ABDUL KARIM Versus ZAR BIBI

This is a Revision Petition preferred against the judgment and decree dated 30‑7‑1991 passed by learned Civil Judge‑11, Quetta, whereby the suit filed for Declaration and Permanent Injunction was decreed and the appeal filed by the petitioner/defendants was also rejected by learned Additional d District Judge‑11, Quetta, vide judgment dated 26‑3‑1992.

Briefly stated the facts of the case are that plaintiffs/respondents filed d a suit for Declaration and Permanent injunction with the submission that they y were the lawful and exclusive owners of agricultural land situated in Mohal d Khushkaba Sadat, Tehsil Quetta bearing Khewat No. 24 Khatooni No.79,), measuring 67 Rods 35 Polls. It is further averred that the father of thee defendants namely Amir Baksh had however unlawfully and unauthorisedlyly occupied a portion of the said lands against which plaintiff promptly initiated d legal action by filing a suit for possession and mesne profits in the Court of Assistant Commissioner/Deputy Commissioner under Ordinance I of 1968, 3, which is yet to be decided. It is also stated that during the pendency of the said proceedings in 1984‑85 the said Amir Bakhsh expired and after his death the c defendants being his only sons continued the illegal occupation of a portion of)l the lands and the suit as referred to above was filed. It is further stated that the defendants with mala fide intentions have started excavating wells in the plaintiffs' lands just to prolong their illegal possession thereon, and to harasses the plaintiffs, but the said action was also challenged and subsequently a civil suit filed with prayer that a Declaration be issued to the effect that their defendants had no authority/right to excavate well in the lands in disputed owned by the plaintiffs, and further a Permanent Injunction was also sought.

3. The suit was contested and written statement filed and claim of their respondents/plaintiffs repudiated with' the submission that plaintiffs were neither in possession of the land in question nor have got any right or title over it. It was also mentioned that the plaintiffs had ceased all the rights regarding the disputed land in pursuant of an agreement executed in between the parties.‑s It was prayed further that the suit being misconceived be dismissed with costs.

4. The issues as reproduced herein below were framed on the basis of pleadings:‑‑

(1) Whether the suit is not maintainable in view of Preliminary Objection 'A' of the written, statement?

(2) Whether the plaintiffs have got any title or interest over the Property in question?

(3) Whether the plaintiffs are entitled to the relief claimed?

(4) Relief?

In order to substantiate their respective claim the plaintiffs/respondents produced three witnesses and plaintiff NO‑1 also got recorded his statement of oath. In rebuttal the defendants/petitioners also produced three witnesses and the defendant No.3, attorney for other also got recorded his statement on oat The Civil Judge decreed the suit vide judgment and decree dated 30‑4‑1991 and appeal filed by the defendants/petitioner was also dismissed by means of judgment/decree dated 26‑3-1992.

5. It is urged emphatically by Mr., Basharatullah Advocate, who ,appeared on behalf of the petitioner that impugned judgments/decrees have been made unlawfully and the factual position could not be appreciated by the Courts below and moreso, that no evidence whatsoever was led to substantiate that the plaintiffs/respondents were the lawful owners of the lands in dispute. It is also contended that the conclusion arrived at by the trial Court that permission of the District Board was necessary for excavation of the well was incorrect, as the same stood excavated before the promulgation of the relevant laws, whereby the District Board were constituted. It is further pointed out that the learned trial Court committed error by deciding that burden of issue No 1 was on the parties, on the contrary it should have been on the plaintiffs/respondents to prove their case and the lacunas of the case of defendants cannot be made a base to derive any conclusion in favour of the plaintiffs/respondents. It is further argued that the dispute between the parties was referred to arbitration and an award was given on 28‑7‑1990, which was never considered by the trial Court and even the record was not handed over to the Arbitrator when so requested. It is also pointed out that the learned appellate Court, could not appreciate this aspect of the matter properly by holding the award was of no consequence as the dispute was not referred to the Arbitrator by the Court.

6. Mr. Muhammad Aslam Chishti Advocate has strenuously contested the said position by arguing that the impugned judgments/decrees being free from any sort of legal infirmity or grave illegality do not call for any interference and as such the same may be kept intact. It is contended with vehemence that the alleged executed agreement which formed the basis of claim was never produced, which should have been done by tile defendants/petitioners in view of the provisions as contemplated Under Articles 117/118 and 119 of Qanun‑e‑Shahadat Order, 1984. It is further contended that no action whatsoever was initiated by the defendants/petitioners as provided under section 21 of the, Arbitration Act, hence no importance can be given to the so-called award. It is also pointed out that concurrent findings have been given by the Courts bellow and there is no legal justification to disturb the same, keeping in view the limited jurisdiction as conferred upon this Court under section 115, C.P.C.

