JUDGMENT MUHAMMAD AQIL MIRZA, J.- This is an appeal against the order dated 16.7.1986 passed by the learned Additional District Judge, reversing the judgment and decree of the trial court, case has been remanded for decision of the suit afresh.
2. It is a pre-emption matter. Ahata measuring 5 marlas and 3 Sarsahi situated in the Abadi of Akbar Abad, Tehsil and District Sialkot was purchased for a sum of Rs. 15,000/- by Muhammad Din respondent No. 1 from Abdu! Ghafoor, on 23.5.1978 though registered sale deed. Two suits for possession through pre-emption were filed in respect of this sale transaction. One suit was filed by Muhammad Yousaf son of Laddha who is the appellant herein and the other suit was filed by Muhammad Yousaf son of Lal Din. Thirteen issues were framed by the learned trial court, which amongst others included! The following:- "(3). Whether both the pre-emptores are estopped by their on conduct from bringing their respective suits?
(4) . Whether the plaintiff's suit is collusive and is instituted for the benefit of the. Vendee?
(5) . Whether the suit property has acquired urban nature and hence, unpre-emptable?
(9). Whether both the pre-emptores have got superior right of preemption, in respect of the suit land, as against the vendee?
(11). Whether the ostensible sale price of Rs.15,000/- was actually paid or fixed in good faith?
(13).Whether the defendant/vendee has effected any improvement on the suit land? If so, to what extent and with what effect"
After the evidence was partly led, an application for appointment of a local commissioner was made on the point of improvements. The application was rejected on 4.11.1985 and the case was fixed for defendant's evidence on 20.11.1985. On this date, a statement was made by all the concerned parties to the following effect:- In pursuance of this agreement, the learned trial court visited the spot on 11.12.1985. Instead of making any observation with regard to the local inspection, he examined the parties on Oath, in the following manner. Muhammad Yousaf son of Laddha (appellant) contended before him that , the rival pre-emptor, namely, Muhammad Yousaf son of Lal Diu had filed his suit in collusion with the vendee and therefore, he should rebut this assertion on the Holy Quran. However, Muhammad Yousaf son of Lal Din refused to take the suggested oath. On this Muhammad Yousaf appellant stated on oath by the Holy Quran that the suit filed by Muhammad Yousaf son of Lal Din was collusive. Muhammad Din respondent on the other had demanded that the appellant should take oath that he had not associated himself in the matter of registration of the sale deed and measurements etc The appellant took the demanded oath. These were the only proceedings conducted on 11.12.1985 on the spot by the learned trial court. Thereafter, arguments were heard on 15.12.1985 and the final order was passed on 16.12.1985 whereby, he held that (i) improvements to the extent of Rs.6,000/- had been effected by the vendee, (ii) that the sale consideration was Rs.15,000/-, (i.e)that both the pre-emptores bad superior right of pre-emption qua the vendee and
(iv) that suit of Muhammad Yousaf son of Lal Din was collusive because he had refused to take oath on the Holy Quran. The question of estoppel/waiver was decided against the vendee on the basis of the oath taken by the appellant. On these findings he decreed the suit of the appellant and dismissed that of the rival pre-emptor, vide judgement and decree dated 16.1Z1985.
2. It may thus be seen that learned trial court decided only issues No. 4,9,11 and 13 and decreed the suit without determining other issues, particularly issues No. 5 and 6. Two appeals were filed, one by Muhammad Din vendee and the other rival pre-emptor Muhammad Yousaf son of Lal Din. The learned Addition District Judge vide the order dated 16.7.1986 accepted both the appeals and remanded the case for fresh decision on all the issues after providing opportunity to the parties to lead the evidence. It is against this remand order that the present appeal has been filed.
3. The learned appellate court held that the parties can not be bound down by special oath unless both of them had agreed in respect thereof. Even Article 163 of Qanun-i-Shahadat Order did not contemplate such a result. The only effect of the refusal of the defendant to take such oath would be that costs can be awarded against him. He further held that the procedure adopted by the learned trial court was totally illegal in that he picked up only some of the issues at his whims and decided the Suit without considering other important issues.
4. Rana Nasrullah Advocate, learned counsel for the appellant contended that the parties had bound themselves that the decision of the learned trial court made after spot inspection would be acceptable to them, therefore, the decree passed by the trial court was a consent decree against which no appeal was competent. His precise submission was that the trial court had acted as a referee and his decision was binding on the parties and the decree passed was not appealable.
5. Mirza Hafiz-ur-Rehman's, learned counsel for the respondent/vendee, on the other had, submitted that the remand order is perfectly in accordance with law; He contended that the parties had agreed to make the court arbiter only in those matters which could be resolved by personal inspection, such as improvement. In this behalf he referred to the application dated 23.9.1985 whereby, request was made for appointing the local commissioner to assess the improvements made by the vendee. This application was dismissed and, therefore, the parties had agreed to the local inspection by the court. Learned counsel further submitted that intention of the parties is to be gathered from the conduct of the alleged referee, 1a the instant case the learned trial court asked for the evidence of the parties, on special oath, only two specific questions namely, collusiveness and estoppel by conduct and utilized his personal observations with regard to the improvements cm the spot. Therefore, the intention of the parties was to make the trial court arbiter on those limited questions of fact and none else. He further submitted that other important ; questions relating to limitation and pre-contemptibility had to be decided before decreeing the suit, but the learned trial court failed to decide these questions.
