FAHIM AHMED SIDDIQUI, J.---Through the instant petition, the petitioners have questioned the legality and propriety of judgment dated 12-03-2013 passed by, the First Additional District Judge, Badin in Civil Revision No. 08/2013 (Faheem Memon and others v. Abdul Ghani Abro' and others ). Through the impugned judgment, the learned Appellate Judge allowed the said civil revision and' resultantly rejected the plaint of FC Suit No. 54/201 1 filed by the petitioners against the ' private respondents. ,As no other alternate remedy is available to the petitioners; therefore, they preferred the instant petition for redressal of their grievance in respect of the impugned judgment.
2. The relevant facts of the case are that the petitioners have filed the aforementioned civil suit with a claim that they as well as the private respondents Nos. 2 to 7 are the sons and daughters of the late Qadir Bux from his two different wives. The petitioners mother namely Mst. Kazbano (now deceased) was the second wife of their father while the mother of respondents namely Mst. Hajiani Khatoon (now deceased) was his first wife. Both families of late Qadir Bux were residing separately and first wife with her children was residing in Tando Muhammad Khan while the second wife with her children was dwelling in Matli Town. After his seco nd marriage, the late Qadir Bux along with the petitioners used to reside at Matli in the house constructed over the disputed plots. It is alleged that the said plots were originally purchased by the deceased father of the petitioners from his own funds in the name of the respondent No. 2 for his own benefits. Allegedly , at that time the respondent No. 2 was a minor aged about 2 or 3 years. Since the late father of the petitioners purchased the said plots and built a house over there from his own funds; therefore, it was a 'Benami Transaction' in the name of respondent No. 2 as he was incapable of purchasing the same and he never remained in possession of the said plots. As both wives of the late Qadir Bux were not in good relations; therefore, the petitioners and respondents Nos. 2 to 7 were not in visiting terms. As claimed by the petitioners, they remained in peaceful possession of the said plots and house built over the same since the lifetime of their father till today .
3. It is also alleged in the petition that in the year 2006, the respondent No. 2 tried to sell out the said plots but he refrained to do so due to timely publication in newspaper by the petitioners regarding benami transection and intervention of the notables of the locality . Allegedly , a brothery settlement was done and the respondent No. 2 agreed to give three plots to the petition ers' party out of the six plots with a condition that he would execute the registered sale deed in the name of a third person. The petitioners agreed with this condition of settlement.
Thereafter , the respondent No. 2 gave two plots to the petitioners, and as per settled condition, sale deed was executed in the names of their close relatives i.e. respondents Nos. 9 to 14. Petiti oners also demanded to bestow another plot as agreed upon between the parties the respondent No.2 kept the petitioners on false hope. Later on, respondent No. 8 came to the petitioners and informed them that he had purchased the disputed plots from respondent No. 2 through a registered sale-deed in the sum of Rs.2,50,000/- and forced them to give possession of the said plots. Petitioners then got confirmed this fact from the office of sub-Registrar , Matli and managed to get a copy of the sale deed executed by the respondent No. 2 in favour of respondent No.8.
4. The petitioners filed a civil suit before the court of first instance, where the respondent No. 8 moved an application under Order VII, Rule 11, C.P.C., which was dismissed. The respondent No. 8 preferred a revision against the order of these Senior Civil Judge, Matli before the 'District Court, Badin which was transferred to the Court of Additional District Judge-I, Badin for adjudication. The learned Additional District Judge allowed the said revision application and resultantly the plaint of the suit filed by the petitioners was rejected, as such the instant constitutional petition was filed against the said judgement of the lower appellate forum.
5. Respondents were duly served but save to respondent No. 8, no other private respondents bothered to appear and contest the instant petition.
6. While pressing the instant petition, the learned counsel for the petitioners prefers his submission at length. The gist of his arguments is that the findings of the appellate court below regarding legal point of limitation are not justified, as the limitation is a mixed question of fact and law. As the property in question is a benami property; therefore, the petitioners have full legal character and the right in respect of the disputed plots. He relies upon the cases reported as Ahmed Nawaz Jagirani v. Sindh Industrial Trading Estate Ltd. (2017 CLC 40) and Kinnaird College for Women through Principal v . Maria Isabel Maldonado Gracia (2015 CLC 1423 ).
