AHMAD ALI, J. The instant revision petition under section 115 CPC has been filed by the petitio ner against the judgment and decree dated 15.02.2018 passed by the learned Additional District Judge-III, Haripur , whereby , Civil Appeal No.11/13 of 2017 filed by the petitioner against the judgment and decree dated 06.03.2017 of learned Civil Judge-VII, Haripur in Civil Suit No.230/1 of 2014, was dismissed.
2. Brief and relevant facts leading to filing of the present revision petition are that the petitioner filed a suit for declaration to the effect that petitioner was owner in possession to the extent of 5 'Marlas' land in 'Khasra'
Nos.1278/451, 449 and 450, situated in Mauza Chohar Tehsil & District Haripur , which he sold to Mst. Ilahi Noor through mutation No.1061 1 attested on 17.02.201 1 for Rs.420,000/- due to persuasion of respondent No.1, who is real son of the petitioner , with a view to get better and extra land and respondent No.1 kept the whole money with him to purchase land for his father/petitioner and he trusted him being his son; that respondent No.1 purchased 6 'Marlas' land from Rifaqat Shah, respon dent No.5 for Rs.150,000/- and got attested mutation No.11177 dated 22.11.2012 in his own name, however , he had been asked him that the land in question was entered in his name; that the petitioner came to know about the fraud and illegal act of respondent No.1 on checking of revenue record when the wife of respondent No.1 claimed ownership of the disputed land; that respondent No.1 is 'Benamidar ' because the land was purchased by him with the money of the petitioner; that the name of respondent No.1 in the revenue record is liable to be deleted and the disputed land is required to be entered in the name of the petitioner .
The petitioner also prayed for permanent injunction restraining respondent No.1 from further alienating the disputed land due to wrong entries in the revenue record and possession thereof by cancelling the impugned mutation No.11177 dated 22.11.2012. The respondent No.1 appeared before the Court and contested the suit by filing his written statement and the divergent pleadings of the parties were reduced to the following issues.
"ISSUES
1. Whether plaintiff has got a cause of action?
2. Whether plaintiff is stopped to sue?
3. Whether suit of plaintiff is maintainable in its present form?
4. Whether suit of plaintiff is liable to be rejected due to non-joinder and mis-joinder of necessary parties?
5. Whether suit of the plaintiff is liable to be rejected for non-affixation of court fee?
6. Whether plaintiff was owner in possession of 05- Marlas, in Khasra No.1278/451, 449 & 450, and defendant No.1 has sold out the suit property on the pretext for purchase of other land in the name of plaintiff?
7. Whether defendant No.1 purchased the suit property of Khasra No.1652/453/2 to the extent of 06-M, with a sale consideration of Rs.150,000/- as be-nami transaction?
8. Whether plaintiff is entitled for the decree as prayed for?
9. Relief?"
3. Both the parties produced evidence in support of their respective claims. After hearing learned counsel for the parties, the learned trial Court dismissed the suit of the petitioner vide judgment and decree dated 06.03.2017.
Feeling aggrieved, the petitioner preferred Appeal No.11/13 of 2017 before the Court of learned District Judge-III, Haripur , which too was dismissed vide judgment and decree dated 15.02.201 8. Hence, the present revision petition.
4. Arguments of learned counsel for the parties heard and record of the case perused.
5. Perusal of the record reveals that the present petitioner is father of respondent No.1. Muhammad Hussain, petitioner , has disputed the sale transaction in favour of his son, Shakeel Ahmad, respondent No.1 vide mutation No.11177 dated 22.11.2012 on two grounds i.e. 'fraudulent' and 'Benami transaction' . The burden to prove the factum of fraud on the part of respondent No.1 or the transaction being 'Benami' squarely and exclusively was on the petitioner , however , he could not discharge the onus in this regard through cogent, reliable and confidence inspiring evidence. The petitioner alleged that he had paid the sale consideration for the disputed property but instead of transferring the same, respondent No.1 got attested mutation No.11177 dated 22.11.2012 in his favour .
Yet, the petitioner has not produced a single witness in whose presence the amount was paid to the respondent.
