' SHUJAAT ALI KHAN, J.---By virtue of this revision petition the petitioners have challenged judgment and decree dated 20-9-2000 passed by the learned Additional District Judge, Khanpur.
2. Precisely, the facts, as spelt out in this petition, are that the petitioners, being legal heirs of Kamal Khan, filed a suit seeking declaration to the effect that they are owners-in-possession of the land measuring 13-Kanal and 5-Marlas comprising in Khata Nos.47 and 48 and land measuring 3-Kanal and 11-Marlas comprising in Khata Nos.66 and 67 situated within the revenue estate of Mouza Azeem Shah, Tehsil Khanpur, District Rahim Yar Khan and the defendants/respondents had nothing to do with the said land and the revenue record be corrected. The petitioners also prayed for permanent injunction restraining the defendants/respondents to interfere in the ownership and possession or to hinder the correction of revenue record. On the other hand, respondents, being legal heirs of one Sardar Muhammad, filed a suit for possession on the basis of mutation of inheritance No,750 dated 3-2-1992. Both the suits were consolidated and out of divergent pleadings of the parties the learned trial Court framed the following issues:--
(i) Whether Sardar Muhammad predecessor in interest of defendants obtained decree in pre- emption suit as Benami and Mr. Kamal Khan predecessor in interest of the plaintiff is real owner-in- possession of the suit land? OPP.
(ii) Whether the suit No,1 is time barred? OPD.
(iii) Whether the Suit is false, frivolous, mala fide and successful defendant is entitled for special costs? OPD.
(iv) Relief.
3. To discharge their onus to prove the respective issues Sarwar Arab Khan one of the plaintiffs/petitioner No,2 entered the witness box as P.W.1 while Mukhtar Ahmad and Hazoor Bakhsh were examined as P.W.2 and P.W.3 respectively. In addition to their oral evidence the petitioners/plaintiffs tendered following documents in evidence:--
(i) Copy of Jamabandi relating to Khata Nos.66/67 for the year 1987-88 (Exh.P-1),
(ii) Copy of Jamabandi relating to Khata Nos.47/48 for the year 1987-88 (Exh.P-2),
(iii) Copy of Khasra Gardawri, Kharif 1988 to 1991 (Exh.P-.3),
(iv) Copy of Mutation No,297 (Exh.P-4),
(v) Copy of Mutation No,283 (Exh.P-5) and
(vi) Attested copy of decision in suit titled Muhammad Hussain v. Kamal Khan (Exh.P-6) along with its decree sheet (Exh.P-7).
4. On the other hand, Ashiq Ali, respondent No,2, appeared as DW-2 and the defendants also examined Ghous Bakhsh as DW-1. The respondents also got exhibited the following documents in their evidence:--
(i) Statement of Muhammad Hussain in his suit for per-emption (Exh.D-1) and its decree sheet (Exh.D-2),
(ii) Copy of evidence of the parties (Exh.D-3),
(iii) Copy of Mutation No,297 (Exh.D-4),
(iv) Copy of Khasra Gardawri for the years 1968 to 1972 (Exh.D-5),
(v) Copy of Khasra Gardawri for the years 1972 to 1976 (Exh.D-6),
(vi) Copy of Khasra Gardawri for the years 1976 to 1980 (Exh.D-7),
(vii) Copy of Khasra Gardawri for the years 1980 to 1984 (Exh.D-8) and
(viii) Copy of Mutation No,750, Mark-D-A.
5. After thrashing out evidence of the parties, the learned Civil Judge, Khanpur, proceeded to decree the suit of the petitioners/plaintiffs and dismissed that of the respondents/defendants vide judgment and decree dated 13-10-1996. Aggrieved by the said consolidated judgment and decree the respondents filed two appeals before the learned Additional District Judge, Khanpur, which were accepted, vide judgment and decree dated 20-9-2000, by virtue of which while decreeing the suit filed by the respondents the suit of the petitioners/plaintiffs was dismissed; hence this petition.
