SHAMSUDDIN ABBASI, J. This Revision Application filed under Section 115, C.P.C., arises from the concurrent findings of the two Courts below, whereby the suit filed by the applicants was dismissed and appeal preferred against such dismissal met the same fate.
2. F.C. Suit No.108 of 2009 was filed by the applicants/plaintiffs for declaration, cancellation of sale deed/entry in the record of rights and permanent injunction, claiming therein that they are sisters inter se and respondents 6 to 8 are their brothers whereas respondent No.9 is their sister and respondent No.10 is step-mother. The respondents Nos. 6 to 9 are sons and daughter of respondent No.10 from her husband Anwar ul Haque, who had two wives namely, Mst. Dilshad Gulshan and Mst.
Khursheed Begum (defendant No.10) and the applicants are daughters from Di!shad Gulshan whereas respondents Nos. 6 to 9 are sons and daughters from Khursheed Begum. Per claim of the applicants their deceased father Anwar ul Hague in his lifetime purchased agricultural land in Bunn, Tapo Beli, Taluka Ghorabari, District Thatta (hereinafter referred to as "suit land") in the name of his brother-in-law Tufail Ahmed son of Rehmat Ali in 0-50 paisas and 9 1/2 paisas share being a benami transaction, who transferred the said share in the names of respondents 6, 7 and 8 Raza ul Haque (deceased), out of them respondents 6 and 7 as well as Raza ul Haque (deceased) transferred their 0-17 paisas and 0-03 paisas share in the suit land in favour of the applicants as well as respondent No.9 by way of a gift and such mutation was also effected in the record of rights on 17.09.1994, thereby the applicants became lawful owners of 04 1/4 paisas and 3/4 paisas each, in the suit land, possession of which was also handed over to them. It is also the case of the applicants that their brother Raza ul Hague, who was minor and unmarried, died on 17.01.1997 whereas their father Anwar ul Haque also expired on 22.01.1998 and subsequent thereto the respondents Nos. 6 and 10 transferred their share by way of a registered sale deed in favour of respondents Nos. 11 to 15 and also got obtained a Sale Certificate dated 11.07.1998 from Mukhtiarkar Ghorabari, hence the applicants filed suit and prayed for following relief(s):- "(a) Declaration The plaintiffs are legally entitled to inherit their share on the demise of Raza ul Haque son of Anwar ul Haque and Anwar ul Haque son of Ghulam Baig as per Muhammadan Law and the sale deed bearing No.489 dated 11.07.1998 Registration No.394 pages 125 to 131 of Book No.1 Additional No. Volume No.52 dated 11.07.1998 executed by the defendant Nos.6 to 9 in favour of defendants Nos. 11 to 15 in collusion and in connivance of defendants Nos.4 and 5 as well as the Mutation Entry No.270 dated 12.09.1998 is/are null, abiniao void, illegal, unlawful, mala fide, fraudulent of no legal effect, without any lawful authority and not binding on the plaintiff.
(b) Cancellation of Document/Entry that this Honourable court may cancel the above entry and documents/sale deed executed by the defendants Nos. 6 to 9 in favour of the defendants Nos. 11 to 15 in collusion and in connivance of the defendants Nos.4 to 5.
(c) Mandatory Injunction that this Honourable Court may direct the defendants Nos. 4 and 5 to cause/restore the entries in the name of the plaintiff in record of rights as per their respective share.
(d) Permanent Injunction restraining the defendants Nos. 11 to 15, their agents, servants, legal representatives, or any person or persons claiming through them in any way directly or indirectly from interfering in the peaceful possession of the plaintiffs in the suit land, from selling mortgaging and transferring to any person or creating any encumbrances in the suit land and/or issuing the threats to the plaintiffs or doing any act/thing prejudicial to the interest of the plaintiffs in any manner without due course of law.
(e) That the defendants shall born the costs of the suit.
0 Any other relief which this Honourable Court may deem fit and proper may be granted to the plaintiffs.
3. The respondents contested the suit and filed their respective written statements, wherein they have denied each and every assertion levelled against them and prayed for dismissal of the suit with costs.
