' Through this single judgment Civil Revision No. 111 of 1996 and Civil Revision No. 980 of 2004 are hereby decided.
2. Brief facts in Civil Revision No.111 of 1996 are that an application under sections 14/17 of the Arbitration Act was filed by Muhammad Iqbal respondent No. 1/plaintiff to make the oral award as rule of the Court in respect of Ihata No.300 situated in Khewat No.8, Khatuni No.122 Chak No.263/R.B. Dijkot Tehsil and District, Faisalabad, which according to him was purchased in consideration of Rs.50,000 through an agreement and consideration, price according to his contention was paid in two instalments Rs.30,000 and Rs.20,000 and possession was taken 2-1/2 years prior to the institution of the suit. This Ihata was allotted to Muhammad Ayub defendant No.1 under the Settlement Scheme. This application was contested by the petitioner/defendant No.1 Muhammad Ayub being incompetent as no agreement of Arbitration was reduced into writing neither any Arbitrator was appointed nor the award was given by Arbitrators and in fact a suit for possession has been filed by the defendant, which is pending adjudication before the learned Civil Judge. Out of pleadings of the parties following issues were formulated:--
(i) Whether Tassaduq Husain was validly appointed as arbitrator through arbitration agreement, dated 27-7-1984?
(ii) If issue No.1 is proved, whether the signatures of the respondent No.1 on arbitration agreement referred to above are outcome to misrepresentation, collusion, undue influence, fraud and forgery?
(iii) Whether the arbitrator is guilty of misconduct? If so, its effect?
(iv) What should be the relief?
Evidence was produced by the parties and the learned trial Court vide judgment and decree, dated 17-10-1991 declared the arbitration agreement and award, dated 19-10-1984 as void in the eye of law. Being aggrieved an appeal was filed by Muhammad Iqbal-respondent, which was accepted with cost throughout vide judgment and decree, dated 3-10-1995 passed by the learned appellate Court and the judgment and decree passed by the learned trial Court was reversed hence, the instant Civil Revision.
3. Facts in Civil Revision No.980 of 2004 are that the petitioner filed a Civil Revision, which as per office objection was pending before this Court as R.S.A. No.6 of 1996. After hearing the arguments in both these cases this Court came to the conclusion that remedy of second appeal is available only when the value of subject-matter exceeds Rs.50,000 therefore, learned counsel for the petitioner rightly filed Civil Revision against the judgment and decree of the First Appellate Court. The office was called to explain how this objection was raised and Civil Revision filed by the petitioner was treated as R.S.A.? Office gave a note and accepted their mistake, therefore, R.S.A. No.6 of 1996 is treated as Civil Revision No.980 of 2004 by the office admitting their mistake and putting wrong objection.
4. Brief facts in Civil Revision No.980 of 2004 are that the petitioner filed a suit for possession in respect of partial Ihata No.300 measuring 6 Marlas through Jamabandi for the year, 1980-81 situated in Chak No.263/R.B. Dijkot Tehsil and District, Faisalabad. His averments were that he is an immigrant from the East Punjab and a part of the disputed Ihata was allotted to him through the Settlement Scheme. One Muhammad Ashraf was murdered in Chak No.263/R.B. And F.I.R. Under section 302, P.P.C. Was lodged against the son of petitioner being the sole accused. Petitioner was also arrested and his daughters under the fear and apprehension left the disputed Ihata locked and shifted to another place. The lock was allegedly broken by the defendant and possession was illegally captured. The petitioner and his son were convicted and later on the petitioner was bailed out. The instant suit for possession was contested by the defendant on the ground that Ihata in dispute was purchased by the defendant in consideration of Rs.50,000, which was paid in two instalments and possession was obtain with the consent of plaintiff. Leaned trial Court decreed the suit vide judgment and decree, dated 17-10-1991 while the learned Appellate Court reversed the findings of learned trial Court vide judgment and decree, dated 3-10-1995 while accepting the appeal with cost hence, the instant Civil Revision.
