MUHAMMAD SHAN GUL, J. Through this judgment the titled civil revision is sought to be decided. During the pendency of this civil revision both, petitioner No.1 and respondent No.1 passed away and have been suitably replaced by their legal heirs.
2. The petitioners have laid a challenge to a judgment and decree dated 12.3.2 009 passed by a learned Addl.
District Judge by virtue of which an appeal filed by the respondents was accepted and as a consequence thereof the suit filed by the respondents for declaration on the basis of Benami transaction was decreed and the suit filed for redemption of mortgaged property by the petitioners was dismissed.
3. Brief facts of the case are that the petitioners before this Court filed a suit for redemption of mortgaged property with the assertion that the suit property measuring 314 kanals 17 marlas was owned by one Manzoor Hussain who mortgaged it to one Atta Muhammad i.e. late respondent No.1 through mutation No.34 dated 21.11.1972 against a consideration of Rs.1,30,000/-. That late petitioner No.1 purchased the suit property along with the encumbrance of mortgage in consideration of Rs.1,30,000/- by way of mutation No.52 dated 19.11.1974. The land in issue was further sold by late petitioner No.1 to other petitioners and he requested the trial court for redemption of the mortgaged property . It is also important to mention here that at the time of filing of the suit in issue late petitioner No.1 deposited mortgage money amounting to Rs.1,30,000/- in the trial court.
4. On the other hand, late respondent No.1 controverted the averments and allegations brought forth by the plaintif f and stated that he alongwith late petitioner No.1 jointly purchased the suit property and that he paid half of the price of the suit property . He further maintained that the mutation of mortgage bearing No.34 dated 21.11.1972 was only effectuated by late petitioner No.1 to avoid a suit for preemption and prayed for the suit in issue to be dismissed.
5. In the first round, the suit in issue which was filed on 23.10.1998 was dismissed on 28.2.2002 while in appeal the case was remanded to the trial court so as to be decided afresh vide judgment dated 21.4.2005.
6. Quite interestingly , and obviously quite late in the day, on 01.3.2003, late respondent No.1 filed his own suit for declaration with the prayer that it be declared that he was owner of half of the suit property and that all subsequent transactions made by late petitioner No.1 were void and inef fective.
7. The trial court vide order dated 01.12.2005 consolidated both suits and framed 1 1 issues:- "1. Whether the suit land was mortgaged by vendor Manzoor Hussain s/o Bahawan Shah in favour of the defendant in lieu of Rs.130,000/-?OPP 1-A. Whether the defendant paid half price of the half suit land, which was purch ased in the name of the plaintiff No.1 (Allah Rakha) vide mutation No.52 dated 19.11.74 and the plaintiff No.1 (Allah Rakha) is a benami owner of the defendant is a real of the half of suit land?OPD 1-B. Whether Nazar Hussain mortgaged the disputed property with the consent of the plaintiff No.1 and the defendant, if what is effect?OPD 1-C If the above issues are proved in affirmative, then, what will be effect on the mutation No.51 dated 15.5.74 and to what extent, the parties will get their rights in the disputed properties?OP Parties.
2. If the above issues are not proved in affirmative, whether the plaintiffs are entitle d to get decree of redemption as prayed for?OPP
3. Whether the instant suit is not proceedable in its present form?OPD
4. Whether this court lacks jurisdiction to try this suit vide section 17 of the West Pakistan and Redemption and Restitution Mortgaged Lands Act, 1964?OPD
5. Whether the suit is bad due to mis-joinder of necessary parties? If so, its effect?OPD
6. Whether the instant suit is meant to harass the defendant and the defendant is entitled for recovery of special costs u/s 35-A CPC? If so, what should be amount of special costs?OPD
7. Whether the instant suit has been improperly valued for the purpose of Court fee and jurisdiction? If so what is the correct valuation?OPD
8. Relief."
ADDITIONAL ISSUES: 7-A Whether the suit of the defendant is not maintainable?OPP 7-B Whether the defendant is estopped to file this suit?OPP 7-C Whether the suit of the defendant has not been proper valued?OPP
8. The learned trial court vide judgment and decree dated 10.5.2007 decreed the suit of the petitioners holding them entitled to get a decree of redemp tion of the suit property since they had already deposited the mortgage amount of Rs.1,30,000/-. Simultaneously , he dismissed the suit for declaration filed by late respondent No.1.
