Khawaja Shahad Ahmed, CJ.--The captioned appeal with our leave, granted on 11-8-2008, calls in question the validity of a judgment recorded in Civil Appeal No.20 of 2003 whereby a learned Judge of the High Court while dismissing the appeal filed by the appellants, herein, has maintained the judgment recorded by the District Judge Roth.
2. Precise facts of the case are that land measuring 15 kanal 16 marla, situated in village Nar Doyallan, Tehsil and District Koliwas alienated by Defendants Nos. 2 and 3 in favour of Defendant No. 1 (Muhammad Riyasat son of Muhammad Sarwar). The sale was preempted by Munawar Hussain Shah and Ali Shah through two different suits. During post-proceedings the pre-emptors agreed on the appointment of a commission to prove as to which of the pre-emptors has comparatively prior right of purchase as each of them was claiming this right on the basis of adjacency and other rights including the right of passage etc. The commission submitted its report in the Court and the trial Court while remaining in the four walls of the report of the Commission and without considering other evidence brought on record decreed the suit purely on the basis of report of the Commission however, it was also held that the second pre-emptor shall have right of prior purchase if the decree passed in favour of Munawar Hussain is not executed as directed by the trial Court. Ali Shan filed an appeal in the Court of District Judge Kotli from where he collected a decree in his favour and the learned Judge held that in the first instance Ali Shan shall have the right of prior purchase and in case Ali Shan fails to deposit the price of land, the suit of Munawar Hussain shall stand decreed. When the matter rolled in the High Court, the learned Judge of the High Court also agreed with the decree passed by the District Judge in favour of Ali Shan. It may, however, be mentioned here that an application for disputing the correctness of the site-plan was filed and finally this Court disposed the appeal and then on review following order was passed:-- "This judgment was set aside by this Court vide judgment under review on the ground that the learned counsel for the parties before the trial Court on 2-2-2002 had jointly requested for appointment of Commission. A similarly statement was made by the learned Advocates on 4-3- 2002 before the trial Court that the controversy be resolved according to report of Commission dated 28-2-2002. As the learned Judge in the High Court had not decided the disputed questions of fact and law raised before it in the memo of appeal therefore while setting aside the judgment of the High Court it was appropriate for us to remand the case to the High Court for fresh decision on merits but on account of human error we failed to pass such order while recording judgment under review.
In view of above, while allowing this review petition the judgment of this Court dated 5-5-2005 is amended. The case is remanded to the High Court for decision on merits."
3. While arguing on behalf of the appellants, Sardar Shamshad Hussain Khan, the learned counsel, submitted as under:--
(a) That the first appeal filed by the respondents before the District Judge was not competent under section 96(3) of the Civil Procedure Code, which provision clearly postulates that no appeal shall lie against a consent decree.
(b)That the two Courts below failed to appreciate that in pre-emption suits like other civil controversies, all the Courts are bound to decide the cases after considering the evidence on record. If the two Courts below had come to the conclusion that the appeals were competent before the District Judge and the High Court, it was enjoined upon the District Judge and the High Court to consider the evidence brought on record.
(c)That once a party has given its consent for decision of a case according to the compromise, which in the present case is that suit shall be decided on the basis of the report of Commission, subsequent votla face or resile is not allowed under law.
(d)That according to the evidence and the report of the Commission the case should have been decided keeping in view the provisions of Section 16 of the Right of Prior Purchase Act, which deals with the eventualities where each pre-emptor is equally entitled to a decree under Right of Prior Purchase Act.
The learned counsel for the appellants, in support of his arguments, referred to and relied upon the following cases:-- (i)1998 PLC(C.S) 431
(ii) PLD 1969 Lah. 365,
(iii) 1989 SCM R 1826, (iv)PLD 1983 SC (AJ&K) 56
4. Mr. Khalid Rasheed Chaudhary, the learned counsel for the respondents, while repudiating the arguments of the learned counsel for the appellants, submitted as under:-- (a)That the Commission for spot inspection was appointed on joint request of the learned counsel for the parties which amounted to the agreement by which the learned Judge was regulated to the position of Arbitrator and both the parties have got no authority to dispute the verdict of the Local Commission.
(b)That according to the report of the Commission, Respondent No. 1 is on better footing in view of his right of easement and this particular view has actually been considered by both the Courts below according to the relevant law, Shafi Sharik has precedence over Shafi Jar as the land in dispute was nearer to the land of Respondent No. 1.
