This revision petition assails the' judgment and decree, dated 16-3-1986 of the learned Additional District Judge, Sheikhupura, whereby the petitioners plaintiff's first appeal was dismissed.
2. The suit was based on an assertion that about fifteen/sixteen years ago the land in question in ef''ect was purchased by three brothers, Muhammad Iqbal, Muhammad Amin and Nazir Ahmed in equal shares through defendant No.1 Allah Dad as their Benamidar. Lately, that is on 23-4-1981, he transferred the whole of it in favour of two out of three brothers namely, Muhammad Amin and Nazir Ahmed, totally excluding the third brother Muhammad Iqbal who after his death is now represented by the petitioners-plaintiffs. They asserted, inter alia, that after the purchase of the land the deceased Muhammad Iqbal occupied one---third thereof and even paid for its price rateably. They averred that transfer of the whole land by the Benamidar in favour of Muhammad Amin and Muhammad Nazir defendants being based upon dishonesty, collusion and fraud was not binding upon them and that they were entitled to one-third thereof.
3. The defendants denied the alleged benamidari and pleaded that Allah Dad had himself purchased the land from the Collector in his own name and that he had, as its exclusive owner, sold it away to defendants Nos. 2 and 3 for valuable consideration. They denied if the deceased Muhammad Iqbal or for that matter the petitioners were in possession of any part thereof or that they had contributed to the payment of its price to the Collector.
4. Appropriate issues were framed on these pleadings. Both the Courts below concurrently held that there was no contract of Benamidari between the parties and further that Allah Dad being its owner in his own right could transfer it with impunity in favour of the other defendants. They further held that Section 19 of the Colonisation of the Government Lands (Punjab) Act, 1912 hit the so-- called agreement inasmuch as Allah Dad being transferee under the Provincial Government could not agree to pass it on to anyone without the express consent of the Commissioner. Still further they found that there was no evidence to show the source of money with which the land was purchased by the ostensible owner nor was any reason advanced as to how and why the need arose to employ a Benamidar for the purpose.
5. Counsel relied upon Allah Ditta v. Jhanda and others AIR 1950 Lah.54, PLD 1949 Lah. 158 to support the contention that many persons could agree between themselves to become joint owners of the land after proprietary rights therein were acquired. There may be no cavil with the proposition but the factum of the agreement of Benamidari had to be proved at its own place. It was a question of fact which was concurrently found against the petitioners. There was no writing nor any reason shown to employ the ostensible purchaser for the purpose. If the agreement itself is not proved, the principle of many people joining together to become owners after acquisition of proprietary rights would be of no avail. It was canvassed that the Khasra Girdawari showed that the deceased Muhammad Iqbal during his lifetime, and now his widow etc. Were in possession of one-third of the land. The Courts below considered those entries and took the view that Muhammad Iqbal was shown only as a tenant rather than true owner and that a tenant could not deny the title of a landlord. The entries related to the year 1977. I directed the petitioners to produce those relating to 1965-66 when the alleged purchase was made. Those have been appended now and do not bear out the petitioners' assertion that they or their predecessor Muhammad Iqbal occupied the land in any capacity whatsoever. Instead some other persons are recorded to the cultivating the land in the year 1965-66 and onwards. Thus this limb of the argument also failed besides the point that the question involved again related to a fact. Muhammad Bibi and 2 others v Abdul Ghani and 2 others PLD 1975 Kar. 979 cited in this context did not advance the petitioners' case. Reliance was placed on Hakim A.I and another v. Atta Muhammad and others 1981 SCMR 993 in urging that Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 did not preclude the transaction to take the form of an agreement to sell. No doubt the authority so lays down the rule, but the factum of the agreement itself had to be independently established. It is there that the petitioners miserably failed and the abstract statement of law that such an agreement could be specifically enforced on acquisition of title will become irrelevant.
6. The above analysis would indicate that the essentials of establishing Benami namely source of money, possession, holding title deeds and motive for acquiring the land through such a shady method have not been brought home on the record. The concurrent findings of the Courts below on these points do not appear to be either fanciful or perverse in the terms of Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53. The revision petition is dismissed leaving the parties to bear their own costs.
M.Y.H./K-182/L