9. The main issue framed by the trial court is issue No.1 i.e. whether suit property was mortgaged by Manzoor Hussain in favour of late respondent No.1. Surprisingly , late respondent No.1 in paragraph No.3 of his written statement in the suit filed by the petitioners admitted this fact by way of a clear and unequivocal admission. Also in paragraph No.4 of the preliminary objections taken by late respondent No.1 in his written statement he also admitted that suit property was mortgaged by the original owner in his favour . These facts clearly show that the trial court rightly reached the conclusion that the suit property had been mortgaged in favour of late respondent No.1 by the original owner Manzoor Hussain.
10. As far as the contention of late respondent No.1, about the suit property being Benami in the name of late petitioner No.1 to the extent of half of the property is concerned, the same was attended to by way of findings recorded on issue No.1-A. Onus to prove this issue was placed on late respondent No.1. In order to prove the alleged Benami transaction late respondent No.1 had to prove the five essential ingredients of a Benami transaction and which, in the opinion of the trial court, he miserably failed to do and the trial court, therefore, decided this issue in favour of the plaintif fs.
11. In appeal the appellate court turned the tables and decreed the suit of late respondent No.1 for declaration on the basis of Benami transaction and dismissed the suit of the petitioners for redemption of mortgage vide judgment and decree dated 12.3.2009.
12. Hence, the present civil revision.
13. While the counsel for the petitioners has chosen not to appear despite being on notice, the counsel for late respondent No.1 (now representing his legal heirs) has appeared and has vociferously defended judgment and decree of the appellate court and has submitted that the erroneous findings recorded by the appellate court were rectified rightly and correctly by the appellate court. He has also argued that the judgment of the appellate court ought to be preferred over that of the trial court and that this was trite and acknowledged.
14. Perusal of the judgment of the appellate court shows that the court has held that late respondent No.1 was able to prove the ingredients of a Benami transaction and hence the trial court had wrongly dismissed the suit. It may be observed that the findings of the appellate court with reference to motive are erroneous to say the least because the appellate court held that, "motive is always in the mind of a party and no one can read the mind of a party ." This on the face of it is incorrect and such a presumption is alien to law. A party alleging Benami transaction is under a legal obligation to prove motiv e for such Benami transaction and reliance in this respect is placed on "Kamil Rehman and others v. Haji Rehman Bangash and another" (2020 CLC 1251 ). It may also be observed that without proving motive, a claim of Benami transaction could never have been proved. The motive, as alleged by late respondent No.1 about the property being transferred as Benami in order to avoid a suit for preemption is belied and negated by the fact that a suit for preemption was indeed filed and a copy of which has been exhibited before the trial court as Exh.D/10. Hence, the motive aspect of the matter could not be proved by means of confidence inspiring evidence.
15. In so far as the possession of suit property is concerned, the appellate court relied on Exh.D/2 to hold that the competing parties were enjoying joint possession of the suit property since 1971. A bare perusal of Exh.D/2 reveals that the said Khasra Girdawari neither pertains to the year the property was purchased i.e. 1974 and does not even show late respondent No.1 to be in poss ession of the suit property at the time of its purchase on 19.11.1974 or even afterwards. Even otherwise, no Khasra Girdawari for the years 1974-75 or years thereafter was produced to establish possession of late respondent No.1 over suit property . Also, the reliance of the appellate court on the entries of mutation No.34 and 51 to prove possession of late respondent No.1 is totally misconceived. Needless to add that a mutation is not reflective and indicative of possession of any party and the same only pertains to recording a change in title!