5. Arguments advanced by the learned counsel for the petitioner in Civil Revision No.111 of 1996 are that learned trial Court through a well-reasoned judgment dismissed the application for conversion of award into rule of the Court vide judgment and decree, dated 17-10-1991 and the learned Appellate Court failed to appreciate that the alleged arbitration award was got written by the so-called Arbitrators after the petitioner filed a suit for possession a the disputed Ihata No.300 and in this way committed a material irregularity. As the alleged agreement of Arbitration Exh.A/I does not contain any condition of special oath on the Holy Qur'an and the respondent No.1 Muhammad Iqbal admits that there was no such condition, therefore, the entire evidence has been misread by the learned appellate Court and the impugned judgment and decree is not sustainable in the eye of law. Even the evidence of D.W.5 Muhammad Akram, who is scriber of the agreement is contradictory with the evidence of respondent No.1/A.W.-6, as to the writing of Arbitration Award where the first witness stated that Arbitration Award was written by him and Muhammad Iqbal A.W.6 deposed that Arbitration Award was written by Muhammad Hussain and in this way evidence produced by respondent No.1 is contradictory and not trustworthy. The learned Appellate Court also did not apply its mind that petitioner and his son were roped in a murder case and forcible possession was taken by the respondent No.1 when the petitioner and his son were in the lock-up. Moreover, the learned Appellate Court entirely ignored the fact that arbitration award was written when the suit for possession had been filed at much belated stage, therefore, the judgment and decree of the learned Appellate Court is not sustainable in the eye of law.
6. In Civil Revision No.980 of 2004 learned counsel for the petitioner argued that respondent No.1 has not proved the consideration of disputed Ihata. In fact he was a witness in the murder case and he resiled from his evidence and the learned Appellate Court failed to appreciate that respondent/defendant forcibly unlocked the doors and took possession of disputed Ihata when the petitioner/plaintiff was in lock-up and no one was produced to prove that Muhammad Iqbal respondent had paid the consideration to the plaintiffs/petitioners at any stage and also ignored the fact that Muhammad Iqbal was a prosecution witness. The award was manoeuvred after filing of present suit for possession by the petitioner, who being a displaced person was duly allotted the disputed Ihata and it was in his occupation since partition. He raised constructions and they were blackmailed as the petitioner and his son were roped in a murder case.
7. Learned counsel for the respondents submits that the judgment and decree of the learned Appellate Court is well-reasoned and according to law. The disputed Ihata was purchased by the respondents, through a consideration of Rs.50,000, which he has paid in two instalments.
Arbitrators were appointed through consent of the parties and it was made rule of the Court by the learned Appellate Court. The omission of oath in the said agreement does not make any difference.
8. I have heard the learned counsel for the parties and perused the judgments at variance of both the learned Courts below in both the suits. Plaintiff produced. P.W.1 Muhammad Yaqub, P.W.2 Muhammad Siddique, P.W.3 Muhammad Ayub plaintiff as his own witness. P.W.1 stated on oath that disputed Ihata has been constructed by Muhammad Ayub, who is in possession of the same from the beginning and three rooms are constructed. The possession of disputed Ihata was taken by the defendants when the petitioner was roped in a murder case and no transaction of sale has taken place between the parties. In his cross-examination he has denied that defendants gave Rs.50,000 to the plaintiffs for the expenses of murder case. He also admitted that the plaintiff did not file criminal case for the illegal possession. After the plaintiffs came from jail they took the possession of disputed Ihata but it was again forcibly taken by the defendants and no transaction of money has taken place nor any agreement in respect of appointment of arbitrators took place between the parties.
