In this petition under Article 199 of the Constitution the legality of the order dated 10-4-1982 of the learned Chairman, Tribunal Land Dispute Dir, Swat and Chitral (respondent No.5) has -been challenged and it is prayed that the said order may be declared as illegal and without lawful authority. The relevant facts which necessitated filing of this petition are briefly listed as under.
2. Petitioners claim ownership of 10 chakorams/Jaribs of land situated in village Booni of Tehsil Mastuj, District Chitral and describe Mst. Masthani respondent No.4 as their tenant of this land. It' is alleged that a dispute which arose in this respect was decided by EA.C. Mastuj in favour of the petitioners. Subsequently the Judicial council through very elaborate report recommended that the respondents should be allowed to retain possession of this property as tenants and this report was approved by, the Deputy Commissioner in appeal instituted by respondent No.4 who allowed the said respondents to remain in possession of the property in question on payment of half `Batai' which is to be paid regularly against a receipt. This order was challenged in second appeal but with no positive result, however, in revision the Deputy Secretary Home set aside all the above orders and directed to approach the Officer on Special Duty for adjudication of their dispute if they so desired. Respondent No.4 then approached Assistant Commissioner Chitral for her claim of ownership over the disputed property but even in this second round of litigation she was declared tenant of this property and was ordered to pay half share of the produce or in default to vacate the land. Appeal against this order was dismissed in limine by respondent No.2. These orders were impugned in revision before Federal Land Commission which was heard on 25-8-1976 by a learned member of the Commission but the case was adjourned to 6-10-1978 as it was felt that the record of the case would be necessary for just decision and accordingly it was ordered that the relevant record should be made available on the next date. However, on 26-8-1976 the alleged compromise was submitted by the counsel for the parties before the learned Member but the same day when Mr. Abdul Hakim a son of petitioner No.2 came to know of this compromise he approached Mr. Amir Gulab Khan Advocate who was representing his father etc. (respondents) in the revision in order to enquire as to why he compromised the matter with the other side without consent of his clients. It is alleged in the petition that the said Advocate gave this explanation, "Mr. Amir Gulab Khan Advocate said that he had committed a mistake and that where other cases had been compromised on 26- 8-1976 this case was wrongly assumed by him to be in that list and he had done so under misunderstanding. He immediately wrote down an application on behalf of Abdul Hakim controverting the said compromise and asking that the same should not be accepted. The said application was presented by Mr. Abdul Hakim personally to the learned Member on the same date and he was asked to appear on 6-10-1976". On this date the learned Member did not hold the Court and similarly the case was adjourned on many subsequent dates either on account of non- availability of record or absence of the Presiding Officer. The revision was then ordered to be put up for evidence of Mr. Amir Gulab Khan Advocate on 19-3-1977. On this date the said Advocate could not be produced in Court as he was confined in jail under Defence of Pakistan Rules and the petitioners were unable to attend the Court on account of non-availability of flight from Chitral due to bad weather. It is alleged that these compulsive grounds prevented the petitioners from attending the Court but in spite of it the learned Member decided the revision in term of the compromise. Petitioners impugned this decision in writ petition which was accepted in these words, "In view of the report of the Legal Advisor to Federal Land Commission we set aside the impugned order and remand the case to the Federal Land Commission to decide the case in accordance with law". After remand the revision was placed for hearing before the Chairman Tribunal Land Disputes Dir, Swat and Chitral (respondent No.5) who by the impugned order dated 10-4-1982 upheld the compromise as genuine and while accepting the revision petition passed decree in terms of the compromise.
3. The learned counsel arguing for the petitioners submitted that Abdul Hakim who was constituted as attorney by the petitioners and who in turn had appointed Amir Gulab as an Advocate was never authorised by the petitioners to make compromise and similarly the learned counsel engaged in the case was also not conceded the power to enter into any sort of compromise with the opposite side. It was also argued that Mukamal one of the petitioner had died before the compromise and as his legal heirs had not been brought on record, therefore, the compromise was illegal and ineffective on this score too. Lastly it was submitted that m any case the compromise had been rescinded before its acceptance and, therefore, could not be made basis for settlement. The learned counsel appearing for Mst. Masthani respondent No.4 and the learned Advocate General representing the other respondents supported the impugned order.
