Rasaal Hasan Syed, J. This civil revision stems from order/judgment/decree dated 29.4.201 1 of the learned District Judge, Toba Tek Singh, in terms whereof the appeal of respondent No.1 was accepted, order/judgment/decree of the trial court was set aside and Award dated 15.5.2000 was made a Rule of Court; in result, a decree in terms thereof was passed.
2. Facts as are material for the decision of this petition are that the respondent No.1 filed an application for making Award dated 15.5.2000 a Rule of the Court. The application was contested by the petitioner who also filed an application under section 33 of the Arbitration Act, 1940 (the "Act") for setting aside of the Arbitration Agreement as also the Award dated 15.5.2000. These applications were consolidated, issues were framed, and evidence was recorded. The learned Civil Judge, Toba Tek Singh accepted the application of petitioner under section 33 of the Act and dismissed the application of respondent No.1 for making the Award a Rule of Court vide judgment/order dated 21.12.2010. Appeal filed by the respondent against the said order/judgment was accepted by learned District Judge, Toba Tek Singh. In result the application under section 33 of the Act filed by the petitioner was declined while the application of respondent No. 1 for making the Award dated 15.5.2000 a Rule of the Court was allowed and a decree in terms thereof was passed. In the instant petition, the order/judgment/decree of the Court of Appeal dated 29.4.201 1 is under challenge.
3. Learned counsel for the petitioner inter alia submitted that the impugned order is based on misreading and non- reading of evidence; the petitioner never appointed any Arbitrator nor ever agreed for Arbitration proceedings; that the Award was collusive, without jurisdiction and a result of fraud which could not be made a Rule of the Court; that the disputed shop was owned by Municipal Committee Toba Tek Singh which could not be a subject-matter of partition; that the local Government/Municipal Committee sold the shop much later and that the shop/property was neither in the ownership of petitioner nor of Muhammad Ramzan on 15.5.2000 and that the Award was based on false assumptions. It was added that the petitioner came to know of the Award only when the respondent No. 1 wanted him to sign a conceding statement without reading it and when he insisted on reading its contents, it transpired that a fraud had been committed as the petitioner never appeared before the alleged Arbitrators nor ever filed any claim, reply to claim or any other pleadings or any evidence and that one-half share of the house belonging to Muhammad Ramzan was alienated by way of gift in favour of the petitioner on 13.5.2000 and, being so, the whole award was baseless and untenable; and that Muhammad Ramzan being not privy to the alleged disputed Arbitration Agreement, the Arbitrators illegally claimed to have assumed jurisdiction in respect of his property . Contrarily , learned counsel for the respondents supported the impugned judgment/order and claimed that the proceedings were conducted with consent of parties and that the Award reflected the real intent of the parties' father who had decided to divide the properties in the manner as declared by the Arbitrators and that the petitioner 's objections to the Award were legally unsustainable which were rightly rejected.
4. Deeper consideration of the pleadings and evidence on record of this petition shows that in response to the application of respondent No.1 for making the Award dated 15.5.2000, Rule of Court, the petitioner filed an application under section 33 of the Act seeking annulment of the Arbitration Agreement and also the Award on the plea that he had never entered into any agreement for the Reference of dispute nor ever appointed any Arbitrator; and that the entire stance of the alleged Reference to the arbitration or for a decision of the Arbitrators, was nothing but a false concoction based on fraud and that the Award was improperly procured which was invalid. It was also his case that prior to the said applicatio n civil litigation was pending between the petitioner and the Municipal Committee wherein respondent No.1 was also a party and that having trust in his brother Shaukat Ali, the petitioner had been affixing his thumb-impression on certain blank papers on the representation of respondent No.1 that the same were required for filing some applications or pleadings in the said case and that respondent No.1 fraudulently misused those blank papers to fabricate the alleged Arbitration Agreement and also the Award. In view of the claim of respondent No.1 as to the Arbitration Agreement and of parties having agreed to appoint the Arbitrators or that there was a Reference to respondent Nos. 3 and 4 as Arbitrators and that the said respondents did assume jurisdiction or held any hearing and thereafter announced an Award, the foundational duty of respondent No.1 was to prove the existence of Arbitration Agreement and a valid Reference.
5. In this context respondent No.1 produced in evidence Exh.A-1 in terms whereof it was allegedly claimed that Haji Muhammad was appointed as Arbitrator of Shaukat Ali, respondent No. 1, while Nazir Ahmad allegedly appointed Haji Muhammad Akbar vide Exh.A-3 as his Arbitrator . Perusal of Exh.A-1 and Exh.A-3 reveals that the same were allegedly prepared and thumb-marked on 15.5.2000. Exh.A-1 and Exh. A-3 do not show that the same were witnessed by any person as no person has been reflected as a marginal or attesting witness of the documents.