4. Out of the pleadings of the parties, following issues were framed:- "1. Whether agricultural land bearing surveys Nos. 118/4, 117/3ABC, 132/1, 4, 6, 149/1, 2,132/2, 134/1, 135/5, 137/4, 137/ 3NC, 138/6, 145/1, 2, 3, 146/1, 2, 3, 4, 147/1, 2, 148/1, 2, 3, 4, 6, 13, 1492, 3, 4, 160/1, 2, 3, 124/5, 125/1, 126/1, 2, 3, 4, 127/4, 140/ 1BC, 140/4CD, 141/1, 2 143/2, 3, 4, 142/1, 162/1, 144/1, 2, 3, 4 situated in deh Bunn, Taluka Ghorabari, District Thatta viz the suit land originally belonged to late Anwar ul Haque the father of plaintiff and of defendants Nos. 6 to 9?
2. Whether 59-2 paisas share in the suit land stood in the name of Tufa Ahmed as Benami transaction who had transferred the same in the name of defendants Nos. 6 to 9 and late Raza ul Haque son of Anwar ul Haque by ignoring the share of plaintiff and of defendant No.9 and therefore, late Anwar ul Plaque on behalf of his minor sons namely Irtaza ul Haque and late Raza ul Haque, late Zia ul Haque has transferred 20-0 paisas share in the suit land in the name of plaintiffs and defendant No.9 by way of gift and such mutation also effected in the revenue record of rights on 17.09,1994?
3. What whether the plaintiff became lawful owners of 0-4 1/4 paisas and 3/4 paisas in the suit land are independently in cultivating possession of the same?
4. Whether Raza ul Hague the brother of plaintiffs expired on 17.01.1997 and his share of 0-8 1/4 paisas was inherited by plaintiffs and defendants Nos. 6 to 10?
5. Whether late Anwar ul Haque expired on 22.01.1998 and his share was to be inherited by the plaintiffs and defendants Nos. 6 to 10?
6. Whether defendant No. 5 (Zia ul Haque) and defendant No. 10 (Mst. Khursheed Begum illegally, unlawfully, malafidely and without any legal authority showing Zia ul Haque as alive executed registered sale deed in favour of defendants Nos. 11 to 15?
7. Whether Mst. Khursheed Begum the defendant No. 10 has expired on 29.04.2000 or on 05.05.2000?
8. Whether the defendants Nos. 6 to 9 and 10 have rightly and legally sold the suit land to the defendants Nos. 1110 15 and these purchasers defendants are in possession of the suit land?
9. Whether the suit land was partitioned?
10. Whether registered sale deed No.489 dated 11.07.1998 as well as mutation entry No. 270 dated 12.09.1998 are illegal, unlawful and liable to be cancelled?
11. Whether the suit is not maintainable in accordance to the law?
12. Whether the plaintiffs are entitled for the relief claimed?
13. What should the decree be?
5. The parties led their evidence. The learned trial Court viz Senior Civil Judge, Thatta, after assessing the evidence and hearing the parties respective counsel dismissed the suit vide judgment dated 19.10.2009. The applicants preferred appeal, which too was dismissed vide judgment dated 12.04.2012, penned down by the learned Additional District Judge, Thatta, in Civil Appeal No.47 of 2009. Aggrieved of the judgments of the learned two Courts below, the applicants have filed the instant Revision Application with the following prayer:- "(a) Set-aside the impugned passed by the two courts below.
(b) To remand the case back to the learned trial court for afresh decision after rehearing the parties and to decide all the legal and factual aspects.
(c) Alternatively to allow this revision and as a consequence to set-aside the impugned judgments and decrees annexure D, D/1, E & E/1 and consequently to decree the suit of the applicant.
(d) Any other relief or reliefs.
(e) Grant the costs of this revision.
