' This first appeal impugnes propriety in law of order on appeal of learned Additional District Judge Sialkot, remanding the case under Order XLI, rule 23 (A), Civil Procedure Code for decision afresh by learned trial Judge on the issue of jurisdiction of Civil Court for cognizance of the suit.
2. Shortly put, Messrs Oberoi Rubber Industries Limited, Sialkot, since evacuees, transferred their property in suit situated in Khasra No, 289, in the revenue estate of Pacca Garh, Tehsil and District Sialkot, by way of sale in favour of Hakeem Muhammad Shafi for a sum of Rs, 60,000 by means of sale deed registered on 3-6-1946. Necessary Mutation (696) was also attested in favour of the vendee and duly incorporated in the Jamabandi for the year 1958-59. Subsequently, the vendee in his turn transferred the property in question in favour of his daughter Mst. Rashida Begum now appellant herein by way of gift through a document scribed on 30-10-1962 and registered on 7-11- 1962. The property was on 9-8-1960 allotted permanently as land to Ghulam Rasool, predecessor- in-interest of respondents (1 to 13) and Ghulam Mustafa father of Ata Muhammad (respondent 14).
The appellant challenged the order of allotment in appeal before Deputy Settlement Commissioner which was on 18-4-1967 rejected summarily as barred by time directing the appellant to have recourse to civil Court for necessary relief. The appellant filed this suit for a declaration that she was owner in possession of the property and also for a consequential relief for grant of perpetual injunction restraining the respondents from enforcing the order of allotment in favour of predecessors-in-interest of respondents 1 to 14 and also from interference with her possession over the property. The plaint averred that the property was never treated as evacuee property nor it formed part of compensation pool under the relevant Act of 1958 nor there had been any interference with her rights of ownership in the property. The allotment was merely a paper transaction. The property which consisted of factory buildings was wrongly treated as agricultural land by Settlement authorities. The other heirs of Hakeem Muhammad Shafi, the original vendee, were impleaded as defendants and later transposed as plaintiffs under order of Court.
3. Respondents 1 to 14 the heirs of the original allotteees resisted the suit and filed written- statement refuting the assertion of the appellant that the property in question was not evacuee property as the same had been purchased by Muhammad Shafi father of the appellant long before Partition of the sub-continent. The respondents also raised several preliminary objections including the one of ouster of jurisdiction of civil Court for the suit. Three preliminary issues: (1) jurisdiction of civil Court ; (ii) misjoinder of the parties ; and (iii) unauthorised amendment in the plaint, were settled on 12-11-1970. On 27-3-1972, counsel representing the contesting defendants and Government Pleader for the preform defendants (15/16) (Deputy Settlement Commissioner and Government of Pakistan) conceded the said issue or speaking differently the objection against legal jurisdiction of civil Court was abandoned. Learned trial Judge merely acted on the concession made by learned counsel for the defendants (respondents) as if the question of jurisdiction could be decided by consent and recorded the order that the issue (I) is decided against defendants (15/16). The remaining two preliminary issues were also disposed of same day. Issues on merits were struck on 19-4-1972. The issue relating to the character of the property whether evacuee or non-evacuee reads as under :- "Whether the suit property is evacuee land and forms part of compensation pool."
' Evidently, this issue also related to competency of Civil Court for adjudicating upon the controversy if the property had been validly sold away by the evacuee-owners in favour of Muhammad Shafi, father of the appellant and settlement authorities were not competent to deal with it. On 19-2-1974 some of the contesting respondents (4 to 6) made an application before successor-in-office of learned Civil Judge who had on 27-3.1972 disposed of the issue of jurisdiction that under clause (a) of section 41 of Pakistan (Administration of Evacuee Property) Act XII of 1957, civil Court was incompetent to entertain or adjudicate upon the question which directly or indirectly related to the character of property whether evacuee or non-evacuee. The case be remitted to learned Custodian Evacuee Property (Punjab), Lahore under subsection (2) of the abovesaid section 41 for necessary decision. On 21.4-1974, the application was rejected by learned trial Judge inter alia for the reason that the petitioners (defendants) could not be allowed to disown the concession already made by their counsel on the question of jurisdiction and he was also not competent to upset (revise) the, order passed by his predecessor even if the order were erroneous in law. The suit was after a long-drawn contest extending over a period of seven years ended in decree in favour of the appellant. It was held by learned trial Judge that the property had been validly purchased by Muhammad Shafi father of the appellant by means of sale deed dated 3-6-1946. Therefore, the property was not evacuee property and the settlement authorities had no jurisdiction to pass any order in respect of it and their orders were non-existent in the eyes of law.
Issue No, 1 already reproduced in the earlier part of this judgment was also decided against the defendants with the finding that the point in issue which had already been disposed of by means of orders dated 27-3-1972 and 1-4-1974 could not be re-agitated and there was no question of the property being taken over by Custodian.
4. The respondents went in appeal before learned District Judge, Sialkot to challenge decree of learned trial Judge. On 21-11-1974, counsel representing both sides made statement before learned Additional District Judge to whom the appeal was assigned for disposal that Issue No, (I) had not been decided by the Court below in accordance with law nor did learned trial Judge have stated reasons in support of his findings on the said issue. The case was remitted to trial Judge for decision afresh of the said issue. Acting on the statement of counsel for both sides, learned Additional District Judge proceeded the pass the impugned order.