Respondent No. 1 was not only to prove the execution but also the alleged agreement of appointment of Arbitrators i.e., the contents of the documents. In this regard Mushtaq Ahmad AW-3 was produced who deposed that the stamp-paper No. 4953 on which Exh.A-1 was prepared and the stamp paper of Faisla Salsi Exh.A-2 as well as Exh.A-3 were purchased from him. As regards Exh.A-1, the witness deposed that it was purchased by Nazir Ahmad and that the document Exh.A-2 i.e., Faisla Salsi bore the thumb-impressions of Shaukat Ali as also Nazir Ahmad petitioner . Curiously however in his cross-examination he admitted that he did not personally know either the petitioner Nazir Ahmad or the respondent Shaukat Ali and that at the back of stamp paper or in his record, there was no entry of CNIC numbers of the alleged purchasers and that at the time of purchase of stamp papers he did not obtain identification from anyone and that all the three persons who came to him for the purposes of purchase of stamp paper were not personally known to him. In view of his admission that he did not know the parties personally , he could neither prove the sale of stamp paper to petitioner Nazir Ahmad nor could he prove the identification of the purchaser from his record and, being so, his testimony was hardly relevant for proving the purchase of stamp by the petitioner or respondent No.1 or the execution of Exh.A-1 and Exh.A-3.
6. The other important fact in this case was that the alleged stamp papers Exh.A-1 and Exh.A-3 by which the appointment of Arbitrators was claimed and also the stamp paper of Faisla Salsi Exh.A-2 are of the same date i.e., 15.5.2000. It strikes as rather strange that on the same day the stamp papers for appointment of Arbitrators were allegedly purchased and that on the very same day the decision of the Arbitrators was also allegedly announced.
Respondents Nos. 3 and 4 did not produce any record of proceedings, if ever recorded by them, and simply banked upon the alleged decision Exh.A- 2. The contents of the document show that in Exh.A-3 which was claimed from Nazir Ahmad, it is alleged that there was a dispute between the two brothers in respect of the house in Mohallah National Bank, Street Lakkar Mandi, bearing No. 442 and shop No. 03/121 and that the father of the alleged executants had made a Khangi Taqseem and distributed the rights in terms thereof and in respect of those rights a dispute had arisen and, therefore, Sardar Muhammad son of Khushi Muhammad was being allegedly appointed as Arbitrator . This document also does not bear the name of any witness, nor is it witnessed by anyone.
The three documents Exh.A-1 to Exh.A-3 are drafted on a stamp paper allegedly purchased from Mushtaq Ahmad AW-3 who, as mentioned above, admitted that he did not know either Nazir Ahmad or Shaukat Ali personally nor had he got any identification of any other person and that his record did not reflect CNIC numbers of any of them.
7. In the peculiar circumstances, the learned Civil Judge rightly considered the genuineness of documents to be suspect as the same were not proved by any admissible or credible evidence. Till such time that respondent No. 1 could prove that there was a valid Reference by appointment of Arbitrators i.e., respondent Nos. 3 and 4, the entire super structure standing on the plea of alleged Reference shall fall aground. Even otherwise the circumstances were extremely dubious as on the same day three stamp papers were purchased; two were used for Reference while the third one was used for drafting of Award. In cross-examination of the statement of Sardar Muhammad as AW-2, it was admitted by the witness that Faisla Salsi was drafted by Muhammad Ashraf who was clerk of a lawyer and that his reply to the application for making the Award a Rule of Court was also drafted by the same clerk Muhammad Ashraf who was stated to be the clerk of Safdar Ali Khathran, Advocate, counsel for the opposite party . He admitted that on the back of the stamp paper which was used for drafting Faisla Salsi his name did not appear as a purchaser . He however claimed that after the death of the mother of petitioner there was a dispute between the brothers and that the neighbors patched up the dispute, Panchayat was held for one year wherein he was the Arbitrator for Nazir Ahmad while Haji Muhammad was appointed by Shaukat Ali and that both the Arbitrators gave half hour each to the sons-in-law of the parties for decision and after half an hour when they turned up they claimed that the decisio n of their paternal grandmother was acceptable and, thereafter , the Arbitrators went to the kutchery to meet Muhammad Ashraf Clerk who drafted the Faisla Salsi .
