AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioner-defendant-No. 1 has challenged the judgment and decree dated 17.5.2000 passed by the . learned Additional District Judge, Khanpur, whereby the appeal filed by him was dismissed and the judgment and decree dated 27.2.1993 passed by the learned Civil Judge 1st Class, Khanpur, whereby suit for declaration filed by the respondents-plaintiffs was decreed.
2. Briefly, the facts as leading to this civil revision are that the plaintiffs/respondents Nos. 1 and 2 filed a suit for declaration on 3.3.1979 with the prayer that they be declared the owner of suit property and registered sale-deed of suit property by defendant 'No. 2 in favour of defendant No. 1 is `Benamisham transaction. The defendant No. 1 filed written statement and contested the suit. Out of the divergent pleadings of the parties, Trial Court framed issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence in support of their contentions. After close of trial, the Trial Court vide judgment and decree dated 27.2.1993 decreed the suit. Feeling aggrieved by the said decree, an appeal was preferred by the defendants before the first Appellate Court, which was dismissed vide judgment and decree dated 17.5.2000. Hence, this civil revision.
3. This case of plaintiffs/respondents was that their real .Brother Bashir Ahmad was murdered on 3.5.1976 by the sons of Barkat A.I (defendant No. 2). During the trial of criminal case with the intervention of respectables of the vicinity, the parties entered into a compromise, on the basis of which, an agreement with the intervention of Punchait' dated 2.7.1976 (Ex.P-1) was written on 2.7.1976 and in furtherance thereof the suit property was transferred through registered sale-deed dated 5.7.1976 by defendant No. 2 (Barkat A.I) in favour of defendant No. 1 (Ghulam Haider) and this property was transferred in his favour as "AMANAT" so that plaintiff's statement be recorded in the criminal case and sons of defendant No. 2 be got acquitted of the charge of murder of Bashir Ahmad, as at that time the offence of murder was not compoundable. The property was transferred and defendant No. 1 thumb marked Ex.P-1 (Ex.P-3) and after completion of trial of said murder case and acquittal of accused when defendant No. 1/petitioner was asked to transfer the property in their names in accordance with the settlement. On his refusal the instant suit was filed.
4. Learned counsel for the petitioner states that the suit property was purchased by the petitioner and wrong suit has been filed against him; that both the Courts below have wrongly, recorded the findings against him by relying upon Ex.P-1 (Ex.P-3) which was inadmissible in evidence, while relying upon "1970 SCM R 200 (Ghulam Mohayyuddin and another Vs. Sher Khan and 4 others)" learned counsel contends that this document was not mentioned in the plaint. Further he has attacked the opinion of Expert, who appeared before the Court as C.W-1 and deposed that the questioned thumb mark in Ex.P-1 and thumb mark of Ghulam Haider are of the same person.
Learned counsel has relied upon "1996 SCM R 336 (Binyameen and 3 others Vs. Chaudhry Hakim and another)" and states that no evidence can be led or looked into in support of a plea, which has not been taken in pleadings.
