2016 PLP 42 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this revision petition petitioners have challenged the judgment and decree dated 25.7.2002 passed by learned Additional District Judge, Bhakkar whereby appeal filed by the petitioners was dismissed and judgment and decree dated 25.10.1995 passed by learned Civil Judge, Bhakkar whereby suit filed by the plaintiffs-respondents was decreed.

2. Brief facts of the case are that plaintiffs-respondents on 10.01.1991 filed a suit for declaration challenging therein Mutation of sale Nos. 1413, 1416, 1417 and 1418 attested on 12.4.1966 and Mutation No. 2612 attested on 27.2.1993 with regard to the suit land mentioned in the head-note of the plaint claiming that mutations are against the law, based upon fraud, without consideration and are "Benami" and prayed that on the basis of these mutations the entries of ownership in the name of defendants be declared null and void and for grant of permanent injunction against the defendants from interference in the suit property. The written statement was filed. Suit was contested. It was stated that suit land has been purchased by the defendants for a consideration in good faith. Learned trial court framed the issues and invited the parties to produce their respective evidence. The evidence of the parties was recorded but on the basis of some defect, the learned appellate court discarded the previously recorded evidence of both the parties and remanded the matter to the learned trial court. After remand fresh evidence of the parties was recorded and vide judgment and decree dated 25.10.1995 suit was decreed. An appeal was preferred, which was dismissed vide judgment and decree dated 25.7.2002. Hence, this civil revision.

3. Learned counsel for the petitioners argues that as the transaction relates to the year 1966 whereas the suit was filed after a lapse of 25 years, which was clearly time barred. Further that it is not the case of the plaintiffs that entrance and sanction of mutation was not in their knowledge rather they have claimed the mutations to be on the basis of "Benami" transaction. Learned counsel states that the ground for "Benami" transaction introduced by the plaintiffs is that there was some litigation with Mst. Sawai, which has been mentioned in Para 4 of the plaint. States that Exh.P.9 has been produced which is copy of the plaint titled "Muhammad Bakhsh v. Mst. Sawai", which was filed on 13.6.1966 whereas the impugned mutations are of dated 12.4.1966, therefore, to defend the litigation of Mst. Sawai with regard to the suit property, the mutations were got attested as "Benami" and this story is falsified by producing their own evidence in the shape of Exh.P.9 which is a document produced by the plaintiffs themselves. Further the litigation was between Muhammad Bakhsh and Mst. Sawai whereas impugned mutations of sale are on behalf of three sons of Muhammad Bakhsh, therefore, no explanation has been given with regard to transaction by sons of Muhammad Bakhsh. Further that one of the transferor namely Muhammad Ramzan never joined the plaintiffs in the suit. He was arrayed as defendant No.

2. He filed consenting written statement but in a suit for "Benami" transaction on the basis of consenting written statement a declaration cannot be granted in favour of defendant. States that even the possession upon the suit land is proved through the documents produced by the plaintiffs themselves. Khasra Girdawri for the year 1979 for crop Rabi-1979 to Rabi-1983, which has been produced as Exh.P.4 by the plaintiffs-respondents themselves, as it is mentioned that petitioners-defendants are in possession of the suit land where Muhammad Yar petitioner has been mentioned as owner of the suit land as well as most of the Khasra numbers are in his self-cultivating possession. Learned counsel argues that when possession has not been claimed, therefore, in the light of section 42 of the Specific Relief Act, 1877 suit for declaration without prayer of possession was not competent. That the motive introduced for the "Benami" Transaction is falsified by their own evidence and possession is with the petitioners-defendants and 3rd ingredient with regard to the consideration has been proved by the petitioners-defendants, therefore, plaintiffs-respondents have miserably failed to prove their case as pleaded by them by producing confidence inspiring evidence, therefore, the findings recorded by both the courts below are absolutely against the record as well as result of misreading and non-reading of evidence available on the file. Learned counsel has further argued that both the courts below have taken into consideration the statement of PW-2 Muhammad Nawaz, who is brother of vendee-defendant. States that his statement is not sacrosanct and the courts have used his statement as an admission on the part of the vendee-defendant. States that though he is brother of the defendant-vendee but his statement can be considered as an ordinary witness only and the courts below have used his statement as a conclusive proof against the vendee-defendant. While relying upon "Sandeo Mauar v. Pulesar Nonia" (AIR 1930 Patna 598) argues that when the transaction was admitted, it was the duty of the party asserting the transaction other than which was recorded to prove the same. States that when the sale mutations have been claimed as "Benami" it was the duty of the plaintiffs to prove the same as Benami. Further while relying upon "Muhammad Sajjad Hussain v. Muhammad Anwar Hussain" (1991 SCMR 703) states that for proving a "Benami" Transaction plaintiffs were bound under the law to prove the source of consideration; from whose custody the original title deed and other documents came in evidence; who is in possession of the suit property and motive for the "Benami" Transaction. States that it is admitted between the parties that consolidation proceedings took place in the Mauza and the land mentioned in the plaint is in the ownership of the defendants as a result of consolidation proceedings in the Mauza. Further that more than six "Jamabandies" have been changed and plaintiffs-respondents were bound to connect the land transferred in favour of the defendants with the suit land but they miserably failed. The initial burden of proof is upon the plaintiffs and on the basis of any weakness in the evidence of the defendants no benefit can be granted to the plaintiffs. While relying upon "Ghulam Murtaza v. Mst. Asia Bibi and others" (PLD 2010 Supreme Court 569) argues that motive in "Benami" transaction was the most important one and prays for setting aside the impugned judgments and decrees passed by both the learned courts below and acceptance of the civil revision.