6. Learned counsel few the appellant in support of his contention that where the parties agree to be bemad by the decision of the Court, then the Court assumes the role of an arbiter between them and its decision tantamount to a consent judgement, has placed reliance on Muhammad Itbar Khan versus Food Hussain and three others(PLD 199Q Lahore 116), Muhammad Ijaz and three others versus M. Khurshid Malik and four ethers (1986 CLC 2270), Sajjad Hussain versus Musarrat Hussain Shah and others (1989 SCM R 1826)end Muhammad Hanif Khan and other versus Ghulam perid Khan end another (PLD 1988 Lahore 250). The case law which has been cited at the bar is not applicable in the circumstances of the present case. In the first two cases the dispute which was sought to be resolved and for which parties made the Court as final arbiter, related to particular factual position on which a decision could easily be given by spot inspection. In the case of Muhammad Itbar Khan,, the dispute related to the question whether the plaintiff had . Tress passed upon a Ghair Mumkan Talab reserved for the common purposes of the villagers. The court carried local inspection of the property in dispute and after hearing the parties and other residents of the village concluded that plaintiff had encroached upon 8 Kanals and 5 marlas of Ghair Mumkan Talab alongwith a .Banian tree by constructing a wall around it. In the case of Muhammad Ijaz, the dispute between the parties related to a bare question of fact as to whether there masted a sport connected to the flush fitted latrine which poured the fuse and filth in the street near the kitchen of respondent No. 1. As there was no gutter in the street. Parties agreed that the decision of the trial Court as a result of spot inspection Would be binding on them. The trial court after spot inspection decreed the suit and directed the defendants to remove the sport from the {dace. In the back found of these facts it was held that the decree based upon the spot inspection of the learned trial court was to be treated as a consent decree against which no appeal lay. In the case of Sajjad Hussain, the parties effected a compromise whereby, in a pre-emption suit, plaintiffs admitted the sale price and the defendants admitted the superior right of pre-emption of the plaintiffs and in view of this compromise the claim of the plaintiffs was decreed. In the High Court it was pleaded that the suit being barred by time the Court itself should have held the suit to be .So barfed and refused to accept the compromise. The learned Supreme Court in the afore-mentioned circumstances held that it was a consent decree and the appeal before the High Court was incompetent. In the case of Muhammad-Hanif Khan, Nawab Nasrullah Khan Khakwani was appointed as a referee for resolution of the dispute concerning the suit land and other property between the parties. The suit was decreed on the basis of decision of the referee. In appeal it was contended before the High Court that the referee had acted as an arbitrator and because no opportunity to i.e objections to the award was provided, the decree was not sustainable in law. This objection was upheld by a learned Division Bench and the case was remanded after holding that the decision of the so called referee was in fact an award and that 'neither Nawab Nasrullah Khan Kbakwani intended to act merely as a referee nor did he perform the function that was entrusted to him in that capacity.
7. It is true that where the parties choose deviation from the normal course of proving a case by producing evidence in the Court, they cannot resile or feel aggrieved against the procedure adopted by the trial court by undertaking factual inquiry on the spot and giving decision based thereon. But there arises a still more important question, whether the trial court has acted as a referee and, if so, for what purposes. From the attendant circumstances and the conduct of the learned trial court it is apparent that learned trial Court was not acting as a referee in the technical sense. If it were so, there was no need to adjourn the case and hear the arguments of the parties , on the date next after the date of spot inspection, or to pronounce the judgment after giving findings on some of the controversies existing between the parties.. What actually appears to have happened is that the trial Court acted as a referee only on the matters which could be resolved by spot inspection; for example the question of improvement effected by the vendee, for which an application for appointment of a Local Commissioner had earlier been made by respondent No. 1.
Therefore, the findings of the learned trial court on the issues which could be decided on the basis of spot inspection were immune from challenge in the appeal. Hence, findings on issue No. 13 could ' not be challenged. But the whole decree cannot be considered to be not challengable in the appeal.
8. In he instant case, the suit could not be decided merely on matters which could be decided by spot inspection and personal observations of the trial court, Here, issues relating to limitation, pre- contemptibility-and conduct of the preemptors still required to be gone into before passing the decree. If the suit was filed beyond the prescribed period of limitation, the decree could not have been passed. Similarly, question of pre-contemptibility, as reflected; in issue No. 5 also required to be decided before passing the decree. U nfortunately. The learned trial court at his on whims choose only some of the. Issues and decided them partly on the basis of his on local inspection and partly on the basis of the oath which he administered on particular questions of fact. The learned appellate court, was therefore, manifestly correct in setting aside such a decision. The trial corn! Ought to have decided all the relevant issues which arose in the case.
9. Resultantly, the order of remand passed by the learned Additional District Judge is modified only to the extent that the learned trial Court shall not decide issues No. 3 and 13 as these issues stand validly decided. Faw ever, remaining issues will be decided afresh in terms of the remand order.
The appeal is partly accepted but the parties are left to bear their on costs.