6. It is contended on behalf of the applicants that the suit property is an inherited property and in all fairness all the legal heirs are entitled to get their respective shares, hence the findings recorded by the learned two Courts below against applicants depriving them from their respective shares is contrary to Muhammadan Law as well as Law of Inheritance. It is next submitted that both the learned Courts below have failed to appreciate evidence in its true prospectus and passed the impugned judgment without application of conscious judicial mind. It is also submitted that the impugned judgments lack logical reasoning resulting serious miscarriage of justice. The learned counsel while summing up his submissions has submitted that the impugned judgments are bad in law and facts as well as applicable law, hence the same cannot be sustained in the eyes of law and liable to be set-aside and prayed accordingly. In support of his submissions, the learned counsel for the applicants has placed reliance on the cases of Municipal Committee Bahawalpur. v. Sh. Aziz Elahi (PLD 1970 SC 506), Alamgir Khan through L.Rs. and others v. Haji Abdul Sattar Khan and others (2009 SCMR 54), Abdul Qayum through legal heirs v. Mushk-e-Alam and another (2001 SCMR 798), Sajjan through L.Rs. and others v. Sher Muhammad Phulpoto (2016 YLR 45), Nadeem Manzoor Hasan v. Muhammad Adil Khan and 2 others (2014 MLD 155) and Syed Aijaz ul Haque Hashmi and 4 others v. Muhammad Owais (2015 YLR 743).
7. On the other hand, the learned counsel for the respondents while controverting the submissions of learned counsel for the applicants has submitted that impugned judgments are based on fair evaluation of evidence and documents brought on record and the learned counsel for the applicants has failed to point out any illegality or material irregularity calling for interference in the concurrent findings of the learned two Courts below. Per learned counsel, both the learned Courts below have acted in accordance with law and prayed for dismissal of Revision Application.
8. The learned AAG has supported the impugned judgments and adopted the same arguments as advanced by the learned counsel for the respondents.
9. The land which is subject matter of the suit is situated in deh Bunn, Taluka Ghorabari, District Thatta. According to applicants, it was purchased by their father Anwar ul Haque and after his death the applicants and respondents became share-holders to the extent of their respective shares per Muhammadan Law. The entire controversy revolves around Issue No.1 and Issue No.2.
The learned trial Court while recording findings against the applicants decided Issue No.1 in negative and observed as follows:- "In the plaint I have no where been denied that suit land was not purchased by the father of the plaintiffs in the name of Tufail Ahmed up to the extent of 0-50 paisas and 9-1/2 paisas share being a benami transaction and after wards said Tufail Ahmed has transferred said share in the names of defendants Nos. 6, 7 and 8. The case of plaintiffs is that said Tufail Ahmed by bona fide mistake ignoring them transferred the share of the plaintiffs and of defendant No.9 in favour of defendants Nos. 6 to 10, but the defendants with mala fide intention sold out the same to the defendants Nos. 11 to 15.
From the above perusal of evidence and admissions on record it is clear that the owner of the suit property was Tufail, who transferred 0-50 and 0-9 paisa to the defendants Nos. 6 to 8 respectively. The fact of family settlement is deposed by Mst. Maroof and Raza ul Haq no where finds place in the affidavit in evidence at all. The documents brought on record by the Tapedar clearly shows that father of plaintiff namely Anwar ul Haq was neither real owner on record nor appears to have executed the alleged gift. According to the averments of plaint and admissions of Mst. Maroof Akhtar, Zulkaif Tahoora and Rana Zularain, the said properly was benami property as per their claim but no where it has been established that the suit property as a benami has ever been challenged by the father of the plaintiffs and plaintiffs subsequently in the present case.
No declaration in respect of the suit property as a benami has been sought with regard to the benami transaction executed bonafidely by the father of plaintiffs in favour of Tufail. It is worth to mention here that the said Tufail Ahmed has also not been made a party in the present suit, who was the better person to depose the facts of the case in a truthful manner.
The witnesses of plaintiffs Rana Zulqarnain in his affidavit in evidence has posed himself to be the witness concerned to the facts upon his knowledge at the one hand, but at the same time he has posed himself as one of the plaintiffs. The deenour of this only important witness of the plaintiffs shows that he can not be relied upon as a truthful witness. The said witness has put himself as one of the plaintiffs and has no where been able to depose as an independent witness. While taking into consideration the affidavit in evidence of said witness and his cross-examination which Clearly establish that at no time he has appeared in the witness box as an independent witness but shown himself to be one of the plaintiffs in the case.
For the reasons and discussion above it is established that the suit property has never belonged to late Anwar ul Haq at any time but has been in the name of Tufail as a real owner. Issue No.1 is answered in negative".
