' SAAD SAOOD JAN, J.--This is an appeal from the judgment and order dated 23-1-1988 of the Lahore High Court, Multan Bench, setting aside the judgment and decree dated 30-7-1987 of the Civil Judge, Multan and remanding the suit to the trial Court for a fresh decision in accordance with law.
2. The parties to this appeal are the heirs of Nawab Muhammad Sharif Khan Khakwani who died on 15-1-1987. He was survived by four sons, three daughters and a widow. He owned extensive immovable property in the districts of Multan and Vehari, including urban land falling within the limits of Multan Municipal Corporation. On his death, differences arose among his heirs with regard to the succession to his estate. On 23-3-1987, one of the sons, namely, the appellant, filed a declaratory suit claiming that he was the exclusive owner of about 405 kanals of agricultural land situate in Shujaabad Tehsil and about 24 kanals of urban land located in Multan City. He rested his claim on oral gifts allegedly made by his late fat her in his favour.
3. The suit was resisted by only respondents Nos.1 and 2. Respondents Nos.3 to 6 supported the claim of the appellant on the basis of an understanding with him that he would not seek any share in 90 acres of land situate in district Vehari. Respondents No,6 and 7 did not appear before the Court and as such were proceeded ex parte.
4. On the basis of the pleadings of the parties, the trial Court framed a number of issues on 12-4- 1987 and appointed 7-6-1987 as the date for recording the evidence of the appellant. However, on 20-5-1987 all the heirs of the late Nawab moved a joint application before it, stating:- {{URDU TEXT}} ' This application was taken up by the trial Court on the very day of its presentation. The trial Court set aside its earlier order with regard to the holding of ex parte proceedings against respondents Nos.6 and 7 and recorded the joint statement of counsel for the parties. The statement was to the effect:- {{URDU TEXT}} ' In accordance with the prayer of, the parties, the trial Court appointed Hafiz Nasrullah Khan, a close relative, as the referee and directed him to submit his 'decision' in writing before 4-6-1987.
The referee appeared in Court on 30-7-1987 in the presence of counsel for the parties and filed a document incorporating his 'decision'. Without taking any further proceedings, the learned trial Court passed a decree in the suit in accordance with the said 'decision'.
5. From the decree of the trial Court, respondents Nos.1 and 2 preferred an appeal before the High Court. Their case was that the 'decision' of the referee was in fact an arbitration award and that the trial Court could not have made it a rule of the Court without first giving an opportunity to the parties to file objections thereto; as in the present case the trial Court had failed to give such an opportunity to them, the decree passed by it was not sustainable. The High Court found merit in this contention; accordingly, it accepted the appeal, set aside the decree and directed the trial Court to dispose of the suit afresh in accordance with law. From the judgment of the High Court, the appellant has come in appeal to this Court.
6. In support of this appeal the main contention of the learned counsel for the appellant is that the learned Judges in the High Court misconstrued the reference of the dispute between the parties to Hafiz Nasrullah Khan as one to arbitration and erred in holding that the 'decision' given by him was an arbitration award. It is urged that from the recitals made in the joint application dated 20-5- 1987 and also from the statement which the parties' counsel made before the trial Court, it was clear that it was not a case of reference to arbitration but one of appointment of a referee within the meaning of Article 33 of the Qanun-eShahadat (corresponding to section 20, Evidence Act); as such the decision given by the referee was an admission; since the parties had bound themselves unreservedly to accept the decision of the referee, the trial Court was entirely justified in giving effect to it by passing a decree in accordance with its terms. It is also contended that as a reference under section 33, ibid, cannot be treated as an award, the provisions of the Arbitration Act are not attracted. The High Court was therefore not right in its view that the decision of the referee was in fact an arbitration award and that it could be made a rule of the Court only after the parties had been given the opportunity to file objections thereto. In support of his contention, the learned counsel has relied upon Muhamad Saleem v. Muhammad Akram PLD 1971 SC 516, Himanchal Singh v. Jatwar Singh AIR 1924 Allahabad 570, Subbaraju v. Venkatramaraju AIR 1928 Madras 1025, Suraj Narain Chaube v. Beni Madho Chaube AIR 1937 Allahabad 701, Umrai Ali Khan v.
Intizami Begum and others AIR 1939 Allahabad 176, Akbari Begum v. Rahrnat Hussain and others AIR 1933 Allahabad 861 and Rahmat and others v. Residents of village and others 1988 CLC 1922.
7. It is no doubt true that in their joint application dated 20-5-1987 and in the statement made by counsel before the Court, the person chosen to settle the dispute between the parties was described as 'referee' but clearly, the task assigned to him was not to furnish information but to give his `faisla' in respect of the differences arising among them with regard to the estate left by the late Nawab. A reference of such a nature is not covered by Article 33, Qanun-eShahadat. This Article reads as follows: "Statements made by persons to whom a party to the suit has expressly referred for information in reference to matter in dispute, are admissions".
