' The above 2nd titled appeal has been, directed against the judgment and decree passed by Additional District Judge, Sehnsa dated 12.09.2011 whereby the judgment and decree passed by Civil Judge, Sehnsa dated 30.11.2010 has been maintained.
2.Succinctly, the- facts resulting into the filing of the instant appeal are that Muhammad Sadiq plaintiff/appellant, herein filed a suit for declaration against Karam Jan & others defendants /respondents on 03.10.2006. It was averred that the name in the sale-deed dated 25.09.1971, the name of the father of Defendants No. 2 to 8 and husband of Defendant No. 1 was entered, formally, because as a matter of fact, the plaintiff had paid the total consideration amount and the land was purchased in the name of his father. It was claimed that Karamat Hussain 'and his heirs have no concern with the suit land. It was further claimed that as the defendants have no right to the extent of the suit land, therefore, their names be deleted from the revenue record and a decree to that effect be granted in favour of the plaintiff.
3.The suit was contested by the defendants, by filing written statement, wherein, they refuted the claim of the plaintiff and craved that the suit be dismissed with costs.
4.In light of the pleadings of the parties, the learned trial Court framed issues and directed the parties to lead evidence. After completion of the proceedings, the learned trial Court vide judgment dated 30.11.2010 dismissed the suit for want of cause of action, proof as well as being hit by latches.
Feeling aggrieved from the said judgment and decree, Muhammad Sadiq, plaintiff/ appellant, preferred an appeal before the learned Additional District Judge, Sehnsa, on 06.01.2011. The learned 1st appellate Court, after hearing the parties, vide impugned judgment dated 12.09.2011 also concurred with the findings of the trial Court and dismissed the appeal for having no substance.
The above judgment and decree of the leaned 1st appellate Court has been assailed by the appellants through the supra titled, appeal.
5. Raja Perveiz Khan, Advocate, the learned counsel for the appellants, reiterating the grounds taken in the appeal argued that the learned trial Court failed to consider and resolve the controversy in its true perspective and passed the impugned judgment and decree in a hasty manner, without application of judicial mind. The learned counsel maintained that the suit of the plaintiff was proved amply by producing cogent and reliable evidence but learned trial Court also fell in error while dismissing the suit and passing the impugned judgment & decree. The learned counsel claimed that the findings of the learned trial Court were liable be revised but the learned 1st appellate Court, also fell in grave error-while concurring with the findings of the learned trial Court with closed eyes. The learned counsel claimed that the impugned judgment and decrees of the learned Courts below are badly hit by mis-reading and non-reading of record and un-rebutted documentary evidence. Finally, the learned counsel prayed for acceptance of appeal and reversal of the judgment and decrees of both the Courts below.
6. Syed Tufail Hussain Bukhari, Advocate, the learned counsel for the respondents, or the other hand, controverted the arguments .Advanced on behalf of the appellant, forcefully and argued the learned trial Court has rightly passed the impugned judgment and decree which, after detailed hearing, also stood approved and upheld by the 1st appellate Court. The learned counsel claimed that the plaintiff, miserably failed to establish his claim before the trial Court, hence, his suit was dismissed on the ground of cause of action, proof as well as being time-barred. He maintained that no mis-reading or non-reading of record or evidence or misconstruction of any law, has been proved by the appellants, specifically, therefore, concurrent findings of facts cannot be disturbed in 2nd appeal. Defending the impugned judgment and decrees, the respondent claimed that the impugned judgment and decrees, being strictly in accordance with law do not warrant any interference by this Court, and requested for dismissal of the appeal with heavy costs. In support of his submissions, the learned counsel referred the following case law:--
(i) 2008 SCR 78,
(ii) 1993 SCR 170,
(iii) 1993 SCR 160,
(iv) PLD 2011 SC 829,
(v) 2011 CLC 29,
(vi) PLD 2013 SC (AJK) 1,
(vii) 2013 CLC 1737,
(viii) PLD 2008 Karachi 127,
(ix) 2013 CLC 1752,
(x) 2013 CLC 1013,
(xi) 2006 SCR 19,
(xii) 2006 SCR 414.
7. I have heard the learned counsel for the parties, perused the record, appended therewith and considered the law on the point with utmost care.
