IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
CivilR. A. S-33 of 2021 : Syed Alamuddin Shahvs.
Mst. DilBhawani Shah &others.
For the Applicant : Mr. Imdad Ali Mashori, Advocate
Date of hearing : 04.03.2022.
Date of announcement : 04.03.2022
ORDER
Agha Faisal, J.(1) Deferred. (2) Granted; subject to all just exceptions. (3) The applicant had filed a suit for declaration and permanent injunction claiming inter alia to be the beneficial / benami owner of immovable property registered in the name of his wife, since divorced. The learned Trial Court was pleased to dismiss the suit and the appeal there against was also dismissed, hence, present revision.
2. It is considered appropriate to reproduce the pertinent findings of the respective Courts to illustrate the matter:
“In this case, the vendor happens to be brother of defendant No.1, vendee. Perusal of the sale deed makes it evident that the payment had been made by vendee. Plaintiff has failed to produce the vendee. In para 13 of the plaint, it is stated that cause of action accrued when defendant No.1 made separation from plaintiff and in anger tried to sell the suit property to her relatives. This shows that the plaintiff filed the suit when the relations became estranged. He has failed to establish that he purchased the suit property in the name of his wife without the intention that the title would so vest in her permanently. He has failed to produce original document, which reflects that the same is in possession of defendant No.1. He has also failed to prove the motive. The suit, therefore, fails in view of Ghulam Murtaza’s case ibid.”
-------------------------
"The careful analysis of the record reflects that originally the motive part in Benami transactions is most important one. The transaction cannot be dubbed as Benami simply for the reason that one person happened to make payment for or on behalf of others. Here in this matter, the appellant has claimed to purchase the property in the name of his wife/respondent No.1 by obtaining loan thrice time and G.P.Fund for construction of the house, whereupon, the appellant claimed his bonafide ownership over the suit property bearing Survey No.487 from an area 2000 square feet, situated in Deh and Tapa Larkana, Muhalla Gharibabad near Shaikhzaid Colony Larkana, and has sought for declaration that the registered sale deed dated 7.9.2006, which was kept in the name of respondent No.1, to be Benami. However, in the present matter, the property purchased in the name of respondent No.1 without intention that the title shall so vest permanently. If such motive is available and is also reasonable and plausible, then a transaction can be held as Benami, otherwise not. It is also pertinent to note that in this case, the Vendor happens to be the brother of respondent No.1 (Vendee). The sale deed shows that the payment of the suit property has been made by the Vendee to the Vendor (both brother and sister inter-se), which the appellant has failed to produce before learned trial Court, which is presumed to be within the possession of the respondent No.1. Hence, the motive of the appellant in such situation is not proved.
Consequent upon above discussion, it can safely be concluded that the learned trial Court has rightly dismissed the suit of the appellant by passing the impugned judgment and decree while relying case law reported in case of Ghulam Murtaza Vs. Mst.Asia Bibi and others (PLD 2010 SC-569), which even otherwise do not call for any interference by this Court. Thus, the instant appeal fails and is dismissed accordingly, with no order as to costs.”
3. Learned counsel submits that the evidence was not appreciated in its proper perspective by the respective courts and it is imperative for this Court to reappraise the same and overturn the findings under scrutiny herein.
4. Heard and perused.The judgments have clearly appreciated the evidence and concluded in favour of the respondent. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court. It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[1]. It is imperative to denote that the present proceedings are revisionary and not yet another stage of appeal and that the dearth of evidence could not be transcended by recourse to revisionary jurisdiction.
5. This Court has considered the contentions of the applicant and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law. It is the considered view of this court that no manifest illegality has been identified in the judgments impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
6. It is the considered view of this court that the applicant has remained unable to demonstrate any infirmity with the impugned judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissedin limine.
JUDGE