10. Insofar as the claim of applicants that suit land stood in the name of Tufail Ahmed as benami transaction, who transferred the same in the names of respondents Nos. 6 w 9 and Raza ul Haque, ignoring their respective shares as well as of respondent No.9 and their deceased father Anwar ul Haque on behalf of his minor sons Irtaza ul Haque and Raza ul Haque and late Zia ul Haque transferred 20-0 paisas share in the suit land in the names of applicants and defendant No.9 by way of a gift, based on which mutation was also effected in the revenue record on 17.09.1994 is concerned, the learned trial Court framed Issue No.2 and after going through the evidence and documents brought on record concluded that the applicants have failed to establish execution of alleged gift deed in their favour. Relevant excerpt is reproduced below:- "As already discussed in issue No.1 that the whole case of plaintiffs depends upon the so-called gift executed by their father which has not been established at all and the claim of benami transaction has no where been established by the plaintiffs in any manner.
Admittedly, the suit property has been shown in the name of Tufail Ahmed up to extent 59-2 which 0-9 paisas in his name which he transferred in the names of defendants Nos. 6 to 8 and looking to the admissions of plaintiff there appears no question that said Tufail Ahmed by bonafidely mistake ignored the remaining legal heirs of Anwar ul Haq. The claim of the plaintiffs that they were transferred the share of their father and their brothers (defendants) through gift deed is no where established.
The gift deed has no where been produced as admitted by Mst. Maroof Akhtar, which shows that best evidence lying with plaintiffs has been with held. In these circumstances when said Tufail Ahmed is not made a party in whose name father of plaintiff purchased the suit property as a benami transaction, hence, there can be no finding in favour of the plaintiffs with regard to their claim. Case of plaintiffs is that the share of 59-2 paisa and 0-9 paisa was benami transaction in the name of Tufail Ahmed, it is no where established that the transfer of the suit property in the names of defendants Nos. 6 to 8 by the said Tufail Ahmed is illegal hence, the said Tufail Ahmed have no where deprived the legal heirs of Anwar ul Haq.
The record of mutation is on the basis of gift, as alleged by the plaintiffs. The statement before Mukhtiarkar which does not bears the signature of deceased Anwar ul Hague and when disclosing no handing over of the possession of suit land does not form the valid gift. Reliance is placed on PLD 2008 SC 73.
Since gift has not been established by the plaintiffs, therefore, this issue cannot be decided in favour of plaintiff. Accordingly issue No.2 is answered in negative".
11. Findings recorded by the learned trial Court on issues are outcome of fair evaluation of evidence and other relevant material, which has been maintained by the learned Appellate Court through judgment dated 19.10.2009. Relevant excerpt of the said judgment is reproduced below:- "The entire case of the appellant based on two pleas (1) suit property belong to their father Anwar ul Haq and Tufail was not the actual owner, being benami transaction. Tufail Ahmed by bona fide mistake ignored the plaintiff/appellant and transferred their shares and of respondent No.9 in favor of respondents Nos. 6 to 10. (2) later on, Anwar ul Haq, father of the appellant made good the loss by gifting their shares to them in the property.
15. Now, the appellant was required to prove benami transaction and gifting of appellant's share to them by their father, as a basic structure of their claim.
16. Let take at the first plea of benami, taken up by the appellant "The word Benami is of person origin made up of two words "b" and "name" meaning" no name" that is, nameless or fictitious. Where any person purchases property in the name of another for his own benefit with no intent to make that other the beneficiary therefore, there is Benami transaction. The nominal owner of Benamidar. Is the Benamidar. A Benami transaction is invariably triangular. The simple meaning of Benami is that a purchaser desires to buy property but does no desire to buy in his own name and therefore buys in the name of someone else".
17. Therefore the burden of proof is on the person who seeks to give a different meaning and complexion to a document from that it bears on its face, that is, the burden lies on him who pleads that the apparent state of affairs is not the real state of affairs. Ownership documents are on the name of Tufail. No judicial declaratio is sought either in the present trial nor previously.
Anwar ul Haq is passed away and had never challenged Tufail as benamidar. By mere saying in the pleadings and evidence that Tufail was benamidar, burden could not be discharged.
