QAISER RASHID KHAN, J. Aggrieved of the judgments and decrees dated 15.06.2012 and 31.01.2019 of the learned Civil Judge-XXII, Peshawar and the learned Additional District Judge-IV, Peshawar respectively whereby the suit of the petitioners was concurrently dismissed, the instant civil revision has been preferred.
2. Arguments heard and the available record perused.
3. As the available record unfolds, the petitioners brought a suit for declaration regarding cancellation of mutations as well as correction of the revenue record together with a decree for permanent injunction in respect of the suit property, fully described in the heading of the plaint. It is averred in the plaint that the petitioners- plaintiffs and the respondent-defendant are close relatives and the former had allegedly purchased land in Khata Nos.4, 5 and 9, Mouza Mamu Khatki, Peshawar in the name of the respondent-defendant and also paid the entire sale consideration through him to the vendor and that according to the petitioners-plaintiffs, it was in fact a benami transaction and the respondent had received his commission from the petitioners - plaintiffs for playing the role as a benamidar in the said transaction and to this effect, the respondent-defendant had scribed a registered general power of attorney in favour of the petitioner No.1 and also a relinquishment deed, in the presence of witnesses on 21.8.1985 and also in turn through a gift deed dated 28.09.1985, transferred all his rights coupled with the delivery of possession of the suit land, in favour of petitioner No.3. Thereafter, the respondent through mala fide intention cancelled the said general power of attorney on 29.10.1985 vide a Revocation Deed.
4. The petitioners in order to show the conduct of the respondent also referred to some transactions made by him with others fraudulently, particularly the transfer of land of Miangan Qaum and Papan Khel in his name vide fake mutation through late Ameer Ullah, Patwari Halqa, which was actually the ownership of Miangan Kangra Tehsil and District Charsadda and to this effect, one Mian Wahidullah had approached the Anti Corruption Department against the respondent vide case FIR No.11, dated 6.12.1989. The matter was however patched up between the parties and the respondent had returned land measuring 21 kanals and 18 marlas to the original owners on the basis of compromise, so arrived at between the parties. Vide mutation No.618 dated 23.03.1989, the respondent had also fraudulently transferred the land of one Ziafatullah in his name for which an FIR No.516 dated 30.9.2003 was lodged against Khaista Khan, Tehsildar, Wazir Ghulam, Atta Muhammad, Mian Yaqub Shah and Abdul Wadood. The respondent however compromised the matter with the complainant and on the strength of compromise so arrived at between the parties, returned his land to him. This was all that has alleged in the plaint.
5. On being summoned by the learned trial court, the respondent-defendant filed his written statement, wherein, he raised various legal and factual objections. Keeping in view the divergent pleadings of the parties, the learned trial court framed as many as 9 issues including the relief.
During the course of evidence, the petitioners produced Ihan-ul -Haq, Patwari Halqa, Mouza Mamu Khatki as PW-1, Hamayun Khan, Record keeper , Sub-Registrar Office, Peshawar as PW-2, Khair Muhammad, DFC, Police Station Anti Corruption, Peshawar as PW-3, Abdul Samad alias Samandar , appeared before the court for himself as well as a special attorney on behalf of the rest of the petitioners and recorded his statement as PW-4, Nazeer Khan, as PW-5, Manawar Khan, as PW-6, Zafar Gul, as PW-7 and Ayub Khan alias Syed Rauf as PW-8. As against that the respondent himself appeared as DW -1.
6. When appearing as PW-4, the petitioner Abdul Samad alias Samandar, recorded his very detailed statement, stating therein that as to how he had purchased 160 jareeb land, situated at village Mamu Khatki and Subhan Khwar, Tehsil and District Peshawar from Haji Abdur Rashid vide sale agreement dated 19.2.1984 and that the original of the same is in possession of the respondent-defendant while he produced a photocopy as Annexure- A. He further stated that after the purchase of the property, he proceeded to Dubai, for earning his livelihood and that he had been sending money from abroad to the respondent-defendant being his brother-in-law for the completion of the sale of the property but instead, the respondent-defendant Wazir Ghulam purchased and attested the mutation of the property in his name fraudulently in collusion with the revenue authorities while he was in fact his benami representative. In the absence of the original document, the agreement deed dated 19.2.1984 cannot be taken into consideration as the petitioners-plaintiffs failed even to lead any secondary evidence to this effect.