' It will be noticed that this Article relates to statements furnishing information and not to decisions involving judicial determinations of disputes or controversies. It hardly need be added that furnishing of information and pronouncing faisla between contesting parties are two entirely different matters. In this context, reference may he made to the observations of the Judicial Committee of the Privy Council in Chhabba Lal v. Kallu Lal AIR 1946 P.C.
72. In this case, there was a dispute between the parties with regard to the partition of the joint family property. The dispute was taken to Court; while the proceedings were pending, the parties appointed their Guru as a referee for the decision of all the facts and also for the decision in respect of the costs of the suit. The question for consideration before the Judicial Committee was whether the decision given by the Guru was covered by the provision of Section 20, Evidence Act which, as already mentioned, corresponds to Article 33, Qanun-e-Shahadat. The Judicial Committee answered the question in the negative and observed:- ' It is obvious that a reference to an outside party to decide matters in dispute in a suit and the question of costs is not a reference to that party for information in reference to matter in dispute, and if the reference is to be regarded as made only under section 20, it was a bad reference."
' It is therefore difficult to accept the contention of the appellant that the `decision' presented by Hafiz Nasrullah Khan before Court was a statement within the meaning of Article 33. The authorities cited by learned counsel for the appellant in support of his contention are easily distinguishable. In none of these cases, unlike the present case, the referee has been called upon to apportion the estate left by the common ancestor among the various heirs. On the other hand, the fate of the suits depended upon existence or non-existence of certain facts. In Abdur Rahman v. Kalu Khan AIR 1935 Allahabad 118 the sole question for consideration was if the mortgagor had paid Rs,1,000 for adjustment against the mortgage amount. In Akbari Begum v. Rahmat Hussain AIR 1933 Allahabad 861 the dispute between the parties related to the existence of certain oral gifts. In Umrai Ali Khan v.
Intizami Begum AIR 1939 All. 176, the matter in controversy was whether the plaintiff had any interest in the property in dispute. In Suraj Narain Chaube v. Beni Madho Chaube AIR 1937 Allahabad 701, the question requiring decision was if the property in dispute had already been partitioned. In Himanchal Singh v. Jatwar Singh AIR 1924 Allahabad 570, the facts have not been stated in sufficient details to permit a proper understanding of the controversy arising therein; in any event, the person appointed as referee was asked to make a statement on the whole affair between the parties and not to give a 'faisla'. The statement sought could well have been with regard to the existence or non-existence of certain material facts. The case cited as Subbaraju v.
Venkatramaraju AIR 1928 Madras 1025 is clearly distinguishable, for, here the question under examination was whether an arbitration award obtained during pendency of the suit but without the intervention of the Court could be acted upon by the Court. In Rahmat v. Residents of village and others 1988 CLC 1922 the controversy once again rested upon a simple question of fact, that is, whether the property appropriated by the defendants was part of the Shamilat-e-Deh. The precedent cited Muhammad Saleem v. Muhammad Akram PLD 1971 SC 516 has no relevance to the present appeal.
8. Even though in the suit the appellant had laid claim to only some of the properties yet the parties by common consent asked Hafiz Nasrullah Khan to settle all the disputes arising between them with regard to the entire estate left by the old Nawab. They were obviously not seeking any information from Hafiz Nasrullah Khan but a faisla. Thus, despite the use of the word 'referee' in the joint application and statement of 20-5-1989, the real intention of the parties was to appoint an arbitrator for resolving the disputes. It is also to be noticed that Hafiz Nasrullah Khan also did not regard that he had been appointed to merely furnish information on the controversy raised by the appellant in his suit but thought, and quite rightly so, that he had been called upon to apportion the entire estate left by the late Nawab among his various heirs. Thus, he prefaced his `faisla' with the following observation: {{URDU TEXT}} By his faisla, he not only divided the movable and immovable properties left by the Nawab among his heirs, he even awarded cash amounts to some of them by way of compensation on equitable considerations. He also directed the cancellation of certain mutations of inheritance which had already been effected in the Revenue Record. His `faisla' therefore could hardly be treated as a statement furnishing information. Quite clearly, he understood his role as that of an arbitrator and proceeded accordingly, even though in keeping with the statements made by the parties, he described himself as a referee. In the circumstances, the contention of the learned counsel for the appellant that the faisla' filed by Hafiz Nasrullah Khan was an admission within the meaning of Article 33, Qanun-e-Shahadat cannot be accepted. It was quite clearly an award and the High Court was right in holding that it could not be made rule of the Court without giving an opportunity to the parties, if they so desired, to file objections thereto.
9. For the reasons stated above, we find no merit in this appeal which is hereby dismissed with costs.