred the suit land in his name in
execution of ex-parte judgment and decree and subsequently
transferred the same in the name of respondents No.2 to 5, as a result
they were impleaded as party in the proceedings. Later on, the exparte judgment and decree was set aside by the learned Civil Judge
vide order, dated 17.09.2018 and the petitioner-defendant was allowed
to join the proceedings of the suit. After recording evidence of the
C. R. No. 56505/2022.
--5--
parties and hearing their respective pleas, the learned Trial Court
dismissed the suit through judgment and decree, dated 12.12.2020,
against which respondent No.1 filed appeal under section 96 CPC.
Alongwith the said appeal, respondent No.1 also filed an application
seeking permission to bring on record certain documents in the shape
of additional evidence. The learned Appellate Court vide judgment &
decree, dated 08.09.2022, not only accepted the application of
respondent No.1 for placing on record certain documents as additional
evidence but also allowed the appeal and while reversing the findings
of the trial court decreed the suit of respondent No.1.
5.
Now coming to factual narration of connected Civil Revision
No.58055/2022, I have noted that respondent No.1 filed suit against
the petitioner-defendant (Salman Ahmed Khan) seeking declaration to
the effect that he was owner-in-possession of the properties mentioned
in the heading of the plaint whereas Mutations No.2884, 2970, 2482
and 2493 were got attested in favour of the petitioner-defendant as
Benamidar. It was also prayed that petitioner-defendant be
permanently restrained to further alienate the suit properties and to
interfere in his possession. Initially, the suit filed by respondent No.1
was decreed by the learned Civil Judge, Faisalabad vide ex-parte
judgment and decree, dated 02.04.2016. Respondent No.1, firstly got
transferred the suit land in his name in execution of ex-parte judgment
C. R. No. 56505/2022.
--6--
and decree and subsequently transferred the same in the name of
respondents No.2 to 5, as a result they were impleaded as party in the
proceedings. Later on, the ex-parte judgment and decree was set aside
by the learned Civil Judge vide order, dated 17.09.2018 and the
petitioner-defendant was allowed to join the proceedings of the suit.
After recording evidence of the parties and hearing their respective
contentions, the learned Trial Court dismissed the suit through
judgment and decree, dated 12.12.2020, against which respondent
No.1 filed appeal. Alongwith the said appeal, respondent No.1 also
filed an application seeking permission to bring on record certain
documents in the shape of additional evidence. The learned Appellate
Court vide judgment & decree, dated 08.09.2022, not only accepted
the application of respondent No.1 for placing on record certain
documents but also allowed the appeal and while reversing the
findings of the trial court decreed the suit of respondent No.1.
6.
The submissions made by the learned counsel for the
petitioners-defendants at the bar and those contained in the paperbook, submitted by him during arguments, can be summed up in the
words that that the plaints of the suits filed by respondent No.1 were
deficient in respect of necessary details which fact escaped notice of
learned Appellate Court hence, its decisions are not sustainable; that
applications filed by respondent No.1 under Order XLI rule 27 CPC
C. R. No. 56505/2022.
--7--
could not be allowed as no party can be permitted to make up
deficiencies in its case, under the garb of additional evidence, at the
appellate stage; that well-reasoned judgment of the learned Trial
Court was reversed by the learned Appellate Court in a casual
manner; that when the documents were neither exhibited before the
learned Appellate Court, as per law, nor the petitioners-defendants
were allowed to impeach the authenticity of the said documents, same
could not be read in evidence while deciding the appeals filed by
respondent No.1; that suits of respondent No.1 could not be decreed
in presence of equivocal statement of PW-1 that he did not know the
petitioners-defendants; that the motive for benami transactions, given
by respondent No.1 in his plaints, was the tax-evasion, which being an
offence, could not be treated as valid one; that documents tendered
during statement of the counsel cannot be read while deciding lis
between the parties; that the learned Appellate Court failed to
appreciate that necessary ingredients of a benami transaction were
missing in the suits filed by respondent No.1, thus, his appeals could
not be allowed; that when the agreements, express or implied,
between petitioners-defendants and respondent No.1 regarding
benami transaction were not proved, the suits of the latter could not be
decreed; that the learned Appellate Court failed to appreciate that the
evidence led by petitioners-defendants was sufficient to believe that
C. R. No. 56505/2022.
--8--
they were the real owners and that the petitioners-defendants are
going to initiate criminal proceedings against respondent No.1. To
fortify his contentions, learned counsel has relied upon the cases
reported as Muhammad Yousaf and others v. Muhammad Ishaq
Rana (deceased) through LRs and others (2023 SCMR 572),
Muhammad Mumtaz Shah (deceased) through LRs. and others v.
