' The brief resume of the case is that Muhammad Raman-respondent No,7 herein had instituted a suit about the land measuring 93 Kanals 1/2 situated in Khewat No,30/26 situated in Mauza Assalat Wala, Tehsil Shahpur, District Sargodha against Abdul Rehman and others claiming his right of pre- emption as a tenant of the land which was decreed on 20-8-1977 by Collector, Sub-Division Shahpur. The matter went up to the;apex Court against the judgment of the Lahore High Court dismissing the Constitutional petition of the judgmentdebtors/Abdul Rehman and others and the Honourable Supreme Court vide its judgment dated 19-10-1985 upheld the findings of all the lower forums. The decree of pre-emption in favour of respondent No,7 attained finality. Respondent No,7 filed an execution petition for implementation of the pre-emption decree as well as possession of the decree land and the Collector vide its order dated 14-1986 issued warrant of possession of the pre-empted land in favour of respondent No,7.
2. The judgment-debtors Abdul Rehman and others exchanged land with Abdullah and others present petitioners, who filed a suit for declaration on 23-1-1986 against respondents Nos.l to 6, who filed their consenting written statement and also made consenting statement and on their statements learned trial Court/Civil Judge, Shahpur decreed the suit vide judgment and decree dated 12-2-1986.
3. Warrant of possession of the property in compliance with the preemption decree passed in favour of respondent was passed by the Collector and his order was challenged by the present petitioner before the Additional Commissioner Revenue, Sargodha, who vide his order dated 21-7- 1987 dismissed the same and confirmed the order passed by the Collector dated 14-1-1986. The petitioner feeling aggrieved presented a revision petition before Member, Board of Revenue, respondent No,10 against Abdul Rehman and others and respondent No,7Muhammad Razman decree-holder. The revision petition was dismissed by the respondent No,10 through his order dated 9-1-1994. All the orders passed by the Revenue Officers respondents Nos.8 and 9 dated 14-1- 1986, 21-7-1987 and 9-1-1994 have been assailed through the instant writ petition.
4. During the pendency of this writ petition, a joint application on behalf of contesting parties for resolution of their dispute has been filed on the opinion of Haji Ahmed Khan son of Sardar Chiragh Khan. This Court vide its order dated 31-1-2002 referred the matter to the said referee for his opinion, who submitted the same which was placed on record as Mark-A vide order dated 4-3- 2002.
5. Learned counsel for the petitioners contended that decree with regard to the pre-empted property has been passed by the Civil Court in favour of petitioners Abdullah and others vide judgment and decree dated 12-2-1986, therefore, the decree for pre-emption having become infructuous was not executable. Further contends that the matter was referred to the referee who submitted his report giving his opinion that the right of pre-emption is against the injunction of Qur'an and Sunah and the opinion of the referee is binding on the parties. He placed his reliance on the cases of Attiq Ullah v. Kafayat Ullah 1981 SCMR 162; Sindh Road Transport Corporation v. Major (Retd.) S.M. Zali Zaheer Khan 1991 SCMR 425; Nizam Din v. Niamat Bibi and 3 others 1985 CLC 98; Ala Muhammad v. Muhammad Raman 1989 MLD 4554; Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd. PLD 1968 Kar. 115; Mushtaq-urRehman and 4 others v. Muhammad Akbar and 5 others 1982 CLC 364; Mst. Aakbari Begum v. Rehmat Hussain and others AIR 1,933 Allahabad 861 and Surti and others v. Baghwan Singh and another AIR 1934 Lahore 218.
6. On the other hand, learned counsel for contesting respondent No,7 vehemently opposed the arguments of the learned counsel for the petitioners contending that the matter of pre-emption has already been adjudicated upon in favour of respondent No,7 which has attained finality by the judgment of the Honourable Supreme Court of Pakistan. Further contended that the matter in issue was with regard to Dakhil/possession of the property. Therefore, the referee has not acted in accordance with the reference made to him and he after acquiring knowledge from the religious persons submitted his statement stating that the superior right of preemption of a tenant is contrary to Islam. This preposition has already been settled by the Honourable Federal Shariat Court as well as Shariat Appellate Bench of the Honourable Supreme Court. Further submits that there is no ambiguity that the decree for pre-emption in favour of respondent No,7 had been passed, in the year 1997 prior. To the pronouncement of the judgment by the Federal Shariat Court.
