' NAiMUDDIN, J.-This intra-Court appeal under section 15 of the Law Reforms Ordinance, 1972, is from the order of a learned Single Judge of this Court passed on original side in the following circumstances.
2. Respondents Nos. 1 to 8 filed a suit, being Suit No. 160 of 1981, against the appellant and two others for possession of Survey Nos. 602 to 608 and 611 and Mohaga land in Deb Malh, Tapo Konkar, Taluka and District Karachi, rendition of accounts and mesne profits.
3. The suit was compromised on the terms contained in the compromise application under Order XXIII, rule 3, C. P. C. And the suit was decreed by the order dated 7-4-1981, in terms thereof so far as the respondents and the appellant are concerned. The material terms thereof are as follows :- "(l) That the plaintiffs agree to transfer to the defendant No. 1 fifty paisa proprietary share in the survey numbers where mango trees are growing.
(2) That this Honourable Court be pleased to appoint Nazir as Commissioner to ascertain the survey numbers of the land, where mango trees are growing and to prepare scheme for demarcating and assigning the respective portions of the said Mango land on fifty-fifty basis to the plaintiffs and the defendant No. 1.
(3) .
(4) That except the above described mango land for which the demarcation procedure has been stated in the foregoing paras. The defendant No. Shall immediately hand over possession of the remaining land in suit which also includes the land where Jam Phall trees are growing to the plaintiffs excluding Mohaga land, the cattle shed, the house and the well for which provision has been made hereunder :-
(5) That this Honourable Court be pleased to appoint an Arbitrator to give his award on the following issues :-
(a) Whether the defendant No. 1 is entitled to any compensation for Jam Phall trees grown under the agreement, dated 17-4-1961 made between late Muhammad Siddiq and the defendant No. 1 7
(b) . . .
(c) Whether the house and cattle shed are constructed by the defendant No. I on the Kabuli land and on how much area ? If so, the plaintiffs and defendant No. Do hereby agree that the defendant No. 1 will be entitled to retain the same if he surrenders to the plaintiffs equivalent area out of his shares of the mango land.
(6) That the plaintiffs and the defendant No. 1 shall be entitled to utilize the well during the interim period and bear the expenses proportionately.
' It may be mentioned that the suit against defendants 2 and 3 was withdrawn.
4. Pursuant to clause 2 of the compromise decree the Nazir was appointed as Commissioner to ascertain survey numbers of the land where mango trees are grown and to prepare scheme for demarcation and assigning the respective portions of the said mango land on fifty-fifty basis to the appellant and the respondents. The Commissioner submitted his detailed report dated 30-8- 1981, whereby he found that the total area of Surveys Nos. 602 to 608 and 611 was 35 acres and 35 Ghuntas, the total area of mango land was 13 acres and 8 Ghuntas and the house was constructed partly on Survey No. 608 and partly on Mohaga land covering an area of 0.14, Ghuntas of Survey No.
608. He purporting to act in terms of clauses (1) and (2) of the compromise decree reproduced hereinbefore proposed to assign to the appellant 6.12 acres of Survey No. 608 and 0.12 Ghuntas from the adjacent Survey No. 602 as shown by him in the sketch and remaining land of Survey Nos.
602 (1.26 acres), 603, 604, 605, 006 and 607 to the respondents. The sketch filed by him shows that the land bearing Surveys Nos. 604 and 611 has no mango trees on it.
5. The appellant filed objections to the Nazir's report wherein it was submitted that the Nazir had not carried out the order of the Court inasmuch as Survey Nos. 602, 603, 605, 606, 607 and 608 where according to the survey report mango trees are grown should have been considered as mango land. He claimed that out of 35 acres and 35 Ghuntas, 31 acres 22 Ghuntas was the land where mango trees are growing and it should have been divided and assigned on fifty-fifty basis.
Before the learned Single Judge the following two objections were raised :- "(1) That the plaintiffs agree to transfer to the defendant No. 1 fifty paisas proprietary shares in the survey numbers where mango trees are growing.
(2) That this Honourable Court be pleased to appoint Nazir as Commis. Sioner to ascertain the survey numbers of the land, where mango trees are growing and to prepare a scheme for demarcating and assigning the respective portions of the said mango land on fifty-fifty basis to the plaintiffs. And the defendant No. 1."
6. We are however, here concerned with second objection. The learned Single Judge has dealt with this objection in paragraph 9 of the order as follows :- "9. As regards objection No. 2, the contention of defendant No. 1 is that the land should have been divided and demarcated in terms of paragraph 1 of the preliminary decree on the basis of survey numbers and not on the basis of the area of the mango land. The precise objection pressed by Mr. G. A. Brohi, the learned counsel for defendant No. 1 was that Survey No. 602, the total area of which is 6 acres and 23 Ghuntas, has been divided in such a manner that only 1 acre and 38 Ghuntas has been treated as mango land, whereas according to him on the other portions of the said Survey No. 602, several mango trees also exist. The Nazir has, in his Report, explained that the land on which mango trees were grown consisted of portions of several survey numbers, but it was in one piece where no other trees except the mango trees were grown. He, therefore, made measurement of the mango tree land, and proceeded to make the demarcation, so as to assign the share on fifty-fifty basis to the plaintiffs and defendant No. 1.
' In my opinion, the procedure adopted by the Nazir was correct and is supported by the further direction contained in paragraph 2 of the preliminary decree/consent application, wherein it was provided, as already noted above, that the Nazir, after ascertaining the survey numbers of the land, where mango trees were growing, shall prepare a scheme for demarcating and assigning the respective portions of the said mango land on fifty-fifty basis by the plaintiffs and defendant No. 1."
' Accordingly, the learned Single Judge accepted the report of the Nazir.