' He was supported by P.W.2, who in his cross-examination denied that the plaintiffs had taken the consideration of disputed Ihata from the defendants. Muhammad Ayub P.W.3 stated on oath that he was allotted the disputed Ihata measuring 6 Marlas being a displaced person by the Settlement Department, he has constructed three rooms and since 1947 he is continuously in possession of the disputed Ihata. He and his son were roped in a murder case and since the legal heirs of deceased were residing in the adjoining Ihata, therefore, his daughters under a fear and apprehension left the disputed Ihata and shifted to another place and he has not made any transaction of sale neither he made any arbitrators nor given any notice by the arbitrators. He produced list of household articles Exh.P-1, copy of site-plan Exh. P.2, copy of Jamabandi for the year, 1968-69 Exh.P-3 and copy of Jamabandi for the year 1968-69 Exh.P.3 and copy of Jamabandi for the year 1980-81 Exh. P-4. He admitted in his cross-examination that Muhammad Iqbal was the prosecution witness in the murder case but he never appeared as a witness although he gave an affidavit to him but his statement was not recorded. He volunteered that he gave an application for illegal possession of the defendants but since Dijkot people were against him so as per instructions of the Superintendent of Police he withdrew the application and he told the defendants to vacate the disputed Ihata and he has not signed on the agreement for appointment of arbitrators and he has not signed on any proceedings and he does not know about the arbitrators decision.
9. Defendants produced Muhammad Hussain D.W.1, who stated on oath that disputed Ihata was purchased by the defendants in consideration of Rs.50,000 as Muhammad Ayub was roped in a murder case he needed the money, and he also delivered the possession and trQ,ok out all his household things. In front of this Ihata there was another Ihata, which he sold to cobblers. When he was released on bail in murder case he came and disputed with the defendants, the Punchayat took place, arbitrators were agreed and arbitration agreement was reduced into writing and he is marginal witness of the same copy of the same is Exh.D-1 which bears his thumb-mark. D.W.2 Muhammad Iqbal appeared as his own witness and stated that he purchased the disputed Ihata in consideration of Rs.50,000 and took the possession, at that time the plaintiff and his son were roped in a murder case and he needed money and he paid the consideration money Rs.30,000 and then Rs.20,000 and he was the prosecution witness in the plaintiff's murder case. He also admitted in cross-examination that agreement of arbitration was reduced into writing by Talib Hussain but no writing was obtained in respect of payment of Rs.50,000 and he also did not file a suit for specific performance of agreement to sell. He also admitted that agreement-deed Exh.D-1 was reduced into writing and Tassaduq Hussain was appointed as arbitrator through Punchayat.
He admitted in cross-examination that he paid the consideration money in two instalments within a gap of one month but he did not take any receipt. He also admitted that he filed an application at Sargodha but did not give statement in front of Magistrate but the plaintiff Manoeuvred his signature and got Exh.C-1 to Exh. C-3 recorded. He has admitted that he purchased the disputed Ihata in consideration of Rs.50,000, which he paid in two instalments. This award was written on 19- 10-1984 while suit for possession was filed on 24-10-1984. The learned trial Court decided issue No.2 regarding the suit valuation accordingly and Issues Nos.1, 3, 4 and 5 in favour of the plaintiffs and against the defendants. Observation of the learned Appellate Court while reversing the findings of the learned trial Court that there is no strong documentary evidence in favour of the defendants which has come from the mouth of independent witness and, therefore, he reversed the findings of the learned trial Court in both the suits.
10. Perusal of evidence shows that respondents miserably failed to prove the consideration in the attending circumstances of the case when he was a prosecution witness in the murder case in which the plaintiff and his son were roped in how did he purchased the disputed Ihata during pendency of the case then gave his statement before the learned Magistrate which he has admitted in his own statement. He has not proved the consideration through an independent witness for the purchase of disputed Ihata from the plaintiffs against whom he was a prosecution witness in a murder case and the learned Appellate Court also ignored this fact that suit for possession was filed by the petitioners much earlier when the award was said to be announced on 3-8-1984 and reduced into writing on 19-10-1984 why so much delay took place and award was written when the suit for possession had earlier been filed by the petitioners challenging also entire proceedings of the award being fictitious and based on fraud. It is also proved on the record that petitioners/plaintiffs were rightful owners of the disputed Ihata and if the respondent who in a precarious circumstances while entering into transaction of sale with the plaintiffs/ petitioners at a senario where he was a prosecution witness in a murder case against them why did not he get the receipt for the consideration of money paid on two occasions?
11. Keeping in view the entire evidence on record the judgment and decree in both the appeals given by the learned Appellate Court are suffering from non-reading and non-appreciation of evidence produced by the parties, the same are set aside and the judgments and decrees passed by the learned trial Court in both the suits are maintained. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.