' ABDUL QADIR MENGAL, J.--- Through this judgment I have intended to dispose of R.F.A. No,6 of 2006 filed by one Malik Sardar Muhammad Qasim, against the judgment and decree dated 18th July, 2006, passed by the Majlis-e-Shoora, Zhob in Civil Suit No,4 of 2005, for performance of agreement dated 9th August, 2005 and judgment or award dated 22nd September, 2005, whereby the suit of the respondent/plaintiff Malik Haji Abdul Ghaffar son of Malik Abdullah Jan was decreed and the appellant was permanently forbidden for interfering in the disputed portion of the land and also directed to remove his flour grinding machine from the decretal site.
2. The facts of the appeal are that the respondent/plaintiff instituted a suit on 8th December, 2005 in the Court of Majlis-e-Shoora, Zhob for performance of arbitration agreement dated 9th August, 2005 and judgment or award dated 22nd September, 2005 with the averment that the appellant/defendant installed a flour grinding machine on a portion of his land, which is bounded as follow:--- In the East. Old school Toot Barai.
In the West. From beneath castle of the defendant towards the North to the last tree of Sharoon In the North. Residential wall of the plaintiff In the South. Mina and Dispensary of the defendant.
3. The flour grinding machine, which the appellant/defendant installed on the well of the respondent/plaintiff damaged the well and in consequence of the same a dispute was arisen between the parties and in that respect the respondent/plaintiff also approached the court of Judicial Magistrate through a criminal case filed under section 427/447/34, P.P.C. In the meanwhile the parties entered into an arbitration agreement dated 9th August, 2005, through which the parties referred their all disputed matters to a panel, of arbitrators consisting upon Malik Haji Safar and Malik Amanullah Khan to decide the same out of the Court and if any of the party failed to comply the decision of the arbitrators, then he only could be allowed to sue the other party after payment of Rs,5,00,000 (Rupees five lac) as a fine, as such after the agreement the both arbitrators inquired about the disputed land, inspected the place of incident, hear the both parties, so as also collected necessary information from the general public and whereafter through their judgment or award dated 22nd September, 2005 directed the appellant to remove his flour grinding machine within a week from the site pertaining to the respondent/plaintiff. The judgment or award dated 22nd September, 2005 shows that both the parties accepted the decision of the arbitrators and whereafter as a token of acceptance also both the parties signed along with the arbitrators over the decision in presence of the witnesses. Further on account of the settlement arrived at between, the parties A through the decision of arbitrators dated 22nd September, 2005 the criminal case, which was pending against the appellant/defendant before the Court of Judicial Magistrate was also withdrawn on the basis of that arbitration award. However, for the sake of facility the relevant portion of the judgment of the Judicial Magistrate is reproduced hereinbelow:--- "Accused persons present on bail along with their counsel Mr. Abdul Samad Advocate.
Complainant present along with his counsel Mr. Shah Gul Din, Advocate and submitted an application for withdrawal of his complaint. Further stated that he has patched up his differences with accused persons outside of the court by means of three stamp papers dated 5-9-2005, 19- 9-2005 and 22-9-2005 under the arbitration of one Haji Safar Khan and Amanullah".
4. However, after withdrawal of the case, filed by the respondent/ plaintiff, the appellant/defendant failed to remove his flour grinding machine and finally he refused to accept the arbitration award, as such the respondent/plaintiff approached the Court of Majlis-e-Shoora, Zhob, in result the impugned judgment dated 18th July, 2006, hence the present appeal.
5. I have heard Mr. Iqbal Ahmed Kasi, Advocate for the appellant, whereas Mr. W.N. Kohli, Advocate was heard for the respondent.
6. Learned counsel for the appellant/defendant mainly contended that the value of the suit of specific performance is Rs,60,000 (Rupees sixty thousand) and no court-fee has been deposited by the respondent/plaintiff, while legally he was bound to pay the court-fee. In this respect learned counsel relied upon PLD 1978 Lahore 1252, which reads as follow:--- "----S. 7(iv)(a)---Declaratory suit---Determination---Whether a declaratory suit involves a right or title based upon gift---Plaint to be seen as a whole and not only relief clause---Plaintiff cannot escape liability to pay court fee by omitting basis of his claim from relief clause. [court-feel."