4. On the other hand, learned counsel for the respondents argues that we have not claimed the transaction as sale, therefore, petitioners-defendants were bound to prove the valid sale in their favour. Further that the courts below have found that plaintiffs are in joint possession of the suit land, therefore, there was no need to ask for the possession of the land. With regard to limitation learned counsel for the respondents has relied upon "Muhammad Sher and another v. Ali Muhammad and 6 others" (2011 CLC 1906) to show that entries in the every new Jamabandi gives a new cause of action. Further while relying upon "Muhammad Ashraf and others v. Naseem Akhtar and 4 others" (2008 CLC 1720) argues that co-sharer need not to pray for possession. While relying upon "Shah Muhammad and 2 others v. Dulla and 2 others" (2000 SCMR 1588) states that there are concurrent findings of fact recorded by the two courts below, therefore, need not to interfere with by this Court while exercising jurisdiction under section 115 of the C.P.C. Learned counsel while relying upon "Aziz Ullah Khan v. Gul Muhammad Khan" (2000 SCMR 1647), "Muhammad Munir and others v. Hafiz Muhammad Rafiq and others" (2004 SCMR 1551) and "Muhammad Idrees and others v. Muhammad Pervaiz and others" (2010 SCMR 5) prays that revision petition be dismissed.

5. I have considered the arguments advanced by learned counsel for the parties and have gone through the record with the able assistance as well as case law relied upon by them respectively.

6. So far as suit of the plaintiffs-respondents is concerned, they have claimed in the suit that the impugned mutations are illegal, against the law, based upon fraud, without consideration and "Benami". This contention of the plaintiffs is self-contradictory because at one side they claimed these mutations to be illegal, void, based upon fraud and fictitious whereas on the other side they claimed that as "Benami" transaction whereby the suit land was transferred in favour of defendant No.

1. As far as "Benami" transaction is concerned, it is the fundamental principle that on the basis of confidence upon the other party the transaction is recorded in the papers in favour of a person on the asking of the real transferee. When the impugned mutations have been termed as "Benami" transaction, therefore, first contention of the plaintiffs that impugned mutations are based on fraud, fictitious and illegal goes and even with the trend of the evidence produced by the plaintiffs they tried to mature their stand on the basis of "Benami" transaction of the impugned mutation, therefore, the claim of the plaintiffs-respondents that beneficiary i.e. defendant No. 1 was bound to prove valid attestation of mutation and transaction as well as payment of the consideration is not relevant in this case. As I have noted above that both these pleas taken by the plaintiffs are self-contradictory, therefore, on the basis of trend of their evidence the second plea taken by the plaintiffs as they tried to mature the same can be considered only and the first plea being contradictory to the second plea is not considerable, therefore, in these circumstances of this case, the defendant beneficiary was not bound to prove the valid attestation of the mutation, transaction and payment of transaction, when transaction has been termed as "Benami" one, therefore, attestation of valid mutation does not remain disputed. In this view of the matter, the case is considerable on the basis of "Benami" transaction.