Ghulam Hussain Shah (deceased) through LRs. and others (2023
SCMR 1155), Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan
Malik through his legal heirs and others (PLD 2021 SC 715),
Muhammad Siddique v. Gul Nawaz and others (2021 SCMR 1480),
Rana Abdul Aleem Khan v. Idara National Industrial Co-Operative
Finance Corporation Defunct through Chairman Punjab Cooperative
Board for Liquidation, Lahore and another (2016 SCMR 2067), Niaz
Rasool through Muhammad Bilal v. Mst. PARVEEN IKRAM and
others (2013 SCMR 397), Ghulam Murtaza v. Mst. Asia Bibi and
others (PLD 2010 SC 569), Syed Muhammad Hassan Shah and
others v. Mst. Binat-e-Fatima and another (PLD 2008 SC 564),
Muhammad Feroze and others v. Muhammad Jamaat Ali (2006
SCMR 1304), Shtamand and others v. Zahir Shah and others (2005
SCMR 348), Muhammad Yousaf v. Mst. Maqsooda Anjum and others
(2004 SCMR 1049), Rehmatullah v. Fazal Baqi and another (1998
SCMR 670), Muhammad Amir v. Khan Bahadur and another (PLD
C. R. No. 56505/2022.
--9--
1996 SC 267), Muhammad Sajjad Hussain v. Muhammad Anwar
Hussain (1991 SCMR 703), Nazir Ahmad and 3 others v. Mushtaq
Ahmad and another (1988 SCMR 1653), MAD AJAB and others v.
Awal Badshah (1984 SCMR 440), Abdur Rehman and others v. Abdul
Qadir and others (PLJ 1999 SC (AJ&K) 1), Izat Ali v. Muhammad
Ashfaq and others (2022 CLC 2090), Mst. SHAHEENA BIBI v.
SHAUKAT ALI and others (2020 MLD 1279), Ghulam Haider v.
Ghulam Qadir (2019 CLC 770), Abdul Majeed through Legal Heirs
v. Abdul Rasheed and others (PLD 2016 Lahore 383), Abdul Haq v.
Mst. Mughalani and 10 others (PLJ 1999 Lahore 1071), Muhammad
Younus and 2 others v. Abdul Ghaffar and others (1998 MLD 1622)
and Rahim Bakhsh and another v. Civil Judge, Lodhran and 3 others
(1985 CLC 387), Nedumkandathil Koyakutty v. Kunhali and others
(AIR (33) 1946 Madras 203), Parawa Sangappa and others v.
Rayangouda Chandramappa (AIR 1939 Bombay 401), K.M.
Srinivasam Pillai v. Y.P.R.L.Alagappa Chettiar and another (AIR
1938 Madras 372), Shadi Ram v. Mst. Atri and another (AIR 1936
Lahore 933) and Surendrakumar Chaudhury and others v.
Gangachandra Chaudhury and others (AIR 1934 Calcutta 627).
7.
