Through instant Civil Revision application the applicants have assailed the respective Judgment & Decree dated 10th August 2010 & 17th August 2010 of Additional District Judge, Moro, passed in Civil Appeal No, 62/2009 (Re. Ghulam Rasool and others v Mst. Hidayat Khatoon and others) whereby order dated 31-08-2009 passed by Senior Civil Judge, Moro, was maintained.
2. The facts, as pleaded by respective parties, are that applicants/plaintiffs filed F.C. Suit No, 36/2007 whereby, it was contended that an agricultural land bearing Survey Nos,969 & 970 admeasuring an area of 2-12 acres situated in Deh Moro taluka Moro and an agricultural land admeasuring 0-11 ghunta, situated in Deh Khokhar, Taluka Moro, District Naushahro Feroze, originally belonged to grand-father of plaintiffs namely Hafiz Khan Muhammad, who during his life time, gifted out one portion of land situated in Deh Moro to the father of Plaintiff Nos, 1 to 3.
Thereafter father of plaintiff sold out the said land to the plaintiffs in the year 1962, possession was handed over and such mutation was effected in record of rights vide Entry No, 45 dated 13.12.1962.
Thereafter Defendant Nos, 1 and 2 in collusion with the revenue staff fraudulently got kept a false and bogus Entry No, 102 dated 18.10.2001 having knowledge that 0-23 ghunta from S. Nos, 969 and 970 of Deh Moro was not available to be devolved upon the legal heirs because the same was already gifted out. The Defendant No, 7 occupied the suit land situated in Deh Khokhar without due course of law and applicants/plaintiffs prayed that they have right to inherit the share from the land situated in Deh Khokhar, Taluka Moro, Defendant No, 7 is trespasser and has no legal right, interest or title Entry No, 102 dated 18.10.2001 is fraudulent and bogus. They also prayed for possession and mesne profit.
3. Record further reveals that respondents/defendants denied the gift, executed by Hafiz Khan Muhammad, grandfather of plaintiffs and contended that the alleged Entry No, 45 dated 13.12.1962 in favour of applicants/plaintiffs is false, bogus and fraudulent. Further contended that Mutation Entry No, 102 dated 18.10.2001 is reordered in their favour and same is valid and according to law.
4. Further revealed that by joint application, attorneys' on behalf of parties, agreed to refer the matter to Nekmard Molvi Gul Muhammad hence by order dated 15.6.2009 Molvi was appointed as Arbitrator and matter was referred for Arbitration. In pursuance whereof Arbitrator (Nekmard), through letter dated 3.8.2009, sent his Fatwa/decision to which respondents/plaintiffs raised objection that they have been condemned unheard, thus, matter may be proceeded on merits and trial Court by order dated 31.08.2009, directed to the parties for decision on merits.
5. Learned counsel for the applicants inter alia contended that during the pendency of suit with the consent of the parties, the matter was referred to one Arbitrator, who recorded the evidence and submitted his FAISLA before the trial Court in shape of award but the trial Court instead of accepting such award directed to the parties to lead their evidence for decision on merits as defendants pleaded that Arbitrator did not hear them and such FAISLA is not in accordance with law, such view taken by the trial Court is against the settled principle of law and appellate Court also wrongly held that award was not proper and same was without hearing to the defendants.
Both the Courts failed to apply judicial mind, therefore, both the Judgments are illegal and not maintainable under the law. In support of his contention he has relied upon the case law reported as Director Housing, AG's Branch, Rawalpindi Makhdum Consultants Engineers and Architects (1997 SCM R 988), Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (1984 SCM R 597); M/s Join Venture Kg/Rist through D.P. Giesler G.M. Bongard Strasse 3,4000, Dusseldorf-30, Federal Republic of Germany, C/o 15-Shah Charagh Chambers, Lahore and 2 others v Federation of Pakistan, through Secretary Food, Agricultural & Coop; and another (PLD 1996 SC 108), A Qutabuddin Khan v Chec Millwala Dredging Co. (Pvt) Ltd, Karachi (2001 M LD 115) and Superintending Engineer, Communication and Works, Highway Circle, Kohat v Mian Faiz Muhammad & Co. Akora Khattak (PLD 1996 SC 797).
6. Conversely, learned counsel for the respondents contended that impugned Judgments are according to law and learned counsel for the applicants has failed to point out any illegality or irregularity; instant case is not falling within the ambit of non-reading or misreading of evidence, thus instant revision application is devoid of merits.