7. In contrast to above, the contention of the learned counsel for the respondent No. 8 is that the petitioners cannot seek a declaration in favour of their fathe r, who is no more alive. According to him, the property was purchased in the name of respondent No. 2 in the year 1952, as such the petitioners cannot claim after such a long time. He submits that at the most they can claim as per residuary Article 6 of the Limitatio n Act for which limitation is six years. Regarding benami transaction, his contention is that all the four ingredients in favour of ' benamidar i.e. possession of property , possession of the document, payment of consideration and motives for benami are missing. He takes reliance from Noor Din and another v. Additional District Judge, Lahore and others (2014 SCMR 513), Ghulam Murtaza v. Mst. Asia Bibi and others (PLD 2010 Supreme Court 569), Farkhanda Bibi and others v.
Mehmood Munir and others (2018 CLC 685) and Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others (2009 SCMR 124 ).
8. The learned Additional AG submits that the government officials are pro-forma parties and the government has no interest in the litigation between the private parties.
9. We have heard the arguments advanced and have gone through the relevant record placed before us. We have also pondered over the case laws cited by the either side during the course of arguments. In the instant case, petitioners are claiming 'Benami Transaction' on behalf of their deceased father regarding the 'disputed plots/properties. It is the contention of the learned counsel for the respondent No. 8 that the petitioners cannot seek such declaration on behalf of their deceased father , as he in his lifetime has not objected about the same.
According to him, the respondent No.8 has purchased the plot from his true and lawful owner and now he has all the documents in his possession and being an open plot, the constructive physical possession is with him. We are of the view that such arguments may bear some weight if the same are advance d on behalf of the respondents Nos. 2 to 7. It is settled that while rejec ting plaint under Order VII, Rule 11, C.P.C., the Court cannot take into consideration the pleas raised by the defendants in the suit in their defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. In this respect, we take reliance from a case reported as Jewan v . Federation of Pakistan (1994 SCMR 826 ).
10. In our view, the respondent No. 8 is a stranger to raise an objection regarding the dispute of 'benami transaction' between the offspring of the late Qadir Bux from his two different wives. At the most to save his transection, he may prefer a claim of oblivion regarding such relationship. We consider that it is also in the interest of the respondent No. 8 to have a decision on merit regarding the issue, as the onus of proof heavily lies on the person who alleges a benami transacti on to prove it. It is claimed by the petitioners that the property was purchased by their father in the name of their step brother (respondent No. 2) when he was minor and it was a benami transaction, as such they became coparceners in the said property as siblings. All these averments conjointly prima facie raise a presumption of a fiduciary relationship existing between the respondent No. 2 and his other siblings with respect to the ownership of the property unless the same is threshed out properly . These pleadings have to be traversed by the respondents including respondent No. 8 in a trial and cannot be adjudicated at Order VII, Rule 11, stage. It is now a settled law that in case of controversial questions of facts or law, the provision of Order VII, Rule 11, C.P.C. should not be invoked and the proper course for a civil court in such a situation to settle the dispute on merit in accordance with law. It is also settled law that the question of limitation is a mixed A question of facts and law besides if a party is claiming right under inheritance then the issue must be put at rest forever by giving permission to produce evidence before the court.
11. The learned counsel for the respondent No. 8 relied upon numerous case laws in support of his submission.
The case of Noor Din and another (supra ) pertains to putting litigation an end at the initial stage under Order VII, Rule 11, but the said case-law is distinguishing to the present case, as in the present case the claim of benami is preferred by some of the immediate descendants of the 'benamidar' while in the referred case, no such claim was preferred. The rest of cases cited by the learned counsel for the respondent No. 8 are also not attracting to the present case, as in those citations; a Civil Court has come to a conclusion after a full-fledged trial.
12. It is the duty of the Court to make a holistic and meaningful reading of the Plaint and only when it is manifestly and uncontrovertibly evident that the requirements of Order VII, Rule 11, are met, and that it is plain that the Plaint does not deserve to go to Trial, should it order a rejection of the Plaint. There is not any comparison between the relationship of a father/parent and his infant child on the one hand, and of siblings on the other . We consider that the proper course will be to give a chance to the parties to produce evidence before the fundamental court which will be the proper forum to reach a fair conclusion after deducing the evidence produce before it. It is worth to mention that after incorporation of Article 10-A, in the Constitution of Islamic Republic of Pakistan; 1973, the fair trial in due process of law is the fundamental right of the litigants. The ultimate outcome of the entire discussion is that the instant petition succeeds and the impugned judgment passed by the first appellate court is set aside.
Constitution petition is allowed.