P L D 1952 Baghdad﷓ul﷓Jadid 30 (PLP)

ABDUL AZIZ, C. J.‑This is a first appeal against the decree of the Senior Sub‑Judge, dated 8th of April, 1951. In order to dispose of this appeal it is necessary to bear in mind the history of the dispute between the parties. The land 1/3rd of which is now the subject‑matter of the dispute belonged to three brothers Muhammad Asghar, Muhammad Anwar and Muhammad Akbar. It was sold by them on 30th of July 1942 to Ch. Rahmatullah and Ch. Muhammad Aslam during the minority of Muhammad Akbar. A pre‑emption suit was brought by Sardar Ali and Abdul Ghafar which was decreed in the Court of the Senior Sub‑Judge Bahawalpur on 28th of December, 1949. The pre‑emptor paid the pre‑emption money in time and obtained the possession of the pre‑empted property through the Court. Muhammad Akbar attained his majority during the pendency of the pre‑emption suit and his property which was under the superintendence of the Court of Wards was released. He sold his share to Ghulam Muhammad, Umar Din and Mst. Begum Alain on .18th of November, 1949. After the said sale the vendees Ghulam Muhammad, Umar Din and Mst: Begum Alam brought a declaratory suit in the Court of Senior Sub‑Judge alleging that Muhammad Akbar had rightly sold his share in their favour and that they were in possession of the purchased property at the time of the institution of the suit and consequently the pre‑emption decree in favour of Sardar Ali and others would not affect their right in the 1/3rd share of the land of Muhammad Akbar sold to them. Sardar Ali and Abdul Ghafar were the contesting while the two brothers of Muhammad Akbar and their vendees were only pro forma defendants. The contesting defendants raised several pleas which lead to the following issues :‑

1. Whether the plaintiffs were in possession of the pro perty at the‑time of the institution of the suit.

2. If this is proved in favour of the plaintiffs whether Muhammad Akbar had sold his 1/3rd share in the land on attaining majority in favour of the plaintiffs.

3. If issue No. 2 is proved in favour of the plaintiffs then could the decree for 1/3rd share of Muhammad Akbar minor in the pre‑emption suit brought by Sardar Ali not be passed according to law in favour of defendants Nos. 1 and 2, hence it is not binding on the plaintiffs.

4. If this is proved in favour of the plaintiffs what relief they are entitled to. When evidence was recorded in the trial Court to a certain extent the parties referred a part of their dispute to arbitrators by an application dated 8th of February 1951. According to the petition the matter virtually referred to the arbitrators, was, whether Muhammad Asghar and Muhammad Anwar were or were not competent to sell the share of Muhammad Akbar minor to Muhammad Aslam and Rahmat ullah. The award of the arbitrators was presented on 5th March 1951 and the decree was passed in favour of the plaintiffs on 8th of April, 1951. A preliminary objection was raised by Mr. Chishti on behalf of the respondents, that no appeal could lie under sec tion 17 of the Indian Arbitration Act against the decree of the Senior Sub‑Judge. Section 17 reads :‑ "Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with the award." He also quoted in support of his contention Shah Muham mad Fakhruddin v. Rahimullah Shah, 47 All. 121 and Risal Singh v. Faqira Singh, 153 All. 1006. Both the cases referred to for setting aside an arbitration award and it was held that no revision lay against such an order under section 117 of the Cr. P. C. Here the case is different, consequently to our mind these rulings need no consideration. The section itself relied upon by the learned‑counsel for the respondents could be of ample support to him provided the case had fallen within its ambit. The learned counsel for the appellants had con tended that the reference was made to the arbitrators relating to one and one issue alone, and the Court was competent to accept the decision of the arbitrators on that issue alone, and the other important issues which were not referred to the arbitrators and for which no award was given ought to have been decided by the Court. As the Court had held that the entire case was referred to the arbitrators while it was not so, the decision of the Court could be subjected to appeal. Mr. Chishti had admitted that if only a part of the case was referred to the arbitrators then the decision of the Court was wrong. His contention however was that the Court was right in holding that the case was referred to the arbitrators in its entirety. The point for the determination of the Court therefore is whether the case was referred in its entirety to the arbitrators or only a part of it. In order to determine this question we have to keep in view the issues framed in the case and the terms of application for reference. We cannot hesitate to observe that the Court had failed to examine the parties to clarify the matter which was to be referred to the arbitrators, and also to make a clear referring order. If that procedure had been adopted then we are sure that the present controversy between the parties would not have arisen. Now there are four issues in the case. The first refers to the factum of the possession of the plaintiff of the land at the time of the institution of the suit. The second refers to the competence of the major brothers of Muhammad Akbar to alienate his share to Ch. Muhammad Aslam and 1Zahmatullah. The third issue is wrongly framed but it is not very material as it appears to us redundant. The fourth is a general issue, It is evident therefore that from the pleadings of the parties and the issues framed by the Court there were two distinct and different points which needed the decision of the Court for the final determination of the dispute. Let us now refer to the application for reference. The application states that the dispute between the parties. is whether Muhammad Asghar and Muhammad Anwar majors were com petent to sell the share of their minor brother Muhammad Akbar in favour of Muhammad Aslam and Rahmatullah and that the arbitrators were appointed for the determination of that point. In the end of the application the words are "that the determination of one issue is referred to the arbitrators". It is indeed unfortunate that some interpolation has taken place in the concluding portion of the petition for reference. According to Mr. Chishti the words "siraf ek tankeh par" are interpolated while according to us the words "tamam mukadama ko ganuni taur par" following the words "siraf ek tankeh par" are interpolated. There is an inherent evidence in the docu ment itself for our conclusion. We are not of the opinion that the space in which "siraf ek tankeh par" were written would have been left vacant at the time the document was written. If those words have not been the genuifie part of the document then the words "jadeed salsan" should have been written after the words "mansookh f arma kar" in the end of the line preceding the last line of the document. The words "siraf ek tankeh par" definitely appear to have been written by the same pen and ink with which the entire petition was written. While the word "tamam mukadama ko kanuni taur par" appear to have been written by a different pen and ink. Mr. Chishti contended that he had got a copy of this document in which the words "siraf ek tankeh par" do not appear. But we attach no importance to that document because it is not a certified copy of the original and it was pre pared by some person on behalf of the plaintiffs ; and we can not say how and when. In the absence of its being a certified copy of the original document dated 8th of February 1951 we are unable to attach any importance to the copy which is in possession of Mr. Chishti. We allowed him to put in his contention in writing on the file but we are not prepared to agree with him. We therefore conclude that the reference was made only with respect to one issue and not with respect to the entire case and the parties were competent to do so. Reference in this connection may be made to Hassomal Hirdomal v. Kodanmal Motiomal 1927 Sind 239 in which it was laid down that it is open to the parties in certain cases to refer to arbitration through the intervention of the Court only some of the dispute in a pending suit. Now if we refer to the application for reference, it would be abundantly clear that the, parties had referred in explicit terms to the arbitrators one' and one issue only, while rig the case there were two important issues. These facts make us absolutely clear that the first issue which was also an important issue in the case was not referred to the arbitrators and consequently it was the duty of the Court to give its decision regarding that issue on the material placed before it by the parties. As this was not done consequently the judgment and the decree of the Court below are liable to be set aside and are set aside. The appeal stands accepted and the case is remanded for fresh decision after giving its findings on issue No.

1. We are leaving the parties to bear their own costs in this Court. The cost in the Court of first instance shall be the cost in the cause. Parties are directed to appear in the Court of first instance on 10th February, 1952. A. H. Appeal allowed.