16. In addition to what has been observed above, proof of source of consid eration allegedly paid by late respondent No.1 was not forthcoming and no cogent evidence was brought on record to show source of consideration in paying half price of the suit property .
17. Even the aspect of production of original title document has been wrongly addressed by the appellate court in that the appellate court relied on original receipts for payment of District Council fee and equated the receipt with a title document. In doing so the appellate court miserably failed to note that the title document in question was for mutation No.52 dated 19.1 1.1974 and since it is a public document it could be obtained and produced by any one.
18. Furthermore, the following reasons clearly establish, in addition to what has already been noted above, why the judgment and decree of the appellate court is bad in law and, therefore, susceptible to interference in revisional jurisdiction: "Possession of suit premises lies with late respondent No.1 Atta Muhammad"
The appellate court wrongly declared that the agreement for appointment of an arbitrator Exh.P/7 (page-235 of this civil revision) shows joint purchase and joint possession of the competing parties. Exh.P/7 does not contain any such narrative and does not in any manner indicate what has been wrongly observed by the appellate court.
Moreover , the appellate court wrongly presumed that the over-writing or cutting present on mutation No.34 Exh.D/1 (page 189 of this civil revision) shows malafide and fraud on the part of late petiti oner No.1 Allah Rakha since no such allegations were ever raised by late respondent No.1 Atta Muhammad nor did he allude to any such factor in his written statement. It is trite that any matter beyond pleadings cannot be considered and that a party is not allowed to improve its case beyond what has originally been set up by way of pleadings. Reliance with advantage is placed on "Muhammad Yaqoob v. Mst. Sardaran Bibi and others" (PLD 2020 SC 338) and "Combined Investment (Pvt.) Ltd. v . Wali Bhai and others" ( PLD 2016 SC 730 ).
"Payment of Consideration"
The appellate court also wrongly held that since the parties were involved in joint business and were jointly in possession of some other agricultural land the payment of consideration was proved. No document of previous occupation of any joint property was presented by late respondent No.1 Atta Muhammad who also abstained from bringing before the court the original owner of the suit property in support of his claim of partial payment. Likewise, no proof of any joint business with late petitioner No.1 was provided either . In the same vein, no Khasra Girdawari of previous joint possession and cultivation was provided either to establish source of consideration.
"Original title deed"
The appellate court also wrongly held that the original title documents were provided by late Atta Muhammad in 2000 as these are mere public documents and any one can apply and can obtain the same. Similarly , the challan of payment of transfer fee Exh.D/8 (page 239 of this civil revision) is equally doubtful on account of overwriting and cutting. Likewise, no official of the revenue department was produced in support of veracity of the documents. Most interestingly the name of Allah Rakha as payee is conspicuous on the challan.
"Laches and acquiescence"
It was nowhere explained by late respondent No.1 Atta Muhammad as to why he chose to remain quiet for such a long period of time. As per averments in his plaint late petitioner No.1 Allah Rakha had refused his demand soon after the passage of mutations and he was constrained to appoint arbitrator in 1979 as is evident from Exh.D/7.
Likewise, late respondent No.1 Atta Muhammad did not challenge the decision of the revenue courts available at Pages-329-332 of this civil revision through which redemption was ordered in favour of late petitioner No.1 Allah Rakha.
19. Since the findings of the trial court and the appellate court are at variance and since one of these verdicts has to be preferred over the other the Hon'ble Supreme Court of Pakistan in "Muhammad Hafeez and another v.
District Judge, Karachi East and another" (2008 SCMR 398) has provided guidance to deal with a situation such as the present one:- "7. It is well-settled that in the event of conflict of judgments finding of Appellate Court are to be preferred and respected unless it is shown from the record that such findings are not supported by evidence; that the conclusions drawn are against the material on record; that the judgment of the Appellate Court suffers from misreading or non- reading of evidence or that the reasons recorded for reversal of judgment are arbitrary , fanciful and perverse."