7. Heard the arguments of the learned counsel for the parties, perused the record and case law referred to above.
8. Since, the counsel for the applicants has taken plea that according to Section 30 of Arbitration Act, 1940 to trial Court was duty bound to accept award and decree the suit in terms of award, thus the course of ordering for leading evidence is not legal, because, during the pendency of suit, the matter was referred to Arbitrator for FAISLA with the consent of parties hence such decision/Faisla is binding upon the parties.
9. To respond this, I have examined the available material and find that parties have been Challenging the validity of entries in the record of the rights while claiming their legal entitlement under inheritance. It is settled principle of law that before referring the matter to the arbitration three conditions are necessary (1) existence of arbitration agreement; (2) existence of dispute under the agreement; and (3) proceedings under Chapter-II not have been started (SBLR 2009 Sindh 257). Here it is important to add here that every statute and law has got its own significance, object and purpose hence the objective and purpose whereof has to be taken in its true prospective. Before going any further I like to refer to the meaning of "arbitration agreement" as provided under the Arbitration Act, 1940 which reads as under:-- Section 2(a)--"arbitration agreement" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not"
The plain reading of the above provision makes it clear that to bring the matter within ambit of Arbitration Act, 1940, there must be an agreement in writing, as defined under above provision. In the instant case it is an admitted position that there is no arbitration agreement but 4t was the parties themselves moved an application for decision to be made through nek-mard, the Molvi.
Thus, so how such a consenting move of the parties can be fitted within meaning of arbitration agreement, as provided in the Arbitration Act, 1940. It is pertinent to add that the law is very much clear and is settled now that if a thing has to be done in a particular manner then the same has to be done in that manner. The Court (s) are to follow the dictate of law, because it is the law and procedure which creates jurisdiction and authority and not the consent of the parties. A mere consent of the parties can neither confer a jurisdiction nor could take it away, if the law speaks otherwise. Thus I am clear in my view that the learned trial Court judge has not committed any illegality while allowing the parties to have their such dispute settled through such intended method of mediation and conciliation, as is provided within meaning of the Section 89-A of the Code, which under title of Alternate dispute resolution (ADR), permits the Court (s) to allow and entertain such moves by the parties. However, such effort of mediation and conciliation, if fails, cannot be enforced upon the parties, particularly when the parties come out with a plea of being not heard. Moreover, a FAISLA cannot be termed as an "award" because an arbitrator records its decision (award) after an inquiry for which he is so authorized by such a clause of the arbitration agreement. It needs not be said that if certain things are to be done in a particular manner to give them legal protection then the same have to be done in that prescribed manner and not otherwise.
9. WITHOUT PREJUDICE TO ABOVE, now I would like to examine that whether decision sent by ARBITRATOR/MEDIATOR falls within the spirit of direction issued by the trial Court. After scanning decision with letter addressed to trial Court, it is manifest that, statement of ladies plaintiffs were not recorded, and Arbitrator after hearing male members, issued Fatwa, according to Shariat. It will be conducive to refer relevant paragraphs of decision/FATWA: "After statements of both the parties, let it determine as to whether in the light of Shariat-e- Muhammadi the claim of party No, 1 Jamal Khan and others that the land is of our grandfather and it should be given to us is liable to be heard after such a time or not?
