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Criminal Revision No. 349 of 1980, decided on 19th February, 1986.

‑‑‑Question of 'benami' nature of transaction, held, was purely a question of fact. ‑‑‑[Question of fact].

Province of East Pakistan v. Major Nawab Khawaja Hassan Askary P L D 1971 S C 82; Muhammad Rafi v. Muhammad Sharif and others 1980 S C M R 993; Misri Lal Nayak v. Mst. Surji and others A I R 1950 P C 28; Sirikishun Singh and others v. Jaimangal Singh and others A I R 1950 Pat. 541; Kovvuri Satyanaryanamurthi and others Tetali Pydayya and others A I R 1943 Mad. 459; Tukaram alias Tularam Mahadji Izardar v. Eknath Punjappa and others A I R 1944 Nag. 57 and Varisai Ibrahim and others v. Kadir Ibrahim A I R 1946 Mad. 122 rel.

‑‑‑S. 115‑‑Revision‑‑Benami transaction‑‑Revision‑‑Concurrent finding of fact recorded by Courts below about 'benami' nature of sale based on proper appraisal of evidence and their impugned judgment and decree not suffering from any legal or jurisdictional infirmity‑‑Interference declined in revisional jurisdiction.

Shazada Muhammad Umar Beg v. Sultan Mehmood Khan and another P L D 1970 S C 139; Muhammad Bux v. Muhammad Ali 1984 S C M R 504 and Haji Muhammad Zaman v. Zafar Ali Khan and others P L D 1986 S C 88 rel.

Abdur Rehman Khan for Petitioner.

Mian Muhammad Yunas Shah for Respondents.

Date of hearing: 25th January, 1986.

Ghulam Khabib sought a declaration against Ghulam Siddiq and others that he was the owner of the suit land by purchase, the defendants had no right in it and the entries in the revenue record in their favour were incorrect. In the alternative, he sought possession of 17/24 share in the said land. The suit was contested on various grounds and was decreed. The defendants went in appeal which was allowed and the case was remanded with certain directions. At the post remand stage the suit was dismissed and the appeal preferred by the plaintiff failed. He has now come on revision to this Court.

2. One of the grievances of the learned counsel for the petitioner had been that both the learned Courts below had recorded a unanimous finding with regard to the sale of the suit land in favour of the petitioner and had held it to be 'benamil but no issue reflecting this plea had been framed and the petitioner had been, greatly prejudiced. The learned counsel for the respondents, on the other hand, maintained that the plea of 'benami' had been raised by them in their written statement and though it was not reduced to a formal issue yet both the parties had adduced evidence about it. He added that the omission to frame a formal issue had not, in the circumstances, prejudiced the petitioner at all. A look at the written statement shows that it was averred in para. 1 of it that the petitioner was minor at the time of sale, had no means of income and was brought about by his father. When he entered the witness‑box on 4‑5‑1974 he was subjected to cross‑examination and he inter alia admitted that "it is a fact that the suit land had been purchased in my name by my father. I was a minor of 16 years of age at that time. I was maintained at that time by my father". He was re‑examined on 15‑10‑1974 and he admitted all these facts. It is observed in the Province of East Pakistan v. Major Nawab Khwaja Hassan Askary P L D 1971 S C 82 that if issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue. The learned counsel for the respondents referred me in this context to Muhammad Rafi v. Muhammad Sharif and others 1980 SCMR 993 and Qurban Hussain v. Haji Chaudhry Manzoor‑ul‑Hassan 1983. CLC 201. Since no prejudice seems to have been occasioned the non‑framing of a formal issue would be of little significance. Moreover, this plea' was not raised before the learned appellate Court as is evident from the grounds of appeal and the judgment impugned before me.

3. The learned counsel for the respondents emphatically urged that the finding that a certain transaction was 'benami' was tantamount to a finding of fact and could not be challenged in revision. For this view he relied on Misri Lal Nayak v. Mst. Surji and others A I R 1950 P C 28 wherein, it is observed that finding with regard to the 'benami' transaction was a finding of fact and could not be challenged in second appeal. He also relied on Sirikishun Singh and others v. Jaimangal Singh and others A I R 1950 Pat. 541, Kovvuri Satyanaryanamurthi and others Tetali Pydayya and others A I R 1943 Mad. 459, Tukaram alias Tularam Mahadji Izardar v. Eknath Punjappa and others A I R 1944 Nag. 57 and Varisai Ibrahim and others v. Kadir Ibrahim A I R 1946 Mad. 122 wherein the question of 'benami' nature of a transaction was held to be a question of fact. The learned counsel for the petitioner, however, did not cite at all any case‑law for the contrary view.

4. Since the question of 'benami' nature of a transaction involves purely a question of fact the learned counsel for the respondents emphatically urged that the concurrent finding of both the learned A Courts below on a question of fact was based on proper appraisal of evidence the revision petition was not a competent one. It is observed n Shazada Muhammad Umar Beg v. Sultan Mehmood Khan and another P L D 1970 S C 139 that the revisional power under section 115, C.P.C. were primarily intended for correcting errors made by the subordinate Courts in exercise of their jurisdiction. This view was reiterated in Muhammad Bux v. Muhammad Ali 1984 S C M R 504 wherein it was remarked that the mere fact that the findings of the Courts below may be wrong on a point of fact or on a point of law unrelatable to exercise of jurisdiction would not bring the case within the four corners of section 115, C . P. C . The latest view about the revisional powers under section 115, C.P.C. has been expressed in Haji Muhammad Zaman v. Zafar Ali Khan and others P L D 1986 S C 88. 1 am, therefore, of the opinion that the concurrent finding of fact recorded by both the learned Courts below about the 'benami' nature of the sale is based on proper appraisal of evidence and no case has been made out for interference therewith. It follows that since the impugned judgment and decree do not suffer from any legal or jurisdiction infirmity the revision petition has no legs to stand upon.

In the result, the revision petition fails and is dismissed with costs.

M.Y.H Petition dismissed.

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