' Learned counsel again relied on section 32 of the Arbitration Act, stating that the suit of the respondent/plaintiff was not maintainable against an arbitration agreement or award, therefore, the present suit filed by the respondent/plaintiff is liable to be dismissed.
7. The learned counsel for the respondent/plaintiff mainly argued that the award or arbitration decision has not made out rule of the Court; however, parties mutually with their consent accepted it and also acted upon the same, therefore, parties are entitled to sue or defend themselves in view of that arbitration agreement. In this respect learned counsel relied on PLD 1971 SC 516, which reads as follow:-- "(a) Arbitration Act (X of 1940), 'S. 32---Bar to suit contesting arbitration agreement or award--- Award made in arbitration out of Court and not made rule of Court---Parties entitled to sue or defend on basis of such award if it has been acted upon by parties by mutual consent".
8. After hearing the both sides and perusing the record including the impugned judgment, I am of the opinion that present award, passed by the arbitrators in consequence of a dispute referred to the arbitrators through a written agreement, whereafter, the both arbitrators after making proper inquiry, collected information from different people and also heard the both parties and then on account of a thorough inquiry and evidence passed the award dated 22nd September, 2005. The arbitrators also reduced it into writing, and took the signatures of both the parties over the same as a token of acceptance and further on basis of the said arbitration award, the parties also got acquittal order by Judicial Magistrate. Furthermore, the evidence, which has come on record fully shows that the dispute between the parties was referred through a written document or agreement dated 9th August, 2005 by the consent of the parties to the arbitrators namely Malik Haji Safar and Amanullah and the parties authorized the arbitrators to decide the matter, to be acceptable to both the parties without any objection. In this respect the evidence of P.W.1 Amanullah and P.W.-2 Haji Safar Khan (Arbitrators) shows that the arbitration award dated 22nd September, 2005 was passed, after hearing both the parties and also after visiting the place of the incident and even they spent nights for inquiry at the site, whereafter announced the award, which was accepted by the both parties and after their mutual acceptance or consent award was reduced into writing. Then criminal cases pending against the parties were withdrawn. Though the appellant/defendant tried to show that arbitrators were authorized to decide any penalty in respect of defamation of the appellant, but the arbitrators in excess of their authority, decided the unrelated matters. In this regard Dilbar Khan, the son of the appellant, so as also other relatives being DWs have deposed to discredit the stilt of the respondent/ plaintiff, but in my view they badly have failed.
9. As regard the second objection about the court-fees, it may be pointed_ that the order sheet dated 28th February, 2006 shows that the respondent/plaintiff has properly paid the Court-fees Rs,4,500 (Rupees four thousand and five hundred only), as such this objection of the learned counsel for the appellant/defendant having no force and the same is repelled. However, a question arises whether any arbitration award passed out of the Court on the basis of a valid authorized document and which was accepted by the parties and then they also acted upon it, whether could be executed like the awards passed under the Arbitration Act or otherwise. Though this type of award cannot be executed or treated an award or decision like that passed by Court under the Arbitration Act, yet I am of the view that as the parties on account of an agreement declare to adopt a particular way to solve their dispute and in that respect they by their mutual consent executed written agreement by authorizing the third person as an arbitrator to decide their dispute.
Then in consequence of that written agreement if arbitrators hold inquiry, take evidence, hear the parties and then decide the dispute which the parties accept and sign as a token of acceptance, then the law of estoppel applies to such kind of awards and parties are not allowed to go back by such decisions, award or agreement, which they by their conduct and actions permitted to believe as true agreement or award. Even otherwise under the section 42 of the Specific Relief Act a party is allowed to approach the Court, when a person is denying or interested to deny his title or character. The Court along with the award also could consider other related evidence and pass an appropriate order. Thus in the light of the above when perusing the record and evidence, it appears that at no stage the appellant/defendant claimed ownership of the disputed land, on contrary the respondent/plaintiff from the very beginning claiming that the disputed land and well, on which flour grinding machine is installed, belongs to him and the appellant/ defendant unjustly or wrongly trying to grab the same. So being, the respondent/ plaintiff prima facie has established his right and title over the disputed property, therefore, in view of the above discussed circumstances, I see no any illegality or impropriety in the impugned judgment dated 18th July, 2006, passed by the Majlis-e-Shoora, Zhob, as such the present appeal is failed and dismissed.