AMIN-UD-DIN KHAN, J. --- Through the above-mentioned civil revisions, the petitioner has challenged the judgment and decrees dated 12.05.1997 passed by the learned Addl. District Judge, Rahim Yar Khan, whereby three appeals filed by the petitioner were dismissed, and the judgment and decrees dated 18.02.1889 passed by the learned Civil Judge, Rahim Yar Khan, whereby two suits for partition filed by the petitioner (Sardar Muhammad) were dismissed and the suit for declaration filed by Barkat A.I etc. Was decreed.
2. Briefly, the facts of this case are that the petitioner (Sardar Muhammad) filed two suits for partition of suit property mentioned in each suit and the third suit for declaration was filed by the respondents (Asghar A.I, etc.) alleging therein that they be declared owner of suit property and father of parties, namely, Haji Lal Din as 'Benamidar'. All the three suits were consolidated in the suit for declaration filed by the respondents (Barkat A.I, etc).
The written statements were filed. From the divergent pleadings of the parties, consolidated issues were framed and the parties were invited to produce their respective evidence Both the parties produced oral as well as documentary evidence in support of their versions. Vide-judgment and decrees dated 18.02.1989 the Trial Court decreed the suit for declaration filed by Barkat A.I, etc. And dismissed both the suits for partition filed, by the present petitioner (Sardar Muhammad). Feeling aggrieved thereby, three appeals were filed before the first Appellate Court, which were dismissed vide judgment and decrees dated 12.05.1997. Hence, these civil revisions.
3. The civil revision No. 268-1997 is outcome of suit for declaration filed by Barkat A.I, etc, whereas civil revisions Nos. 269 & 270-1997 are outcome of suits for partition filed by Sardar Muhammad.
4. Learned counsel for the petitioner states that the suit properties were recorded in the name of Haji Lal Din, predecessor of parties, and admittedly plaintiffs and defendants were real brothers.
Their mother was also defendant No. 2 on a suit for declaration filed by the respondents. The case of plaintiffs Barkat A.I, etc. Was that they are real owner of suit property, whereas their father was recorded owner as 'Benamidar'. Learned counsel states that the properties were (i) plot No. 3 Club Road, Rahim Yar Khan (ii) plot No. 21 situated in Shahi Road, Rahim Yar Khan and (iii) 40-kanals of agricultural land situated in Mouza Sultan Pur. Learned counsel states that plaintiffs were required under the law to prove the transaction as 'Benami' by proving that the original sale documents were in their possession, the actual possession of suit property, source of money paid for the transaction and the reason for 'Benami' transaction. Further states that the plaintiffs miserably failed to plead and prove all these pre-requisites for declaring 'a transaction to be a 'Benami' one.
It has been further stated that even the document produced by the plaintiffs as Ex.P-1 (Wasiat- Nama) negates the version of plaintiffs.
5. On the other hand, learned counsel for the respondents states that there are concurrent findings of facts recorded by the Courts below and this Court is not supposed to go into the factual controversy between the parties; that Ex.P-1 is to be seen by the body of this document and not only the caption and that it is an acknowledgement on the part of Haji Lal Din, the predecessor of plaintiffs, that the suit properties are actually the ownership of plaintiffs Barkat A.I, etc. And Ex.P-1 is not will deed.
6. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
7. The basic question in the suit is whether the suit properties were in the name of Haji Lal Din as 'Benami' and plaintiffs (Barkat A.I, etc.) were the real owner of suit property.
8. No doubt, for proving a transaction to be a 'Benami' transaction, plaintiff as he asserts to believe his plea which is ever against the written documents, therefore, the august Supreme Court has made clear criteria for determination of a transaction to be a 'Benami' transaction. The salient points for determination for guidance of a Court are that the reason for 'Benami' transaction, the source of money, the actual possession of property and possession of original document with regard to the 'Benarni' transaction.
I have noticed that nothing from all the above important factors have -even been pleaded in the plaint, therefore, no question of evidence of plaintiffs on these points arises. No doubt, they have produced eight witnesses. Their main emphasis was to prove Ex.P-1. All other points which require independent evidence, plaintiffs have not concentrated upon these points. Even if Ex.P-1 is presumed to be proved, then comes its interpretation that what rights this document gives to the plaintiffs. Learned counsel for the petitioner (Sardar Muhammad) stated that admittedly this document is will by its caption. Even if body be considered, it cannot be said to be an acknowledgement by any stretch of imagination, as maker of this document has reserved his right with regard to the income of property in dispute in his favour till his death and after that he reserve the right for his wife. In this way, learned counsel has argued that this document cannot be termed as an acknowledgement. I have read the findings recorded by both the Courts below, no doubt same are concurrent findings, which not only are against the settled principles of law but also are against the evidence led by the parties and is available on the file of the case. As there is no direct evidence with regard to the arrangement of money paid for purchase of suit properties. Even there is nothing on record to show that when and from whom the property was purchased and that there is absolutely no evidence available on the file with regard to the original document of transfer of title or even acquisition of any rights in the suit properties, There is no allotment order even on the file nor it has been mentioned in the evidence or the pleadings. Moreover, the site plans for construction of buildings over the properties have been produced by the defendant (Sardar Muhammad) which show that these site plans were got sanctioned by Haji Lal Din.
9. Another important factor is that three plaintiffs are claiming properties jointly as `Benami transactions in their favour. In the above circumstances, I am clear in my mind that Haji Lal Din was the real and original owner of suit properties. After his death his legal heirs are entitled to the suit property.
10. In the light of what has been discussed above, all the three civil revisions are allowed. The impugned judgments and decrees passed by the Courts below are set aside. Resultantly, the suit for declaration filed by the plaintiffs (Barkat A.I, etc.) which is subject-matter of C R-2681997 shall stand dismissed with costs throughout and the suits for partition filed by petitioner (Sardar Muhammad) which are subject-matter of C.Rs-269 & 270-1997 shall stand decreed and the decrees whereof will be presumed to be preliminary decrees. Sardar Muhammad is declared joint owner in the properties according to his share as legal heir of his father Haji Lal Din. The Trial Court shall further proceed with the matter for passing final decrees in accordance with law in both the suits for partition.
Civil revision .