ALI BAQAR NAJAFI, J. --- Through this civil revision the petitioner Rasheeda Mehmood has challenged consolidated judgment and decree dated 03.03.2010 passed by the learned Civil Judge, Jhelum whereby he dismissed the suit for possession through partition alongwith permanent and mandatory injunction filed by 'Rasheeda Mehmood whereas suit filed by Sakhi Muhammad was decreed. Both the parties filed separate appeals which were dismissed by the learned Addl. District Judge, Jhelum vide his consolidated judgment and decree dated 20.07.2012.
2. Briefly the facts giving rise to the filing of this civil revision are that respondent/plaintiff filed a suit for declaration against the petitioner on the grounds that registered sale-deed No. 2369, dated 10.12.1990 was got registered in favour of his mother due to love and affection as benami but Rasheeda Mehmood got transferred one-half share of the said house in her name illegally vide registered sale-deed No. 892, dated 16.05.2002 and the same is liable to be cancelled. The petitioner Rasheeda Mehmood also filed a suit for possession through partition alongwith permanent and mandatory injunction on the ground that the petitioner is owner of the suit property No. B-22-44-S-1/K401 consisting of 7 marlas on the ground that Sardar Begum, real mother, vide Hiba Deed No. 892, dated 16.05.2002 has gifted to the parties in equal share and handed over the possession of the property and after the death of her mother more share was occupied by the respondent. The learned Trial Court vide order dated 18.06.2009 framed the following issues:--- '1. Whether the plaintiff Sakhi Muhammad is entitled to get the decree for declaration as prayed for?
OPP
2. Whether the registered Hibanama No. 892, dated 16.05.2002 is against law and facts and inoperative upon the rights of the plaintiff and is liable to be set aside? OPP
3. Whether the defendant Rasheeda Mehmood is entitled to get the decree of partition of the suit land? OPP
4. Whether Rasheeda Mehmood is entitled to get the decree for permanent injunction as prayed for? OPP
5. Whether the suit property is joint between the parties? OPD
6. Whether the mother of plaintiff Sakhi Muhammad was not entitled to make gift deed? OPP
7. Whether the suit filed by Sakhi Muhammad is time-barred? OPD
8. Relief.
3. Consolidated oral as well as documentary evidence was led by the parties. Whereafter through consolidated judgment dated 03.03.2010 decreed the suit of the respondent and dismissed the suit of the petitioner. Two separate appeals were filed, which were dismissed through consolidated judgment and decree dated 20.07.2012, which is subject-matter of this civil revision.
4. Learned counsel for the petitioner submits that the Trial Court has not framed necessary issue and without casting issue of benami transaction no definite findings can be given as the whole case was based on the said question; that the Courts below cannot exercise jurisdiction vested in them; that findings on issue No. 1 are erroneous and are not supported by any evidence; that provisions of Order XIV, Rules 31 & 33, CPC were not adverted to.
Places reliance on IMAM DINO and others v. NAWAZ ALI SHAH (2003 CLC 1889) and ABDUL RAZZAQ v.
SABAR KHAN (2004 CLC 950) to argue that this Court can interfere into the concurrent findings of fact if findings are based on misreading and non-reading of evidence resulting into miscarriage of justice. Also relies on ABDUL HAMEED through L.Rs. And others v. SHAMASUDDIN and others (2008 SCM R 428).
5. Conversely, learned counsel for the respondent submits that no nw plea is permissible at the level of High Court in the civil revision; that no fresh issues are required to frame as evidence on record is sufficient to decide the controversy that findings can be given on those questions; that concurrent findings of fact cannot be interfered with. Places reliance on NOORA and others v. UMER HAYAT and 2 others (1991 CLC 1638); AHMAD ALI v. MANZOOR HUSSAIN and 8 others (2008 YLR 109); R1AZ HUSSAIN v. MAZARAY KHAN (1988 CLC 1129) and DARAY KHAN v. MUHAMMAD HUSSAIN and others (I998 CLC 1439) and prays for dismissal of the suit.
6. I have heard the learned counsel for the parties and perused the record.
7. To determine 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.
Reliance can easily be placed on ABDUL MAJEED and others v. AMIR MUHAMMAD and others (2005 SCM R 577), MUHAMMAD SAJID HUSSAIN v. MUHAMMAD ANWAR HUSSAIN (1991 SCM R 703), KHALID MEHMOOD v. ABIDA PARVEEN (2003 SCM R 18) and Mst. FARIDA MALIK and others v. Dr. KHALIDA MALIK and others (1998 SCM R 816). By applying the above-said test the findings given on the question of benami without casting issue appears to be an illegality. Under Order XIV, CPC the issues were to be cast on the basis of the pleadings. I am surprised that why issue of benami transaction, was not cast which has resulted into misreading and non-reading of evidence. Resultantly, this civil revision is allowed, case is remanded to the learned Trial Court who shall frame additional issue on benami transaction, record evidence of the parties and then decide the controversy, expeditiously preferably within 6 months.