1. This is a revision petition against the judgment and order of the learned District Judge, Peshawar dated 28-5-1983 whereby the petitioners' appeal against the judgment and decree of the learned Senior Civil Judge dated 18-4-1977 passed against them, was dismissed. Facts of the case giving rise to this revision petition briefly stated are that Haji Abdur Rahim, the predecessor-in-interest of the petitioners herein, through a registered deed dated 28-8-1974 allegedly gifted the suit property in favour of the petitioner herein. An objection was raised to the gift by Haji Abdul Fateh respondent herein. Both, the donor and Haji Abdul Fateh entered into an arbitration agreement on 4-11-1974 and two arbitrators were appointed by each side and reference was made to them for giving their decision over the dispute. The arbitrators gave their award on 4-12-1974. Haji Abdul Fateh made an application in the Court of Senior Civil Judge, Peshawar against Haji Abdur Rahim under section 14
(2) for making the award rule of the Court. Before Abdur Rahim could be served in those proceedings he expired and his L.Rs. Were brought on record or 2-6-1975. The L.Rs. Of Haji Abdur Rahim resisted the application, apart from other grounds, on the ground that the property in dispute stood transferred in their favour through a registered gift deed dated 29-8-1974, long before the arbitration agreement, therefore, the arbitration agreement and the reference both were illegal, void and were ineffective on their rights and in that case the award shall not be made rule of the Court. It was further stated that Haji Abdul Rahim did not enter into an arbitration agreement and if there was any agreement the same was cancelled. The learned trial Judge framed as many as six issues in the case and recorded evidence thereon, but ultimately he accepted the application and made the award rule of the Court, vide his judgment and order dated 18-4-1977. Dissatisfied with the same Haji Abdul Fatah went in appeal against it in the Court of District Judge, Peshawar who accepted the same set aside the judgment and order of the learned trial Judge and remanded the case for decision afresh in the light of the direction given therein. This judgment and order was challenged by Haji Abdul Fatah in revision in this Court. His lordship, Mian Burhanuddin, the then Chief Justice of this Court, did not agree with the finding recorded by the learned District Judge, set aside the order of remand and directed that the case be decided on merit. This order was challenged in the Supreme Court of Pakistan but with no success. After the remand the learned District Judge dismissed the appeal, vide his judgment and order dated 28-5-1983 which order is impugned in this revision petition.
2. It was contended by the learned counsel for the petitioners that both the Courts below misdirected themselves by ignoring the real controversy between the parties, namely, that the property having been gifted through a registered sale deed they were in their personal capacity interested in the property. That in their absence neither an arbitration agreement could be made nor the dispute could be referred to arbitration. That the award made or decree passed in terms thereof was illegal and without jurisdiction. The learned counsel in support of his contention based reliance on (Peddibhotla) Venkata Subbayya and another v. (Bhamidipati) Venkaramanayya (dead) and others (AIR 1930) Madras 646). The learned counsel for the respondents however, arguers that document on the basis of which the petitioners claimed to be the owners is in fact a will and not gift as the donor did reserve his right of ownership in the property and did not deliver underit to the petitioners herein, I have heard the learned counsel for the parties and have perused the record.
3. Unfortunately both the .Courts below did not apply their mind to the material questions raised in this case though here were specifically raised in writing in reply to the application made by respondents herein for making the award rule of the Court. Although the trial Court has passed some passing remarks on the evidentiary value of the registered deed but fell into error when he observed as follows:- "It is therefore, clear that the dispute between the parties infact started from the time of execution of the Tamlik Nama The evidence on record and the statement of RW.2 also shows that the petitioners along with his family are continuously living from the time they migrated from Bukhara and is still in their, possession. It clearly shows that the possession of the disputed house was never given to the present respondents and the deed was not practically acted upon. As the dispute arose between the parties, Haji Abdur Rahim, as the head of the family and the actual owner of the property, referred the matter to the arbitration. Although the authority of the arbitrators is generally limited to question in dispute between the parties in the manner referred, and they are not competent to make up in their investigation and determination other controversies wherein strangers to the dispute are interested but where are award is resulted from the proceedings so carried on, the Court cannot be called upon to invoke the aid of doctrine of reparability.
4. In the view expressed above by the learned Senior Civil Judge he abstained to decide the objections which were material for the decision of the case. Subsequently when the same question came up for decision before the learned District Judge, Peshawar and the same arguments were reiterated before him, he too did not advert it by making the following observations:- "There was no need of the present appellants to have been present at the time of arbitration in the presence of their father when he was alive. The real award is against Haji Abdur Rahim but the confusing aspect of the case is that it is contested by the heirs of Haji Abdur Rahim in their persona] capacity and not as the heirs as such. As a matter of fact they should have contested while defending the case of Haji Abdur Rahim but not in their personal capacity because at the time of arbitration they never figured anywhere particularly when the very gift in their favour was the subject-matter of the arbitration proceedings and when it is proved on record that the gift was invalid for lack of delivery of possession which is still with the opposite party."
5. Though the learned District Judge has referred to (Peddibhotla) Venkata Subbayya and another v.
6. Bhamidipati Venkataramanayya (dead) and others AIR 1930 Mad. 646-A, Kh. Muhammad Usman v.
7. Mst. Ghulam Fatima and other PhD 1967 AJK 14 and Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. PLD 1970 SC 43 but the same were held to be distinguishable on facts from the present case without discussing the points of distinction. It was not denied by the respondents herein that Haji Abdur Rahim did execute a registered deed which was termed as Tamlik Nama in respect of the disputed property in favour of the petitioners herein which gave rise to the present dispute but the beneficiaries of the deed were never associated with dispute. No doubt they being heirs of Haji Abdur Rahim were bound by the agreement culminating in the decree, but they had a distinct and independent status of their own and had personal interest in the property as beneficiary under the deed. The question raised by them, therefore, required legal determination by the Courts below in accordance with law. The Courts below were wrong in holding that Abdur Rahim being the elder of the family was competent to act on their behalf even in respect of the suit house if the house stood transferred in favour of other members of his family.
8. In AIR 1930 Mad. 646 when an objection was raised for they first time in revision, that some of the parties interested in dispute not being parties to reference, the award given therein was illegal, it was allowed to be raised as the objection related to the jurisdiction of the Court. Keeping in view the principle laid down in the case cited above. The learned Senior Civil Judge having passed decree in favour of the respondents' regarding the property which the petitioners r7 claimed to belong to them and they having not been made party to the arbitration agreement and reference, the objections raised by the petitioner were to be decided in accordance with law.
9. In this view of the matter, I accept the revision petition, set aside the judgments, decrees and orders of both the Courts below and remand the case to the learned Senior Civil Judge for determination of the petitioners objections in their capacity as heirs of Abdur Rahim and in their personal capacity as donees, with all other connected[ questions raised in the proceedings. The parties are left to bear their own costs.