8. Basically, the dispute between the parties pertains to sale-deed dated 25.09.1971, whereby, one Muhammad Siddique alienated the suit land in favor of Fateh Aalam (4 shares) and Karamat Hussain, (one Share) in lieu of Rs. 65000/-. The claim of the appellants is that the impugned sale- deed is a `benami' transaction and it is alleged by the plaintiff/appellant that his father Fateh Aalam purchased the land in his name as well as in the name of Karamat (the father of Respondents No. 2 to 10 & husband of Respondent No. 1).
9. Keeping in view the above facts to ascertain the truth about the transaction, I have gone through the statements of the witnesses of the parties and statement of the plaintiff/ appellant, too. It is expedient to mention that in Para 4 of the plaint, to name the transaction as `benami' and Mr. Karamat deceased as 'benamidar' it has been alleged categorically by the plaintiff that 'in his life time Karamat Hussain executed an agreement in favour of the appellant that he has not paid the consideration money, hence, he will let the same deed cancelled, as and when asked by the appellant-plaintiff (Sadiq)". It is also averred in the content No. 4 of the plaint that this agreement will be produced during the course of arguments. Another fact which has been alleged to justify the transaction as `benami', is that, Fateh Alam, father of the appellant was a rich person and working abroad (England), Karamat who was nephew of Fateh Alam was of a labour category and was not able to purchase the land.
10. The word 'benami' is a Persian word which means a transaction, undertaken by some one in the name of other persons. To resolve the proposition of any instrument being a `Benami transaction, there are some relevant factors for determination of such transaction, which are:--
(i) source of consideration,
(ii) custody over the original title document and other-relevant documents,
(iii) possession over the suit property, and
(iv) The motive for 'Benami' transaction.
11. Keeping in view the above factors, the facts and circumstances of the instant case, as mentioned above, have been considered. It is established from the record that the appellant despite the order of the Court for production of the alleged above said agreement neither produced the alleged agreement, in the Court nor tendered/exhibited the document during the course of evidence. As far as the payment of sale consideration of the share of Karamat Hussain is concerned, it has been brought on record by witnesses of the plaintiff/appellant and even by the appellant, that Karamat Hussain has been working in Saudi Arabia for last 15/20 years, in this connection the most important witness is the vendor Muhammad Siddique, who has appeared in the witness box and testified the executed sale deed which was produced by the defendants in the Court, who also negated the version of the appellant, rather he stated that Karamat was not a poor Person. This fact has been very properly appreciated by the trial Court and the 1st appellate Court too. Where from it can safely be concluded that Issue No. 3 which is the important issue in whole the case has been properly and rightly decided by the Court below and in this eventuality the whole building of the appellant constructed on the foundation of inability of Karamat, to pay the consideration money has fallen to earth.
12. As said above, that none of the basic elements required for the proof of `benami' transaction could be proved by the appellant whereas, the defendants/respondents have amply proved that Karamat was ostensible owner of the property and further proved that sale-deed was executed to the extent of Karamat Hussain in his name against the consideration amount to the extent of his 1/4 share as a real owner. So, it was rightly concluded by the Court below that the transaction was, in his own name and no question of `benamidar' arose at any moment. Therefore, need not to deep dive on other aspect of the case. The above view of the Court is fortified by 2011 CLC 29 and PLD 2011 sic 829.
13. It may be stated that the instant case is that of concurrent [findings. Interference in the concurrent findings of the Courts below is permissible under law but with certain conditions and the same is not open for all Circumstances. For instance, the concurrent findings cannot be gone into for reconsideration of facts or evidence or for some other inference rather the same can be
(sic) misreading and non( reading of record or evidence or misconstruction of any law is established, amply.
14. In view of above stated fact and examination of the record I have come to the conclusion that no mis-reading, non-reading of record or evidence, or mis-construction of any law has been pointed out by the appellants. I am also in agreement with the arguments of the learned counsel for the respondents that no interference in concurrent findings of the Courts below can be made on mere allegation of mis-reading and non-reading.
15. It may also be observed that a party seeking reversal of concurrent findings has to establish its case for interference and no such resolution can be passed in vacuum.
16. The gist of the above detailed discussion is that the instant 2nd appeal fails to make out any case of interference, hence, stands dismissed with costs.
17. Order announced. The file shall be consigned to record after completion, by sending back the record of the Courts below.