AMIN-UD-DIN KHAN, J.---Through this second appeal the appellant/plaintiff has challenged the judgment and decree dated 18.05.2009 passed by the learned Additional District Judge, Vehari, whereby the appeal filed by him was dismissed, and the judgment and decree dated 23.07.1973 passed by the learned Civil Judge 1st Class, Pakpattan, whereby the suit for declaration and possession filed by the appellant/plaintiff was dismissed.
2. Briefly, the facts as leading to this appeal are that the appellant/plaintiff on 10.03.1964 filed a suit for declaration and possession of 247-kanals 9-marlas land fully described in Para 4 of the plaint and challenged transfer of land by Karam Din in favour of other defendants. The case of plaintiff as pleaded in the plaint is that the plaintiff was doing business from 1928 to 1946 in Panama, country of America Continent and defendant No,4 was also invited to Panama in the year 1938, he remained there for a period of more than one year and thereafter returned to India. The suit property was purchased from the government in open auction in the year 1944-45. The case of plaintiff was that all these transactions with regard to purchase of 509-kanals 9.marlas land were 'Benue and plaintiff is the real owner and transfer of part of the property in favour of other defendants is illegal. The prayer was made that all the transactions be set aside and defendant No,4 Ohulam Muhammad be declared as `Benamidar' and plaintiff be declared as real owner and a decree for possession of property be also granted. The written statement was filed and suit was contested. The case of defendant No,3 was that suit has been filed with the connivance of defendant No,4. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial vide Judgment and decree dated 23.07.1973 suit was dismissed by the learned trial Court. An appeal was preferred. In first round of litigation the appeal was accepted vide Judgment and decree dated 10.03.1980. One of the defendants/respondents Bashir Ahmad preferred second appeal before this Court, RSA No,268 of 1980, which was accepted vide judgment/remand order dated 10.04.2000 and matter was remanded to the learned first appellate Court. The legal heirs of plaintiff filed C.P. No,1282-L/2000 before the august Supreme Court of Pakistan, which was disposed of vide order dated 21.03.2003 and leave was not granted.
Thereafter learned first appellate Court vide judgment and decree dated 18.05.2009 dismissed the appeal. Hence, this second appeal by the plaintiff.
3.Learned counsel, for the appellant/plaintiff argues that when 'Benami' owner has accepted the purchase of property by him as 'Benamidar' and appeared as PW-2 before the learned trial Court to support the version of the plaintiff, there was nothing left behind to produce evidence that transaction of purchase of land from the government in the name of defendant No,4 was not a 'Benami' transaction, therefore, prays for acceptance of this appeal.
4.On the other hand, learned counsel representing respondent No,7 Bashir Ahmad argues that he is bona fide purchaser for value and further that when not a single inch of suit land was in the name of said Ghulam Muhammad when he appeared as PW-2 and admitted the stance of plaintiff, therefore, states that consenting written statement as well as statement of PW-2 is ignorable being dishonest one. States that even part of the property was transferred by defendant No,4 in favour of legal heirs of original plaintiff through sale transactions Ex.P-10 to Ex.P-16 in the year 1957, as admitted by PW-2 Ghulam Muhammad in his cross examination. The original plaintiff Fazal Din came to know that he has transferred half of the suit property in the year 1952 in favour of defendants Nos,1 to 3. PW-2 admitted that the original sale deed from the provincial government in his name is with him, therefore, prays for dismissal of appeal.
5.I have minutely gone through the findings recorded by both the learned courts below and the evidence produced by the parties and considered the arguments advanced by the learned counsel for the parties.
6. It will be futile exercise to re-discuss the evidence and the point of limitation when both the learned courts below have in detail while discussing the evidence available on the file came to the conclusion that suit was filed after the prescribed period of limitation and further that the plaintiff failed to prove the case pleaded by him that the original transaction was a 'Benami' transaction because for proving a 'Benami' transaction the necessary ingredients to be proved are that source of income of plaintiff be proved, the intention to purchase the property as 'Benamidar', the original possession of property and the original document of title. Nothing from the above four ingredients to prove a transaction as `13enami' has been proved by the plaintiff/appellant. It is not on the record through any documentary evidence the sending of money for purchase of property by the plaintiff in the name of defendant No,4, who when appeared as PW-2 has admitted that the original sale deed by the government in his favour is in his possession. Admittedly the possession of suit property is with the transferees and the reason introduced by the plaintiff that property was purchased in the name of defendant No,4 is also not plausible. I take light from the judgment of august Supreme Court of Pakistan reported as "2009 SCM R 124 (Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others)" and I would like to quote Para No,9 of the judgment for further guidance:-- "It is well-settled by the superior Courts that the onus of the partitular sale/purchase if "Benami" and the apparent purchaser is not the real owner, always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of "Benami" or establish circumstances reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick 'veil', which cannot be easily pierced through.