In the matter before this court it has been noticed that the judgment of the appellate court is erroneous on at least four counts and hence perverse and it is therefore that the judgment and decree passed by the trial court is being preferred over that of the judgment and decree passed by the appellate court.
20. Be that as it may, there is, however , another aspect of this case and which is that proper procedure was not adopted by the trial court while trying the suit for redemption filed by late petitioner No.1 Allah Rakah since the same was to be tried in terms of Order XXXIV , Rules 7 and 8 CPC and a prelimi nary decree was required to be passed before the passage of a final decree. Guidance in this respect is forthcoming from a judgment of the Hon'ble Apex Court reported as (1980 SCMR 397) "Muhammad Shamshad v. Haji Allah Rakha" in which the Hon'ble Supreme Court of Pakistan has held that, "a plain reading of Order XXXIV Rule 7 CPC makes it mandatory for the court to pass a preliminary decree for redemption and even in a case where Clause (A), (B) of Rule 7 are not applicable, the requirements of Clause-(C) still nonetheless have to be complied with and which provide for delivery of documents relating to the mortgaged property , its reconveyance in favour of mortgagor and the subsequent transfer of possession".
21. In (1980 SCMR 397 ) "Muhammad Shamshad v . Haji Allah Rakha" it has been held as follows:- "Leave to appeal was granted to consider the question as to whether the form of decree was in accordance with Order XXXIV , rule 7, C.P.C. On behalf of the appellant Mr. Talmiz Burney contended that in a redemption suit, rule 7 of Order XXXIV , C.P.C. contemplates a preliminary decree which bad to be draw n up in terms of the above-cited rule; and in eventuality it was not so drawn up, the decree remained unexecutable. In support of his contention, he relied on Tikarn Das and others v. Abdul Wali (PLD 1968 SC 241). A plain reading of Order XXXIV , rule 7, C.P.C. makes it mandatory for the Court to pass a preliminary decree for redemption ; and even in a case where clauses
(a) and (b) of rule 7, Order XXXIV are not applicable for the reason that there was no prayer for rendition of account or for the payment of the money which had earlier been deposited, the requirement of clause (c) will, nonetheless, have to be complied with which inter alia provides for the delivery of the document relating to the mortgaged Property its re conveyance in favour of the mortgagor and the transfer of possession to him".
22. Likewise, in the case reported as "Abdul Manan v. Abdul Latif and another" (1989 MLD 3129 ) this point of law has been reiterated and it has been held that the court is bound to pass a preliminary decree before passing a final decree in cases of redemption of mortgaged property .
23. In (1989 MLD 3129 ) "Abdul Manan v . Abdul Latif and another" it has been held as follows:- "Learned counsel for the appellant argued that a final decree for redemption of mortgage has been passed in favour of respondent No.l to the extent of his one-half share by the learned trial Court whereas requirements of mandatory provisions of Order 34 rule 7, C.P.C. are that in such a case firstly preliminary decree is to precede. In support of this argument reliance has been placed on judgment reported as Muhammad Shamshad v. Haji Allah Rakha (1980 SCMR 397). Learned counsel for the respondents were not in a position to successfully meet this objection. The plain reading of Order 34 Rule 7, C.P.C. shows that in such a suit the Court is bound to pass a preliminary decree and thereafter to pass a final decree. The reported judgment reliance on which was placed also lays down this rule. The impugned judgment and-decree on this short ground is illegal and is not sustainable".
24. In view of what has been observed and discussed above, this civil revision is allowed and the judgment and decree passed by the appellate court is set aside and declared to be of no legal effect. As a result, the suit filed by late respondent No.1 for declaration is dismissed and the suit filed by late petitioner No.1 for redemption of mortgaged property is hereby decreed with the rider and condition that the matter is remanded to the trial court only for the limited purpose of drawing up a preliminary decree in favour of petitioners in terms of Order XXXIV , Rule 7 CPC and passing a final decree in accordance with law .