7. Above apart, the agreement dated 19.2.1984, shows that the alleged document is between Haji Abdur Rashid, as a vendor and the petitioner Abdul Samad Khan, as a vendee. However, strangely enough, the respondent- defendant Wazir Ghulam has not been cited as a witness to the said agreement to lend support the version advanced by the petitioners that he was in any manner involved in the same transaction between Haji Abdur Rashid and the petitioners. The petitioner Abdul Samad Khan stated to have been sending the sale consideration of the disputed property to Wazir Ghulam from Dubai but neither any receipt nor any evidence of bank transaction has been produced to prove such payment by the petitioner Abdul Samad Khan to Wazir Ghulam for onward payment to Haji Abdur Rashid.
8. Another intriguing aspect of the matter is that the petitioners-plaintiffs have neither arrayed the vendor Haji Abdur Rashid in the panel of the defendants in their declaratory suit nor produced him as a witness to substantiate their claim regarding the payment made to him by the petitioners through the respondent- defendant Wazir Ghulam. In terms of Article 129(g) of the Qanoon-e-Shahadat Order, 1984, the non-production of the vendor Haji Abdur Rashid by the petitioners-plaintiffs clearly suggests that if he had been produced, he might not have supported their stance.
9. Another factor which cannot be lost sight of is that the property has remained in the possession of the respondent-defendant since 1984-85 for over three decades while the suit was filed by the petitioners-plaintiffs on 30.10.2008, which in terms of Article 120 of the Limitation Act, 1908 is hopelessly time barred as the time frame provided for a declaratory suit is six years.
10. The petitioners-plaintiffs have termed the transaction to be a benami one and the respondent-defendant as their benamidar. It is not simply calling a certain transaction to be a benami transaction and in the process, an individual to be his benamidar. In this context, the august apex Court in its several judgments have laid down the principles, which have to be kept in view while calling a certain transaction to be a benami one and the same are produced below for ready reference:--
(i) Source of consideration;
(ii) From whose custody the original title deed and other documents came in evidence;
(iii) Who is in possession of the suit property; and
(iv) Motive for the Benami transaction.
It has been further held by the august apex Court that: "The initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed "
11. In the present case, the petitioners-plaintiffs have failed to discharge the initial onus probandi cast on their shoulders in view of the criteria laid down by the august apex Court, so as to put the respondent- defendant in the dock. Accordingly, their suit was bound to fail. Reliance in this respect placed on cases reported as 1991 SCMR 703 (Muhammad Sajjad Hussain v. Muhammad Anwar Hussain), PLD 2004 Supreme Court 830 (lqbal Ahmed Turabi and others v.The State) and 2005 SCMR 577 (Abdul Majeed and others v. Amir Muhammad and others).
12. In view of the above legal and factual position of the case, both the learned courts below have rightly non-suited the petitioners through their concurrent findings, which do not suffer from any illegality, material irregularity, mis-reading or non-reading of evidence warranting interference by this court in the same through the present petition.
13. Even otherwise, the concurrent findings of the learned courts below cannot be set at naught by the revisional court, unless it is proved through the tangible evidence that the same are patently illegal, based on mis-reading, non-reading of evidence, erroneous, fanciful or has resulted into great mis-carriage of justice in view of the dicta handed down by the honourable apex Court in the case law reported as Nazir Ahmed through L.Rs. v. Umra and others (2002 SCMR 1114) and Shafi Muhammad and others v. Khanzada Gul and others (2007 SCMR 368).
14. ##TS ## Resultantly , this petition along with CM being bereft of any merits stand dismissed in limine.