6. The resume of arguments advanced by learned counsel for the petitioners is that while reversing the findings of the learned trial court the learned Appellate Court has not discussed the evidence of the parties; therefore; the findings of the learned Appellate court are not sustainable; that the judgment of the Appellate Court is defective and as a result the matter may be 'remanded back to the Appellate Court for decision afresh after encompassing all the issues and dilating upon all the pros and cons of the case; that the petitioners are in possession of the suit land and observation of the Appellate Court that their suit was time barred is against settled principle of law in as much as a party can file suit according to his choice on each' and every attack on his right; that parties cannot lead evidence beyond their -pleadings and if any evidence is led the same" cannot be considered while deciding the suit; that while reversing the findings of the trial Court, the learned Appellate Court was bound to justify its findings which has not been done and that the petitioners have been knocked out on the basis of technicalities. In support of his contentions, learned counsel has relied on the cases reported as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), Murad v. Syed Muhammad and 2 others (2012 YLR 2115), Town Committee, Jalalpur Pirwala through Chairman v. Malik Mehr Baskhsh and another (2007 YLR 82) and Abdul Karim v.
Alam Sher and another (2003 YLR 487).
7. Conversely, learned counsel appearing on behalf of the respondents while defending the impugned judgment and decree passed by the learned Appellate' Court submits that the petitioners failed to prove the ingredients of Benami transaction inasmuch as there was nothing on record to prove that infact the suit property was purchased by Kamal Khan and the same was transferred in the name of Sardar Muhammad as Benamidar; that there is nothing on record to establish that Kamal Khan got transferred the land in the name of Sardar Muhammad just to avoid the suit of pre-emption; that there is nothing in black and white in proof of the petitioners' contention that the suit for pre-emption was got filed from Muhammad Hussain by Sardar Muhammad; that a perusal of Mutation No,297 (Exh.D-4) shows that the same was attested on the basis of exercise of right of pre-emption without intervention of the court; that the learned Appellate Court has committed no illegality while holding the suit of the petitioners as barred by limitation; that, according to Jamabandi for the years 1966 to 1984 the continuous possession of the, respondents or their predecessor-in-interest is established; that sanction of mutation of inheritance in favour of the respondents also affirms that it was not a Benami transaction; that while withdrawing his suit Muhammad Hussain stated on, oath that he himself filed the suit and that Sardar Muhammad was also a party in the suit filed by. Muhammad Hussain for possession through pre-emption and if he was just a Benamidar how he was arrayed as defendant along with Kamal Khan and others.
8. I have heard learned counsel for the parties at considerable length and have also gone through the documents appended with this petition in addition to the case-law cited by learned counsel for the petitioners.
9. Firstly taking up the stance of learned counsel for the petitioners that as the judgment passed by the Appellate Court is defective for the reason that evidence of the parties has not been discussed the case be remanded back to the Appellate Court for decision afresh, I do not find myself in agreement with the learned counsel for the reason that the suit was filed in the year 1992 and this revision is pending before this court for the last more than a decade and it is not just and proper to remand the matter to the lower court on the ground that the Appellate Court has not dilated upon the entire evidence of the parties especially when the same can be decided on the basis of material available on record.
10. The next most pivotal question for determination by this court is as to what is the period of limitation for filing a suit for declaration on the basis of Benami transaction. In this regard, I am of the view that period of limitation in such suits is governed under Article 120 of the Limitation Act, 1908, where-under a period of six years has been provided for filing of such suit. Further, my view in this regard stands fortified by the judgments reported as Mst. Sharifan Bibi and others v. Abdul Majeed Rauf and others (PLD 2012 Lahore 141), Maj. General Dr. Asif Ali Khan v. Niaz Ali Khan and 2 others (2010 YLR 3214) and Kaleem Hyder Zaidi v. Mehmooda Begum and 4 others (2006 YLR 599).
In the case of Mst. Sharifan Bibi and others (Supra) the law has been elaborated as under:-- "The maximum time available to the respondents to file a benami suit was six years under the law but they remained mum for a long period of more than 24 years. No satisfactory explanation could be offered by the respondents for such a long delay, as such the suit was hit by section 3 of the Limitation Act, 1908 and was badly barred by time."
11. It is important to mention over here that the mutation, subject-matter of the suit filed by the petitioners was attested in the year 1967 and their predecessor-in-interest or the petitioners could file the suit challenging the title of the predecessor-in-interest of the respondents within six years whereas the suit was instituted by the petitioners on 18-9-1992 meaning thereby that the same was filed after 35 years of the attestation of the impugned mutation. Form the above narration of facts, it is established that though in the head note of the plaint the petitioners have tried that they are only seeking correction of revenue record but in pith and substance they challenged Mutation No,297 on the ground of B Benami transaction. Thus, the suit filed by the petitioners was rightly held as time-barred by the Appellate Court.