In view of the prevailing circumstances and in the light of Sharia the claim of Hakeem jamal Khan and others is not liable to be heard, firstly that gift deed and Khata stands in the name of Muhammad Ali and his son Moulvi Ghulam Rasool since long time, secondly that possession over the said land has been remaining with late Muhammad Ali and Moulvi Ghulam Rasool since about 40 years and used to enjoy the produce themselves. During such a period neither anybody prohibited them nor made demand of any sort. The land was unassessed, ditches and mounds, due to being their personal property late Muhammad Ali and others levelled it, incurred expenses and made it cultivable. If it was not their own property, they should have not incurred expenses and hardly worked thereto, thirdly that late Muhammad Ali and his son Ghulam Rasool remained in possession of land for such a long period, but in such a period neither maternal grandfather of Moulvi Ghulam Rasool, late Khan Muhammad made any demand or took share of produce nor maternal uncle of Moulvi Sahib, late Ghulam Muhammad made demand or elder son of maternal uncle, late Azizullah made demand. After passing such a long period made no claim from which it appears that it is the property of opponents Ghulam Rasool and others. After passing of such a period, the recent claim of Hakeem Jamal Khan and others is baseless in light of Shariat. Such explanation/reference is available in FATWA books of Sharia. {{ARABIC TEXT}} i,e, one person remained in exclusive possession of other person's land since long period and second person saw land and it's exclusive possession, but's land since long period and second person saw land and it's exclusive possession, but made no claim and expired away in such manners, hence, claim of such person's off-spring would be not heard and such land would be liable to remain in such a person because it would be evident that such property would be of the person in it's exclusive possession. The present situation is also a same when late Hafiz Khan Muhammad and his son saw exclusive possession of late Muhammad Ali and Moulvi Ghulam Rasool, but made not demand, hence, the claim of descendants Hakeem Jamal Khan and others would not liable to be heard, similarly after passing of long period, their claim would be liable to be unheard. {{ARABIC TEXT}} i,e, No claim of anybody up-to 33 years and thereafter subsequent claim-such claim would be liable to be unheard because it proves no right of claimant, otherwise, should have made demand in such a period. {{ARABIC TEXT}} In view of above facts and circumstances, it appears that the claim, of Hakeem Jamal Khan and others is not liable to be heard. {{ARABIC TEXT}} Bare perusal of above FATWA goes to show that at one hand Molvi says that he has decided it according to Shari'ah but at the same time the reasoning, given for such conclusion, reflects that such decision is result of influence of: (i)Firstly that gift deed and Khata stands in the name of Muhammad Ali and his son Moulvi Ghulam Rasool since long time, secondly that possession over the said land has been remaining with late Muhammad Ali and Moulvi Ghulam Rasool since about 40-years and used to enjoy the produce themselves.
(ii)During such a period neither anybody prohibited them nor made demand of any sort. The land was un-assessed, ditches and mounds, due to being their personal property late Muhammad Ali and others levelled it, incurred expenses and made it cultivable. If it was not their own property, they should have not incurred expenses and hardly worked thereto.
(iii)thirdly that late Muhammad Ali and his son Ghulam Rasool remained in possession of land for such a long period, but in such a period neither maternal grandfather of Moulvi Ghulam Rasool, late Khan Muhammad made any demand or took share of produce nor maternal uncle of Moulvi Sahib, late Ghulam Muhammad made demand or elder son of maternal uncle, late Azizullah made demand. After passing such a long period made no claim from which it appears that it is the property of opponents Ghulam Rasool and others.
(iv) The above, given -reasoning, leaves nothing to. doubt that it is not a FATWA because the Islamic law of inheritance does not recognize the question of limitation nor under the Shari'ah spending of money by one can be taken as a sword to deprive other from his legitimate right. Even otherwise, it is settled principle of law that "Fatwa" is not binding upon the Courts, such principle is laid down by the Federal Shariat Court, in the case of Muhammad & another u. The State, reported in SBLR 2007 FSC 135; wherein, in paragraph of 8, it is held that: "Lastly we may state here that no Fatwa of any religious scholor, Mufti, a juris-consultant is binding on a Court of law or any part and is of no legal effect, not enforceable under law, as he does not stand on the pedestal of a judge".
10. It would be significant to further add that course, provided by alternate dispute resolution or an attempt between the parties through course of Order XXIII, CPC, if succeeds the parties may come to F the Court with a legal compromise/settlement, which if legally endorsed by the Court (s), will become binding upon the parties under stoppel as provided under Article 33 of the Qanun- e-Shahadat Order, 1984.
11. In view of what has been discussed above made me of the view that FAISLA made by the Arbitrator cannot be termed to be an award. I am conscious that though it is not disputed that a consenting party is bound by its stand but simultaneously it is the legal duty of the Court to examine that such FAISLA must fulfill the requirement of equity, good conscious and stands well with principle of natural justice, because Court is the ultimate guardian of the rights of individual (s). In the instant case the FAISLA does not stand well with the principles of equity, good conscious, natural justice and even the reasoning given for conclusion of such FAISLA do not stand well with dictates of law, therefore, the parties cannot be forced to accept such FAISLA/Fatwa. It is worth to add here that whenever one is entrusted with an authority to make a decision (FAISLA) he comes with a sacred duty to exercise such discretion in a judicious, transparent, impartial and non- discriminate manner, reference can be made to the case of Citizen Foundation v. Director, SESSI as 2010 SCM R 1659.
12.As discussed above, it is manifest that the learned trial Court Judge has committed no illegality while directing the parties to lead their evidence so as to determine the issues legally, as provided in the Code. Moreover, this will provide a fair opportunity to both parties to prove their respective pleas hence there also comes no question of any prejudice or legal harm.
13.In view of above, instant civil revision application is devoid of merits; hence the same was dismissed by a short order dated 15th April, 2013.