He lastly argued that the opinion of the said referee Haji Ahmad Khan is not binding on the respondent who has exceeded his authority.
7. I have heard the arguments of the learned counsel for the parties and perused the record.
8. There is no cavil with the fact that the decree for pre-emption in favour of respondent No,7 had been passed by Collector on 20-8-1977 against judgment-debtors Abdul Rehman and others respondents Nos.1 to 6. The vendee of the land and the judgment-debtors after exhausting all the remedies before the Revenue hierarchy challenged the same through a Writ Petition No,3493 of 1984 which was dismissed in limine on 5-3-1985. This order of the High Court was challenged through C.P.L.A. No, 389 of 1985 which too was dismissed on 19-10-1985. So far as,' the issue of preemption is concerned, it is not the matter in issue in this writ petition. It has already been settled and it is a past and closed transaction.
9. The instant litigation cropped up between the parties when the Collector issued warrant of possession on 14-1-1986 in favour - of respondent No,7 for implementation of the decree of possession. This order was challenged before the Additional Commissioner, Board of Revenue by the present petitioners and they were unsuccessful after the passing of the order dated 14-1-1986 by Collector. The petitioners and respondents Nos. 1 to 6 clapped hands and a suit for declaration with regard to the pre-emption property was filed by the present petitioners which was decreed on the consenting statement of respondents Nos. 1 to 6, Abdul Rehman etc. Apparently, it seems to be a collusion between the petitioners and respondents Nos. 1 to 6 to save the pre-empted property, this effort was made and on the first date of hearing of the suit, it got decreed.
10. A declaratory suit was decreed in favour of the present petitioners on 12-2-1986 and the order of the Collector for issuance of warrant of possession dated 16-1-1986 was assailed on 24-6-1986 before the Additional Commissioner. The appeal was dismissed on 21-7-1986 and the decision was upheld by the Board of Revenue. In this writ petition, the subject-matter is the question of possession of the property and not the title of the property. The referee could give his by the third party are not evidence opinion with regard to the possession in issue but he did not utter a single word in this respect and only produced information of the Ullema (the religious "Jurists") with regard to the right of preemption by the tenant which has already been settled by the superior admission are not conclusive as is provided Courts. This decision of the referee is not within the parameters of reference made to him.
11. Article 33 of Qanun-e-Shahadat not made his statement on his own Order/section 20 of the Evidence Act "enshrines" admission by persons referred to by party to suit; that statement made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions. This Article contemplates the existence of three parties: Firstly, the party who refers; secondly, the party who is referred; and thirdly the party to whom the reference is made. The principle is that when one party refers another second party the Qanun-e-Shahadat Order. The parties to a third party for information, the first party is presumed to undertake to adopt as his own the information furnished by the third party. In such cases the matter is referred to third person not in the nature of a submission to arbitration, but rather as an aid to the settlement of the difference existing between the parties and to enable the parties themselves to effect settlement on the information. In such case the party is bound by the declarations of the persons referred to, in the same manner and to same extent as if they were made by himself. In these circumstances, there must be an express reference for information in order to make the statement an admission.
Thus if say, "I will pay you if says I owe it to you B's statement about the matter will be on admission as against A. The declarations unless strictly within the subject-matter in relation to which the reference is made. Where parties to a proceedings agree to abide by the statement of a third person it is a statement within the meaning of Article 33. It is true that ordinarily mere in Article 31 of the Qanun-e-Shahadat Order.
12. That the referee Haji Ahmad Khan information. He has approached different religious persons and referred their opinion to the Court whereas the reference was made to him for his own opinion with regard to the dispute subject-matter of the writ petition and that was the possession of the property. The referee has exceeded his authority. He has made his written statement on the basis of information draw from the opinion of other religious persons. Award is not statement under Article 33 of applied to the Court agreeing to refer their A dispute to a named person as referee and case to be decided as per his statement. Referee appearing in the Court but making no statement obviously due to his lack of knowledge of facts of case. The referee was expected to make statement on his own knowledge or belief and not on the basis of inquiry made by him in a judicial manner.