7. I have given a thoughtful consideration to the above respective contentions of the learned 'counsel for the parties, in the light of relevant provisions of law and available record. I have minutely perused the judgments/decrees delivered by the trial and appellate forum. Let me first. examine the evidence as led by the parties to substantiate their version and in support of their claim. Imam Bakhsh (P.W.1) deposed in categorical terms "that the plaintiffs/respondents are the owner of disputed land and the defendants/petitioners have no concern whatsoever with the same and they are forcibly excavating the well". He was subjected to an exhaustive cross examination but nothing advantageous could be extracted. The description of land was given accurately. The suggestion which is contrary to the plea of defendants/petitioners was also made and answered in the following words:‑

YEH GHALAT HAI KAY 20/22 SAAL KABL YEH ZAMEEN MUDUA-ALAIHM NAY THAIKAY PER LEE THI

The possession of defendants/petitioners was also denied in an unambiguous manner. Ali Muhammad (P.W.2) has also corroborated the deposition of Imam Bakhsh (P.W.1) on all‑ material particulars and deposed categorically that the plaintiffs/respondents were the owner of the land in question and defendants/petitioners have no concern with it. He was also subjected to a lengthy cross‑examination, but his testimony remain unsheltered. A suggestion contrary to the plea of defendants/petitioners was also made which is answered as under:‑

YEH GHALAT HAI KAY MUDUA-ALAIHM BATOR BUZGAR JAY MATADOYIA PER KABIZ HAIN

He also deposed while answering one of the questions during cross -examination that defendants/petitioners used to excavate the well during night time and the excavation work was done in the absence of plaintiff/respondent when he was at Karachi. He also expressed his ignorance regarding any agreement in‑between the parties. Muhammad Gul (P.W.3) has deposed on the similar lines as mentioned above. A suggestion contrary to the plea of defendants/petitioners was also made, which is answered as follows:‑‑

YEH GHALAT HAI KAY MUDUA-ALAIHM MATADOYIA ARAZI PER BAHAISIAT MOROSI BUZGAR KAY KABIZ HAIN

The plaintiff Sardar Adam also appeared and got his statement recorded. He deposed that the land in question was joint property of all his brothers. He further deposed about the production of 'Fard‑e‑Arazi'. tie denied in clear term that any agreement whatsoever was executed in favour of defendants/petitioners regarding the sale of land in dispute. It is pertinent to mention here that during cross‑examination the ownership of the land was never challenged, but the main stress seems to be on the point the land was sold to Hazoor Bakhsh. No question was asked about 'Fard‑e‑Arazi'.

8. In rebuttal defendants/petitioners produced Gulzar Khan (D.W.1). I have perused his deposition carefully which is based on here say and moreso, he is totally ignorant about the alleged agreement executed in‑between the parties and details thereof. Similarly Lal Bakhsh (D.W.2) even could not explain the description of land and he was also unaware about the fact whether the same was purchased or obtained being Buzgar. The statement of Haji Shafi (D.W.3) could not bring any substantial change as his deposition is indicative of the fact that the alleged agreement was never executed in his presence and he was not witness of the same. He did not see the agreement himself. He was not present during any transaction allegedly made regarding the disputed lands. It is worth mentioning that no amount whatsoever was paid in his presence and he is total ignorant about the terms and conditions of the alleged agreement. It would be interesting to note that he is party in various suit against the plaintiffs/respondents and as such his version cannot be taken into consideration being an interested witness.

9. I have carefully examined the evidence as led by the, parties. The plaintiffs‑respondents have proved their case and evidence produced could not ‑1 be shattered. Imam bakhsh (P.W.1) and Ali Muhammad (P.W.2) stood firm to the test of No enmity whatsoever has been alleged as such being confidence inspiring, there is no reason to discard their statements. On the other hand the defendants/petitioners failed miserably to prove that the 1A land in question was purchased and it is worth mentioning that the alleged agreement could not be produced and interesting feature of the' matter is that they were not sure regarding their status whether they were Buzgar, Morosi Buzgar lessee on contract basis or owners of the land in dispute. In such a situation, the concurrent finding arrived at by the trial Courts below cannot be disturbed.

10. As far as I understand the primer contention seems to be that the dispute between the parties were referred to the Arbitrator, who gave his award on 28-2‑1996 and legal effect of the same could not lawfully refused. The said contention looked luring at the first sight, but on close scrutiny I found it to be devoid of any force. The learned appellate forum as discussed the said contention, which is reproduced hereunder for ready reference:‑‑

"I have gone through the record. The award dated 28‑7‑1990, is on sided, as the plaintiffs/respondents do not agree with the same. Besides the award was not referred by the Court, therefore, the Court cannot force any party to accept the same. The lower Court has rightly refused acceptance of the same. The plaintiffs/respondents filed a suit for declaration and injunction for restraining the defendants from excavating wells in their land. The Civil Courts are competent to grant injunction in such matter, the objection in this regard is of no use, as such repelled."

