PLJ 2023 Lahore (Note) 114
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
SADIQ RASHEED and another--Petitioners
versus
Mst. UZMA RIZWAN and 10 others--Respondents
C.R. No. 1242 of 2019, decided on 27.9.2021.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R.11--Benami Transactions (Prohibition) Act, (V of 2017),
S. 43--Specific Relief Act, (I of 1877), S. 42--Suits for declaration--Rejection of plaints--Barred by law--Appeal--Allowed--Benami owners--Actual owner--Entitlement for inheritance--Suit property was not fall within ambit of benami property--One party claims ownership of house in dispute whereas opposite party denies said claim based on registered documents, which means, property in dispute is not an un-attended and title-less property--When such controversy arises between parties regarding ownership of house, exclusive jurisdiction vests in Civil Courts to decide title and ownership of such property after recording of evidence of parties--Respondent No. 1 rightly instituted a suit for declaration in order to get declare her rights with regard to suit property before Civil Court--The appellate Court has rightly observed that property in dispute does not fall within ambit of Benami property as defined in Act, and Civil Court has jurisdiction to conduct trial and decide lis regarding title and ownership in accordance with law and Benami Transactions (Prohibition) Act, 2017 is not applicable upon instant case--Counsel for petitioners has failed to point out any error in impugned judgment and decree, which is based upon p correct appraisal of law--Civil revision dismissed. [Para 8 & 9] C, D, E & F
Benami Transactions (Prohibition) Act, 2017 (V of 2017)--
----S. 43--Jurisdiction of Civil Court--Civil Courts shall have no jurisdiction to entertain any suit or proceedings in respect of any matter to which any of authorities or tribunal is empowered by or under Act to determine. [P. 4] A
Benami Transactions (Prohibition) Act, 2017 (V of 2017)--
----S. 22--Benami property--Intent & object of benami--Intent and object of Act, 2017 is very much clear--According to which, if a property was purchased in name of a person who according to his social status unable to have purchased any property by his own means, if found such property in his name then Act will come into play and will act upon procedure as laid down in Section 22 of Act and such property shall be considered as “Benami property” and would be subject to confiscation in favour of State. [Para 5] B
Mr. Imran Shahzad Bhatti, Advocate for Petitioners.
M/s. Muhammad Suleman Bhatti, Syed Tajamal Hussain Bukhari, Mr. Bilal Amin and Malik Nazir Hussain Advocates for Respondents.
Date of hearing: 27.9.2021.
Judgment
Through this single judgment, I intend to decide the instant civil revision as well as connected civil revisions Bearing No. 1305-D of 2019 & 1306-D of 2019 as common question of law is involved in all these civil revisions. The petitioners have challenged the validity, legality and propriety of impugned judgment and decree dated 24.07.2019 passed by learned Additional District Judge, Multan, whereby while setting aside the judgment and decree dated 04.10.2018 passed by learned Civil Judge, Multan, remanded the case to the learned trial Court to decide the same afresh.
2. Facts in brevity are that Respondent No. 1/plaintiff instituted three suite for declaration by seeking declaration to the effect that suit property belongs to her predecessor namely Ghulam Yasin son of Mian Muhammad Maskeen and defendants are only Benami owners, while actual owner was her predecessor, therefore, Respondent No. 1/plaintiff along with all other legal heirs are entitled to get inherit the suit property being legal heirs of Ghulam Yasin. The defendants contested the suits. The learned trial Court, while dealing with the ground of maintainability, rejected the plaints under Order VII Rule 11 C.P.C., being barred by law under Section 43 of Benami Transactions (Prohibition) Act, 2017 vide judgments/orders and decrees dated 04.10.2018. Feeling aggrieved, Respondent No. 1 preferred three separate appeals, which were allowed by the learned appellate Court, vide judgments and decrees dated 24.07.2019. The petitioners assailed the impugned judgments and decrees dated 24.07.2019 through these civil revisions.
3. I have heard the arguments advanced by the learned counsel for the parties and perused the record and relevant law with their able assistance.
4. The learned trial Court rejected the plaints being barred by law by declaring that all the plaints are hit by Section 43 of the Benami Transactions (Prohibition) Act, 2017 which barred the jurisdiction of Civil Courts. Before proceedings further, it is appropriate to read Section 43 of the Act ibid which is hereby reproduced as under:
43--Bar of jurisdiction of Civil Courts.--No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which any of the authorities, or the Tribunal is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other forum in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”
From the reading of above-mentioned provision of law, it is manifestly clear that Civil Courts shall have no jurisdiction to entertain any suit or proceedings in respect of any matter to which any of the authorities or the tribunal is empowered by or under the Act to determine. The question, which requires determination, is whether Respondent No. 1/plaintiff had instituted the suit to challenge any matter regarding Benami Transaction (Prohibition) Act, 2017 and any act of the authorities or proceedings conducted by the tribunal under the Act ibid.
