The facts of this case need to be stated in some details. Respondent No. l had purchased the suit land described in the plaint from respondent No.2. The petitioners' predecessor-in-interest Sabir Hussain Shah was occupying the suit land as a non-occupancy tenant. He had filed a suit for the ejectment of petitioner from the suit land. The suit was decreed by the Revenue Court on 11-1-1983.
On the same date i.e. 11-1-1983 an application was filed by the appellant purporting to be under sections 14/17 of the Arbitration Act, 1940 in the Court of a learned Civil Judge at Sargodha. It was stated in the said application that four nears ago respondent No.2 had sold the very suit land mentioned in the plaint to him for a consideration of Rs.75,000 and he obtained possession; that respondent No.2 failed to get the sale incorporated in the revenue records and a dispute arose which was referred to an Arbitrator (respondent No.3) who has made an award on 10-1-1983 and same be made rule of the Court. On 13-1-1983 respondent No.2 filed a written reply stating that he has no objection to the award being made rule of the Court. On the same date the matter was taken up by the learned Civil Judge who proceeded to make the award rule of Court vide order, dated 13-1-1983 and proceeded to pass a decree in terms thereof.
2. On 17-2-1983 respondent No. l filed the present suit seeking a declaration that he is owner in possession of the suit land and that the order and decree, dated 13-1-1983 passed in the aforementioned proceedings are illegal, without lawful authority, collusive and based on fraud. A permanent injunction was sought restraining the petitioner from claiming himself to be the owner of land and from interfering with the possession of respondent No. 1. In the plaint it was stated that respondent No. 1 owns the suit land and that the appellant is a tenant under him subject to payment of share of produce. Respondent No.2 had no right or title in the suit land and was not authorised to alienate the same in favour of the petitioner and that he is holding a decree for ejectment of petitioner from the suit land from a Court of competent jurisdiction. With these averments it was stated that the said order and decree is of no legal effect, on his rights of ownership and possession over the suit land. It was also stated that since his title is being denied by the respondents on the basis of said decree and order as also the award he is seeking the declaration prayed for by him. The petitioner as also respondent No.3 as well as respondent No.2 filed written statements. In the written statements the title of respondent N6.1 was denied. It was stated that respondent No.2 was co---owner in possession of the suit land and that the appellant was occupying the land as tenant of respondent No.2 who then sold away the suit land to him for a consideration of Rs.75,000 and since there was a dispute arbitration proceedings were resorted to Bar of section 12(2), C.P.C. Was also employed. Later the written statement was amended to add that respondent No. l is in England for the last three years and has not come to Pakistan and that the plaint does not bear his signatures Issues were framed. Evidence of the parties was recorded.
The learned trial Court decreed the suit vide judgment and decree, dated 13-6-1985. First appeal filed by the petitioner was heard by a learned Additional District Judge, Sargodha who dismissed the same on 29-1-1986.
3. The sole contention raised by the learned counsel for the petitioners is that the impugned judgments and decrees have been passed by the learned Courts below in violation of the clear provisions of section 12(2), C.P.C. As interpreted by the Supreme Court of Pakistan in the case of Mahboob A.I and another v. The State (1984 SCM R 581) and Ghulam Muhammad v. M. Ahmad Khan and 6 others (1993 SCM R 662). In a luke warm manner it has also been argued that the suit was barred by section 32 of the Arbitration Act, 1940. Learned counsel for the respondent No. 1, on the other hand, argues that the title of his client has been denied and it would not have served any purpose to go to the Court making award rule of the Court and passing the decree. Even upon setting aside of the said decree by the said Court the clouds over his title would still remain and in the circumstances the only relief open to his client was seeking a declaration under section 42 of the Specific Relief Act, 1877, particularly when his client was not even a party to the proceedings before the Arbitrator or subsequent proceedings before the Court for making award rule of the Court.