The petitioner has not even asserted a single word about the time, date, month, year or place when the payment was made to the respondent No.1. The petitioner has not produced Mst. Ilahi Noor or the witnesses of mutation No.1061 1 dated 17.02.201 1 through which he sold his 5 'Marlas' land in favour of Mst. Ilahi Noor in order to prove that the sale consideration paid by Mst. Ilahi Noor was handed over to respondent No.1. Admittedly , the respondent No. 1 is working in South Africa for the last so many years and he has constructed a house over the disputed land and his family has been residing therein. The petitioner has also admitted this fact that at the time of purchase of disputed property from Rifaqat Shah, respondent No.1 was abroad. No fraud, as alleged by the petitioner , has been proved on record through cogent and convincing evidence. The witnesses produced as PW-3 and PW-4 in support of transaction in question are real sons of the petitioner , who could not establish in their evidence anything favourable to the petitioner . The factum of fraud alleged by the petitioner absolutely could not be substantiated through any independent and reliable evidence. Thus, it is held that the burden was not successfully discharged by the petitioner to prove any fraud. It is golden principle of law that he who alleges fraud, the burden is on that person to prove the alleged fraud. Reliance is placed on case titled 'Khan Muhammad Vs. Muhammad Din' (2010 SCMR 1351 ).
6. The claim of the petitioner that the disputed sale transaction was in fact a 'benami' transaction was also not proved in accordance with law through any tangible evidence. Mere oral assertions on the part of the petitioner qua the disputed transaction without any independent and cogent evidence could not be believed. On the other hand, the respondent No.1 has proved that the land was purchased by him from his own pocket and house was also constructed by him where his family has been residing. In order to prove the 'Benami' transaction, the Honourable Supreme Court of Pakistan in case titled 'Muhammad Nawaz Khan and others v. Mst. Surriya Sabir Minhas and others' (2009 SCMR 124) has laid down certain determining factors for consideration. The relevant extract from the judgment referred to above is reproduced below:- "It is well-settled by the superior Courts that the onus of the particular sale/purchase if "Benami" and the apparent purchaser is not the real owner , always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of "Benami" or establish circumstances reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick 'veil', which cannot be easily pierced through. Despite that such difficulties do not relieve the person taking the plea of "Benami" 'transaction to be Benami of any part of the serious onus that rests on him. The question, whether a particular sale is `Benami' or, not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, yet in determining the probabilities and for gathering the relevant indicia, the courts have usually laid down the criteria to determine the `Benami' transaction. Determ ining factors to be taken into consideration are enumerated as under:-
(i) Source of construction;
(ii) from whose custody the original title, bill and other documents came in evidence;
(iii) who is in possession of the suit property; and
(iv) motive for Benami transaction.
In this context, reference can usefully be made to the cases of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703, Muhammad Siddiqi through Attorney v. Messrs T.J. Ibrahim & Co. 2001 SCMR 1443 , Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Mv. MD. Abdul Majid and others v. MD. Jainul Abedin and others PLD 1970 Dacca 414 and Jane Margrete William v. Abdul Hameed Mian 1994 CLC 1437 ."
7. The petitioner has not proved that the disputed property was purchased by respondent No.1 from the same amount in the year 2012, which was received from Mst. Ilahi Noor in the year, 2011 on account of sale proceed of his land sold to her. Neither witnesses of the mutation nor the vendee were produ ced to establish that the amount was received by respondent No.1 on behalf of the petitioner . The petitioner has failed to discharge his burden to prove that respondent No.1 was 'Benamidar '. Thus, the findings of both the learned Courts below qua factual controversy do not suffer from any illegality , infirmity , misreading or non-reading of evidence. This Court in such like situation refrains to interfere with the judgments of the lower Courts.
8. The petitioner has also moved an application for grant of permission to amend the plaint in order to mention certain facts regarding sale and purchase of land through mutation No.9496 dated 23.06.2007 10308, 10310 and 10312 dated 13.11.2015. This Court considers that at this belated stage such amendment in the plaint would certainly amount to fill up lacuna in the case of the petitioner , which is not at all permissible. As such, CM moved in this respect stands dismissed.
9. For the reasons stated above, the present revision petition being without substance is accordingly dismissed.