' SHAHAB SARKI, J.--- The petitioners are aggrieved by judgment passed in Civil Revision No.15 of 2011 dated 23-8-2011.
2. Brief facts of the case are that the petitioners and respondent No.1 are brothers and sister inter se. Their father late Ghulam Nabi Qureshi purchased property bearing City Survey No.D 1200, Dhak Road, Sukkur in the year, 1980 from the Settlement Department. The father of the petitioners expired in the year, 2004 and thereafter on 17-6-2006 the subject property was duly mutated in the names of the petitioners and respondent No.1, being legal heirs, by Survey Office, Sukkur.
3. That thereafter there was a dispute between the parties regarding the claim of ownership whereby the petitioners filed the Suit bearing No.30 of 2008 for Partition, Possession, Mesne Profit and Injunction and the respondent No.1 also filed a Suit bearing No.155 of 2008 for Declaration and Permanent Injunction.
4. That in Suit No.155 of 2008 an order was passed on 26-3-2009 whereby both the parties agreed to settle their dispute out of the Court in presence of Nekmard/Arbitrator Mufti Muhammad Ibrahim Qadri and the matter was referred to him. The said Nekmard/Arbitrator heard the parties and on 13-8-2009 sent his 'Shariah Advise/Fatwa' to the 1st Senior Civil Judge, Sukkur. At the bottom of the said 'Shariah Advise/Fatwa' a note of said mufti states that he has given suggestions as per his understanding of the Shariah points involved and has elaborated the dispute according to Shariat.
He has further noted that he is very busy and does not have time to write more.
5. That thereafter on 4-6-2010 the suit of the respondent No.1 was dismissed under Order VII, Rule 11(c), C.P.C. On account of repeated non-compliance of the Court's directions to deposit the court- fee. This order was never challenged by the respondent No.1.
6. That the suit filed by the petitioners was duly contested and some evidence was recorded. On 15-12-2009, with the consent of all the parties and their counsel, a consent preliminary decree was ordered to be passed. Whereafter on 17-12-2009 the said preliminary decree was passed and the City Survey Officer, Sukkur was appointed as local Commissioner to give a report about the possible partitioning of the property amongst the legal heirs.
7. That thereafter the matter was argued on 14-1-2011 and the counsel for the respondent No.1 submitted that the report of Mufti Muhammad Ibrahim Qadri be treated as an award and be made a rule of the Court since it is an arbitration award. The counsel for the petitioners conversely argued that Suit No.155 of 2008 stands dismissed and therefore no award could be passed. It was further argued that a preliminary decree has already been passed by this Court on 17-12-2009 by consent and the same has attained finality. It was also argued that since the procedure under section 23 of the Arbitration Act, 1940 was not followed, therefore, there is no arbitration and consequently no award in the field. The learned trial Court after hearing the parties held that no award is in the field and the report filed in Suit No.155 of 2008 has no legal validity and that the parties are bound to follow the preliminary consent decree.
8. That the order dated 14-1-2011 was impugned in Civil Revision No.15 of 2011 and vide impugned order dated 23-8-2011 the order dated 14-1-2011 was set aside and the alleged award dated 13-8- 2009 was made the rule of the Court.
9. The respondent No.1 was duly served and entered his appearance for the first time on 22-10-2013 and sought some time to engage a counsel. Over the past 11 months the respondent No.1 either sought time or remained absent from proceedings. Today, the son of respondent No.1 is present and again seeks time to engage counsel and without any cogent reason.
10. We have, however, been able to examine the material available on record with the assistance of the petitioners' counsel as well as learned Assistant Advocate-General.
11. At the very out-set we would like to discuss the so-called arbitration and his report. Vide order dated 26-3-2009 Mufti Muhammad Ibrahim Qadri was sent the matter to resolve the dispute between the parties. Neither was he given any terms of reference nor any specified time frame.
Said Mufti has not followed any of the procedure prescribed under Arbitration Act. No issues were determined and no evidence led. We have also noted that the title of the report reveals 'Shariah Advise' and it is in the form of 'Fatwa' and therefore it cannot be called an award by any stretch of imagination. Even otherwise after the said report was sent to the trial Court, no efforts were made by the respondent No.1 to make it a rule of the Court and on the contrary his suit was dismissed under Order VII, Rule 11(c), C.P.C. Against which no appeal was preferred. Subsequent to this effort by the parties to resolve the dispute a consent preliminary decree was passed on 17-12-2009 against which no appeal has been filed and therefore the same has attained finality. Even if the said 'Shariah Advise' is considered as 'Fatwa' for the sake of an argument, the same cannot be relied upon unless its author/signatory is produced in Court and subjected to cross-examination and the entire circumstances are duly brought into his knowledge. In this regard we are fortified by a Division Bench Judgment reported in 2009 M LD 616, Niaz Ahmed v The State.
12. Another aspect of the case is that the respondent No.1 never raised any objection when the subject property was duly mutated in the names of the petitioners and respondent Non on 17-6- 2006. The preliminary decree is nothing but it is an order to distribute the subject property amongst the legal heirs of the deceased and is also in consonance with the record or rights of the parties.
13. In view of the above discussion, we hold that the impugned order is not based on sound legal reasoning and is based upon misreading of record. Resultantly, this petition is allowed and the impugned order dated 23-8-2011 passed in civil revision is set aside. There shall be no order as to costs.
14. Petition stands disposed of in above terms along with listed application.