' MAULVI ANWARUt HAQ, J.--- On 2-2-1988 the appellants filed a suit against the respondents. In the plaint it was stated that the parties are the successor of one Rai Mughal, as per pedigree-table annexed with the plaint, who owned land in several villages mentioned in para. 2 of the plaint; that the parties made a. Family arrangement by mutually exchanging the said land and agreement was executed on 4-2-1984 which was also acted upon and parties took over possession of the exchanged land; that agreement was not signed by the females party of both plaintiffs and defendants but male members undertook to abide on behalf of the ladies. On behalf of minor respondent No,12, namely, Elahi Bakhsh the agreement was executed by his grandfather Rai Sher Muhammad; that under the agreement the respondent No,3 was to pay Rs.55,500 for Haveli of the appellants in village Jandiala but they did not pray and did also get the possession of the house; that the respondents have now resiled from the said agreement and as such are liable to pay Rs.1,00,000 as damages. With these averments a decree was sought that the appellants are owners in possession of the land in Schedule (Ti5 to the plaint on the basis of said agreement dated 4-2-1984 and the respondents have nothing to do with it and for this reason the several mutations mentioned in heading of the plaint are void and in the alternative a decree for specific performance of the said agreement was sought including decree for recovery of Rs.55,500 as price of the said Haveli and Rs.1,00,000 as damages. Further relief as to be deemed proper by the learned Court was also claimed. The Reader of the Court filed a written statement on behalf of the respondent No,13 who denied the contents of the plaint. The other respondents also filed written statement, denying the said allegation in the plaint. It was denied that agreement was acted upon.
It was also stated that ladies never agreed to the said agreement. Issues were framed. Some evidence was recorded when Altaf Ullah appellant No,3 alongwith learned counsel for the appellants and Rai Amir Abdullah respondent No,2 and the learned counsel for the respondents made statements that let entire dispute involved in the suit be referred to Rai Qadir Bakhsh son of Rai Aziz Ullah (defendant-respondent No,9) and whatever statement he will give regarding the said dispute would be acceptable and suit be decided accordingly. Learned trial Court on the same date made a reference and directed the referee to appear in Court to make the statement. On 24- 4-1993 the referee appeared in the Court and made a statement. The learned trial Court disposed of the suit- in accordance with the said statement vide judgment and decree of the even date.
2. Mr. Talib H. Rizvi, learned counsel for the appellants argues that since only Altar Ullah made a statement he could not bind the other appellants to the statement of the referee; that there was a minor defendant and the entire agreement to refer the matter was void against all the parties.
Finally contends that statement inasmuch it exceeded the dispute in the suit could not have been binding upon the parties and could not have formed part of the judgment and decree. Khan Khizar Abbas, learned counsel for the respondents on the other hand states that the statement was made by the counsel for the parties and there is no allegation that counsel were not so authorized; that the minor has not sought to avoid the agreement and that the statement of the referee only covers the dispute between the parties regarding the suit.
3. We have gone through the trial Court records. So far as the said first contention of the learned counsel for the appellant is concerned, we have already stated above that the statements were made by one of the plaintiffs as well as one of the defendants as also by the learned counsel for the parties. There is indeed no plea that learned counsel for the parties were not competent to agree to make the said reference. This being so nothing turns on the said first contention of the learned counsel for the appellant.
4. In support of the said second contention regarding the minority of the respondent No,3 learned counsel for the appellants relies on the case of Chhabba Lal v. Kallu Lal and others AIR 1946 PC 72.
We have examined the said judgment and we find that it does not at all support the said contention of the learned counsel. It is true that their lordships have observed that provisions of Order 32 and rule 7, C.P.C. Are mandatory. However, it has been concluded that in case minor seeks to avoid the agreement to refer and it is avoided then the agreement is void against all the parties.
Needless to state that the minor in question has not sough't to avoid the said agree other till date.
On the other hand learned counsel for the respondents has cited, the case of Jaffar Abbas and others v. Ahmed and another PLD 1991 SC 1131. Mr. Justice Muhammad Afzal Lone (as his Lordship then was) in the leading opinion observed as follows in para. 6 of the judgment appearing at page 1135 of the report:- "In law, a reference to an outside party for information on the matter in dispute is receivable as an admission under section 20 of the Evidence Act against the party proposing the reference. This section provides: `Statements made by persons whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions'.
' The question as to whether or not the sale price of the property in dispute had been paid was within the knowledge of Iftikhar Hussain. It was a controversial issue between the parties. The suit was fixed for evidence. Instead of procuring a decision of the Court rendered after recording evidence on both the sides, the appellant's Attorney and their counsel through their statement chose to request the Court to make reference to Iftikhar Hussain requiring him to make a disclosure on oath regarding the payment of the sale price and further agreed to be bound by such disclosure. The role of Iftikhar Hussain was, therefore, in the nature of a referee. The fact that he had to make statement on oath and he did make such a statement admitting the existence of the fact as to the payment of the sale price, does not alter the character of his performance as referee. His statement was an evidentiary admission and a form of proof. The agreement by Nusrat Hussain and the counsel for the defendants with the respondents for. Decision of the suit on the footing of the statement of the referee, which is merely a mode of evidence, is not an 'agreement or compromise' of such a character that leave of the Court under Order XXXII, rule 7 is necessary."
' It will thus be seen that Hon'ble Supreme Court has ruled that an agreement of instant nature would not necessitate leave of the Court under Order XXXII, rule 7, C.P.C. It may, be of interest to note here that guardian ad litem of the minor was respondent No,9 i,e, referee himself. The contention of the learned counsel is accordingly rejected.
5. So far as the third contention is concerned, we have reproduced almost entire plaint above. Now the agreement dated 4-2-1984 on the basis whereof the declaration was claimed or it was sought to be specifically enforced and other relief was claimed is on record as Exh.P.1. Now the referee proceeded to state that ladies and minor have resiled from the said agreement and it is no longer enforceable and that the parties are to revert back to the position where they were before the said agreement and the said position is to be restored. Now thereafter the referee has made the statement as to how said position is to be restored. Now if one reads said statement of the referee in conjunction with the plaint as also contents of the said agreement one finds that entire statement of the referee is strictly confined to the disputes between the parties vis-a-vis the said suit. We may note here that when called upon to demonstrate as to how the statement of the referee travelled beyond the said disputes which primarily are relatable to the said agreement and its contents, learned counsel for the appellant has not much to say. We, therefore, do not find any force in the said last contention of the learned counsel as well.
6. For all that has teen discussed above, this R.F.A. Is dismissed leaving the parties to bear their own costs.