AMIN-UD-DIN KHAN, J. - By this single Judgment I intend to dispose of all the above-captioned three civil revisions.
2. Civil Revision No. 314 of 1997 is outcome of a suit for declaration of suit property filed by Sultan Ahmad Khan on 10.08.1991, on the basis that he is the original owner and defendants Muhammad Ibrahim Khan & Shera are 'Benami' owner and further that he is owner on the basis of adverse possession. The second suit for possession which is subject-matter of Civil Revision No. 317 of 1997 was filed by Shera on 01.02.1993 against Sultan Ahmad and Muhammad Ibrahim. The third suit for possession which is subject-matter of Civil Revision No. 318 of 1997 was filed by Muhammad Ibrahim Khan on 20.01.1993 against Sultan. Ahmad and Shera.
As all the three suits were with regard to the same suit property, therefore, Trial Court consolidated all these suits and proceedings were ordered in the suit for declaration filed by Sultan Ahmad and consolidated issues were framed on 23.06.1993. Both the parties adduced their oral as well as documentary evidence in support of their versions. Vide consolidated judgment dated 18.05.1994 passed by the Trial Court, suit for declaration filed by Sultan. Ahmad was dismissed and the other two suits for possession filed by Shera and Muhammad Ibrahim Khan were decreed. Feeling aggrieved by the said decrees, Sultan Ahmad filed three appeals before the first Appellate Court.
During the pendency of appeals, on 14.12.1994 Shera (respondent) and Sultan Ahmad (appellant) filed a written compromise in the Court stating that on the basis of compromise, Shera has no objection if appeal filed by Sultan Ahmad is accepted. When confronted to learned counsel for the petitioner that why civil revision No. 317 of 1997 has been filed by Muhammad Ibrahim Khan.
Learned counsel states that just in order to avoid the bar of principle of res judicata he has filed this civil revision, so that the other party i.e. Sultan Ahmad may not use this compromise decree against the petitioner as res judicata, as the appeal was accepted on the basis of compromise. I believe that it is a question of an academic nature only and it cannot create any hurdle in the way of. Muhammad Ibrahim Khan for pursuing his case.
3. In his suit Muhammad Ibrahim Khan, which is subject -matter of Civil Revision No. 318 of 1997 and the other suit filed by Sultan Ahmad Khan, which is subject-matter of Civil Revision No. 314 of 1997, learned counsel for the petitioner (Muhammad Ibrahim Khan) states that suit for declaration was filed on 10.08.1991, wherein the pleas taken by the plaintiff (Sultan Ahmad) are self-destructive. He claims to be owner of suit property and prays that declaration be made that defendants (Muhammad Ibrahim Khan & Shera) are 'Benami' owners and further he claims right of adverse possession over the suit property, both these pleas are self-destructive. Further states that ingredients for proving 'Benami' transaction are required under the law to be pleaded in the plaint which are missing therein as well as the evidence has also not been led to prove the ingredients of 'Benami' transaction as enunciated by the Superior Courts of Country. Learned counsel further states that the first Appellate Court has relied upon the entries in 'Khana Kasht' of Jamabandies which have no presumption of correctness attached and against that, there was a registered Patta-Malkiat in favour of petitioner and further it was incorporated in the revenue record through attestation of mutation which has been attestation produced as Ex.P-1. Further states that the entries in 'Khana-kasht' of Jamabandies are not in accordance with the common practice of revenue entries and therefore these entries which are not in accordance with the scope of columh in which these are entered, cannot be relied upon. Lastly states that motive has not been proved for 'Benami' transaction and the original documents were never produced by the plaintiff and further that adverse possession claimed by the plaintiff is fatal to this suit which has been ignored by the first Appellate Court.
4. On the other hand, learned counsel for the respondent {Sultan Ahmad) states that some of the revision petitioners have even entered into compromise with him and got recorded their statement before this Court on 07.03.2011 and further that plea of adverse possession does not make any hurdle in the way of right of plaintiff as original owner as well as declaring the defendants as 'Benami' owner. Further states that respondent-plaintiff is in possession of suit property, therefore, first Appellate Court has rightly decreed his suit. Learned counsel has also relied upon "2005 SCM R 577 (Abdul Majeed and others v. Amir Muhammad and others)".
5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
6. For claiming a transaction to be 'Benami' one, plaintiff is required to plead with full details the transaction, the source of payment of money, the motive behind the transaction, the possession of original documents and possession of suit property. I have minutely gone through the evidence produced by the parties. There is no specific pleading in detail as is required under the law for a suit to claim a transaction to be 'Benami'. Even it is not on the record that how and on which date the impugned property was allotted or auctioned in favour of revision petitioner (Muhammad Ibrahim Khan), and further, how and when its instalments were paid and where are the receipts of payment of instalments. Sultan Ahmad plaintiff when appeared as witness, stated that he has paid total amount of land to the Government in lump sum and there were no instalments which is against the record available on the file. Even the receipt of lump sum payment has not been produced on record and plaintiff has showed ignorance about that receipt, as Ex.D-1 shows the conditions for payment of instalments etc. Further, the motive for this 'Benami' transaction has not been pleaded and plaintiff has not even stated a single word in his examination-in-chief but learned counsel for the defendant invited him, to make out a defect which was in his statement by putting him a question, where the plaintiff has tried to give reason for this 'Benami' transaction but this reason remained without any substance. As plaintiff has stated that his father wanted to transfer other land in his favour, therefore, this 'Benami' transaction was in the name of defendant.
The entries in 'Khana-Kasht' of Jamabandi do not have the presumptions of correctness. Learned counsel for the petitioner has raised the objection that most of the entries in 'Khana-Kasht' of various Jamabandies are extraneous to the revenue practice and stated that these are because of brother of plaintiff Sultan Ahmad, who was admittedly Lumberdar of Mouza, therefore, he was able to get these entries and further the same are contradictory in nature and cannot help the case of respondent-plaintiff. When plaintiff himself has prayed for decree for adverse possession which is destructive to his other claim. So far as, claim of adverse possession is concerned. It is necessary that claimant must have admit the ownership of other party and then prove his hostile, uninterrupted peaceful possession for a continuous period of twelve years. Even the Appellate Court has not decreed the suit of plaintiff on this claim but in my view his claim of adverse possession was destructive for his other claim. In this view of the matter, I am clear in my mind that plaintiff Sultan Ahmad miserably failed to prove to be owner of suit property and the ownership of petitioner Muhammad Ibrahim Khan as 'Benami' owner. I have noticed that the case-law referred to by learned counsel for the respondent goes against him.
7. In the light of what has been discussed above, Civil Revisions Nos. 314 & 318 of 1997 are allowed and the judgment and degrees dated 12.07.1997 passed by the first Appellate Court are set aside. As Civil Revision No. 317 of 1997 has been filed in order to save the rights of revision petitioner (Muhammad Ibrahim Khan) for abundant cautions, therefore, this Civil Revision is disposed of as the decree whereof cannot injure the rights of petitioner.
8. Before parting with this judgment, it is pertinent to mention here that Shera has withdrawn from his rights and also some of the petitioners who have made a compromise statement during the pendency of this civil revision, this aspect will be taken into consideration at the time of execution of decree by the Executing Court.
Civil revision .