' The facts leading to this civil revision are that one Tora Khan, who was the predecessor-in-interest of the petitioners, Mushtaq-ur-Rehman and for others, filed a suit against the respondents, Muhammad Akbar and five others, for a declaration to the effect that he was owner in possession of a kinder'. By way of consequential relief, he asked for perpetual injunction restraining the respondents from taking possession of the said property or interfering with their possession over, or the right of ownership in, the disputed property, or making any construction thereon. The suit was resisted by the respondents whereupon necessary issues were framed. Before the entire evidence could, however, be recorded by the Civil Judge, who was seized of the suit, an order to the following effect was passed by the Civil Judge on the 20th January, 1979 on the basis of the statement of their counsel :- {{URDU TEXT}} ' In pursuance of the aforesaid order, the Local Commissioner, submitted his report which was taken notice of by the learned Civil Judge on 25th January, 1979 and the case adjourned to 29th January, 1979 for further proceedings. On 29th January, 1979, the parties' counsel were present and the case was adjourned to 30th January, 1979 for orders. On 30th January, 1979 it was noted by the learned Civil Judge that according to the report of the Local Commissioner, respondent No. 1, Muhammad Akbar was in possession of the disputed property as an owner. Therefore, in terms of his order, dated the 20th January, 1979, the learned Civil Judge dismissed the suit leaving the parties to bear their own costs. On this, the plaintiff filed an appeal before an Additional District Judge which met the same fate. The plaintiff had died in the meantime and his successors-in- interest, therefore, came up in revision to this Court.
2. Learned counsel for the petitioners contended that the Local Commissioner was appointed in view of the provisions of Order XXVI of the Code of Civil Procedure and since no opportunity was afforded to the parties to file objections, if any, to his report, the same could not constitute a valid basis for the order passed by the learned trial Court. He also maintained that the position of a Local Commissioner was different from that of a referee and, therefore, the learned Civil Judge could not dispose of his suit in terms of the verdict of the Local Commissioner. He relied on Mt. Akbari Begum v. Rehmat Hussain and others (1) to support his submissions.
3. On the other hand, learned counsel for the respondents submitted that it was evident from the order, dated the 20th January, 1979, that the {{FOOT NOTE}}
(1) AIR 1933 Al 861 {{FOOT NOTE}} ' parties had voluntarily agreed to be bound by the report of the Naib Tehsildar and thus, he was, in reality, a referee and not a Local Commissioner as contemplated by Order XXVI of the Code of Civil Procedure. It was also urged by him that since the predecessor-in-interest of the petitioners had not retracted from the aforesaid commitment nor he had filed any objection to the report of the Naib Tehsildar before the disposal of the suit by the trial Court it was not open to him to challenge the decision of the trial Court which was based on the aforesaid report. The authority cited by him to support his contention is reported as Muhammad Akbar and another v. Muhammad Aslam and another (1).
4. In the case of Mt. Akbari Begum the parties had agreed that the suit may be decided in terms of the statement to be made by one of the defendants, namely, Rehmat Hussain. Accordingly, the suit was decided on the basis of his statement and the order of the trial Court in this behalf was upheld by the High Court. This authority was cited by the learned counsel for the petitioners to contend that the order made by the learned trial Court in the present case could be passed only if the parties had agreed to settle the dispute in terms of the statement of a referee, and since a Naib Tehsildar, who had made the report in question, was not a referee, the suit could not be decided on the basis of his report. While drawing distinction between a referee and a Local Commissioner, learned counsel for the petitioners submitted that the latter is required to submit his finding after holding an inquiry but the former resolves the dispute referred to him on the basis of his personal knowledge without holding any inquiry.
5. As for the contention of the learned counsel for the petitioners that in the present case the Naib Tehsildar was just a Local Commissioner and not a referee, I am unable to agree with him. It is a matter of common' knowledge that when a Local Commissioner is appointed under rule 9 of Order XXVI of the Code of Civil Procedure, at the request of the parties or otherwise, his appointment is made for the purpose of making a local investigation and then giving his finding on the point referred to him. His report is not binding on the parties nor is the Court obliged to decide the dispute in terms of his report. In the instant case the parties had undertaken to be bound by his finding and it was also agreed upon by them that his report shall be final. Thus, the position of the Naib-Tehsildar in the present case was not that of a Local Commissioner only. He was, in fact, a referee though he was referred to as a Local Commissioner. The report made by him will, therefore, have to be treated as the verdict of a referee.