5. Intent and object of Benami Transaction, (Prohibition) Act, 2017 is very much clear. According to which, if a property was purchased in the name of a person who according to his social status unable to have purchased any property by his own means, if found such property in his name then the Act ibid will come into play and will act upon the procedure as laid down in Section 22 of the Act ibid and such property shall be considered as “Benami property” and would be subject to confiscation in favour of the State. Section 22 provides that when the Initiating Officer has reason to believe on the basis of material in his possession that any person is a Benamidar in respect of a property, he may issue a notice of show-cause that why should not be treated such property as a Benami property and after making inquiry and calling for evidence draw up a statement of case and refer it to the Adjudicating Authority. After receipt of the reference proceedings for adjudication of Benami property shall start by the adjudicating authority under Section 24 of the Act, ibid. It is manifest from the reading of above mentioned provision of law that Civil Court shall have no jurisdiction to entertain any suit or proceedings in respect of any matter to which any of the authorities or the tribunal is empowered by or under the Act to determine.
6. The Respondent No. 1 neither impugned any proceedings initiated or conducted by the authorities under the Benami transaction Act nor claimed any other relief regarding such acts or deeds, therefore, Section 43 of the Act ibid is not applicable in the instant case. Furthermore, there is nowhere mentioned that any private person has remedial step or has any remedy under the provisions to get redress the grievance. Hence, Section 43 of the Benami Transaction (Prohibition) Act, 2017 does not apply in suit filed by Respondent No. 1 in which no act of authority or tribunal had been challenged.
7. Units (i) & (ii) of Clause 8(b) of Section 2 of the Act ibid, excludes those properties from the purview of the Act, which suggests that the properties of the individuals are exempted from the meaning of Benami properties upon which the Act is exclusively inapplicable. Sub-section (8) of Section 2 of Benami Transactions (Prohibition) Act, 2017 defines Benami transaction as under:
(8) “benami transaction” means.--(A) a transaction or arrangement--
(a) Where a property is transferred to, or is held by a person and the consideration for such property has been provided or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect of the person who has Provided the consideration, except which the property is held by--
(i) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, agent or legal adviser, and any other person as may, be notified by the Federal Government for this purpose; or
(ii) Any person being an individual in the name of his spouse or in the name of any child or in the name of his brother and sister or lineal ascendant or descendant and the individual appearing as joint owner in any document of such individual and the consideration for such property has been provided or paid out of known resources of income of the individual; or
(B) a transaction arrangement in respect of a property carried out or made in a fictitious name; or
(C) a transaction or arrangement in respect of a property where the owner of the property is not aware of, or denies knowledge of, such ownership; or
(D) a transaction, or arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious.”
8. Admittedly, in the instant matter, one party claims the ownership of the house in dispute whereas the opposite party denies the said claim based on registered documents, which means, the property in dispute is not an un-attended and title-less property. The same has been duly registered in the office of Sub-Registrar, Multan, after payment of all the charges, however, Respondent No. 1 finds fault with the claim of ownership of the same on the ground that the said property was basically purchased by her late father in the name of Mst. Humaira Haroon widow of Haroon Rasheed when such controversy arises between the parties regarding the ownership of the house, exclusive jurisdiction vests in the Civil Courts to decide the title and ownership of such property after recording of evidence of the parties. The Civil Courts have the exclusive and ultimate jurisdiction to declare the rights, title and status of a person or property. Respondent No. 1 rightly instituted a suit for declaration in order to get declare her rights with regard to the suit property before the Civil Court. The learned appellate Court has rightly observed that the property in dispute does not fall within the ambit of Benami property as defined in the Act, ibid and the learned Civil Court has jurisdiction to conduct the trial and decide the lis regarding title and ownership in accordance with law and the Benami Transactions (Prohibition) Act, 2017 is not applicable upon the instant case.
9. Learned counsel for the petitioners has failed to point out any error in the impugned judgment and decree, which is based upon correct appraisal of law. The same is maintained and upheld. Resultantly, all the three revision petitions are, hereby, dismissed with no order as to costs.
(J.K.) Civil revision dismissed
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