1. ABDUL KADIR SHAIKH, J.-The petitioner filed a suit for grant of declaration that the suit land belonged to him and the respondent be restrained by issue of injunction, from interfering with his possession of the suit land. Petitioner's claim to the suit land was based on the plea that he had purchased it, as a benamidar, in the name of the respondent who is his maternal cousin.
2. The respondent resisted the claim on several pleas, but the learned Civil Judge who tried the case decreed the suit in petitioner's favour. On appeal by the respondent, the District Judge did not agree with the findings of the learned trial Judge and he reversed the judgment and the decree passed in petitioner's favour. The petitioner then filed second appeal before Lahore High Court which was dismissed in limine on 10-6-1963 on the ground that the suit was bit by the doctrine of pari delicto and the findings of fact reached by the first Appellate Court were not open to interference.
3. On appeal, by special leave, being Civil Appeal No. 68 of 1968 this Court set aside the judgment of the High Court, and ordered rehearing of the appeal in the High Court on the ground that the question whether principle of pari delicto was applicable or not deserved fuller consideration, and the High Court should not have derided it by way of summary disposal of the second appeal.
4. On remand, the High Court examined the case in the light of the obser--vations made by this Court, and dismissed the second appeal by the judgment dated 14-5-1975. Petitioner now seeks special leave to appeal.
5. Mr. Muhammad Aslam Mian, learned counsel appearing in support of the petition submits that the learned Judge in the High Court has failed to determine with precision the benami nature of the transaction according to the well-settled principle of law. In this regard, learned counsel submits that the crucial points for consideration are the motive, the payment of installments of the purchase price, the possession of land, the conduct of the parties and the surrounding circumstances.
6. In order to appreciate this plea and the others raised by the learned counsel it is appropriate to reproduce the relevant portion of the judgment of the High Court. So far as the petitioner's plea that he bad paid the installments of the purchase price, learned Judge in the High Court observed as follows: "There being no documentary evidence relating to the payment of the instalments, the appellant must be deemed to have failed to establish that be had supplied the money for such payment. It was, however, urged by his counsel that there had been no instalments, that the entire purchase amount of Rs. 1,204,/3 bad been paid in one lump sum at the time of the conferment of proprietary rights in 1956, and that for this purpose the appellant had obtained Rs. 1,300 from his Khata maintained in the joint account by Muhammad Azim P. W.
5. Exh. P. W. 5/1-2 produced by this witness shows that an amount of Rs. 1,300 had been debited on 10-7-1956 to the account of Rehmat Ali for the purpose: Babbat malkiat muraba badast Muhammad Azim Chak No. 43, Nabaar Fateh."
7. Against the entry, there is the signature of Muhammad Azim himself but there is no signature or thumb-impression of Rehmat Ali. The inference sought to be drawn was that this amount had been utilized for the payment of the amount of Rs. 1,204/3 and other charges in connection with the execution of the patta-Malkiat on 6-8-1956. Unfortunately Rehmat Ali himself in the evidence did not say specifically that he had taken sum from Muhammad Azim, instead, he stated "Raqam baqaya main nay upni marzi say ada ki" Remaining amount I paid with my own will.
8. The withdrawal of the amount of Rs. 1,300 as shown in Exh. P. W. 5/ 1-2, is, therefore, not conclusive of the source of the payment."
9. Petitioner's assertion that he used to pay land revenue was not supported by him by any receipt in this behalf. There was, however, enough evidence that he was in possession of the suit but the learned Judge relied on the entry in khasra girdawri which is to the effect that he was a tenant-at- will, and on the payment of half-balai.
10. The petitioner has sought to obtain mutation of land by way of gift from the respondent, and the plea raised by him that the respondent had reported the mutation of gift in recognition of his right of being a benamidar. The explanation of the respondent in this regard was that he wanted to make a gift in consideration of services rendered to him by the petitioner but he changed his mind before the transaction of gift was finalized and completed. Learned Single Judge held that since it was not even the case - of petitioner that the real transaction was a gift and it was also not proved that the mutation was not on account of gift, this aspect of the case "is of little help to the appellant in the matter of his plea".
11. After having gone through the record of the case, we are already of the view that all the submissions advanced in support of the petition have been rejected on proved appreciation of the facts and circumstances proved in evidence and interference by this Court would not be warranted.
12. The petition is dismissed in limine.