REHMAT Versus RESIDENTS OF DEH

This Civil Revision impugns the judgment decree dated the 29th of April, 1986, of the learned Additional District Judge, Sialkot, whereby the petitioners/ defendants' appeal was dismissed.

2. The respondents‑plaintiffs brought a suit for permanent injunction seeking to restrain the petitioners defendants from entering upon the Daira in dispute, or raising any construction thereupon, or stacking bricks etc. therein for the purpose. Initially it appeared to be a representative suit based upon an assertion that the site in question was owned and possessed by the entire. population of the village, and that ‑the petitioners were trying to occupy it forcibly in order to convert it to their exclusive use. Later it appeared, however, that the provisions of Order I, Rule 8, C.P.C., were not complied with and the two respondents pursued the suit in their own right.

3. The petitioners resisted it raising a number of pleas which may not be reproduced because in the course of trial, the parties as well as counsel for them in their joint statement made on the 8th of September, 1985, agreed apparently to appoint the trial Court as referee and be bound by its decision after local inspection. The trial Court thereupon made a local inspection on the 12th of September, 1985, in presence of the parties and after enquiring from inhabitants of the place, came to the conclusion that the site (Daira) in question was common property vesting in the entire population of the village and further that even if the petitioners‑defendants tethered cattle therein for some time, they could not convert it to the exclusion of others. Consequently it decreed the suit exhorting in a way that the 'Daira' may be used for joint purposes including setting up a school to be run by a Trust and that the same shall not be private property of anyone.

4. Aggrieved by this decision, the petitioners preferred appeal before the learned Additional District Judge who dismissed it by the impugned judgment. He took the view that the decision was based upon the parties' consent and that it could not .be challenged in appeal.

5. Before me, elaborate arguments were addressed by Mr. Amir Alam Khan for the petitioners putting emphasis on the phraseology used in the joint statement dated the 8th of September, 1985, of the parties. He claimed that employing the expression "referee" was not without purpose and that it essentially meant to get a statement of such a person as had personal knowledge about the point in issue. He referred to quite a few precedents including (1) Sher Zaman Khan v. Noor Zaman Khan and another (P L D 1977 Lah. 672), (2) Basdeo Singh v. Ram Raj Singh and others (AIR 1932 All. 166), (3) Umrai Ali. Khan and others v. Intizami Begum and others AIR 1939 All. 176, (4) Udit Singh and others v. Ram Lakhan Singh and others (AIR 1933 All. 313) and (5) Mt. Akbari Begum v. Rahmat Husain and others (A I R 1933 All. 861) in support of his contention that a referee was supposed to be a person other than the Presiding Officer of the Court which is seized of the lis and that the idea behind getting his statement was that relying upon his personal knowledge he would make an admission in terms of section 20 of the Evidence Act. Counsel believed that it did not behave the learned Presiding Officer to have assumed the character of a referee especially when he did not have personal knowledge to make an admission under section 20 ibid. He submitted that the whole process was vitiated by acceptance of this status by the Court itself. His further objection was that a referee was not supposed to make a local enquiry. The order passed by the learned Civil Judge revealed that some sort of enquiry was made from the locals and that the decision was made to rest upon information derived from them. The plea was that when recourse was made to an enquiry by examining witnesses, the role of referee ceased to exist and that instead the Court acted more or less as arbitrator giving a right to the petitioners to challenge its award. On this view of the matter, counsel asserted a right for the petitioners even to resile from their statement or the obligation to be bound by the decision based upon such enquiry.

6. On the other hand, Ch. Mushtaq Ahmad Khan for the respondents contended that mere use of "referee" in the statement was not much significant because the petitioners knew that they were asking a Court to decide a matter for them in a mode otherwise than through recording evidence etc. He argued that it was rather presumptuous to say that the Court had personal knowledge to decide the case by making a statement under section 20 of the Evidence Act and that the whole purport of adopting this mode was to settle their dispute in terms of Order XXIII, rule 3, C.P.C. He added that there was no restriction on adopting any mode in getting a dispute settled and that the parties could with impunity ask the trial Court to make a local inspection to decide the matter for them. He tried. to distinguish the Sher Zaman Khan's. case on the grounds; firstly that there a third person was made a referee;, secondly that he was not authorised to make a local enquiry; and thirdly that the party concerned resiled from its offer before the referee could make statement. In this case he pointed out that the petitioners accepted rather fait accompli of the matter inasmuch as the Court not only made a local inspection but also made an enquiry and even decided the case accordingly. The objection to the decision was post facto when time to resile from the statement had already passed away. Likewise, the incidence of enquiry would not help the petitioners to get rid of the decision as they had consciously authorised the Court to make it. I think the circumstances of the case do not aptly attract the rule enunciated in the Sher Zaman Khan's case on the above mentioned grounds. The parties knew here that the Court even if dubbed to be referee will make a local inspection which in a way was negation of the postulates of section 20 of the Evidence Act. It was, therefore, not open to the petitioners to say that by the reason of making local inspection, the Court acted against the mandate or otherwise than as referee.

7. Reliance was placed upon Muhammad Ijaz and 3 others v. M. Khurshid Malik and 4 others (1986 C L C 2270) in support of the argument that the parties could ask the trial Court to settle the dispute between them in any mode including by a local inspection. There too an objection was raised that the Court could not act as referee but it was spurned. The view taken was that the joint statement of the parties was indeed a consenting statement to settle their dispute in that particular mode. A number of old authorities, exemple gratia, (i) Madan Mohan Gargh v. Munna Lal and others (AIR 1928 All. 497), (it) Central India Spinning, Weaving and Manufacturing Co. Ltd. V. Khemraj Marwari and others (AIR 1939 Pat. 514), and (iii) Sita Ram v. Peare alias Alloo and another (AIR 1925 All. 558) were referred to in support of the conclusion that such a statement was permissible under Order XXIII, rule 3, C.P.C., and that since the decision could be related to the parties' consent,. it was not amenable to appeal. Mr. Amir Alam Khan for the petitioners maintained that the decision in the Muhammad Ijaz and 3 others' case being a decision in limine did not lay down a precedent to be followed invariably.

Since the proposition of law canvassed now was exactly the same in that case, it has some persuasive value and cannot be entirely ignored. Personally I quite feel that there was ample justification for accepting the plea that parties might choose any mode of settling dispute and that they could ask the trial Court to make inspection and decide the matter for them. By using expression "referee" in the statement, I do not think the essential job entrusted to the Court was in any manner affected, for, it should have been known to the parties that there was no element of personal knowledge on the part of the learned Presiding Officer who was otherwise seized of the Its judicially.

8. As a result, I am not inclined to hold that the decision of the trial Court was vitiated merely because it did not restrict itself to act as a referee in its common parlance or that it acted more as an arbitrator than the Court. The decision was based upon the parties' consent which cannot be assailed. The revision petition is dismissed leaving them to bear their own cost.

S.Q./R‑72/L Petition dismissed.