1991 S C M R 703 Present: Zaffar Hussain Mirza and Ajmal Mian, JJ MUHAMMAD SAJJAD HUSSAIN ---Appellant versus MUHAMMAD ANWAR HUSSAIN ---Respondent Civil Appeal No.361-K of 1990, decided on 16th December, 1990. (From the judgment, dated 29-11-1988 of the High Court of Sindh, Karachi, passed in First Appeal No.42 of 1981). (a) Benami transaction--- ---- Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to consider the question, whether the two Courts below had misread the evidence on record or omitted to take into consideration material evidence and whether they failed to consider the primary and most important question as to the source of money for the purchase of suit house. (b) Constitution or Pakistan (1973)--- ----Art. 185---Civil Procedure Code (V of 1908), 5.100---Appeal to Supreme Court---Concurrent finding of fact of two Courts below---Supreme Court when can interfere. When the appeal in hand is not an appeal under section 100 of the C.P.C., Supreme Court is not precluded to examine the concurrent finding of fact. It is true that while considering the question of grant of leave to appeal against a judgment, Supreme Court declines to grant leave to app6al against a concurrent finding of fact unless it is demonstrated that the finding is perverse or is based on misreading of evidence or contrary to the evidence on record. However, once leave is granted on a question which involves appraisal of evidence, Supreme Court does examine the correctness of the concurrent Finding of fact recorded by the two Courts below and it sets aside if it is found that the same is based on misreading of evidence or is contrary to evidence. (c) Benami transaction--- ---- Question as to whether a transaction was a Benami transaction or not--Determining factors to be taken into consideration enumerated---Burden of proof. Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration: (i) source of consideration; (ii) from whose custody the original title deed and other documents came in evidence; (iii) who is in possession of the suit property; and (iv) motive for the Benami transaction. The initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed. (d) Appeal (civil)--- --- Specific plea having been taken up by the appellant in his written statement, he could not have set up a case inconsistent in his evidence to the said plea: -[Evidence]. (e) Benami transaction--- ---- Sufficient evidence on record showed that factually the respondent had paid the amount of consideration for the first house partly by cash and partly by repayment of loan of the Finance Corporation---Held, it was irrelevant from where the respondent arranged for the amount for payment of consideration. (f) Benami transaction--- --- Appellant who was the ostensible owner of the second house, obtained the title deed from the House Building Finance Corporation and production of the said title deed in the Court by the appellant was itself not sufficient to negate the other evidence which proved that the appellant was a Benamidar. Akhtar Mahmud, Advocate-on-Record for Appellant. Muzaffar Ali Khan, Advocate-on-Record for Respondent. Dates of hearing: 12th, 13th and 16th December, 1990. JUDGMENT AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment, dated 29-11-1988 passed by a learned Single Judge of the High Court of Sindh in First Appeal No.42 of 1981 filed by the appellant, dismissing the same and maintaining the judgment and decree, dated 27-5-1981 passed by the learned XIXth Civil Judge at Karachi, in Suit No.2112 of 1972, decreeing the respondent's suit for declaration that the appellant was the Benamidar in respect of the suit house. Leave to appeal was granted to consider the questions, whether the two Courts below had misread the evidence on record or omitted to take into consideration material evidence, and whether they failed to consider the primary and most important question as to the source of money for the purchase of the suit house. 2. The facts to be noted are that the, appellant is a real nephew of the respondent, being the son of his brother. At the relevant time he was a student and was putting up with the respondent in his house. On or about 16-5-1968 the respondent entered into an agreement with Mst. Hanifa Yazdani, hereinafter referred to as the vendor, to purchase from her house, bearing No.461-462 situated in Block No.l4, Federal `B' Area, Karachi, hereinafter referred to as the first house, for a sum of Rs.32,000 out of which the respondent paid a sum of Rs.13,000 as earnest money under a receipt dated 16-5-1968 (Exh.P.6/3). It seems that after few days respondent's wife Mst. Nighat Ara Begum entered into an agreement to purchase house bearing No.67-fib, situated in Block No.15, Federal `B' Area, Karachi, hereinafter referred to as the second house, from D.W.1 Abdul Mujeeb Qureshi, for a sum of Rs.30,000 though in the sale-deed, dated 7-12-1968 (Exh.D/4), the amount of consideration is shown to be Rs.25,000. Be that as it may, on 30-6-1908 the respondent addressed a letter to Mst. Hanifa Yazdani (Exh.P.7) stating therein that he had made an enquiry from the House Building Finance Corporation which revealed that `they do not transfer at a time two loans in one family i.e. husband and wife or other members of the family of the applicant'. He also requested for the refund of the amount already paid by him to her. However, Mst. Hanifa Yazdani through her letter dated 2-7-1968 (Exh.P.8) declined the respondent's above request on the ground that she had already spent the money received by her from him but she showed her willingness to get the loan transferred in the name of the respondents nephew Mr. Muhammad Sajjad Hussain i.e. the appellant and get the sale-deed registered in his name. 1t appears that the above sale transaction for the first house was finalized and a sale-deed in favour of the respondent was executed and registered with the Sub-Registrar by Mst. Hanifa Yazdani on 26-7-1969 (Exh.D.l), whereas the sale-deed in respect of the second house was executed and registered on 7-12-1908 in favour of Mst. Nighat Ara Begum, wife of the respondent (Exh.D.4). It also appears that the appellant served a legal notice, dated 21-1-1972 through his Advocate upon the respondent (Exh.l7/1) alleging therein that he was the sole owner of the first house and that in or about the month of October, 1969, he executed a General Power of Attorney with regard to the management of the first house in favour of the respondent and under it allowed him to occupy the first house for the time being. It was further alleged that till 3I-7-1970 the respondent remained in occupation, pursuant to the above clause of the Power of Attorney, when he offered to the appellant to pay rent as he was getting reasonable amount as house rent from his employer and thus relationship of landlord and tenant between the appellant and the respondent started from 1-8-1970 and the monthly rent was Rs.225, which the respondent had allegedly paid till 28-2-1971 and thereafter defaulted. The respondent was, therefore, called upon to pay the arrears for the period from 1-3-1971 to 31-5-1972 amounting to Rs.3,375. The above legal notice was replied to by the respondent through his Advocate's letter dated 3-7-1972 (Exh.l7/2), in which the allegations contained in the above notice, were denied and inter alia it was pleaded that the respondent was the real owner of the first house and that the appellant was his nephew who was jobless and had no source of income whom he supported till he got job in 1970. It was also averred that the first house was purchased by the respondent for which he paid the sale consideration. It was further alleged that the appellant had taken Qarze Hasna of Rs.12,000 which he should pay back. After that on or about 27-11-1972, the. respondent filed aforesaid suit for declaration and permanent injunction on the basis of the averments contained in the above reply to the legal notice. The above suit was resisted by the appellant inasmuch as written statement, dated 25-5-1973 was filed. On the basis of the pleadings of the parties, the learned trial Court framed the following six issues:-- (1) Whether the plaintiff is the real owner of the property? (2) Whether the defendant is only a Benamidar? (3) Whether the plaintiff paid the consideration money to Mst. Yazdani? (4) Whether the plaintiff repaid the entire loan to House Building Finance Corporation? (5) Whether the plaintiff is entitled to the relief sought? (6) What should the decree be? 3.