8. In the Faisla Salsi Exh.A-2 the alleged Arbitrators had claimed that there was a dispute of partition and that with the consent of parties' father and also the parties themselves, they had given the decision by which half of the house was given to Nazir Ahmad while shop Nos. 03/121 and 03/122 were to be retained by Shaukat Ali. In the whole Award there was no mention of any involvement of the sons-in-law . All these factors cast serious question upon the validity of the Reference and the pronouncement of the Award. Even the statements of respondent Nos. 3 and 4 were dif ferent from what had been recorded in Exh.A-2.
9. It is clear from the documents and also and also admitted by respondent No.1 that house No. 442, Mohallah National Bank, Street Lakkar Mandi, Toba Tek Singh was owned by Muhammad Ramzan, father of the parties, who was not party or signatory to the Arbitration Agreement relied upon by respondents. Being not a privy to the Arbitration Agreement, Arbitrators could not assume jurisdiction to settle any question of title qua the property of Muhammad Ramzan. In view of this inherent jurisdictional defect, the entire proceedings for alleged Award stood vitiated. The house in question being the ownership of Muhammad Ramzan, the petitioner or for that matter respondent No. 1 had no proprietary right therein. Being so, respondent No. 1 could not claim a dispute of partition in respect of the property which according to his own stance was neither owned by the petitioner nor by the respondent No.1. The dispute of partition could only be between the co-sharers in the property and not between strangers and the real owner . In the instant case respondent No. 1 not being a co-sharer in the property , the question of having any dispute with respect to partition thereof could not arise let alone to make a Reference to Arbitration and, thereafter , to get an Award from the Arbitrators. Even otherwise Muhammad Ramzan being the owner was absolutely competent to trans fer his property by way of gift or by sale in favour of any or all of his sons and for this he had no need of any declar ation or pronouncement of the Arbitrators . As per respondent' s claim, the Award was for the transfer of half portion of the house in favour of the petitioner and the other half for the third son Abdur Rasheed. Perusal of the record shows that Muhammad Ramzan had three sons namely Abdur Rasheed, Nazir Ahmad (petitioner) and Shaukat Ali (respondent No.1). The Arbitration Agreement was statedly made on 15.5.2000 while Muhammad Ramzan had already gifted one-half of his house in favour of Abdur Rasheed vide registered document dated 03.5.2000 Exh.A-10 and the other one-half of the house was gifted by him in favour of the petitioner Nazir Ahmad vide registered gift deed Exh.A-1 1. Stamp paper of Exh.A- 11 was purchased on 11.5.2000, it was executed by Muhammad Ramzan on 13.5.2000 and was entered into the register of the Sub Registrar on 15.5.2000.
10. Under section 47 of the Registration Act, 1908 the document operates from the date of its execution inter se the parties i.e., the date from which the parties intended it to operate and not from the date when it is entered in the register of Registrar . It is thus plain that Muhammad Ramzan had already made a gift to the effect from 13.5.2000 as noted supra while the Award was alleg edly made on 15.5.2000. Therefore, the assertion that it was a result of the Award appears to be factually incorrect particularly when the document Exh.A-10 or Exh.A-1 1 do not give any such impression. It appears that in November 2000, a suit for declaration to challenge the gift was filed by Muhammad Ramzan. Perusal of the plain t shows that as a matter of fact the father having a soft corner for his son Shaukat Ali or under his influence, instituted a civil suit to create evidence to support the stance of alleged decision by the Arbitrators; otherwise, the gift deed Exh.A-1 1 dated 13.5.2000 does not support the plea taken in the plaint as afterthought.
11. Another vital fact as also noted by the learned Civil Judge, was that shop No. 03/122 was not owned by the petitioner at the time of alleged Arbitration. Rather it was the property of Municipal Committee and civil litigation was pending in respect thereof in which the Municipal Committee was a party . Ownership being vested in Municipal Committee, it is surprising that the respondent claimed that in terms of the Award he was declared to be entitled to the transfer the ownership of shop which at that time did not vest in the petitioner . Obviously without the consent or permission of the real owner neither rights could be assigned, nor any third person could be transferred the permissive right of occupation without the prior written permission of the Municipal Committee. It could be only after impleadment of Municipal Committee and hearing the said authority that any determination could have been made which was not the case at hand. The Arbitrators did not give any reason as to how they could assume jurisdiction firstly in respect of the property that did not belong to the petitioner or respondent or in respect of the shop which was not owned by the petitioner and was still the ownership of the Municipal Com mittee which was not a party to the so-called Reference. In view of the reasons supra, the alleged Award could not be approved by the court which was not a result of any valid Reference and was invalidly and improperly procured.