5. On the other hand, learned counsel for the respondents/plaintiffs while relying upon "2002 CLC 1209 (Muhammad Zaman Vs. Sheikh Abdul Hamid) and 2005 SCM R 577 (Abdul Majeed and others Vs. Amir Muhammad and others)" has argued that nature of transaction is as 'Benami' as well as sham transaction. Further states that when a document has been admitted in evidence without any objection, against its admission at the subsequent stage no objection can be raised. In this regards earned counsel relied upon "PLD 2005 Peshawar 6 (Haji Muhammad Ameen Vs. Messrs Frontier Ceramics Ltd., Peahawar)". It has been further contended that plaintiffs/respondents have fully proved Ex.P-1 and this document has been admitted in evidence without any objection with rgard to its admissibility in evidence and its production before the Court in evidence, therefore, at later stage petitioner/defendant No. 1 was having no right to question its admissibility and evidentiary value; that even the petitioner/defendant No. 1 has not given any explanation with regard to Pronote (Ex.P-2) of Rs. 60,000/- by Ghulam Haider in favour of Ghulam Rasool, one of the plaintiffs/respondents; that the plaintiffs have fully proved Ex.P-1 (Ex.P-3); that Allah Rakha and Bashir Ahmad are the witnesses of this document and P.W-1 is Stamp Vendor, who have fully proved this document and that the voluminous. Evidence has been produced to prove Ex.P-1 and Ex.P-2, therefore, the onus shifted upon the petitioner/defendant No. 1 to positively prove registered sale-deed (Ex.D-2) and prove himself to be ostensible owner .Of suit property. Learned counsel for the respondents/plaintiffs has conveniently argued that in this case not only `Benami' type of transaction but a mixture of sham transaction is also involved; that Khasra Girdwari (Ex.P-5) has been produced, which shows that upon the suit land plaintiffs/respondents are in possession; that petitioner/defendant No. 1 was obliged to prove the consideration but he miserably failed to prove the consideration of Ex.D-2. With regard to possession of original document learned counsel states that though in a case of `Benami' transaction, possession of original document is one of the considerations of determination of transaction as `Benami', in this case it has been stated that it is not simply a `Benami' transaction but mixed with a sham transaction also, in the circumstances of this case because the land was being transferred as `AMANAT' which was to be transferred in the names of plaintiffs after completion of compromise and acquittal of sons of defendant No. 2, who has transferred the land, therefore, there was no question of delivering the original sale-deed to the respondents/plaintiffs. In the peculiar circumstances of this case, the original documents were in the possession of petitioner/defendant No. 1 were natural, as it has been validly explained and he was "AMANAT DAR".
6. I have heard the learned counsel for the parties at full length, also gone through the record with their able assistance as well as the judgments cited by them.
7. The case-law referred to by learned counsel for the petitioner/defendant No. 1 is concerned.
There is no cavil to the law declared by the august Supreme Court of Pakistan, but in the circumstances of this case, it is not applicable to the facts of this case. I have noticed that at the time of admission in evidence of Ex.P-1 during the statement of P.W-1, who is Stamp Vendor, the objection of learned counsel for petitioner/defendant No. 1 was that it is a forged document, therefore, it cannot be admitted in evidence. I believe this objection was frivolous one, as the Stamp Vendor has certified that he has issued the stamp paper, therefore, this document was validly exhibited in his evidence. I have noted that often the learned counsel for the parties mix the question of admissibility of a document and its evidentiary value and also raised objection at the time of admission of document in evidence upon the statement of any Writer or Stamp Vendor that this document cannot be exhibited in their evidence. At the time of raising objection the matter of evidentiary value of the document remains in the mind of learned counsel. The admissibility of a document in the statement of a witness and evidentiary value of a document are absolutely two separate things. -Therefore, in this case no solid objection has been raised with regard to admission of this document in evidence and at this later stage this objection cannot be raised or considered. The plaintiffs have proved this document by producing P.W-5 and who are the marginal witnesses of this document and statement of one of the plaintiffs as well as Stamp Vendor (P.W-1). When this document is fully proved, therefore, onus with regard to validity of sale- deed (Ex.D-2) rightly shifted upon the petitioner/defendant No. 1. He has not proved the payment of consideration and further even he failed to establish that why the plaintiffs/respondents have filed this suit against him, as well as why so many witnesses have deposed against him without any reason.
8. I have considered that case-law cited by learned counsel for the respondents/plaintiffs are applicable to the facts of this case, which is an exceptional case of `Benami' as well as sham transaction and the respondents/plaintiffs proved their possession. The `Benami' read with sham type of transaction of sale in favour of petitioner/defendant No. 1 and valid explanation with regard to possession of original document, there are concurrent findings of facts recorded by two Courts below. The petitioner failed to show any misreading, non-reading or jurisdictional defect in these findings of Courts below.
9. The crux of above discussion is that this civil revision fails and the same is hereby dismissed with costs throughout . Civil revision .