7. So far as "Benami" transaction is concerned, in order to substantiate their pleadings, the plaintiffs have produced a document Exh. P.9 which is copy of plaint titled "Muhammad Bakhsh v. Mst. Sawai", which was filed on 13.6.1966 and it is now admitted position that after a period of about two years this litigation ended. Further it is admitted position that at the time of attestation of impugned mutations i.e. on 12.4.1966 no litigation was pending between Muhammad Bakhsh and Mst. Sawai. Furthermore, there is no proof of litigation by Mst. Sawai against the plaintiffs. If the story of the plaintiffs is admitted even then there is no evidence on record that why Ghulam Rasool and Ghulam Yasin/plaintiffs i.e. sons of Muhammad Bakhsh/plaintiff No. 3 and Muhammad Ramzan the third son of the plaintiff transferred the suit land under the mutation of sale as "Benami" transaction. In this view of the matter, I am clear in my mind that for proving a "Benami" transaction, the other ingredients were also required to be proved as learned counsel for the petitioners have highlighted by referring the judgment of the august Supreme Court of Pakistan reported as "Muhammad Sajjad Hussain v. Muhammad Anwar Hussain" (1991 SCMR 703). None of the ingredients has been proved by the plaintiffs-respondents. Further for proving a "Benami" transaction grant of a declaratory decree is necessary. When one of the vendors i.e. Muhammad Bakhsh opted not to join the plaintiffs, how the courts below have granted a decree in favour of defendant, who never came forward before the court with a prayer of grant of decree. In the above circumstances, the findings recorded by both the courts below are contrary to law and the evidence available on the file produced by the parties. Even it is contrary to the documentary evidence produced by the plaintiffs themselves. As it is admitted position that consolidation proceedings were carried out in the Mauza and after the consolidation operation the suit land was given to the vendee-defendant No. 1 and as the suit has been filed after 25 years of the transaction, therefore, the findings recorded by both the courts below are not sustainable under the law and the same are set aside.

8. So far as point of limitation for filing the suit is concerned, admittedly declaratory suit can be filed within six years and plaintiffs-petitioners previously filed a suit on the basis of same cause of action on 13.5.1989 and in that suit only mutation Nos. 1416 and 1417 were challenged as a "Benami" transaction only and the stand taken in the suit in hand with regard to illegal sanction of mutation was not pleaded but that suit was withdrawn on 17.11.1990 with the permission to file a fresh suit. Though after the permission granted by the court fresh suit has been filed but permission to file a fresh suit cannot extend the period of limitation prescribed for filing of the suit. The case law relied by the learned counsel for the respondents-plaintiffs is absolutely not applicable to the facts of this case as it is not the case of the plaintiffs-respondents that the transaction was not in their knowledge and every wrong entry in the jamabandi gives a new cause of action. As it is an admitted transaction between the parties in the year 1966, which has been challenged in a suit which was filed on 13.5.1989 and was withdrawn with the permission to file a fresh suit on 17.11.1990 and the suit in hand has been filed on 10.1.1991 is clearly time barred. The findings of both the courts below on this issue against the petitioners are not sustainable under the law, therefore, same are set aside.

9. So far as maintainability of the suit without prayer of possession is concerned, as I have discussed above it is admitted between the parties that the land in question has been given to the defendant-vendee in the consolidation proceedings and therefore it is not the same land which was transferred in favour of the vendee-defendant. When the land is given under the consolidation proceedings, therefore, there is no question of joint ownership, therefore, in the circumstances of this suit, the plaintiffs were bound to seek possession of the land also when the possession of the land is not with them. In this view of the matter under section 42 of the Specific Relief Act, 1877 when plaintiffs were bound for making a prayer of consequential relief and they have failed to make the prayer for the same, therefore, suit was not competent on this score also.

10. So far as case law relied by the learned counsel for the respondents with regard to the concurrent findings of the courts below while dealing in the civil revision is concerned, as the discussion above noted shows that both the courts below failed to exercise jurisdiction vested in them by law and have misinterpreted the evidence on the file and failed to consider the real question in controversy between the parties and take note of the legal position involved in the case and reached to a wrong conclusion, therefore there is no hurdle in the way of this court while exercising jurisdiction under section 115 of the C.P.C. to correct a wrong committed by the courts below. In this view of the matter, the case law relied by the learned counsel for the respondents is not applicable to the facts of this case. For what has been discussed above, this revision is accepted. Judgments and decrees passed by the learned courts below dated 25.10.1995 and 25.7.2002 are set aside. Resultantly, suit filed by the plaintiffs-respondents stands dismissed with costs throughout." JJK/A-95/L Petition accepted.