' SYED HAMID ALI SHAH, J.--- Land measuring 40 Kanals, forming part of Lot No,5, in. Village 24/2-R, Tehsil and District Okara was purchased by the petitioner in open auction, in the year 1962.
Respondents, who are legal heirs of Ghulam Muhammad (deceased), claiming that their deceased father was real owner and suit property was purchased in the name of petitioner as "Benamidar", instituted suit for declaration and permanent injunction. Petitioner contested the suit, filed written statement, controverted therein the assertions made in the plaint and raised various objections.
Learned trial Court, out of divergent pleadings of the parties, framed as many as 8 (eight) issues and recorded evidence in response thereto. The suit was dismissed vide judgment and decree, dated 2-9-2005. The appeal filed by the respondents borne fruit and learned Appellate Court vide judgment and decree, dated 8-4-2006, decreed the suit. Instant revision petition assails the judgments at variance.
2. Respondents Nos.2 to 6, in response to notices, entered appearance through their counsel Mr. Maqbool Hussain Advocate. Learned counsel thereafter entered appearance once on 29-11-2006 and subsequently, absented himself from the proceedings. Successive nonappearance of learned counsel, led to issuance of notice Pervi, which he received on 18-5-2006, but again failed to appear.
Respondents Nos.2 to 6 were proceeded against ex parte on 1-6-2007.
3. Learned counsel for the petitioner has cont ended that respondents have failed to prove that the petitioner had no independent source of income. Their admission that the petitioner was a business partner of their predecessor, establishes the fact that petitioner had the capacity to purchase the suit property. Learned counsel emphasized that petitioner's independent source of income stood established, which made it obligatory upon the plaintiffs/respondents, to prove that sale consideration or auction price was paid by the predecessor of the respondents. There exists no proof in this regard. Learned counsel went on to argue that title documents and possession of the property lie with the petitioner. These facts strengthen the case of the petitioner. It was contended that it is evident from the statement of D.W.1 that the petitioner, at frequent intervals, had been purchasing properties. It was submitted that the appellate decree lacks the element of reasoning, on the points of difference, with the judgment and decree of learned trial Court. It is submitted with vehemence that suit is barred by limitation and it had no fate except to the dismissal.
4. Heard learned counsel for the petitioner and record perused.
5. Learned trial Court, while passing the impugned decree, discussed four (4) essentials of a Benami Transaction namely source of income; holding/custody of title deeds and other documents; possession of disputed property and lastly motive for Benami Transaction. Learned trial Court, after discussing the parameters of a Benami Transaction, analyzed the controversy in hand, on the basis of available material and evidence on record. Learned Court observed that the plaint is silent with regard to necessity or motive of purchase of suit-land in the name of Benamidar. It was also observed by the Court that oral evidence of plaintiffs/respondents, reflects that motive of Benami Transaction is omitted. Learned Court went through evidence and found the admission of plaintiffs that petitioner was a business partner of their predecessor (whom plaintiffs claim to be real Benamidar). Learned Court took note of this fact that the petitioner had purchased various properties and had independent source of income. Learned trial Court observed further that documents of title and possession remained with the petitioner and then found that purchase of land in dispute in open auction, is not a Benami Transaction.
6. Comparing the judgment of trial Court with appellate judgment and decree, it transpires that the Appellate Court concluded that motive behind the purchase of land in the name of petitioner, was that a person can legally purchase only 100 Kanals of Government land, which predecessor of the plaintiffs had already purchased in three (3) lots i,e, beyond 100 Kanals. Disputed property (4th lot) was purchased in the name of petitioner to avoid cancellation. To determine that auction price was paid by the predecessor of the plaintiff, learned Appellate Court found Exh.P.3 as determining factor, which according to learned Court, was admission of payment. Exh.P.3, a public record, according to the Court, was essential piece of evidence. Learned Appellate Court has found the respondents in possession of the land, on the basis of statement of P.W.3, a lessee in the suit-land.
7. Adverting to the motive/reason for purchase of property through Benamidar. The motive for Benami Transaction is the determining factor. Plaintiffs have failed to mention, in the plaint, any reason or motive for the purchase of land, in open auction, in the name of petitioner. The evidence on record is completely silent in this regard. Nothing was urged by the plaintiffs, at the time of arguments, as it appears from the narration of plaintiffs' arguments, in the judgment of learned trial Court. Learned Appellate Court imported a preposition in it's judgment, which was neither urged before trial Court, nor was pleaded in the pleadings. The motive of Benami Transaction, which is reflected in the impugned judgment, is to defeat the limit, which the law has provided, for purchase of Colony land. Learned Appellate Court has validated a transaction, which defeats the provisions of law and is against the public policy. An agreement, which defeats a provision of law or is against the public policy, has no sanctity and is a void agreement, within the provisions of section 23 of the Contract Act, 1872. Any agreement, where consideration and object is unlawful, as envisaged in section 24 of the Contract Act, 1872, is void. Court cannot and must not give validation to a transaction, which is void, illegal and against public policy.
8. Learned Appellate Court has concluded that Exh.P.3, proves the factum of payment of price of property in dispute. Exh.P.3 is an application, statedly, moved by the petitioner, admitting therein that price of land was paid by Ghulam Muhammad. Petitioner was identified by Ch. Yousaf, Advocate. Ch. Muhammad 'Yousaf, Advocate, who is non-practising Advocate, is real brother of respondents. Denial of petitioner that he has not signed or moved Exh.P.3 and identification by real brother of respondents, make the document doubtful. Petitioner's routine signature do not signify that he write at the end. Exh.P.3, reflects that signatures and with the word Appellate Court has ignored these factors, while passing the impugned judgment and decree.
9. The judgment and decree of learned trial Court is well-reasoned, it's perusal reflects that it has been passed with proper appreciation of evidence and applied law correctly. Impugned judgment of the Appellate Court suffers from legal infirmities and, as such, it is not sustainable.
10. For the foregoing, this petition is accepted and the impugned judgment and decree of the Appellate Court is set aside, maintaining the judgment and decree of learned trial Court.