1. ' Civil Revisions Nos.97 and 1% of 1991 are directed against judgment and decree of Majlis-e-Shoora, Kalat Division at Mastung dated 31-10-1990 wherein two Members namely Qazi Abdur Rab and Qazi Ahmed Shah accepted the appeal reversing decision of trial Court dated 11-6-1990 as well as judgment of even dated passed by President Majlis-e-Shoora, Syed Abdul Wajid Agha partly accepting the appeal and directing remand of the case for recording further evidence and decision on merits afresh.
2. Relevant facts briefly stated are that petitioners Ahmed Hussain and others (in Petition No,97/91) on 31-8-1988 filed a suit for declaration and perpetual injunction in the Court of Qazi Sarawan at Mastung. Petitioners claim to be owners of land comprising of Khasra Nos. 1170 to 1175, 1177, 1181, 1182, 1185, 1187, 1189 Khewat No, 14 Khatooni No,6 measuring 341 Rode 21 Pol situated in Mohal Spezand Sharqi Mouza Spezand Sub-Tehsil Dasht which according to them during recent settlement of year 1988 was unjustifiably recorded in favour of respondents Nos.1 to 7 and remaining respondents have been wrongly shown as Bazgars.
2. ' It is alleged that late Abdul Qadir, father of petitioner Fazal had purchased a tract of land through sale-deed dated 3-7-1966 from Ali Muhammad and Muhammad Ali. Portion of said land which was sailaba comprising Khasra No,50 to 61 Khewat No,20 Khatooni No, 279 Khasra No,82 to 84 Khewat No,86 Khatoni No,260 total measuring 127 Rode 11 Pol was rightly entered in their favour during previous settlement. But the adjoining land referred above due to manipulation have been erroneously entered in the name of respondents. The claim was resisted by respondents. It may be seen that on 28-10-1988 respondents Nos.1 to 7 filed written statement repudiating the right and interest of petitioners concerning suit land. Respondent No,12 filed written statement on 7-2-1989 similarly denying the claim of petitioner. Whereas respondents Nos.8 to 11 and 13 have filed written statement on 16-9-1989 equally challenging the claim in suit. However, an ex parte order was passed against respondent No,14 on 22-7-1989.
3. ' Trial Court keeping in view pleadings, framed 6 issues on 26-9-1989, and gave the parties opportunity of leading evidence. Petitioner has produced seven witnesses besides statement of attorney in support of his claim and the evidence was closed on 20-5-1990. Respondents in rebuttal examined two witnesses and closed their side on 24-5-1990. It is pertinent to mention here that petitioner on 16-6-1990 submitted an application to President Majlis-eShoora, praying for transfer of case from the Court of Qazi Sarawan to any other forum. However, learned Qazi Sarawan on appraisement of available record directed dismissal of the suit by means of judgment and decree dated 11-6-1990.
4. ' Petitioner feeling aggrieved on 16-6-1990 filed Appeal No,95 before Majlis-e-Shoora, Kalat at Mastung which was eventually decided on 31-10-1990. The President Majlis-e-Shoora, remanded the case and also directed transfer of the matter to the Court of Qazi Soorab for disposal. Whereas the other two members have accepted the appeal granting decree in favour of petitioner.
5. ' It may be seen that learned Qazi Soorab in pursuance of directions made by President Majlis-e- Shoora, issued notices to the parties for apearance on 4-5-1991. Petitioner raised objection about validity of proceedings drawn by the Court which were overruled vide order dated 4-5-1991.
6. Petitioners Ahmed Hussain and others have challenged said order through Revision Petition No, 97/91. Whereas during pendency of this petition respondents filed Revision Petition No,196 of 1991 challenging the decree passed by the Members. Since both these matters involve identical points of law and facts, therefore same are being decided by common judgment.
7. ' Originally Majlis-e-Shoora, had only two Members who were appointed by means of Notification No, V.O. 1429, dated 29th July, 1955. Subsequently by virtue of Notification No,5-4/72 Admin-Law 2353-83 dated 17-10-1978 District Judge, Kalat and Khuzdar were designated as Sadar Majlise- Shoora of respective Civil Districts. Presently Majlis-e-Shoora, Kalat consists of President and two Members. In the instant case all the three had heard appeal, which was eventually decided vide judgment and decree dated 31-101990. President Majlis-e-Shoora, directed remand of the case whereas other two members through separate judgment accepted the appeal and granted decree in favour of petitioners Ahmed Hussain etc. ' Therefore important question arose, whether final disposal of appeal was to be regulated by majority decision or would follow observation made by President Majlis-e-Shoora. To resolve this controversy besides learned counsel for parties, arguments from M/s. Basharatullah, Muhammad Aslam Chishti, S.A.M. Quadri and K.N. Kohli and Tariq Mehmood as amicus curiae were heard. For better appreciation of this issue it would be proper to reproduce original provisions of section 24 of Dastoorul Amal Diwani, Kalat, and amendment of section 24 introduced on 1-8-1984 by means of Dastoorul Amal Diwani, Kalat (Amendment) Ordinance, 1984.