7. Aggrieved by the aforesaid order, as already stated, the appellant has filed the present appeal.
8. We have heard Mr. Yousuf Rafi learned counsel for the appellant and Mr. Ahmed Saeed Qureshi learned counsel for the respondents.
9. M. Yousuf Rafi has submitted that the report of the Nazir is not in accordance with clause 1 of the compromise decree wherein the respondents have agreed to transfer to the appellant 50 Paisas proprietary share in the survey numbers where the mango trees are growing. He submitted that the sketch submitted by the Nazir alongwith the report shows that mango trees are growing on Surveys Nos. 602, 603, 605, 606, 607 and 608, the total area of which comes to 31 acres and 22 Ghuntas and accordingly he should have divided the same in two equal portions, but the Nazir has taken into consideration for the purpose of division only those portions of survey numbers over which the mango trees are growing and has excluded from consideration not only Surveys Nos.
604, 611 over which no mango trees are growing but also other portions of Survey Nos. 603, 605, 606 and 607 where mango trees are growing which is not in accord with clause 1 of the compromise decree.
10. On the other hand, the learned counsel for the respondents submitted that the land of such survey numbers over which the mango trees are growing was agreed to be divided in equal share and not the entire survey numbers over which mango trees are growing and further in terms of clause 4 of the compromise decree the land under Gova trees was to be excluded. He therefore, urged that the division of the land by the Nazir was in accordance with the decree.
11. Now, therefore, the first question for consideration is whether the entire land of such survey numbers over which the mango trees are growing was agreed to be divided in equal share or only those portions of survey numbers over which mango trees are growing were agreed to be divided equally between the appellant and the respondents.
12. In this regard we find the provisions of clause 1 the compromise decree quite clear and they admit no ambiguity. We have already quoted the relevant clauses. Clause 1 speaks of transfer to the appellant 50 Paisas proprietary share in the survey numbers where mango trees are growing and not in the portion of survey number where mango trees growing. Therefore, the land to be divided is of those survey numbers over whicn the mango trees are growing with the exception of the land of survey numbers over which Guava trees are growing which is the subject-matter of clause 4 of the compromise decree, and not only the land over which mango trees are growing.
13. It is however, argued by Mr. Ahmed Saeed Quresbi that it is provided in clause 2 of the compromise decree that the mango land is to be allotted on fifty-fifty basis to the appellant and respondents but the learned counsel fails to notice that even in this clause the Nazir as Commissioner was required to ascertain the survey number of the land where mango trees are growing and not the area of land where mango trees are growing. Indeed the provision of this clause leave us in no doubt whatever, that what was intended to be divided on fifty-fifty basis was the land of those survey numbers over which mango trees are growing. Mr. Ahmed Saeed Qureshi has also ought support of his argument that only the land over which the mango trees are growing was intended to be divided from the provisions of sub-clause (c) of clause 5 wherein the arbitrator is required to give his award on the questions whether the house and the cattleshed were constructed by the appellant on Kabuli land and on how much area and whereby it is agreed that if it is found to be so by the arbitrator, the appellant would be entitled to retain the same, if he surrenders to the respondent equivalent area out of his share of the mango land. He emphasis the word, `mango land' used in this clause. However, these words have to be understood in the context of clauses 1 and 2 of the compromise decree whereby the land of those survey numbers where mango trees are growing are to be divided.
14. We may here refer to the following main rules of construction applicable to contracts as well laid down by Sir Howard Elphinstone in his book "Conveyancing" 3rd Ed., page 29, and Law Quarterly Report, page 446 : First.-When the words in an instrument are in their Primary meanings unambiguous, and when such meanings are not excluded by the context, and are sensible with respect to the circumstances of the parties to the instrument at the time of execution, such primary meanings must be taken to be those in which the parties used the words.
' Second.-Extrinsic evidence is admissible for the purpose of determining the primary meanings of the words employed, and for no other purpose whatever.
' Third.-Where the primary meaning of a word is excluded by the context, we must affix to that word such of the meanings as it may properly bear, as will enable us to collect uniform and consistent intentions from the whole instrument."
15. The first rule of construction stated above is attracted to the present case inasmuch as the words used in clauses I and 2 are in their primary meaning clear and unambiguous and are not excluded by the context.
16. We are however, not prepare to accept the claim of Mr. Yousuf Rafi that the land over which Guava trees are mainly growing is also to be included in the land to be divided on fifty-fifty basis as under clause 4 of the compromise decree such land is expressly excluded and that has to be read as an exception to the terms of clauses 1 and 2 of the compromise decree. Accordingly, only those portions of the land of Survey Nos. 602 and 603 over which mango trees are growing have to be included in the land which is to be divided between the appellant and the respondents on fifty- fifty basis.
17. The view that we have taken does avoid any conflict between the provisions of clauses 1 and 2 on the one hand and clause 4 for it is rule ofI 8 interpretation of statute which can also safely be applied to interpretation of documents that the conflict between one section or one clause and another as, far as possible should be avoided ; See Abdur Rahim and others v. The State (1).
18. In the result we hold that the land bearing Survey Nos. 604 and 611 which are barren lands and the portion of Survey Nos. 602 and 603 under Guava trees should have been excluded and the rest of the land should have been divided between the appellant and respondents on fifty-fifty basis.
Since this has not been done by the Nazir we would accept the objection to the Nazir's report to the extent indicated above and thus partly accept the C appeal accordingly, modify the order of the learned Single Judge and direct the Nazir to prepare a fresh scheme as provided in clause 2 of the compromise decree in accordance with the observations made hereinabove and submit his report. The report when prepared will be submitted to learned Single Judge on the original side and it will be open to the parties to file their objections, if any, to the same.
19. The parties are left to bear their own costs.
(1) PLD 1967 Dacca 459