6. As regards the plea of learned counsel for the respondents that an inquiry which is to be held by a Local Commissioner is not required to be held by a referee ; it is not supported by the case of Mt.
Akbari Begum relied upon by him. The agreement to resolve a dispute in terms of the verdict of a referee is different from deciding a suit on the basis of special oath to be made by a person by relying on his own knowledge. While agreeing to be bound by the opinion of the referee the parties decided to go by what he holds regardless of the fact that his decision is founded purely on his personal knowledge or is based on some investigation conducted by him. In the present. Case, the parties agreed to the dispute being decided by a referee instead of its being disposed of by the court. I am, therefore, unable to agree with the learned counsel for the petitioners that since the Naib Tehsildar had to hold some inquiry for redeeming the trust reposed in him, his position was that of a Local Commissioner and not of a referee. {{FOOT NOTE}}
(1) PLD 1970 SC 241 {{FOOT NOTE}}
7. In the case of Muhammad Akbar and another, relied upon by the learned counsel for the respondents, also the parties had agreed to have a suit decided in accordance with the statement of a third person. One of the parties, however, retracted from the agreement before the said person could make his statement. It was, therefore, ruled by the Supreme Court that the arrangement agreed to by the parties was a contract and since one of the parties had backed out before it had been acted upon, its enforcement was not possible. Viewing the present case in the light of the said authority, it would be found that the contract involved herein was actually acted upon inasmuch as the Naib-Tehsildar to whom the parties had referred the dispute had made his report and on the basis of that report the trial Court had disposed of the suit. The plaintiff, who was predecessor-in-interest of the petitioners, did not, at any stage, retract from the commitment that he would be bound by the report of the Naib Tehsildar nor did he raise any objection thereto after the submission of the report and before the passing of order by the trial Court in terms thereof. As pointed out above, it was after about a week of the filing of the report, to the knowledge of the parties' counsel, that the learned Civil Judge had decided the suit on the basis of the report. The petitioners cannot, therefore, claim the benefit of retracting from the agreement as done in the case of Muhammad Akbar and another.
8. The net result of the above discussion is that the contract entered into by the parties as to the manner in which the suit between them would be decided has since been acted upon and as ruled in Mt. Akbari Begum's case, which was relied upon by the learned counsel for the petitioners, such a contract is not illegal. Therefore, no valid exception can be taken to the disposal of the suit on the basis of the report of the Naib Tehsildar.
9. Another point raised by the learned counsel for the petitioners was that the predecessor-in- interest of the petitioners had never agreed to be bound by the report of the Naib Tehsildar. It is true that on the record there is no separate statement by their predecessor-in-interest to the above effect but the order, dated the 20th January 1979, passed by the trial Court, reproduced above, would show that it was made in terms of the statements of the parties' counsel. At the end of the order there appears a thumb impression and the signatures of the counsel for the plaintiff (predecessor-in-interest of the petitioners). There are also signatures of Muhammad Akbar, respondent, who was the first defendant in the suit. According to the learned counsel for the respondents the said thumb impression is of the plaintiff. If the arrangement reflected in the order of the trial Court was not acceptable to the plaintiff or his counsel, neither the plaintiff would have thumb-marked the same nor his counsel would have appended his signatures as aforesaid. After' the making of the said order too they did not raise any objection as to the contents of the order till the suit was decided by the trial Court. Even before the appellate Court they had not taken the plea that the plaintiff had not agreed to be bound by the report of the Naib Tehsildar. Even in the grounds of revision filed in this Court the said plea had not been incorporated. There is no affidavit to the effect that the plaintiff had not agreed to the arrangement embodied in the impugned order of the learned trial Court. It is, therefore, not possible to accept the plea raised by the petitioners which is clearly an afterthought and also without substance by the two Courts below are unexceptionable. The petition is, therefore, dismissed with costs.