(c)That the report of the Commission reveals that the appellants house is at a distance of more than that of Ali Shan and they have no right of easement in the shape of passage for the disputed land on the other hand the and sold is nearer and adjacent to the house of Ali Shan.
(d)When parties voluntarily bounded themselves on the report of the Commission, the position of the local commission shall be termed into as Referee and a suit can easily be decreed on the report of the local commissioner and this legal and pivotal aspect of the case has properly been pondered by the Courts below.
(e)The learned trial Court has failed to properly appreciate and understand the report of the local commissioner which was rightly turned down by the learned District Judge Kotli and the learned Judge of the High Court.
(f)That it is a celebrated principle of law that the concurrent findings of facts cannot normally be disturbed even if a different view is possible.
It, however, goes to the credit of Mr. Khalid Rasheed Chaudhary, the learned counsel, that he has conceded the law point' that where the Commission has been appointed the report of the Commission is to be read and considered along with the other evidence available on the record.
5. We have heard the learned counsel for the parties and gone through the record of the case. It is enigmatic that the relevant and legal provisions applicable in the case have not been attended to by the Courts below and even by this Court in the earlier round of litigation. It is on record that the parties before the trial Court on 2-2-2002 had jointly requested for appointment of commission. A similar statement was made by their learned counsel on 4-3-2002 before the trial Court that the controversy be resolved" according to the report of the Commission dated 28-2-2002. This position needs attention in view of the objection by the learned counsel for the appellant that where parties agree for settlement of a controversy through another method and in another manner, the decree having been passed on consent of the parties, first appeal under Section 96, C.P.C., is not competent. Similarly the report of the commission clearly reveals that each of the pre-emptors have their land adjacent to the land sold and pre-empted by each pre-emptor. As far the first point is concerned, there, is a chain of authorities, wherein it has been held that the party inviting the Court to adopt a procedure not contemplated by the Civil Procedure Code in deciding suits, he cannot subsequently blame the Court for following such procedure. Where both the parties agree for adjudication of a case by adopting a particular procedure, the decree passed is consent decree and definitely it is not open to either party to appeal from it. The reasons for insertion of Section 96(3) are that a party after having consented to an agreed decision cannot appeal against the same. Apart from technical bar in respect of appeal against the decision based on consent, the party challenging such a decision cannot be allowed to, argue that the Court passing the order didn't follow correct procedure in deciding the matter. The principle of estoppel by conduct applies with full force to such a situation. Where a party by its conduct obliges the Court to adopt a course which is contrary to its practice or laid down procedure, that party will be debarred from raising objection contrary to its agreement before the Court. A party which leads the Court to deviate from normal procedure is normally estopped from challenging the order passed by the Court with the consent of such a party. The learned counsel for the appellant has rightly objected to the maintainability of the first appeal. In addition to the case reported as AIR 1936 Madras 856 it was so held in the case reported as PLD 1969 Lah. 365. In 1989 SCM R 1826 the principle laid down in AIR 1936 Madras 856 was further elucidated.
6. Similar is the legal position as far report of the commission appointed under Section 75, Civil Procedure Code, read with Order XVIII, Rules 9, 10 and 18 and Order XXVI, Rule 9, Civil Procedure Code, is concerned. Civil Court under these provisions can appoint Commission or ask for a report after spot inspection and base its findings according to the report or take into consideration report of the Commission along with other evidence brought on record. Where parties agree for appointment of Commission to determine any fact or disputed controversies, the Court remains under its jurisdiction to issue a commission for local investigation/inspection to direct the same if it deems it proper. This power even is exercised for elucidating any matter in dispute. As far value of the report and investigation by a commission is concerned, the basic requirement of law is that it cannot be relied for recording a judgment by the Civil Court. The evidence of the parties has to be considered to determine the comparative merit. Report of the Commission can be disputed but on limited grounds. As has been observed while discussing the consent decree hereinabove, once the parties agree for report through spot inspection by the commission, the parties so agreed cannot deviate from their agreed stance and ask the Court that the report of the commission is not accepted. It is correct that in the case reported as PLD 1983 SC (AJ&K) 56 it was held that where a commission files report to look into the factum of possession over the suit land but the statement having not been proved by examination, the report of the commission can be excluded from consideration. This judgment in fact propounds the legal position that civil suits must be decided on the basis of evidence produced by the parties. This judgment doesn't apply in the present case.