12. Due consideration of the order passed by the learned Civil Judge reveals that while rejecting the application of the respondent No. 1 for making of Award dated 15.5.2000 Rule of Court the learned Civil Judge analyzed the entire evidence on record and thereafter observed that as per respondent, there was a dispute about the partition of shop No. 03/122 allotted to Shaukat Ali respondent No.1 and shop No. 03/121 allotted to Nazir Ahmad petitioner and residential house No. 442, Mohallah National Bank, Street Lakkar Mandi, Toba Tek Singh and in so far as shop No. 03/122 was concerned the same was allotted to Shaukat Ali and according to the stance in the evidence it had already been sold 15 to 16 years back. Therefore the question of any dispute about its partition or making it a part of Reference let alone to pronounce the verdict in terms of Award in respect of the shop, was not understandable which also raised serious question as to the validity of the Award.
13. It was observed that the evidence of Shaukat Ali respondent was contradictory and discrepant. Evidence was found to be self-contradictory . It was noted that AW-7 the son of Muhammad Ram zan deposed that his father did not participate in the Arbitration decision/ Faisla Salsi . Muhammad Ramzan while appearing as AW-4 in response to a question stated that he did not remember "which son appointed which Arbitrator" but admitted the gift of one-half share of the property in favour of Nazir Ahmad petitioner . Another fact noted was that AW-7 Abdur Rasheed son of Muhammad Ramzan damaged the entire case of respondent No.1 by introduc ing a narrative contrary to the contents of the respondent' s application while deposing that in the intervening night of 1 and 2 May 2000 division of the house and the shop was made orally and then Nazir Ahmad turned dishonest whereafter stamp paper dated 15.5.2000 was executed. As regards shop No. 03/122 it was observed that the shop was subject matter of a pending litigation; civil suit between the parties and the Municipal Committee was still pending and that the matter had come up to this Court and that the property basically was owned by the Municipal Committee and only Teh Bazari rights existed with the petitioner and, therefore, without permission of the court, the issue of alleged ownership could not possibly be determined during the pendency of suit.
14. For all the reasons mentioned supra the learned Civil Judge allowed the applic ation under section 33 of the Act and dismissed the application of respond ent for making the Award Rule of the Court. Learned District Judge, in appeal, illegally ignored those reasons and also the contradictions in the evidence of respondents and proceeded to interfere in the order of the court below on perfunctory reasons, by assuming that the petitioner having not denied his thumb-impression on the alleged agreement and Muhammad Ram zan AW-4 having appeared as witness and supported the settlement of dispute between his sons by the Arbitrators, there was no reason to consider the other evidence. The approac h of the learned District Judge was in violation of law in so far as it was ignored that respondent No.1 had been unable to prove the execution of the document Exh.A-3 or of the appointment of the Arbitrator by the petitioner or of any valid reference to respondent Nos. 3 and 4 on account of the facts noted supra and that the Award of the Arbitrators was improperly procured and was illegal and invalid.
15. Bare reading of Exh.A-1 to Exh.A-3 proved beyond doubt when considered in the light of the evidence on record and established that shop No. 03/122, which was allotted to respondent No.1, had already been sold by him. Shop No. 03/121 was not the ownership of Muhammad Ramzan or for that matter respondent No.1 and the parties to the alleged Reference did not own the house in question which belonged to Muhammad Ramzan who was not privy to the Arbitration Agreement. There could be no possibility of any dispute between the petitioner and respondent No.1 in respect of the three properties which were independently held. Municipal Committee was never a party to the proceedings; Muhammad Ramzan had already gifted one-half of the house in favour of third son Abdur Rasheed and also gifted the remaining one-half in favour of the petitioner vide gift deed dated 13.5.2000 and in view thereof there was hardly any dispute that could require Reference for adjudication; statements of the Arbitrators as well as the contents of Award were also discrepant. The interference made by the learned District Judge in the well-reasoned judgment of the learned Civil Judge, suffers from serious error of law and jurisdiction, misreading and non-reading of important evidence and non-consideration of the material facts noted supra and, as such, the same cannot be countenanced.
16. As upshot of the above, present revision petition is allowed ; impugned order/judgment/decree dated 29.4.201 1 of learned District Judge, Toba Tek Singh, is set aside and the order/judgment dated 21.12.2010 of the learned Civil Judge is restored. In result, the application of the petitioner under section 33 of the Act stands accepted while the application of the respondent No.1 for making Award dated 15.5.2000 a Rule of Court, will remain dismissed.
Parties shall bear their own costs.