On the other hand, learned counsel appearing on behalf of
respondent No.1, while defending the impugned judgments and
decrees passed by the learned Appellate Court, argues that since not
C. R. No. 56505/2022.
--10--
only consideration amount was paid by his client but also agreements
to sell were executed in his favour, the learned Appellate Court has
committed no illegality while declaring the petitioners-defendants as
benamidars; that presence of son of respondent No.1, at the time of
attestation of subject mutations, speaks loud about the fact that
petitioners-defendants were just benamidars; that non-participation of
the petitioners-defendants in the alienation proceedings at any stage
stands proof of the fact that they were not the real owners rather they
were just benamidars; that possession of respondent No.1 over the
suit properties renders it crystal clear that he is the real owner; that
non-participation of the petitioners-defendants during alienation
proceedings and their non-appearance in person, during proceedings
before the courts, affirms that they were alien to the sale transactions;
that when the findings of the learned Trial Court were based upon
suppositions, no illegality has been committed by the learned
Appellate Court while reversing the same; that though question of
limitation was not raised by the petitioners-defendants but the learned
Trial Court unnecessarily framed Issue on the said point; that as
public documents were brought on record by respondent No.1, in the
shape of additional evidence, no illegality was committed by the
learned Appellate Court while allowing applications for additional
evidence; that non-judicial approach on the part of the learned Trial
As far as petitions in hand are concerned, respondent No.1 took plea
that as the matter was pending before the Civil Court in suit for
possession through pre-emption, he could not file the suits within
time. Reference in this regard is made to the following from the
statement of respondent No.1 (PW-4):-
"*****ااقتنالت 4227ںیم وہےئ اور ہی دوعی ے ما ی 4205ںیم دارئ ایک۔ آھٹ اسل ںیم ےن
فعےکدوعےدارئوہےئگےھت۔۔۔۔۔۔۔۔۔"
دوعیاسےئلدارئہنایکہکش
The aforesaid stance of respondent No.1 was contradicted by his son
who, while appearing as PW-1, in his cross-examination, stated as
under: -
“*****ااقتنالت 4227ںیم وہےئ اور سیک 4205ںیمدارئےئکاسوہجےسہکدماععلی ھموخدیہ
ان ےک اپس آاجںیئ ےگ۔”
The above material contradictions amongst the statements of PWs, on
the point of limitation, also go against respondent No.1 and findings
of learned Appellate Court on the said point being erroneous in nature
cannot sustain.
37. It is of common knowledge that land developers manage
purchase of land for their prospective projects through their agents/
land providers. Respondent No.1, while appearing in the witness box
as PW-4, admitted that he used to transfer properties in favour of
other persons after purchasing from the land owners. He further
admitted that Major (R) Ijaz had been acting as front man on behalf of
Malik Riaz, a renowned developer of the country who happens to be
close relative of the petitioners-defendants. Reliance in this regard is
placed on the following portion from his statement as PW-4:-
“***** نواےلوکاجاتنوہں۔درتسےہہکںیماعرمااحسق،زنیکلم
ںیمکلمرایضرحبہیاٹئ
اور املسن ادمح وک یھب اجاتن وہں۔ہی کلم رایض ےک داامد ںیہ۔ ریمے ان ےک اسھت business
relation ےھت۔درتس ےہ ہک رجیم ااجعز ڑبا Businessman ےہ۔ہی کلم رایض ےک ےئل
propertyاک اکم رکاتےہ۔۔۔۔”
The afore-quoted portion from the statement of respondent No.1 (PW-
4) lends support to plea of the petitioners-defendants that respondent
No.1 used to act as an agent on their behalf and after purchase of land
ultimately used to transfer the same in their names and other
developers of housing schemes for execution of their respective
projects.
38. While addressing the Court, learned counsel representing
respondent No.1 put much emphasis on the fact that as son of
respondent No.1 had been contesting the suit for pre-emption, as
attorney, it was to be believed that respondent No.1 was the real
owner of the suit land. In this regard, it is clarified that mere pursuing
a lis as attorney per-se does not declare a person as owner, thus, said
fact can hardly be used to believe respondent No.1 as owner of the
suit properties.
39. It is very interesting to note that during entire pleadings,
respondent No.1 claimed that he being unknown to Major (R) Ijaz
Mahmood, it was not believable that he acted on behalf of the
petitioners-defendants. The said contention of respondent No.1 stands
contradicted from the contents of suit for declaration, mandatory and
permanent injunction filed by him against said Major (R) Ijaz, while
portraying him as Managing Director, Renaissance Developers (Pvt.)
Ltd., Khan Chambers, 60-Canning Road, Saddar, Rawalpindi Cantt.
Further, PW-1, son of respondent No.1, in his cross-examination,
admitted that Major (R) Ijaz was known to him.
40. There is no cudgel that in a benami transaction, real owner(s)
can challenge the title of benamidar while seeking declaration that he
is real owner of the property but the same is subject to fulfillment of
the conditions repeatedly highlighted by the superior courts in
plethora of judgments which in my humble opinion are missing in
these matters, thus, the findings of learned Appellate Court are not
tenable.