Despite that such difficulties do not relieve the person taking the plea of "Benamei" transaction to be Benami of any part of the serious onus that rests on him. The question, whether a particular sale is 'Benami' or not, is largely one of fact, and for determining this question, no absolute formula or acid test, uniformally applicable in all situations, can be laid down, yet in determining the probabilities and for gathering the relevant indicia, the courts have usually laid down the criteria to determine the 'Benami' transaction. Determining factors to be taken into consideration are enumerated as under:- (i)Source of construction; (ii)from whose custody the original title, bill and other documents came in evidence; (iii)who is in possession of the suit property; and (iv)motive for Benami transaction.
In this context, reference can usefully be made to the cases of Muhammad Sajjad Hussain v, Muhammad Anwar Hussain 1991 SCM R 703, Muhammad Siddiqi through Attorney v. Messrs T.J.
Ibrahim and Co. 2001 SCM R 1443, Abdul Majeed and others v.
Majid and others v. MD. Jainul Abedin and others PLD 1970 Dacca 414 and Jane Margrete William v.
Abdul Hameed Mian 1994 CLC 1437." It clearly shows that plaintiff could not prove the transaction as "Benami".
7. As per plaintiff he came back to Subcontinent in the year 1946 and half of property was sold by defendant No,4 in favour of legal heirs of original plaintiff and as per PW-2 plaintiff came to know that other half of property has been transferred in the name of defendants Nos,1 to 3 in the year 1952 and filing of this suit in the year 1964 was certainly barred by time.
8. So far as right of plaintiff for making a prayer of cancellation of sale deed was concerned, it covers under Article 91 of the Limitation Act, 1908 which provides three years when the fact entitling the plaintiff to have instrument cancelled or set aside becomes known to him and residuary Article 120 of the Limitation Act for filing a suit for declaration gives the period of limitation as six years from the date when right to sue accrues. First when it came in the knowledge of plaintiff that suit land has been transferred by the government in the name of defendant No,4, he was required to file a suit within three years and if the statement of plaintiff be admitted that sale was in the year 1957, the period of limitation expired in 1960, whereas the suit has been filed in the year 1964 and under the residuary Article with regard to other claims the limitation was six years.
9.So far as the argument of learned counsel for the appellant that Article 144 of the Limitation Act applies, I am unable to agree with the learned counsel, as it is not a simple case for possession.
Before establishing a right of plaintiff with regard to possession of suit property, the plaintiff is to cross the hurdle of establishing the case pleaded that the transaction was a `Bename transaction for which under Article 91 of the Limitation Act period of limitation is three years and for other prayers made in the suit the limitation under residuary Article is six years. Both the above hurdles have not been crossed by the plaintiff/appellant. In case in hand the argument of learned counsel for the plaintiff that when prayer of possession has been made in the suit, therefore, limitation will be twelve years. I do not agree with this argument because it is not a simple suit for possession. In this case plaintiff has to prove his title to the suit property by proving the transaction of transfer of suit property by the government in favour of defendant No,4 as `Bename for which a specific period of limitation has been provided as discussed supra.
10.The statement of PW-2 clearly shows that when he made the statement, he was not owner of a single inch of suit property and when half of suit property was sold by defendant No,4 i.e. PW-2 in favour of wife and children of original plaintiff, that creates an estoppel against the plaintiff to claim that originally whole transaction was a 'Benami' transaction.
11. In this view of the matter, the.. appellant/plaintiff failed to show some defect in the concurrent findings recorded by both the learned courts below while invoking jurisdiction under section 100 of the C.P.C. Consequently, this second appeal having no substance stands dismissed.