' MAULVI ANWARUL HAQ, J.--- On 28-5-2001 the petitioner filed a suit against the respondent. In the plaint, it was stated that the petitioner purchased the suit land from one Muhammad Ramzan vide agreement dated 20-9-1979 for a consideration of Rs,1,00,000. The said vendor also executed a general power of attorney in his favour and got it registered on 20-9-1979. Thereafter, he constructed a house on the said plot. Since the petitioner himself was the general attorney and could not transfer the plot in his name, he got it transferred in the name of his younger brother Zahid Ali vide sale agreement dated 9-10-1999. According to him, he is the real owner while Zahid Ali was a benami. It was further stated that Zahid Ali was a student in the year 1979 when he purchased the said plot Zahid Ali died on 13-1-2001 while undergoing an operation in the Punjab Institute of Cardiology, Lahore. The respondent No,2, his widow along with her children respondents Nos.3 and 4 went away to live with her parents. A declaration was accordingly sought that he is the real owner and Zahid Ali was a benami. The suit was conceded by respondents Nos.1 and 5 who ate the parents of the said two brothers by filing a consenting written statement. It was, however, contested by respondents Nos.2 to 4 who stated that Zahid Ali was financially well off and he was the real owner and had purchased the plot and constructed the building himself. Amongst others the following issues were framed on the merits of the case:--
(1) Whether Muhammad Ramzan sold the disputed plot No,365-k to the plaintiff? OPP.
(2) Whether the plaintiff is owner of the disputed plot through a sale agreement No,8323/1 registered dated 9-10-1979 and the predecessor-in-interest of defendants Nos.2 to 4 was an owner of the disputed plot as a benamidar? OPP."
' Evidence of the parties was recorded. The learned trial Court dealt with the said two issues together and held that the petitioner has failed to prove the said issues. The suit was accordingly dismissed vide judgment and decree dated 16-2-2006. He filed a first appeal, which has been dismissed by a learned Additional District Judge, Faisalabad, on 7-11-2006. This civil revision was admitted to hearing vide detailed order recorded by my learned brother Jawad S. Khawaja J, on 25-1-2007.
2. I have heard the learned counsel for the contesting parties and have examined the impugned judgment of the learned Additional District Judge, with their assistance. I have already reproduced above the respective pleadings of the parties, ,issues which were framed in view of the said pleadings and the manner in which these were decided by the learned trial Court. Notwithstanding the said pleadings and issues, the learned Additional District Judge proceeded to hold that the petitioner, in fact, has made a gift of the suit property in favour of his brother Zahid and there is no question of any benami involved and since the gift has not been challenged he proceeded to dismiss the appeal.
3. It is rather ironic that the learned Additional District Judge has taken pain by citing judgments by observing that no party can be permitted to lead evidence in the absence of a plea. However, the learned Additional District Judge has failed to apply the said law to the facts of the present case and, in fact, has proceeded to record a finding absolutely contrary to. The said principle. Learned counsel for the contesting respondents have frankly conceded that they never took this plea and that their case was that Zahid Ali himself was the owner of the suit plot having purchased the same.
4. It will, thus, be seen that the learned Additional District Judge has not at all decided the appeal with reference to the pleadings on record, issues, the evidence on record and the consequent decision of the learned trial Court. The civil revision accordingly is allowed. The impugned judgment and decree dated 7-1.1-2006 of learned Additional District Judge, Faisalabad, is set aside.
The result would be that the appeal filed by the petitioner shall be deemed to be pendink. The parties are directed to appear before the learned District Judge, Faisalabad, on 24-10-2007. The learned District Judge shall requisition the records and proceed to decide the first appeal either himself or entrust it to a learned Additional District Judge (other than one who passed the impugned judgment) who shall decide the appeal after-examining the pleadings, issues, the evidence led thereon and the findings recorded by the learned trial Court. No order as to costs.
5. A copy of this judgment be immediately remitted to the learned District Judge, Faisalabad.