13. There is clear distinction between an arbitrator and a referee. An arbitrator as held by the High Court and the Honourable Supreme Court of Pakistan is a person who decides a dispute after an inquiry. The determination of dispute by such a person is essentially by following a judicial procedure keeping in view the principles of natural justice and the law of the land. Such decision is known as an award and can be made a rule of the Court after following the procedure of the Arbitration Act. The statement of a referee is not his findings. It is a statement made before the Court on the basis of knowledge or belief of the referee. In th's context reference can be placed to the case of Sher Zaman Khan and another v. Noor Zaman Khan and another PLD 1977 Lahore 672.
An agreement to recognize an award beyond the scope of the dispute mentioned in the reference is void and is not binding on the parties to the reference. Reliance can be placed to the case of Parsram Gangandas and others v. Topandas Dholandas and others AIR 1928 Sindh 81.
14. The referee had not made his statement purely on basis of his knowledge of facts of case, the moment he entered upon inquiry, so authorized under the arbitration agreement, he could not be termed as "referee" and his statement or decision is not binding on the parties. This argument is further strengthened by the dictum as laid down in the case of Kamalud-Din v. Muhammad Shafi and another 1997 CLC 1555.
15. The controversy between the parties before the Board of Revenue was not the enforcement of right of preemption. It was the dispute of delivery of possession in the pre-emption decree.
' The information with regard to the right of pre-emption of a tenant in Islam was not referred to the referee so his answer or statement to the reference made to him has not decided the dispute subject-matter of the writ petition. The decision of the referee Mark-A is reproduced as under: {{URDU TEXT}} ' From the plain reading of the decision of the referee, it is manifestly clear that he had not furnished his decision on the basis of his own information, knowledge and belief, which was not the subject-matter of the reference. So no benefit can be given to the writ petitioner of the statement of Haji Ahmed Khan.
16. The facts of the case of Attiq Ullah v. Kafayat Ullah (supra) are not attracted to the present case.
In that case the matter was decided on Special Oath on the proposition by the petitioner that if respondent takes Oath on Holy Qur'an, he (plaintiff) would be bound by it. In the instant case, the matter was not referred to a third 'patty/referee. The facts of the case Sindh Road Transport Corporation (supra) was also not applicable. To the present case. In the said case, a decree was passed in terms of compromise between the parties and the matter was not referred to third person. In case of Niazam Din v. Niamat Bibi and 3 others (supra), the matter was referred to `arbitrator' but the said person acted as `referee' and the party had made commitment in the Court to accept the award of the arbitrator. The circumstances of the case Atta Muhammad v.
Muhammad Raman (supra) and Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd. (supra) are also distinguishable to the instant case. In case of Mushtaq-ur-Rehman and 4 others v. Muhammad Akbar and 5 others (supra) a local commission was appointed and it was held in the case that report of the local commission was binding on the parties and it was treated as a verdict. The facts of the case are also distinguishable to the present case. In, case of Mst.
Akbari Begum v. Rehmat Hussain (supra), the Court had observed that the statement of a referee is admission of the both parties and is conclusive against both and can operate as estoppel. There is no cavil to this proposition but the facts of the present case are not identical to the said case. In the instant case, as observed in preceding paragraphs, the referee has made the statement contrary to the dispute the subject-matter of the writ petition. He has not given his findings or opinion with regard to the possession of the disputed property. In this context reference can be placed to the case of Jumma Khan and others v. Mahmood Khan and others 1973 SCMR 289, wherein, it was observed that the reference to arbitration has to be confined to the subject-matter of the suit and any award on matters not covered by the suit would be void to that extent. The same remarks would apply to any consequential decree that might be passed by the Court in terms of such an award, for the simple reason that the Court would not be seized of the matters which were not put in controversy in the suit itself.
17. For the foregoing reasons, this writ petition being devoid of force is dismissed.