TARIQ IFTIKHAR AHMAD, J.:- This revision petition is directed against the judgments and decrees rendered by the learned courts below dated 23.01.20 13 and 01.12.2016, respectively whereby suit filed by Ghulam Haider- petitioner for declaration has concurrently been dismissed.
2. Both the parties to this civil revision who are real brothers filed suits against each other . Present petitioner filed suit titled "Ghulam Haider v Ghulam Qadir" for declaration whereas the respondent field suit for possession titled "Ghulam Qadir v Ghulam Haider etc.". Both the suits were consolidated and through consolidated judgments and decrees, as mentioned earlier , the suit filed by present petitioner was dismissed concurrently whereas suit filed by the respondent stood decreed.
3. Brief, facts of the case are that the petitioner filed a suit for declaration alongwith perpetual injunction qua the disputed house, the detail of which is described in the headnote of the plaint, against the respondent alleging therein the he is younger brother of the respondent and is a heavy duty driver by profession and being attached with said business of transport had sufficient source of income whereas the respondent was a bank clerk who stood retired. It was further alleged that as the parties had blood relations, therefore, due to mutual trust the parties by spending equal amount purchased the suit plot and constructed the house over it. It was also alleged in para No.3 of the plaint that the work qua purchase and construction of the suit house was done by the petitioner and the respondent being literate person got mutation No.18 sanctioned and sale deed dated 23.10.1995 was also got registered in his name but the same was 'Benami' transaction. Further averred that the parties were residing in the suit house for more than 10 years alongwith their families. It was also alleged that due to grown up of the children of the parties, the petitioner asked the respondent to get the disputed house transferred in his name to the extent of his share but he refused to do so prompting the petitioner to file the suit.
While controverting the assertions made in the plaint by the petitioner , respondent has contested the suit by contending that he is owner of suit land/house through registered sale deed No.487, dated 18.09.1995 and he is retired National Bank employee and during his service in the above bank, he purch ased seven marlas plot through auction in the year 1988 and 1/3 price of the above plot was deposited by him on 10.12.1988 and thereafter he got prepared plan and sanctioned for construction of the house from TMA, Liaqatpur and in order to raise his construction mortgaged the said plot in the name of bank and obtained loan, thereafter started to raise construction on the disputed plot. The respondent also got installed electricity meter as well as PTCL telephone and kept on paying property tax; in the meanwhile the house was constructed and he shifted in upper story of the above said house and the lower portion was rented out to various people and about 5/6 years prior to the filing of suit the petitioner who is real brother of the respondent requested him to shift in the lower portion of the disputed house whereupon the respondent agreed to give the said portion on rent to the petitioner who paid monthly rent for two months to the respondent @ Rs.2500/- per month but subsequently stopped paying rent. Thereafter, differences arose between the parties and the respondent filed a complainat under illegall dispossession Act in the court of competent jurisdiction which was dismissed on the ground that the possession was not obtained forcibly and civil suit is pending, so, thereafter the petitioner was asked time and again to vacate the said portion of the house but hey refused to do so.
4. Learned counsel for the petitioner contends that the impugned order and judgment rendered by both the learned Courts below are against the law and facts, void, ab-initio, based upon surmises and conjectures. Further contends that the impugned order and judgment are result of misreading and non-reading of evidence and the Courts below have acted in the matter arbitrarily without applying its judicious mind and as such the same are liable to be set aside.
5. I have heard learned counsel for the petitioner at a considerable length and perused the record appended with this civil revision.
6. In order to prove his case, the respondent produced Muhammad Sadiq, brother-in-law of both the petitioner and the respondent (PW-1) and respondent himself appeared as (PW-2). Apart from oral evidence, the respondent has also produced documentary evidence in shape of Sarwark Kalan of auction of the disputed house/plot (Ex.P1), attested copy of Sharait Neelam (Ex.P2), Fard Neelam (Ex.P3), attested copy of sale deed (Ex.P4), attested copy of mortgaged deed (Ex.P5), attested copy of Fard Taqseem of disputed plot i.e. plot No.122-C-4 (Ex.P6), attested copy of mutation No.690 sanctioned on 29.07.2010 (Ex.P7), original bill of water supply (Ex.P9), original receipt of telephone (Ex.P10), original electricity bills (Ex.P1 1 & P12), plan of lower portion of the disputed house (Ex.P13) and plan of upper portion (Ex.P14) to corroborate his version.
In rebuttal, the petitioner got examined Muhammad Hussain (DW-1), Abdul Aziz (DW02) and he himself appeared as (DW-3) in support of his claim. However, the petitioner has placed on record receipt of National Bank (Ex.D1), attested copy of complaint and order passed thereupon by the learned Additional Sessions Judge Liaqatpur dated 07.05.2009 (Ex.D2), attested copy of judgment dated 15.09.2008 handed down by the learned Magistrate, Liaqatpur in FIR No.625 of 2008 (Ex.D3), attested copy of application for adjournment alongwith order dated 06.09.2012 in FIR 625/08 (Ex.PD4) and attested copy of judgment delivered by Magistrate 1 Class, Liaqatpur in case FIR No.580 of 2008 (Ex.D5).
7. So far as the documentary evidence produced by the petitioner in support of his case is concerned, I am afraid it does not provide any support to claim of the petitioner with regard to his share or in the ownership of the disputed house. All these documents have no nexus at all with the disputed property .
8. I have minutely gone through the evidence got examined by the respondent. The respondent while appearing as (PW-2) deposed each and every detail of the house/plot in dispute (from purchase and till construction).
Perusal of the statement of Muhammad Sadiq (PW-1) who is brother-in-law of both the petitioner and the respondent. While appearing in the witness box (PW-1) has supported each and every limb of the claim of the respondent. He is star witness as he is brother of wives of both the parties (petitioner and respondent), who categorically stated that the petitioner does not have any concern, whatsoever , with the plot/house in disputed. He was put to a lengthy cross-examination by the petitioner but remained unable to bring on record any material adverse to the interest of the respondent. Even otherwise, the documentary evidence adduced by the respondentrd st i.e. (ExP1 to Ex.P14) by itself is sufficient to prove the claim of the respondent so far as ownership of the house in dispute is concerned. The petitioner has miserably failed to produce any document in rebuttal.
9. Perusal of the record reveals that the petitioner has also raised plea of 'Benami' in the plaint against the respondent but has failed to provide an iota of evidence in support of said plea. According to the dictum laid down by the Superior Courts, in order to claim relief on the above-said pretext the petitioner has to prove the following ingredients of ' Benami': i) source of consideration; ii) from whose custody the original title deed and other document came in evidence; iii) who is in possession of the suit property; and iv) motive for the Benami transaction.
Careful perusal of the record reveals that except possession the petitioner has miserably failed to prove rest of the ingredients.
Essentially to have relief under the plea of 'Benami' the petitioner had to prove all the requirements. Reliance in this behalf is placed on "MUHAMMAD SAJJAD HUSSAIN v MUHAMMAD ANW AR HUSSAIN" (1991 SCMR 703) and "GHULAM MUR TAZA v Mst. ASIA BIBI and others" (PLD 2010 SC 569 ).
10. Under Section 115 of The Code of Civil Procedure, 1908, this Court has to see the error committed by the learned courts below , if any, so far as exercise of jurisdiction is concerned or to have acted in the matter while deciding the same illegally or with material irregularity but despite utmost care and caution, this Court has failed to find any such element in the judgments of both the learned Courts below .
11. No misreading or non-reading has been pointed out either by learned counsel for the petitioner .
12. In view of above, present civil revision has no merits and as such stands dismissed but without any order as to costs.