5. Legality of the order under appeal is challenged on the ground that learned Additional District Judge should have himself decided the question of jurisdiction along with all other issues in the case. Admission of counsel for the appellant that the issue of jurisdiction had not been disposed of properly by learned trial Judge was not binding on the appellant. As against it learned counsel for the respondents was of the view that statement by counsel that the issue had not been decided properly or was left undecided was admission on a pure question of fact which was binding on the appellant. The order of remand passed on consent of the parties could not be challenged in appeal. On a careful consideration of lengthy arguments addressed on both sides I am led to the view that the concession by the counsel that the legal issue had not been decided by the trial Judge is a statement on a question of law. Reference be made to the judgment of Privy Council Society Blege De Banque v. Ram Girdari Lal. It was ruled in that case that if a counsel accepts findings of learned trial Judge it could only amount to an admission on a point of law which cannot be binding upon the Court. It is a settled rule of law that admission on a question of law made by counsel is not binding on the parties, the 8 latter are not estopped from stating the correct legal position afterwards. Reference be made to the judgments in Allahabad Bank Ltd., Lahore v. Punjab National Bank Ltd., Kesar v. Boota and others, Muhammad Bakhsh v. Umer and National Bank of Pakistan v. Muhammad Mobin Siddiqi and 2 others. Learned Additional District Judge was enjoined to satisfy himself if the concession made by learned counsel for the appellant was sound and proper in law and if it would be in the fitness of things to remand the case for decision on the issue of jurisdiction which could also be decided by him without any further enquiry.
' Learned counsel for the respondents has referred to the following authorities in support of his counter argument already noticed in the foregoing lines that rule of estoppel by conduct shall apply :
(i) The Manager of Courts of Wards Kalahasti Estate v. Rama Sama Reddi It 1928 Mad. 437;
(ii) Muthusamiodayam v. Kola mdabelurodyar 22 I C 41 ;
(iii) Mst. Qadir-un-Nisa v. Qutub-ul-Huda and another AIR 1929 Oudh 398
(iv) Abdul Wahab and others v. Habib Ali PLD 1969 Lah. 365 ;
(v) Syed Sajid Ali v. Syed Wajid Ali PLD 1975 B J 29 ; and finally
(vi) Yousaf Aziz v. Aqeela Begum PLD 1978 Kar.
205.
' In the first case it was held that order of remand can be objected to by a party, if he had not given consent to such course. In that case, subsequent to the remand, matter had been tried again by trial Court and fresh decision was given. It was, therefore, held that the plaintiff was precluded from taking exception to the order of remand. In the next case, the judgment running into a couple of sentences is based on the decision mentioned in the lines preceding just. In Qadir-un-Nisa's case, it was held that where a party himself asks for a remand and obtained an order of remand he cannot appeal merely because the ground covered by the order of remand is not so wide as that which he himself desired. In that case the case was remanded twice and grievance was made against the second order of remand by means of which the trial Court was directed to consider several other documents which had an important bearing on the decision of the case. It is not clear from the statement of facts that the order was passed on consent although the above observations carry this impression. In Abdul Wahab's case, it was held that a party which leads the Court to deviate from normal procedure is normally estopped from challenging the order passed by the Court on the consent of such party. In that case, the statement of consent was not on a question of law. In Sajid Ali's case the parties had during second appeal before the High Court agreed to refer the dispute to Arbitration. Subsequently, the award was challenged on the ground1 2 3 4 5 that appellate Court had no jurisdiction to refer the matter in dispute between the parties to Arbitration even with their consent. The contention was turned down with the view that undoubtedly the Courts of law are obliged to proceed to decide the matter before them in accordance with law but if the parties want to act differently in a way which is not against the public policy, the Court will not interfere with such actions. In the last case also the question raised was that agreement for Arbitration as a result of which the award was made was entered into by the mother of the minors when she was not the certificated guardian of the minors and as such she was not competent to contract on their behalf. The contention was rejected with the view similar to that expressed in Sajid Ali's case that when the party who invites the Court to adopt a particular course of action cannot be permitted to challenge the same as without jurisdiction as no party is entitled to approbate and reprobate in the same proceedings. It is worth mention that award in that case had already been made the rule of Court and decree had also been executed against the appellant. The question of estoppel by conduct against statement of counsel on a question of law or on a mixed question of law and fact was not considered in any of these cases. As I have observed above, learned Additional District Judge ghoul have considered propriety of consent by counsel for both sides before him the case be remanded to the trial Court for decision on the question of jurisdiction which should have aggravated hardships to the parties which they had already suffered through long delay of several years in the disposal of the case.
6, In the result, I uphold the contention on the side of the appellant, that statement made by counsel for the appellant before learned Additional District Judge conceding the remittal of the case was not binding on the appellant, the latter had the right to challenge legality of the case and the order of remand was not lawful or in any way it lacked judicial propriety, accept this appeal and set aside order of learned Additional District Judge.
' The objection to jurisdiction of civil Court in the suit that order of allotment passed by the Settlement Authorities could not be challenged before civil Court and the Court was not competent to adjudicate upon the character of the property whether evacuee or non-evacuee shall be decided by lower appellate Court alongwith all other necessary points in issue independently of concession made by counsel for the respondent before the trial Judg on 27-3-1972 as jurisdiction cannot be conferred on Court by the consent which otherwise did not vest in it in law. Preferably, the appeal should be decided by learned District Judge himself before whom the parties shall appear on 11-4-1979. A 1 R 1940 P C 90 AIR 1939 Lah. 303 47 P L R 384 PLD 1952 Lah. 307 PLD 1973 Kar. 107