41. It is indisputable that most of the documentary evidence, before
the learned Trial Court, was produced through the statement of the
counsel for respondent No.1. Hon’ble Supreme Court of Pakistan, in
the case of Manzoor Hussain (deceased) through L.Rs v. Misri Khan
42. Insofar as intention of the petitioners-defendants to lodge
criminal proceedings against respondent No.1 is concerned, suffice it
to note that the same having no nexus with the lis before the Court,
cannot be discussed in these proceedings rather it is upto them to put
the criminal machinery into motion.
43. Learned counsel representing respondent No.1 repeatedly
argued that since his client has been possessing and managing the
properties in question, he was real owner whereas petitionersdefendants were just benamidars. There is no cavil with the fact that
subsequent conduct of parties in a suit based on benami transaction is
very relevant. Insofar as the cases under discussion are concerned, the
following portions from the cross-examination of PW-1 are very
relevant.
“***ےھجم ولعمم ہن ےہ ہک سک اعمدہہ ںیمینتک رمق یھت۔”
“***ےھجم ااقتنالت ےک ربمنز اید ہن ںیہ۔”
“***ااقتنل ربمن 4:66ںیم رخدیار وکن اھت ےھجم اید ہن ےہ۔ ااقتنل ربمن :497اور 4;98ںیم رخدیار
وکن ںیہ ےھجم اید ہن ںیہ۔ ریمے وادل اصبح وک ولعمم ےہ ےھجم ولعمم ہن ےہ۔ ہک دماععلی ھمےن ےما ی
دار وہما نک نک ےک اسےنم میلست ایک۔”
Similarly, respondent No.1, while appearing as PW-4, in reply to a
suggestion regarding the identification of the properties, subject
matter of the suits, inter-alia stated as under:-
“*****ےھجم اس وتق اید ہن ےہ ہک ریما اعمدہہ نک نک ارفاد ےس وہا اھت۔
C. R. No. 56505/2022.
--43--
ےھجم ااقتنالت یوعوعہی ےک ربمنز اید ہن ںیہ۔
*****ےھجم اید ہن ےہ ہک الہپ ااقتنل یوعوعہی ینتک رمق ےک وعض درج اور دصتقی وہا۔ ایس رطح ابیق
اس وتق ےھجم اس وٹپاری ، اقونوگناوردلیصحتارےکمامایدہنںیہ۔ج ہ ن وںےنہیااقتنالتدرجاور
ااقتنالت ںیم رمق عیب اک ملع ہن ےہ۔
***
دصتقی ےیک۔
*****ےلہپ ااقتنل یوعوعہی رپابعئ ےن دطختس ےیک ای اوگنےھٹ وگلاےئ ےھجم اید ہن ےہ۔دورسے اور
رسیتے ااقتنالت ںیم یھب اید ہن ےہ ہک اوگنےھٹ اگلےئ ای دطختس ےیک۔
*****ےھجم اید ہن ےہ ہک ےلہپ ااقتنل 4:66اک رخدیار وکن اھت اس رطح دورسے :497اور رسیتے
4698ںیم رخدیار وکن اھت ولعمم ہن ےہ۔”
In the wake of afore-quoted stances of PW-1 & PW-4 it cannot be
believed that respondent No.1 was real owner and had been dealing
with the properties as owner and petitioners-defendants were just
benamidars. It is very difficult to believe that a person, who claims
himself to be owner of a property, is not aware about its exact
identification despite the fact that he claims that he has been dealing
with it since the year 2005.
44. As a necessary corollary to the above discussion, I have no
hesitation to hold that learned Appellate Court not only misread the
evidence of the parties but also misapplied the law on the subject.
Further, it exercised the jurisdiction relating to production of
additional evidence in a perfunctory manner. Consequently, all these
petitions are accepted, as a result, the judgments & decrees of learned
Appellate Court are set aside. Consequently, the appeals as well as the
applications filed by respondent No.1, seeking permission to lead
C. R. No. 56505/2022.
--44--
additional evidence, would stand dismissed and judgments & decrees
passed by learned Trial Court shall hold the field. No order as to costs.
Judge
Announced in Open Court today i.e._30.04.2024________
Approved for Reporting.
Judge
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