4. Perusal of the following documents would indicate that Mr. Amir Gulab Khan acted as a counsel for the petitioners:--
(a) Order sheets dated 23-8-1976 and 28-8-1976 of the file of the learned Member Federal Land Commission wherein the presence of the said Advocate has been marked on behalf of the present petitioner.
(b) Following admission of Mr. Amir Gulab Khan Advocate in his statement recorded in this Court on 19-12-1988, "My power of attorney in the lower Court is EX.C.W.1/2 on the original file (Photostat copy of the same is Ex.C.W.1 /2).
Similarly the below noted documents on record are a clear proof of the fact that Abdul Hakim acted as attorney of the petitioners in this case.
(1) Admission of Abdul Hakim in his application for withdrawal of the compromise before the Federal Land Commission.
(2) Power of attorney dated 14-6-1973 described as in the heading and containing these words:--
(3) Power of attorney dated 19-11-1972 whereby Abdul Hakim was appointed as attorney for the dispute with respondent No.4 in these words:--
(4) Statement recorded on 5-12-1972 by Abdul Hakim Khan in the capacity of attorney in the lower forum.
(5) Abdul Hakim has been shown as attorney of the petitioners in the report dated 13-3-1973 prepared by Judicial Council Chitral.
(6) He has also been shown as attorney in the order of Deputy Commissioner dated 31-3-1974.
(7) In the order of Deputy Secretary Home dated 24-1-1976 in these words, Abdul Hakim respondent in person and as Mukhtiar of the other respondents presents".
Moreover Abdul Hakim along with Amir Gulab used to appear in the case as attorney and Advocate respectively but no objection was raised by the petitioners on their this conduct.
5. In view of these materials the petitioners would not be justified to say that Mr. Amir Gulab Khan was not appointed as counsel in the case or that Abdul Hakim was not constituted as attorney. The second objection that Mukamal Rad died before the compromise is also devoid of substance for the reasons firstly, that such an objection was not taken in the application for withdrawal of the compromise, secondly, it was not proved before the Member Federal Land Commission, and thirdly, it was not argued before the Chairman Tribunal. Similarly the stand taken up now that the compromise was because of some misunderstanding was neither alleged in the application for rejecting the compromise before the Federal Land Commission nor substantiated there in spite of numerous opportunities afforded to the petitioners for this purpose. The last criticism that the compromise should not ,have been adopted as it was resiled from before its acceptance would also hold no ground because in his application Abdul Hakim admitted the compromise on his behalf but asserted that the other respondents do not agree to this compromise and that they would be produced to explain the position on the - next date. However, they were never produced before the learned member in spite of sufficient opportunities as it is evident from the order dated 19-3-1977. Moreover, there is no legal bar to the acceptance of such a compromise on the analogy of Order XXIII, Rule 3 if it is proved that the dispute has been settled by lawful agreement. Abdul Hakim was unable to point out any defect in the compromise rather he himself accepted it but wanted to back out and repudiate it as other respondents have not agreed to the compromise.
However, it is very strange that those others never turned up before the proper forum to disown this compromise in these circumstances, the petitioners are legally debarred from challenging the validity of this compromise irrespective of their repudiation as such a course will set a very wrong precedent and will shake confidence of the people in settling their dispute through mutual agreement.
6. It is obvious that the controversy raised in this petition as to whether Amir Gulab Advocate was representing the petitioners as a counsel, that whether Abdul Hakim was authorised to act as attorney of the petitioners, that whether al! The petitioners had agreed to the compromise is determinable only after all the relevant factual aspects are enquired into through examination of witnesses. However, such an exercise is not permissible in writ jurisdiction. Moreover, the concurrent decision of the lower forums regarding this factual dispute is not I amenable to the writ authority of this Court.
7. This writ petition is, therefore, dismissed with costs,