2015 PLP 696 (CLC)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioner has challenged the judgment and decree dated 13-1-1998 passed by learned Additional District Judge, Sargodha, whereby the appeal filed by him was dismissed, and the judgment and decree dated 26-6-1993 passed by learned Civil Judge 1st Class, Sargodha, whereby the suit for declaration filed by the petitioner-plaintiff was dismissed.

2. Briefly, the facts as leading to this civil revision are that Nawab Ali was recorded owner of plot No.815-D measuring 9-marlas 23-feet Satellite town, Sargodha. On his death his sons, daughter and widow got entered mutation of inheritance ignoring the father and mother of deceased, therefore his father Abdul Aziz filed a suit for declaration on 23-2-1988. The second suit was filed by the petitioner-plaintiff on 1-3-1988. In the head note of plaint it has been mentioned that Nawab Ali was the real owner in possession of plot as well as construction thereupon. It was further alleged that he was a 'Benamidar' and plaintiff is the real owner. He also challenged the original deed of transfer bearing No.1179 dated 24-6-1974 in favour of said Nawab Ali and mutation of inheritance No.15397 attested on 11-6-1987 in favour of sons, daughter and widow of said deceased Nawab Ali. Both the suits were consolidated. After the closing of trial, vide consolidated judgment and decrees dated 26-6-1993 both the suits were dismissed. Two appeals were preferred, one by the petitioner Abdul Razzaq and the other by Muhammad Mushtaq etc, legal heirs of Abdul Aziz. Learned appellate court vide judgment and decrees dated 13-1-1998 dismissed the appeal filed by Abdul Razzaq and accepted the appeal filed by Muhammad Mushtaq, declaring that the parents of deceased Nawab Ali were also entitled to inherit him.

3. At the very outset, learned counsel representing the respondents argues that there were two appeals, one by petitioner Abdul Razzaq and the other by Muhammad Mushtaq son of Abdul Aziz, as Abdul Aziz father of deceased Nawab Ali filed the suit that he is also entitled to inherit Nawab Ali, and the appeal of Muhammad Mushtaq has been accepted through a consolidated judgment and a separate decree was drawn, as there was an independent appeal of Muhammad Mushtaq etc; that the petitioner has not challenged the decree granted in favour of Muhammad Mushtaq etc. nor any revision has been filed against that decree or that part of consolidated judgment has also not been challenged.

4. Though learned counsel for the petitioner has responded this question as well as also argued the case on merits but I believe that it is necessary that this legal question be decided first. Learned counsel for the petitioner in response to the legal objection raised by learned counsel for the respondents states that though he has not challenged the other decree whereby Muhammad Mushtaq etc has been declared entitled to receive inheritance from Nawab Ali on the basis that parents of Nawab Ali were alive at the time of his death and after the death of Abdul Aziz, Muhammad Mushtaq etc are the sons of said Abdul Aziz, in this view when the petitioner accepts the decree granted by learned first appellate court in case of Abdul Aziz declaring Nawab Ali original and complete owner of suit property and declaring Abdul Aziz as father to inherit him and when this part of judgment and decree has been accepted by the petitioner, therefore he is debarred to challenge in this civil revision the decree against him passed in appeal. In this view of the matter, I am clear in my mind that the objection raised by learned counsel for the respondents is fatal for maintainability of this civil revision, as the decree whereby Nawab Ali has been declared owner and his parents have been declared entitled to inherit him, therefore without challenging that judgment and decree the petitioner cannot challenge the concurrent findings whereby his suit and appeal has been dismissed. Even in this revision petition the case of petitioner at one side is that Nawab Ali was a `Benamidar' of suit property, in the same breath the petitioner pleaded that he be declared owner on the basis of adverse possession of suit property. Both these pleadings are self destructive, as in first plea his case is that the petitioner-plaintiff is the original owner of suit property and said Nawab Ali was only a `Benamidar', whereas in the second plea he claims adverse possession. For claiming adverse possession the ownership of opposite party is admitted and hostile and without permission of owner possession is claimed. In this view of the matter, when destructive pleas were raised by the petitioner-plaintiff, same cannot go side by side. Even otherwise, for proving `Benami' transaction there are ingredients to be proved i.e. the possession, the source of payment of money, the possession of original document and the reason for `Benami' transaction. As there are concurrent findings of facts in the matter recorded by two courts below wherein it has been found that the petitioner-plaintiff failed to prove his case, therefore the case law "2001 SCMR 1700 (Muhammad Akhtar v. Mst. Manna and 3 others), 1991 SCMR 703 (Muhammad Sajjad Hussain v. Muhammad Anwar Hussain), PLD 2004 Lahore 515 (Malik Muhammad Zubair and 2 others v. Malik Muhammad Anwar and 2 others), 2002 YLR 4002 (Rafiq Rahim v. Mrs. Shahida and others PLD 1959 (W.P.) Karachi 121 (Court of Wards in Sindh and others v. Mian Bux) and 2005 SCMR 577 (Abdul Majeed and others v. Amir Muhammad and others)" referred to by learned counsel for the petitioner are not helpful. In this view of the matter, I see no force in this civil revision. It is hereby dismissed with costs throughout. AG/A-91/L Revision dismissed.