In the instant case the parties agreed for appointment of a commission and consequent finding of the trial Court on the point as to which of the parties owns the land adjacent to the suit land. This order was passed by the trial Court on the agreement and request of the parties for the purpose of determining the right of prior purchase of the contesting pre-emptors. In such like cases the legal position is that this report cannot be ignored on the ground that one of the parties disputes it to be correct or the appellate Court or the Court is of the opinion that the process and procedure to be adopted by the-Commission has not strictly been followed. In such like cases the first requirement is that the report of the commission should be self-speaking and addressing the points referred to the commission. Since 1940, when Lord Romer observed in a full bench case reported as AIR 1940 Privy Council 3, that the principles to be adopted in dealing with the commission and the reports are that interference with the result of a long and careful local investigation, excep upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report and who had not blindly adopted assertion of either party.
We find further support on this point from the case reported as 1988 SCMR 730 wherein, in an order of the High Court deputing a commissioner to determine the market value of particular piece of land. it was held that object of local investigation was to obtain evidence, which from its peculiar nature could best be had from such inspection itself, such evidence would enable the Court to properly and correctly understand and assess the evidence on record.
Similarly in the case reported as 1995 SCM R 1069 the Supreme Court of Pakistan remanded a case to the trial Court on the ground that identification of the evacuee property could have been made through appointment of a commission. It, thus, follows that the report of the commission recorded in the present case has to be seen keeping in view the observation of their lordships in the Privy Council's case that unless apparent legal or factual dents are not found in the report of the commission, ordinarily it should be accepted. We here also observe that unless flagrant disregard of any provision has been made, report of the commission, that also by the consent of the parties and consequent consent decree, cannot be disputed to linger on the litigation for another considerable period of time. In the present case commission was appointed on joint request of the parties and the Court ordered as under: {{URDU TEXT}} In compliance with this order Sardar Akhtar Hussain, Civil Judge Roth,i who was also nominated by the parties and the trial Court itself, recorded following report as commission by the trial Court:-- {{URDU TEXT}} Underlining of the report reveals that each of the pre-emptors own land adjacent to the suit land and we also concur with the report that each of the pre-emptors has the right of prior purchase as pleaded by them in their respective pre-emptions suits. In such circumstances the Courts below should have adverted to the postulated provisions of the Right of Prior Purchase Act enacted for dealing with such like cases.
7. Section 16 of the Right of Prior Purchase Act reads as under:- "16. Exercise of the right of prior purchase where several persons equally entitled.--Where several persons are found by the Court to be equally entitled to the right of prior purchase the said right shall be exercised.:- (a)..................................
(b)..................................
(c)If they claim as owners of the- mahal, in proportion among themselves, to the shares which they already hold in the mahal; (d).....................
It emerges from the report of the commission and the available record that the case of the rival pre-emptors falls in category "C", therefore, the right of contesting pre-emptors being equal, pre- emption decree has to be recorded by the trial Court:-- "in proportion among themselves, to the shares which they already hold in mahal"
The question as to whether this part of the provision (mahal) falls in the category of amended provision of the Right of Prior Purchase . Act, which under SectiOn 14 provides that right of prior purchase shall vest in:-- (a)firstly in Shafi-Sharik; (b)secondly ip Shafi Khalit; and (c)thirdly in Shafi Jar; The proposition has been explained by the amended Act of 1993 itself wherein explanation "shaft- sharik" means a person who is a co-owner in the corpus of undivided immovable property sold to other person or persons whereas "Shafi-Jar" means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.
The foregoing provisions reveal that each of the rival preemptors are Shafi Jar as they own immovable property adjacent to the immovable property sold. Thus the term "owner of mahal", under Section 16, category "C" refers to a person "Shafi-Jar" as he holds the property adjacent to the property sold.
8. Another fact which also needs mention here is that the controversy between the parties has already consumed a period of 10 years, which doesn't at all justify another exercise for years to come. We, therefore, while accepting this appeal, set aside all the judgments recorded by all the Courts below and remand the case to the trial Court to pass a decree keeping in view Section 16 of the Right of Prior Purchase Act. For this purpose the trial Court shall determine the proportion among rival pre-emptors to the shares which they already own adjacent to the property sold. No order as to costs.