' On 31-3-1971 Nabi Bakhsh, the predecessor-in-interest of respondents Nos.1 to 9 filed a suit against Maulvi Muhammad Isa, the predecessor-in-interest of respondents Nos.10 to 24 and the petitioners.
In the plaint it was stated that the said Maulvi Muhammad Isa and Nabi Bakhsh are brothers inter se and had joint property and business. A dispute arose and an arbitration agreement was entered into on 25-9-1962. The Arbitrator vide award dated 21-7-1963. Partitioned the property and as a result the land in suit came to the share of the plaintiff. An application was filed for making the award rule of the Court. During the pendency of the said application, Maulvi Muhammad Isa sold the land to the present petitioners. The award was made rule of the Court on 5-1-1968. An appeal filed by Maulvi Muhammad Isa was dismissed. It was further stated that an application for execution of the said decree was filed but since the land had been sold, the same was withdrawn.
With these averments, a decree for possession of the land was sought. Maulvi Muhammad Isa filed a written statement admitting the sale in favour of the present petitioners. Now the petitioners proceeded to state that the award as well as the decree based on the same is without jurisdiction and ineffective upon their rights. They complained that the two brothers have colluded with each other as Maulvi Isa had already sold his entire property. Issues were framed and evidence of the parties was recorded. The learned trial Court found that the award as well as the decree is without jurisdiction and dismissed the suit on 17-11-1975. A first appeal filed by Nabi Bakhsh was allowed by a learned Additional District Judge, Dera Ghazi Khan, on 3-9-1979 who remanded the case for a fresh decision of the same. This time, the learned trial Court decreed the suit on 8-2-1993 while a learned Additional District Judge, Dera Ghazi Khan, dismissed the first appeal filed by the petitioners on 6-3-1996.
2. Learned counsel for the petitioners contends that the remand order directed the decision of the suit with reference to all the issues. Both the learned Courts below after the remand avoided to decide Issue No,2 with reference to earlier decision of the case making the award rule of the Court and then dismissal of the appeal of Maulvi Muhammad Isa. His contention is that the said award and decree was set up against the petitioners and they had a right to challenge the same and to demonstrate that it is without jurisdiction. Learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees.
3. I have gone through the copies of the records. As noted by me above, the plaintiffs/respondents were relying upon the award and the decree passed by the Court after making it rule of Court. This award and decree was challenged by the petitioners on the ground that it is without jurisdiction.
The precise plea was that the Arbitrator had no jurisdiction to partition the suit-land which is admittedly agricultural in nature and notwithstanding the fact that some immovable property was also involved, the bar of jurisdiction remained and same is the case with the decree passed on the basis of the award. Apart from this, objection of bar of section 47, C.P.C. Was also taken.
4. Now I find that the learned trial Court while discussing the relevant issue No,2 has held that since the present suit was not for partition of the suit-land while the correctness of the arbitration proceedings has been decided by the superior Courts, the issue is answered in favour of the defendants. I understand that by superior Courts the reference is to the decision of the Court of first appeal. To my mind, Article 58 of the Qanun-e-Shahadat Order, 1984, is a complete answer to the reasoning of the trial Court, affirmed by the learned Additional District Judge. Under the said provision of law any party to a suit may show that any judgment, order or decree which has been proved by the adverse party was delivered by a Court not competent to deliver it. To my mind, a very vital question arising in the suit remains unanswered. There is no choice but to remand this case. The civil revision is allowed. Both the impugned judgments and decrees passed by the learned lower Courts are set aside. The result would be that the suit shall be deemed to be pending before the learned Senior Civil Judge, Dera Ghazi Khan, before whom the parties shall appear on 3- 5-2005. The learned Senior Civil Judge shall requisition the records and hear the parties on Issue No,2 and thereafter proceed to decide the suit afresh. No orders as to costs.
5. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Dera Ghazi Khan.