(i) Section 24 as originally exsited:-- {{URDU TEXT}}
(ii) Section 24 Dastoorul Amal Diwani, Kalat is amended by Dastoorul Amal Diwani, Kalat (Amendment) Ordinance, 1984:- Perusal of relevant provisions clearly indicates that appeal against judgment of Qazi lies to Majlis- e-Shoora; which may consist of two or more Members. Manifestly two Members constitute quorum for effectively deciding all appeals which are instituted before Majlis-e-Shoora, under the provisions of Dastoorul-Amal-Diwani, Kalat. Amended section 24 (3) (i) specifies that if matter is heard and decided by a Member and President Majlis-e-Shoora, and difference of opinion arises amongst them, in that event conclusion of President Majlis-e-Shoora, shall hold the field and constitute decree of the Court. However, when merely two Members of Majlis-e-Shoora hear the matter and there is difference of opinion, in that event under clause (ii) of section 24 (3) matter will be referred to President Majlis-e-Shoora, or third Member: and decision of majority shall constitute decree of Appellate Court, Now, question requiring consideration, relates to third situation where Members as well as President Majlis-e-Shoora, sit together for deciding the appeal. Comparison of various provisions of Dastoorul Amal Diwani, Kalat and principle contained in section 98 of Civil Procedure Code, suggests that when (i) President Majlis-e-Shoora, sits alongwith single Member,
(ii) or when only two Members of Majlis-e-Shoora (other than President) hear the matter; the President Majlis-e-Shoora, under clause 24 (3) (i) and 24 (3) (ii) enjoys a distinction. His decision by operation of law or in the capacity of referee Judge operates as decree of the Court. However, this position apparently ceases to exist; when Majlis-e-Shoora, holds its sitting through all the three Members i,e, including President.
8. While interpreting various provisions, it is recognized principle that provisions of law having different interpretations or conflicts be so harmonized that existing inconsistency amongst various parts of enactment is resolved. It is quite apparent that sitting together, each Member constitutes equal and essential component of Court (Majlis-e-Shoora) exercising same powers. Therefore on fair analysis, it can be safely deduced that when difference arises amongst them, the opinion of majority must prevail. The position which emerges from the comparison of provisions leads to a conclusion that President has undisputedly unfettered discretion not to sit or participate in the proceedings being conducted by any two Members, and in the event of difference, he would have authority to decide the matter as referee. But once he opts to join the other two Members in single sitting, then automatically he loses his position, and on divergence fall decision of Majlis-e-Shoora, would be regulated by majority verdict. Legal controversy is resolved in the above terms.
9. ' Next point requiring attention is that plaintiffs Ahmad Hussain and others (Petitioners in Petition No,97/91) aggrieved from judgment/decree dated 11-6-1990 directing dismissal of their suit, preferred Appeal No,95 of 1990 before Majlis-e-Shoora, Kalat. The Memo. Of Appeal filed by said plaintiffs contained serious objection regarding trial Court's failure to provide fair opportunity of leading evidence, non-framing of proper issues, partiality in conducting the proceedings and other procedural defects. Petitioners Ahmed Hussain and others thus expressly prayed for remand of the matter and also sought transfer of the case to some other Qazi for its disposal according to law.
10. ' Mr. Ghulam Mustafa Mengal learned counsel for petitioners Ahmed . Hussain and others greatly emphasised that Court can grant relief even other than claimed by the parties. Therefore, majority judgment of Majlis-e-Shoora, did not stiffer from any legal infirmity.
11. ' Whereas opposite counsel Mr. Ahmed Khan Lashari maintained that appeal filed by Ahmed Hussain and others claimed merely remand of the case on the pointation of glaring defects.
12. Therefore, according to him Majlis-eShoora, exceeded its jurisdiction in granting relief beyond prayer clause of appeal. There is no cavil to the legal proposition that Court has the jurisdiction to grant such reliefs which may be emanating from the record. Nevertheless in my opinion, when aggrieved party on pointation of material irregularities and glaring defects in the proceedings before trial Court, seeks remand, there is no reason why relief beyond the scope of claim be granted. Evidently opposite side in such eventuality white contesting the appeal would put up defence only to the extent of remand. In the peculiar circumstances judgment of the appellate Court totally reversing decision of trial Court is apparently defective and is tantamount to transgressing the jurisdiction vested in it by the law. The impugned judgment, therefore, cannot be sustained.
13. ' I am accordingly inclined to set aside the judgment of Majlis-e-Shoora, Kaki', accept the prayer made in the Memo. Of Appeal No,95 of 1991 filed by petitioners Ahmed Hussain and others (before Majlis-e-Shoora) and also transfer the matter to the Cowl of Qazi Soorab for completion of plaintiffs' evidence, besides opportunity to other party for rebuttal, and thereafter to finally decide the case afresh on its own merits according to law.
14. ' Both the petitions are disposed of as above. However, parties are left to bear their own costs.
15. Revision .