MUHAMMAD NASIR MAHFOOZ, J:- This civil revision petition under section 115 of Civil Procedure Code, 1908 ("CPC") read with paragraph 10 sub paragraph 8 of Shariah Nizam-e-Adal Regulation, 2009 is directed against the judgment and decree dated 13.07.2011, passed by the learned Civil Judge-V/Illaqa Qazi, Dir Lower at Timergara, whereby, suit of the petitioner was dismissed and the judgment and decree dated 29.04.2014 of the learned Additiqnal District Judge/Izafi Zilla Qazi, Samarbagh, Dir Lower, whereby the appeal of the petitioner was dismissed and judgment and decree of learned trial court was upheld.
2. Brief and essential facts leading to the present petition are that, father of petitioner filed a suit against the respondent No.1 which was contested by the respondent by submitting their written statement. During pendency of the suit, the petitioner amended the suit with permission of the court to which the respondent submitted amended written statement too. After framing of issues evidence of both the parties were recorded and after hearing both the parties, the suit filed by the father of the petitioner/plaintiff was dismissed by the learned trial court vide judgment and decree dated 13.07.2011. Aggrieved from the said order the petitioner preferred an appeal before the learned Additional District Judge/Izafi Zilla Qazi, Samarbagh, Dir Lower, who dismissed the appeal vide judgment and decree dated 29.04.2014 and the order of the learned trial court was maintained, hence this petition.
3. Valuable arguments of the worthy counsel for the parties were heard and available record carefully perused.
4. Father of petitioner instituted a suit for declaration on 26.03.2004 alongwith permanent injunction and possession as alternate relief. The caus e of action alleged to have accrued when respondent No 1/defendant refused to accept his ownership in the suit property . Alongwith the said plaint there wal a list of disputed properties 07 in numbers. On 13.05.2005 father of the petitioner submitted amended plaint which was allowed to proceed for trial and partial evidence of petitioner was recorded including the father of petitioner himself as PWL4. During proceedings, respondent No.2 submitted an application for his impleadment as party which was allowed and therefore the petitioner was I directed to submit yet another amended plaint which was submitted on 13.03.2010. Even in this amended plaint the cause of action is stated to have accrued after refusal of respondent No.1 to accept his ownership of the suit property. Father of petitioner and respondent No.1 are brother inter se but the plaintiff died during pendency of the suit and has produced 06 witnesses in addition to himself appearing as PW -4.
5. It was the case of deceased plaintiff that he has served in foreign countries and earned income in Bangladesh as well as in Dubai and Karachi. He used to send money to his brother as they were jointly residing in the same house and thereafter he had contracted second marriage, was living with his second wife.
6. Crux of the evidence of petitioner is that the money he used to earn was sent to his brother who has purchased the suit property in his own name and' therefore being purchased through Benami transaction he is entitled to his half share in the suit property. PW-1 Abdul Qahar has produced sale deed dated 01.01.1994 as Ex PW1/1 in support of the transaction of sale made by respondent No.1 regarding the suit property previously owned from him. PW-2 Jehanzeb stated to be marginal witness of a compromise deed dated 26.05.2002 Ex PW2/1 whereby Jirga members had settled the dispute wherein the right of present petitioner to his share in the suit property was accepted by respondent No.1. PW-3 is also Marginal witness of this deed. PW-5 Sikandar Khan has also urged that father of petitioner and he used to work together in Dubai and he has not given any definite statement to support the contentions of Benami transaction having been made in the name of respondent No.1. PW-6 Jehanzada has disc) stated nothing about the Benami transaction.
7. Respondent No.1 while controverting the contentions of petitioner , produced 08 witnesses in addition to himself appearing as DW-4. DW-1 is Registry Muhariir who has produced registered deed of 18.05.1968. 19.04.1969 and some other record as Ex DW1/1 to Ex DW 1/4. These deeds apparently show that respondent No.1 had purchased certain properties but no question from these witnesses has been asked to suggest that these properties were purchased by respondent No.1 on the sources of present petitioner . DW-2 has appeared in court who alleged to confirm the signature of his father on deed dated 22.08.1965 but not exhibited in court. DW-3 is also witness to deed of 1965 but not exhibited in court so his statement could not be considered relevant. All the remaining evidence has been discussed threadbare by learned courts below before arrivin g at the final conclusion while dismissing the suit as well as the appeal of the present petitioner . Learned trial court has even taken pains to reproduced the evidence in verbatim in his judgment in discussion under issues No. 3 and 4. Hence, even if the suit is held to be within time, would not change the fate Of this revision.
8. It is well settled law by august Supreme Court of Pakistan that in order to prove a transaction to be Benami, certain essential conditions are to be fulfilled. In this respect the judgment reported as 2008 SCMR 143 titled "Mst.
Zohra Begum and 6 others Vs Muhammad Ismail", relevant para is reproduced as under , "Before, that a sale could be declared as Benami, this Court in case of M hammad Sajid Hussain 1991 SCMR 703, had laid down a criteria whereby , four factual aspects are to be taken into consideration.
Learned High Court also took notice of it as follow:-
(i) Source of consideration.
(ii) From whose custody the original title deed and other documents came in evidence.
(ii) Who is in possession of the suit property .
(iii) Motive for the Benami transaction".
And 2009 SCMR 1045 , titled "Allah Rakha through L.Rs. and others Vs. Muhammad Riaz and others" relevant para is reproduced as under , "It is pertinent to point out that Daulat Ali was not made party to the suit although he was a necessary party to it, as he could explain the settlement of transaction and the execution of documents allegedly executed in favour of the parties. Non-impleadment of Daulat Ali in the suit, was also fatal for its success. The sale transaction having not been completed in favour of Daulat Ali, the rights of ownership were not transferred to Daulat Ali by the vendors, therefore, the acknowledgment in ',favor of third party , namely , the plaintiffs could not be permitted and accepted unless, it was endorsed and ratified by the vendors. The allegedI acknowledgment of Daulat Ali in favor of plaintiffs could not be acted upon unless it was accepted by vendors. Moreover , this acknowledgement was ineffective as against the subsequent purchasers, who had no knowledge of that alleged Benami nature of the transaction. The ingredients necessary to prove Benami transaction were also missing in the evidence. Therefore, the learned Courts below had rightly dismissed the suit of the plaintiff".
And 2005 SCMR 577, titled " Abdul Maieed and Others Vs. Amir Muhammad and others" relevant para is reproduced as under, "However, in the light of the rules laid down in the cases of Muhammad Sajjad Hussain V. Muhammad Anwar Hussain 1901 SCMR 703 and Jane Margrete William V. Abdul Hamid Mian 1994 CLC 1437, the Court highlighted four considerations for deciding the question of Benami character of a transaction.
These considerations are as follows:--
(i) It is the duty of the party who raises such plea to prove such plea by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness. The Court is not required to decide this plea on the basis of suspicions, however, strong they may be.
(ii) That Court is to examine as to who has supplied the funds for the purchase of property in dispute, it is proved that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction.
(iii) The character of a transaction is to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from all the surroundings circumstances i.e. the relationship of parties, the motives underlying the transactions and any other subsequent conduct.
(iv) The possession of the property and custody of title deed".
9. I therefore, hold that instant revision petition merits dismissal as the petitioner has failed to point out any jurisdictional defect or material irregularity and illegality in the impugned concurrent judgments and decree of the learned courts below which could not be lightly interfered with unless there is glaring violation of law or statute as has been held by the apex court. Hence instant revision' petition is dismissed with no order as to cost.