11. A bare perusal would show that the conclusion arrived at is in conformity with the relevant provisions of the Arbitration Act, ‑1946, 1 may point out that the confirmation of an award by a judgment of Court essential in order to render it an effective adjudication of a dispute. it is worth ,mentioning that none of the parties invoked the 'provisions as contained ‑in section 21 of the Arbitration Act and the Arbitrator himself preferred to play an active role and himself approached the Civil Court for having the record which was not handed over to him and rightly so. This aspect of the matter was also discussed and decided on 16‑8‑1992 in Civil Revision Petition No.163/92 and the operative portion whereof is reproduced hereunder for ready reference:‑‑

"An application seeking disposal of main case in accordance with terms of award, given by sole arbitrator Mir Gulzar Khan Marri dated 28‑7‑1990. was submitted. This application was rejected by trial Court on 25‑5‑1991. Aggrieved from the same the petitioner has preferred Civil Appeal No.12/91 which was eventually dismissed by learned Additional District Judge‑11, Quetta on 29‑10‑1991, present petition is directed against above mentioned order of both the Courts below/

Learned counsel for petitioner urged that decision of trial Court about rejection of petitioners stand merely on the ground that main case had been decided therefore, interim order is merged into same, is not correct.

I have carefully considered the only contention raised before me in this matter. There is no doubt that when during the pendency of proceedings. final decree is passed by the trial Court deciding main dispute between the parties, all interim orders and ancillary matters arising therefrom obviously merge into final judgment and decree. Thus, I do not find any illegality defect or impropriety in the impugned order The petition is consequently dismissed in limine.'

12. The proposition has been well settled by now that an award obtained otherwise than in proceedings taken in accordance with the provisions as contained under section 47 of Arbitration Act can at the best be acknowledged as a compromise, adjustment of the suit and no decree can be passed thereon under the provisions of Order 23, Rule 3, C.P.C. AIR 1953 Madras 781 + ILR 1953 Madras 677 (FB) + ILR 1953 Trav. Co 974 (DB). By one stretch of imagination it can be intend that an award can be foisted upon the parties without having their consent and where an Arbitration agreement is not consented to by all the parties, such an agreement would definitely be invalid and moreso, cannot give jurisdiction to the Arbitrator to give his verdict and decide the dispute and in such an eventuality the award given on the basis of such void reference cannot be termed as "valid" and an award made on such invalid reference does not bind the ‑ consenting parties being void altogether. It needs hardly any mention that the main object of the Arbitration Act is to give expeditious relief to the parties concerned unhampered by the exhaustive and time consuming formalities as enumerated in Civil Procedure Code and Qanun‑e‑Shahadat Order, 1984 PLD 1958 (W.P.) Karachi 158. Like ill other contracts the Arbitration Agreement is a contract and unless there is any specific prohibition in the statute, the contract can be revoked, altered or varied by the parties, who cannot be compelled to get their dispute solved through the Arbitrator, whose conduct in this case never remained above board as is indicative from the manipulation made in the ward and as pointed out by Mr. Muhammad Anwar Lehri in his affidavit which is on record. I way point out that the joint consent of all parties interested is necessary at the, Point of time when the Court is to take the award into consideration as a compromise; or adjustment. Where there is no consent of the parties the question of adjustment of suit under Order 23, Rule 3, C.P.C. does not arise. The satisfaction of Court regarding such adjustment is the essential prerequisite before the provision as contemplated under Order 23, Rule 3, C.P.C. could be invoked. It is worthwhile to mention here that both the lower Courts were not satisfied regarding the consent compromise. ' and the concurrent finding arrived at cannot be interfered in this regard, specially when 'there is no cogent ground for such interference.

13. I have also examined the contentions as adduced on behalf of the defendants/petitioners that burden of issue No.2 had wrongly been placed on the parties and onus to prove it should have been on the plaintiffs/respondents is not convincing because neither any objection whatsoever was raised nor any application made during trial, regarding this aspect of the matter. , The provisions as contemplated under Order XIV, Rule 5, C.P.C. could have been invoked either for framing of additional issue or amend issue for determining or appreciating the controversy in a better way which was not done and at this belated stage such an objection, I am afraid, cannot be considered. This Court should not be expected to fill in the lacuna or gap which could not be checked well in the time, while exercising its jurisdiction under ‑section 115, C.P.C. which is not unfettered but subject to certain limitations. It is well settled by now that:‑‑

The objection regarding framing of a particular issue necessary for disposal of case, if not at all claimed by an affected party at trial or any objection in such regard not raised before the appellate Court, in an appeal against a final decree, may be deemed to have been waived or abandoned. However, the question of waiver/abandonment or estoppel does not arise, if during the pendency of trial and prior to the passing of a decree, a party makes an application to the trial Court for framing of an issue necessary between the parties." (Rehmat and others v. Ibrahim and others PLD 1982 Lahore

14. It transpires from the scrutiny of record that no evidence whatsoever was led by the defendants/petitioners to substantiate their respective version, on which decision could have been made. It is to be noted that if issues are not framed, but certain allegations are levelled in the plaint and controverted in written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision whereas without framing any issue PLD 1971 SC 82 + 22 DLR (SC) 425) the trial Court was never approached in this regard.

15. In the light of what has been stated above I do not find any illegality or material irregularity ill the impugned judgments/decrees nor I find them patently per‑verse so as to call for any interference result and the revision petition is dismissed with no Orders as to cost.

A.A./556/Q Revision dismissed.