12. While dealing with the question as to whether Mutation No,297 was a Benami transaction or not, I am of the humble opinion that before responding to such query necessary ingredients to prove a Benami transaction is necessary for the purpose. In this regard, we can refer to a very well- illuminated judgment of the apex court of the country reported as Ghulam Murtaza v. Mst. Asia Bibi and others (PLD 2010 SC 569) wherein, while highlighting the ingredients of Benami transaction and drawing a line of distinction between the Benami and other transaction, the apex court of the country has inter alia held as under:- "The evidence aforesaid was appreciated in the light of the judgment of this Court in case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703, wherein a criteria was given in order to check as to whether some transaction was benami in character or not. It included the (i) source of consideration; (ii) from whose custody the original title deed came; and
(iii) who is in possession and (iv) motive for benami transaction."
13. If we adjudge the matter in hand on the touchstone of the aforementioned judgment of the apex court of the country we will come to the conclusion that while filing the suit the petitioners averred that just to avoid the suit for pre-emption their predecessor-in-interest opted to get the land mutated in the name of predecessor-in-interest of the respondents. The said stance of the petitioner's stands negated from the contents of Mutation. No,297 wherein Halqa Patwari has given a note to the following effect:- {{URDU TEXT}}
14. According to Pre-emption Act, 1913, as well as Pre-emption Act, 1991, it is not necessary that the pre-emptor should succeed in a suit for possessions through pre-emption rather he can get transfer the C land in question after paying the sale consideration to the vendor without intervention of the court. Further, a perusal of Mutation No,283 shows that the land was mutated in the name of predecessor-in-interest of the petitioners on 31-8-1966. While attesting Mutation No,297 the factum of Mutation No,283 has duly been mentioned meaning thereby that the land was transferred in the name of Sardar Muhammad in exercise of his right of pre-emption. Another important fact of the instant case is that one Muhammad Hussain, brother of Kamal Khan predecessor-in-interest of the petitioners, Filed a suit for possession through pre-emption against, his brother Kamal Khan and Sardar Muhammad (predecessor-in-interest of the respondents and others) challenging transfer of land in favour of Kamal Khan predecessor-in-interest of the petitioners and said Sardar Muhammad. The said suit was dismissed in terms of compromise arrived at between the parties. During the course of proceedings on the said 'suit Muhammad Hussain, plaintiff, appeared before the court and stated on oath as under:- {{URDU TEXT}}
15. Another important feature of this case is that mutation in question was attested in the year 1967.
The predecessor-in-interest of the respondents remained in physical possession of the land till the year 1984 as is evident from the revenue record. So far as Khasra Gardawri, being relied upon by the petitioners is concerned, name of the petitioners for the first time appeared in Khasra Gardawri in Kharif 1991 meaning thereby that the stance taken by the respondents in their suit that they were dispossessed by the petitioners in an illegal manner, stands affirmed.
16. The above narration of facts shows that Mutation No,297 was not result of Benami transaction rather the same was result of exercise of right of pre-emption by the' predecessor-in-interest of the respondents. Further, the fact that the predecessor-in-interest of the petitioners remained alive for decades after attestation' of the said mutation but he did not opt to challenge the 'same in any court during his lifetime. Likewise, the petitioners did not file any suit against the predecessor- ininterest of the respondents in his life time.
17. Insofar as the contention of the petitioners that the respondents failed to prove their stance taken in their written statement in reply to Paragraph No,3, is concerned, I am of the view that as, the predecessorin-interest of the respondents died and the averments contained in the said paragraph might be based on the note given by the Patwari Halqa in the relevant column. Even otherwise, it is well established by now that party who alleges a particular fact is bound to prove the same. Firstly it was the duty of the petitioners to prove that Mutation No,297 was attested pursuant to court decree passed in the suit filed by Sardar Muhammad on the asking of predecessor-in-interest of the petitioners. When the petitioners have failed to prove the said stance they have no cheeks to aver that the respondents could not prove the passing of decry in favour of their predecessor-in-interest as the parties have to stand on their own legs.
