' TASSADUQ HUSSAIN JILLANI, J.---Ahmad Khan son of Muhammad Khan filed an application under sections 14/17 of the Arbitration Act claiming therein that the land, subject matter of this petition (measuring 242 Kanals and 4 Marlas) was transferred by his sisters and his nephew through oral gifts; that a dispute arose; that with consent of the respondents one Muhammad Hafeez was appointed as Arbitrator. The said Arbitrator gave an award on 14-4-1986 and that the said award be made as rule of the Court. This application was allowed and the award was, made rule of the Court through judgment and decree, dated 4-5-1986. Respondents/applicants filed an application before learned Civil Judge and section 12(2), C.P.C. Alleging therein that the afore-referred judgment and decree was result of fraud, was collusive,that at no stage the property was gifted in favour of petitioners/ respondents and that they have been deprived of their valuable property through the afore-referred fraudulent transaction.
2. The learned Civil Judge dismissed this application vide order, dated 13-2-2001. This order was challenged in revision and the learned Additional District Judge, Khushab vide his order, dated 24- 10-2001 allowed the same, set aside the order of Civil Judge and held that the factum of gift had not been proved; that the witnesses produced by the petitioners/defendants in the application under section 12(2), C.P.C. Made no mention of gift preceding the arbitration proceedings, that as per their statement the gift was made in Court during arbitration proceedings, that the essentials of gift, offer, acceptance and delivery of possession had not been proved, that Mst. Fateh Bevi mother of respondents/applicants was illiterate, therefore, had been defrauded. This order was challenged in Writ Petition No,19845 of 2001which was dismissed by Lahore High Court vide order, dated 10-2-2002. Hence this petition.
3. Learned counsel for the petitioners submitted that both the Courts below have failed to appreciate that respondents/applicants had gifted the property in favour of petitioners/defendants; that the Courts have wrongly held that the civil Court which made the award rule of the Court in terms of decree, dated 4-5-1986 had no pecuniary jurisdiction; and that the element of gift stood proved and the findings are against the weight of evidence.
4. Admittedly Mst. Fateh Bevi was sister of Ahmad Khan who claimed the gift. It is on record that said Fateh Bevi was an old and illiterate lady. There is no documentary evidence of the alleged gift made by her and the judgment and decree of Civil Judge, dated 4-5-1986 vide which award was made rule of the Court was ex parte. Similarly, the alleged second gift purported to have been made by her son and her sister namely Mst. Said Bevi was also not documented and it was sought to be proved only through the arbitrator Muhammad Hafeez. The alleged deed of arbitration was not proved as none of the marginal witnesses were produced. The so-called arbitrator did appear as R.W.-2 but no reliance can be placed on his evidence as admittedly he is not related to either of the parties, is not the resident of the village where the parties resided and the land is situated and there is no reason why he should have been appointed as arbitrator. He findings of learned Appellate Court to the effect that the Court which passed the judgment and decree lacked pecuniary jurisdiction is in accord with the mandate of section 141 of Civil Procedure Code and the argument of the petitioners' learned counsel that an application under sections 14 and 17 of the Arbitration Act not being a suit even a Civil Judge, Second Class could entertain and decide it (though he did not have jurisdiction to try a Civil suit of the value of the property, subject matter of this petition), has no substance. Section 141, C.P.C. Reads as under:---
141. Miscellaneous proceedings.--- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
In the case of the aforereferred evidence the concurrent findings of fact on question of law and fact to the effect that the Civil Judge, Second Class lacked pecuniary jurisdiction, that gift was not made, that the judgment and decree making the so-called award as rule of the Court was collusive are unexceptionable and do not call for interference.
5. For what has been discussed above, there is no valid ground to grant leave to appeal. The petition having no merit is accordingly dismissed and leave to appeal is declined.