4. Record of the trial Court has been summoned and I have gone through the same, with the assistance of the learned counsel for the parties. Register Haqdaran Zamin for the year 1978-79, copies whereof are Exh.P.7 and P.8 on record shows that respondent No. l owns a total of 222 Kanals of land. Khasra Girdawari Exh.P.9 proves that the specific suit land described in the plaint was delivered unto the respondent No. l by respondent No.2 under the sale w.e.f Rabi 1980 and that the petitioner is cultivating the land under him as his tenant. Exh.P.I is copy of the ejectment order, dated 11-1-1983 passed by Tehsildar/A.C. Grade I, Sargodha in the suit filed by respondent No. 1 against the petitioner and others for ejectment from the suit land. The order shows that the suit was contested by the petitioner. Issues were framed and the matter, was decided after recording of evidence of the parties. Exh.P. 11 is the copy of order passed by the Collector, Sadar Sub--- Divisions, Sargodha on the appeal filed by the petitioner against the said ejectment order, dated 11- 1-1983. According to this document the appeal was heard by the learned Collector and dismissed the same on 19-2-1983 Exh. P.12 is the copy of order, dated 3-5-1983 of Additional Commissioner (Revenue), Sargodha Division dismissing the revision of the petitioner against both the abovesaid orders i.e., Exh.P. 10 and Exh.P.11. Exh.P.13 is copy of an order, dated 27-3-1983 rejecting the application filed by the petitioner for correcting the entries of the Khasra Girdawari. Exh.P.14 is order, dated 5-6-1983 passed by Commissioner, Sargodha. Division rejecting the appeals filed both by the petitioner as well as respondent No.2 against the said order. Respondent No. l appeared as P.
W.1 and narrated the case as set up by him in his plaint. Nothing has been brought in his cross- examination. The statement is wholly corroborated by the documentary evidence referred to by me above. The petitioner appeared as D.W.2. He has admitted that respondent No. l had purchased the land from respondent No. 2. Regarding the sale allegedly made in his favour by respondent No.2 for consideration of Rs.75,000, he states that there is no written agreement, there is no receipt of Rs.75,000. He admitted that he has been ordered to be ejected by the Tehsildar and that his appeal and revision stand dismissed. He admitted that the Collector rejected his application for correction of Khasra Girdawari and that his appeal was also dismissed. He admits that he did not implead respondent No. l to the proceedings of arbitration. Respondent No.2 did not turn up in the witness-box to support the allegations made by him in leis written statement. This is entire evidence in the case. A perusal of the evidence would show that respondent No.2 had in fact sold the land in the suit and delivered possession thereof to respondent No. l several years ago. The sale and the factum of possession was incorporated in the revenue record that the petitioner was a tenant under respondent No. l over the suit land and was ordered to be ejected therefrom which order for ejectment has been upheld by the Collector and the Commission. His application for correction of entries stands rejected by the Collector and the order upheld by the Commissioner. In this background the filing of the application for making of the award dated 10-1-1983 rule of the Court, on 11-1-1983 and the acceptance of the said application on 13-1-1983 is wholly illegal and baseless and ineffective upon the rights of respondent No. 1.
5. The objection raised by the petitioner and being pressed by his learned counsel now has to be considered in the overall circumstances of the case borne out from the authentic evidence on record. To my mind in the said facts and circumstances established on record, respondent No. l who has been proved to be the owner of the suit land armed with an ejectment order against his tenant namely the petitioner had to approach a Civil Court with a suit for declaration to remove the clouds cast by the denial of his title on the part of the petitioner as well as respondent No.2 by fabricating the award and the consequent proceedings thereon. I am also in agreement with the learned counsel for the respondents that an application under section 12(2), C.P.C. Before the said Court was not as efficacious remedy because even if the application had been decided in his favour, yet the clouds cast by the denial of his title would be there and he had again to approach the Court for declaration of his title. I may add here that section 12(2), C.P.C. Can never be construed to constitute a protection for such-like proceedings as are the subject-matter of this lis.
In fact to my mind in the suit' the proceedings had to be attacked by the respondent No. l collaterally in order to establish title so as to enable respondent No.1 to obtain the relief of declaration of title. He was admittedly not a party to the so-called award or to the proceedings thereon by the Court making it the rule of the Court. Besides I find that the petitioner and respondent No.2 had in fact set up the said proceedings and order/decree as a defence to the suit for declaration filed by respondent No. 1. Such an eventuality is fully covered by Article 58 of the Qanun-e-Shahadat Order, 1984 which entitles a party to prove that any ejectment order or decree proved by the adverse party was delivered by a Court not competent to deliver it as it was obtained by fraud or collusion.
6. The petitioner has come up in revisional jurisdiction against the impugned judgments and decrees. In view of the opinion I have formed on the basis of evidence on record as stated above, I am not at all inclined to interfere in exercise of said jurisdiction which primarily is discretionary in nature in the facts and circumstances noted above. The objection raised by the learned counsel is nothing but a technicality and I do not feel like resorting to the same to undo the impugned judgments and decrees which otherwise do complete justice between the parties after they had a chance to prove their respective pleas by leading evidence. This Civil Revision is accordingly dismissed with costs.