18. Now coming to the petitioners' objection that the judgment passed by the learned Appellate Court does not encompass the entire matter in issue, I am of the opinion that it is not necessary to discuss the evidence of the parties in verbatim rather the Appellate Court is required to give its finding- on the issues in view of the material available on record. Perusal of the impugned judgment shows that the Appellate Court did not confine itself to the issues framed by the learned trial Court rather with a view to arrive at a just conclusion, also framed three additional issues and gave his findings discussing all the pros and cons of the case with precision. Thus, the objection raised by learned counsel for the petitioners is hereby spurned.
19. While adverting to the evidence produced by the petitioners, I have noted that Sarwar Arab Khan, one of the plaintiffs, in the opening lines of his cross-examination stated that he is 50 years of age, his father also owned other landed property besides the land subject matter of the suit. All the other land of his father was mutated in their name. While replying to the suggestion that why they did not file a suit in the life time of predecessor-in-interest of the respondents, the said witness replied that they did not do so due to misunderstanding. While in the preceding lines the said witness stated that they were under the impression that the land was mutated in their favour. It is very astonishing to note that P. W.1 who claims that when his predecessor-in-interest purchased the land in question he was major but his lack of knowledge that in whose name the same was transferred is meaningful. Likewise,P.W.2, Mukhtar Ahmad, in his cross-examination admitted that he was not aware that how property was mutated in the name of Sardar Muhammad, predecessor-ininterest of the respondents. Further stated that he did not know as to whether the suit land was transferred in lieu of sale or under a court decree. The said witness also admitted that the petitioners did not ask for transfer of the land in the life time of predecessor-in-interest of the respondents.
20. Similarly, Hazoor Bakhsh, P.W.3, admitted in his cross-examination that he was unaware as to how the property was mutated in the name of predecessor-in-interest of the respondents. The said witness negated the stance of the petitioners that the land was mutated in favour of predecessor- in-interest of the respondents on the basis of a decree passed in pre-emption suit filed on the direction of predecessor-ininterest of the petitioners. From the above narration, it is clear that the witnesses produced by the petitioners in support of their claim contradicted each other.
21. Insofar as the contention of the petitioners that as they were in Possession of the suit land their suit was well in time, it is observed that the entries being relied upon by the petitioners pertain to the crop of Kharif in the year 1991 prior to that the possession of the petitioners or their predecessor-in-interest is not established from the revenue record... The petitioners have advanced no plausible reason for such abrupt change in possession which infact supports the version of the respondents that as the petitioners failed to get the possession even through the court, they forcibly dispossessed them from the suit land.
22. As far as the case-law cited by learned counsel for the petitioners is concerned, I am of the view that the same is not applicable to the facts and circumstances of the case for the reason that in the case of Madan Gopal (Supra) the findings of the High Court, while setting aside that of the first Appellate Court in the Regular Second Appeal, were upheld on the basis that the judgment of the first Appellate Court does not contain any reasoning which is not the position in the case in hand.
Likewise, in the case of Murad (Supra) the case was remanded to the Appellate Court on the ground that issue-wise finding was not given by the learned Appellate Court but in the case in hand in addition to giving findings on the issues framed by the learned trial Court, the Appellate Court has also framed three additional issues to arrive at a just conclusion. As far as the case of Town Committee Jalalpur Pirwala (Supra) is concerned, the order of the Appellate Court was reversed on the ground that the same was result of non-reading of evidence, therefore, the same is inapplicable to the facts of the case in hand. Similarly, in the case of Abdul Karim (Supra) the findings of the Appellate Court were reversed on account of non-mentioning of any reason to differ with the conclusion arrived at by the learned trial Court thus the same is at polls apart from the proposition involved in the instant case.
24. As a necessary corollary to the discussion made in the foregoing paragraphs,. .I am of the considered opinion that the petitioners miserably failed to prove that Mutation No,297 was result of Benami transaction. Further, the petitioners' suit was also barred by the limitation as the same was filed beyond the stipulated period of six years. Consequently, I see no reason to differ with the conclusion arrived at by the learned Appellate Court. The instant revision petition is, therefore, dismissed with no order as to costs.
C.M. No,385 of 2005/BWP.
25. Learned counsel for the respondents states that since the main case has been decided this application has become infructuous. Disposed of as such.