FAZAL SUBHAN, J. The instant civil revision petitioner u/s 115 of the Civil Procedure Code, 1908, is filed by the petitioner questioning the validity of the judgment and decree dated 13.01.2012 passed by the learned District Judge, Bannu vide which Civil Appeal No. 76/13 of 2011 against the consolidated judgment and decree dated 20.01.2011 of the learned Civil Judge-IX, Bannu in Civil suit No. 175/1 (Nim) of 2007 and Civil Suit No. 103/1 (Nim) of 2007, was partially allowed. Through the instant revision petition the petitioner has prayed for setting-aside judgments and decrees of the two courts below and suit No. 175/1 (Nim) of 2007 may kindly be dismissed while the suit No. 103/1
(Nim) of 2007 may graciously be decreed.
2. Relevant facts constituting back ground of the instant civil revision petition are that Mirzali Khan/respondent instituted a suit for possession of property bearing Khata No. 231 Khasra No. 378 measuring 03 Kanals and 04 Marlas situated at Daud Shah Tehsil and District Bannu, decree for mesne profits of Rs.187,000/- @ Rs.17,000/- per annum from the year 1996 and a decree for permanent injunction directing the petitioners to remove the construction raised on 10 Marlas land and to avoid any damage to the suit property.
3. In his suit, the respondent claimed to be the owner of the suit property and as he was residing abroad since 1996, therefore, on his return he filed a complaint u/s 3 of the Illegal Dispossession Act, 2005, and during the pendency of the said complaint, the petitioner denied the ownership of the respondent, hence, he is liable to eviction and as he was deriving benefits out of the suit property, therefore, he is obliged to pay the mesne profits since 1996. At the same time, the petitioner also instituted a suit for declaration and permanent injunction claiming to be bonafide owner of the suit property and prayed for correction of revenue record.
4. After filing the suits, the petitioner appeared and submitted his written statement and asserted that he has purchased the suit property from Muhammad Usman Khan, father of respondent and was given to him as "Benamr through mutation No. 8534 dated 20.04.1968 and the gift mutation No. 295 dated 24.06.1999 was without possession, therefore, the gift in his favour is incomplete, while in the suit filed by petitioner, the respondent filed written statement. Both the suitiswere consolidated and from the pleadings of the parties, the learned trial court framed issues and thereafter, both the parties availed opportunity of producing their desired evidence and on conclusion of trial, the learned trial court vide its consolidated judgment dated 22.01.2011 decreed the suit No. 175/1, whereas, suit No 103/1 was dismissed. The petitioner being aggrieved from the said judgment, filed Civil Appeal No. 76/13 of 2011 and after service of the respondent and hearing arguments of counsel for the parties through its judgment dated 13.01.2012, dismissed the appeal of the petitioner, hence, he filed the instant revision petition.
5. Arguments of learned counsel for the petitioners and that of learned counsel for respondents were heard and record gone through with their valuable assistance.
6. The initial burden of proof within the contemplation of Article 117 of the Qanun-e-Shandat Order, 1984, was upon the respondent to prove that he is the owner of the suit property and the petitioner was in illegal occupation of the same and after denying his title over the suit property, the petitioner is not only liable to be evicted from the suit property but he has also to pay the mesne profits. To this effect, the respondent examined Rashid Khan Patwari Halqa who brought the relevant revenue record of Fard-Jamabandi for the year 2001-02 in respect of the suit property as Ex.PW-1/1 and Shajra Kisthwar Ex.PW0- 1/2 and in his cross-examination nothing favourable to the petitioner was brought except to the effect that there is Abadi on 10 Marlas in Khasra No. 378 while in Khasra No. 380 there is a water drainage on 06 Marlas. Similarly, Khasra No. 381 within an area of 10 Kanals and 15 Marlas is cultivable. Similar is the position of Khasra No. 376 and 379 while on Khasra No. 377, 01 Kanal and 03 Marlas is under Abadi. The respondent in support of his claim of title over the suit property, also recorded his statement and in cross-examination accepted the fact that father of respondent has not received any produce from the petitioner. The petitioner examined Gul Daraz Khan ADK Bannu, who produced the relevant record of Fard-Jamabandi for the year 1972-73, 1968-69 Ex.DW-1/1 and Ex.DW-1/2 and mutation No. 295 Ex.DW-1/3. In cross- examination, he admitted that Muhammad Usman Khan son of Akbar Ali Khan has purchased 20 Kanals and 02 Marlas vide mutation No. 8534 dated 20.04.1968. The petitioner Saifullah also examined Mir Shah khan son of Haji Muhammad Rasan and Abizar son of Gul Shah as his witnesses and recorded his own statement as DW-4.
