P LD 2002 Lahore 190 (PLP)

2. The facts as disclosed in the plaint are that one Muhammad Siddique not party to the proceedings on behalf of his brothers and Mukhtar Ahmed on his own behalf and on behalf of the plaintiff and defendant No.2 jointly purchased land measuring 205 Kanals, 14 Marlas. Out of this land the share of the plaintiff and defendants Nos.1 and 2 was 1/3rd each. The name of defendant No.1 as owner of the entire 102 Kanals, 17 Marlas was benami and that the plaintiff was in fact the real owner of his 1/3 share.

3. The suit was contested by defendant No. 1/petitioner while defendant No.2 submitted a consenting written statement. Defendant No.1/petitioner contested the suit on the ground that the suit was barred by time and that it was mala tide. On merits it was contended that said defendant No. 1 was the real owner and beneficiary of the entire land and that the plaintiff had no right or interest to whatever extent in the same.

4. Before commencement of trial of the suit, the parties volunteered to make a statement in the Court on 28-1-1988 according to which as many as three persons namely Ch. Chiragh Din, Ram Din and Lateef were appointed to act as referee. It was jointly stated that the statement of the referee shall be binding on the parties. On 28-2-1988 when the date was fixed for submission of the report of the referee, two referees out of three namely Ch. Chiragh Din and Ilam Din appeared in the Court and recorded their statement. According to joint statement of the said referees it was decided that all the three parties namely Muhammad Ismail, Mukhtar Ahmed and Muhammad Bashir were owners in equal share in the subject land which was purchased by all the three jointly. After the statement was recorded the petitioner Mukhtar Ahmed made a further statement that if the referee makes the statement upon the Holy Qur'an, the suit of the plaintiff may be decreed. Upon this Choudhary Chiragh Din made the statement upon the Holy Qur'an to the effect that all the three parties had equal share in the land subject?matter of controversy. As a result the learned trial Court seized of the matter decreed the suit vide judgment and decree dated 28-2-1988.

5. The petitioner tiled an appeal against the said judgment and decree. It was contended therein that in fact there were three persons who were appointed as referees and on the relevant date only two of them had appeared and had made a statement. According to him it was necessary that all the three referees should have made the statement before the Court. He further challenged the decree on the ground that out of the two referees present in the Court only one namely Chiragh Din made the statement on oath. According to the petitioner the judgment and decree of the trial Court was thus based upon erroneous assumption of law. The appeal of the petitioner, however, was dismissed vide judgment and decree passed by Additional District Judge, Rahimyarkhan dated 9-5-1990. According to the Appellate Court the offer of the petitioner in pursuance of which Choudhary Chiragh Din made the statment on the Holy Qur'an amounted to a consent decree and thus the appeal was without merit.

6. In this civil revision Abdul Kaleem Qureshi, Advocate, appearing for the petitioner raised two contentions. Firstly, he submitted that as the matter was referred to three referees no effective decree could be passed without the statement of all the three referees. Secondly, even out of two referees present in the Court on the relevant date, only one namely Choudhary Chiragh Din responded to his offer of making a statement on the Holy Qur'an and in this view of the matter, this conduct further detracted from the efficacy of the proceedings.

7. On the other hand, the learned counsel appearing for the respondent submitted that two referees had concurred in their statement in favour of respondent No.1 and the absence of the third referee was immaterial. He further submitted that upon the offer of the petitioner, oath was duly taken and statement made on the Holy Qur'an by one of the two referees which was in full compliance with the offer of the petitioner. According to him the fact that the other referee did not make a statement on Special Oath would not affect the proceedings.

8. Arguments heard. Record perused.

9. The statement made by the parties, on 28-1-1988 was a decision to refer the matter under the provisions of section 20 of the Evidence Act, Presently Article 33 of the Qanun-e-Shadadat Order, 1984. Article 33 is reproduced as under:-- "Article 33.--Admission by persons expressly referred to by party to suit:--Statements made by a person to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions. "

10. The basic object and purpose of reference under this Article is to treat the statement of the referee as the statement of the party itself. It is by now settled law that a referee has to render his statement in accordance with his personal knowledge of the subject-matter of the dispute. He does not have to rely upon any extraneous material or circumstances. If the statement of the referee fulfils these requirements, it shall be deemed to be a statement or the parties as if they had made the said statements themselves. Obviously the effect of this statement shall be binding upon the parties.

11. When viewed in this perspective it appears only logical that a reference under Article 33 of the Qanun-e-Shahadat Order is contemplated to p only one referee who should make a statement according to his own personal kt1owledge. Although, no restriction appears to have been placed upon the number of referees to be appointed for this purpose, yet the rationale of this provision of law indicates that the appointment of more than one referee may lead to thwart the very purpose of making a reference. The practice of pointing more than one referee may indeed work to the detriment of the Purpose for which the referee may be appointed. Thus, for example there may be a difference of opinion between the two or more referees. Then there may be a question of a majority view amongst the referees and so on and so forth. In this view of the matter, I am of the considered view that the practice of appointing more than one referees must be deprecated. Coming to the merits of the case, it is on the record that two of the three referees had made a joint statement in favour of passing of a decree in favour of Muhammad Ismail respondent No.

1. Ordinarily the matter should have concluded there and then. The petitioner laid down a further condition of oath on the Holy Qur'an. Even this demand was met by one of the Referees Choudhary Chiragh Din. There was thus no occasion for the petitioner to have either resiled from said offer or even to have challenged the decree of the Civil Court in appeal.

12. As discussed in the preceding paras. the statement of the referee is binding upon the party. A decree based upon such statement cannot be challenged by that party in appeal unless the same is a result of fraud of misrepresentation. No illegality is discernible from the proceedings of the trial Court or of the Appellate Court. The concurrent findings of both the lower Courts do not suffer from any legal infirmity.

13. Resultantly, there is no merit in this Civil Revision which is hereby dismissed leaving parties to bear their own costs. H.B.T./M-1007/L ?????????????????????????????????????????????????????????????????? Revision dismissed.