18. Proof and evidence are two different things. Evidence of a fact and proof of a fact are not synonymous terms. Proof in strictness marks merely the effect of evidence. The person who impugns the apparent character of any transaction must not rely solely upon probability to prove that the transaction is not what it professes to be. He must show something definite to establish that it is a sham transaction. Thus there is no iota of evidence which could proof that land was entered on the name of Tufail as benamidar.
19. Further, such plea sounds very strange that by bona fide mistake respective shares of appellants were ignored. How it is possible? One can forge a book where he keeps it but how it is possible that legal heirs, human beings by bona fide mistake are ignored. It just looks impossible in ordinary life.
20. Beside this, there is also another aspect of the case if Tufail was only benamidar and not real owner then how he handed over land to the respondents Nos. 6 to 10. He had no right to do so.
How he came in possession of original documents and why Anwar ul Haq, the alleged real owner allowed Tufail to do so and why not filed any litigation against Tufail. Further, if Anwar ul Haq was the real owner and appellants were to inherit from his estate then why Anwar ul Haq gifted by separate deed the respective shares to the appellants. Thus the trial court rightly concluded by apprising evidence in its true prospective that plea of "benami" is not a true plea.
21. According to the transfer of Property Act, "gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration by the person called the donor to another called the donee and accepted by or on behalf of the donee. A gift under the Muhammadan Law is to be effected in the manner prescribed by the Muhammadan Law. If the formalities prescribed by that law are complied with the gift is valid even though it is not effected by a registered instrument and though where effected by an instrument, the instrument is not attested. But if the formalities are not complied with the gift is not valid.
Article 149 of Muhammadan Law says: The three essentials of a gift. It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in sec.
150. It these conditions are complied with, the gift is complete.
Article 150 of Muhammadan Law says: Delivery of possession. (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of.
Thus the taking of possession of the subject matter of the gift by donee, either actually or constructively" is necessary to complete a gift.
Article.152 of Muhammadan Law says: Delivery of possession of immovable property. A gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters in to possession.
22. The gift deed has-not been produced. The statement before Mukhtiarkar does not bear the signature of deceased Anwar ul Haq as well as other respondents. There is no statement regarding hand over possession to the appellants. The appellants could not prove that they are in possession of disputed land rather twisted their case during evidence.
23. Thus, neither gift is proved nor benami transaction by the appellants.
24. Lets come to gale transaction between respondents Nos. 6 to 8 and 10 and the respondents Nos. 11 to 15. The main grievance of appellants is sale by which subject land sold by respondents Nos. 6 to 8 and 10 to respondents Nos. 11 to 15 and thus mutation was effected. There are maxims of equity which are embodied in our legal system i.e. (1) He who seeks equity must do equity, (2)
He who come to equity must ostensible owner is not proved then subsequent transaction has no concerned with the appellants. They are who to challenge it.
25. The evidence is appraised in true prospective. Appellants remained failed to prove their case thus suit was rightly dismissed".
12. The applicants in support of their claims have failed to place on record any evidence or valid material as to execution of alleged gift deed in their favour or that the alleged transaction in the name of Tufail was benami. I am, thus, of the opinion that the view formed by the learned two Courts below on appraisal of the pleadings and the evidence was consistent with the legal position. Furthermore, Revision Application in hand impugns the findings of two subordinate Courts, which have recorded concurrent findings of fact and refused to exercise their discretion in favour of the applicants. It is settled proposition of law that concurrent findings of fact cannot lightly be interfered. The learned counsel for the applicants has not raised any question of law that may require consideration by this Court in exercise of its Revisional Jurisdiction. He has also not been able to convince me that there is any misreading or non-reading of evidence by the learned two Courts below. find that the learned subordinate Courts have passed the impugned Judgments and decree after due application of mind and careful appreciation of oral and documentary evidence produced by the parties as well as applicable law. Hence, the impugned judgments and decrees assed by the learned two Courts below do not suffer from any illegality, infirmity or material irregularity that may require interference by this Court in exercise of its Revisional Jurisdiction. The case law cited by the learned counsel for the applicants, in support of his submissions, are distinct and distinguishable from the facts and circumstances of the present case, hence none of the precedents cited by the learned counsel are helpful to the applicants. This Revision Application No.133 of 2012 is, therefore, bereft of any merit stands dismissed along with all pending applications, however, with no order as to costs.