7. From the revenue record brought through Patwari Halqa and ADK, it is clear that in the Jamabandi for the year 2001-02, Mirzali Khan son of Muhammad Usman Khan is recorded as owner of the suit property, whereas, Khasra No. 380 is recorded in possession of the said owner while Khasra No. 378, 381, 376, 377, 379 and 373 are recorded in possession of Siaf Ullah Khan petitioner, Ghafar Khan, Naimatullah Khan, Bahadur Ali and Muhammad Saadullah etc as "Ghair Dakhlkdar" or tenant-at-will. The said Jamabandi Ex.PW-1/1 also shows the entry of mortgage mutation No. 405 from Mirzali Khan in favour of Agricultural Bank, therefore, it reveals that the respondent is recorded as owner of the suit property and in this way he has discharged the onus of proving the fact that he is owner of the suit property.
8. After proving the ownership by the respondent though revenue record, the burden of proof of the fact that mutation No. 8534 dated 20.04.1968 was a "Benami" transaction in favour of Muhammad Usman Khan shifted to the petitioner and to this effect the petitioner examined Mir Shah Jehan who alleged in his statement that the suit property was purchased by five persons, i.e, Muhammad Rasan, Saif Ullah Khan, Muhammad Shah Jehan, Muhammad Saadullah Khan and Haji Muhammad Usman jointly and Muhammad Usman being elder of their tribe was paid the entire sale consideration and the property was purchased @ Rs.480/- per Kanal, however, he sold the suit property to them @ Rs.600/- per Kanal and also handed over the possession to them. That Muhammad Usman was asked to transfer the property in their names but he convinced them not to transfer the property on the pretext of possibility of pre-emption suit against them. In cross- examination, he replied that he has a claim over 03 Kanals and 05 Marlas and that he has now proved that they have jointly purchased the suit property. Though he denied that they are entered as "Ghair Dakhlkdar "/tenants but further replied that they have no proof that they are in possession as owners. He also answered in cross-examination that after the death of Muhammad Usman, he has neither approached the civil court nor the revenue officials for transfer of the property in his name. He also admitted it correct that he has not challenged the transfer in the name of Mirzali Khan/respondent. Similar statements were also recorded by Abizar and petitioner Saif Ullah Khan.
9. The evidence, therefore, recorded by the petitioner is not in consonance with the assertions made in the written statement. They have not produced any cogent and convincing evidence to prove their claim of "Benami" transaction which requires the proof of source of arrangement of consideration, the possession of original title deed or any other document in their favour, the person(s) who is/are in possession of the property and the purpose and reasons for creating a "Benami" transaction. In this respect, guidance is taken from the case of "Abdul Majeed and others V. Amir Muhammad and others", reported in 2005 SCMR 577, wherein the august Supreme Court has held that:- "9.-Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:-
(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 is also well-settled law 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, it may be stated that 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.
10. In the present case, the petitioner has failed to establish the source of his income at the relevant time to have arranged an amount for "Benami" nor he is in possession of any deed or document prepared at the relevant time and at the same time, it is not convincingly proved why the petitioner agreed to create a "Benami" in favour of father of respondent. Thus, the petitioner has failed to discharge his burden. In the case of "Muhammad Siddiqi through attorney v. Messrs T.J.Ibrahim & Company and others" reported in 2001 SCMR 1443 [Supreme Court of Pakistan], it was held as following:- "The learned counsel for the petitioner has placed reliance upon Muhammad Sajjad Hussain v.
Muhammad Anwar Hussain 1991 SCMR 703 wherein it has been laid down that initial burden of proof is on the party who alleges that an ostensible owner is Benamidar and the plaintiff is not absolved from discharging burden of proof In the instant case M Ibrahim has laid his claim in respect of the flat in dispute that the said property is benami owned by Alliance Motors, which was purchased through one Muhammad Siddique, his relative and the amount was paid from the funds of Alliance Motors. Petitioner's signature on the power of attorney apparently differed to that on the sale deed Petitioner claimed that he had purchased the fiat by borrowing money, whereas his son and attorney Faisal stated that an amount so borrowed was a loan obtained by his grandmother from his cousin, mother of M. lbrahim, to pay that amount to his uncle to end the dispute between his father and uncle. Petitioner did not appear and could not produce evidence with regard to source of funds with which he is said to have purchased the property in dispute. In the circumstances the facts of the case cited are quite different and distinguishable from the facts of the instant case. "
11. In the light of available record, the ownership/title of the respondent over the suit property has been sufficiently and convincingly proved while so far as the claim of the respondent in respect of produce of agricultural land is concerned, the same was rightly held by the learned appellate court to be outside the jurisdiction of the civil court and return of plaint to this extent was ordered. No illegality, irregularity or jurisdictional error has been pointed out by the petitioner in the impugned judgment, hence, the same being based on correct appreciation of record is maintained and the instant civil revision petition being devoid any merits is hereby dismissed.