2006 PLP 312 (CLC)

IJAZ-UL-HASSAN KHAN, J.

Khairullah petitioner filed instant revision petition to call in question the judgment and decree, dated 19-10-2004 of the learned District Judge/Zilla Qazi, Malakand at Batkhela, affirming the judgment and decree dated 14-7-2003 of learned Senior Civil Judge/Aala Illaqa Qazi, Malakand at Batkhela, confirming the report of commission and granting a final decree in pursuance thereof.

2. Shortly put the facts are, that Fazle Manan, respondent No.1 herein, filed a declaratory suit on 15-12-1998 against the petitioner and Muhammad Shafiq, respondent No.2 herein, in respect of land situated at? Dheri Jolagram, Malakand Agency, known as `Nayan Serai' in Wand Turlanday Baba, for a share to the extent of ,11.1/3 Pachas. The petitioner as well as respondent No.2 tiled their respective written statements. On 14-3-2000, respondent No.1 filed an amended declartory suit enhancing his alleged share from 11.1/3 Pachas to 141/3 Pachas, to which the petitioner and respondent No.2 filed their respective written statements. With the consent of the parties, the matter was referred for resolution to Muawen Qazi, who brought about the resolution through his Sulah Nama dated 2-6-2001. Learned Civil . Judge, Malakand at Batkhela, consigned to record the suit of respondent No.l in terms of Sulah Nama/agreement on 3-10-2001. Vide an application dated 20-2-2002, respondent No.1 approached the Court of Senior Civil Judge/Aala Illaqa Qazi Malakand at Batkhela, for the grant of final decree, wherein he alleged that 14.2/3 Pachas had been decreed in his favour through Sulah Nama dated 2-6-2001. Senior Civil Judge appointed a Local Commission in the matter whose appointment was challenged by the petitioner in a revision petition before the District Judge/Zilla Qazi, Malakand at Batkhela, which was dismissed. The Local Commission gave his report to which the petitioner filed his objection and the statement of the Local Commission was recorded before the trial Court. Finally, Senior Civil Judge, seized of the matter, passed his judgment and decree dated 14-7-2003 in favour of respondent B No.1, which was maintained in appeal by District Judge. Feeling aggrieved from the judgments and decrees of both the Courts below, the petitioner has filed instant revision petition, which is before me for consideration.

3. Mr. Qaiser Rashid, Advocate for the petitioner vehemently contended that whereas respondent No. l filed a suit for specific share of 14.2/3 Pachas piece of land, Muawen Qazi in his Sulah Nama/agreement never gave any specific share to either of the party to the suit and this fact was also appreciated in the report of the Local Commission as well but still the lower Court gave a final decree in favour of respondent No.1 C ignoring the most important and vital aspect of the case. He reiterated that even the Local Commission in his report has admitted the fact that in the Sulah Nama of the Muawen Qazi as well as the order, dated 3-10-2001 of the Civil Judge, there is no mention of the respective share of the parties and as to which party to the suit has to get how much share as mentioned in the commission's report. The learned counsel added that still in compliance with the order of the Senior Civil Judge, the Local Commission went ahead with the preparation of his report. The report is illegal as the Local Commission has travelled beyond duty assigned to him as he has in the process dragged so many outsides in the controversy and have allocated various shares to them for which he was not directed by the trial Court. The learned counsel lastly submitted that the award of mediator cannot be changed without any consent of the parties concerned on pretext of final decree.

4. Sahibzada Asadullah, Advocate for the respondents, on the contrary, maintained that the Courts below have taken a lawful view emerging out of the file, no part of which has been misread or non-read, without it, no interference in revisional jurisdiction of this Court is permissible under law. The learned counsel submitted that the report of, commission has been taken into consideration and made basis of the impugned judgment and decree for valid reasons and the revision petition in hand has no force and merits outright dismissal. To substantiate the arguments, reliance was placed on Mst. Amna v. Muhammad Iqbal 1990 CLC 1492, and Muhammad Itbar Khan v. Fazal Hussain and 3 others PLD 1990 Lah. 116.

5. The contentions put forth on behalf of the parties' learned counsel have been considered in the light of the record of the case and the impugned judgments have been perused carefully.

6. It is evident from the record that the Sulah Nama/agreement dated 2-6-2001, reached between the parties through Muawen Qazi Malakand, can be termed as the specific partition of the suit property and the learned Civil Judge, Malakand, accordingly consigned to record the suit in terms of the said Sulah Nama without identifying the respective shares of the parties and without passing any decree as such. But the said order of the learned Civil Judge vide which he consigned to record the suit of respondent No.1 has been treated by both the learned lower Courts as preliminary decree and in the process also the application for the grant of final decree. On the basis of the said order of the Civil Judge, both the learned lower Courts passed the final decrees. Such being the position, the judgments and decrees of both the lower Courts suffer from grave illegality resulting in manifest injustice. It may be pointed out here that the Local Commissioner in his report has frankly and candidly admitted the fact that in the Sulah Nama Muawen Qazi as D well as the order, dated 3-10-2001 of the learned Civil Judge, there is no mention of the respective share of the parties and as, to which party to the suit has to get how much share as mentioned in the' commission's report. Still in compliance with the order of the Senior Civil Judge, the Local Commission went ahead with the preparation of his report. It has been contended with justification that the Commission has travelled beyond duty assigned to him. Report is illegal. Whereas the report of Muawen Qazi, Malakand is totally silent about the specific share of the parties resulting in the order dated 3-10-2001 of the Civil Judge. Both the Courts below have displayed great magnanimity towards respondent No.1 and thus, have committed material irregularity. Mediation is not the decision of the case on merits. It is the result of agreement between the parties and thus, the parties are bound by such mediation. When mediation is filed before the Court, the Court invites objections of the parties before it makes the same as rule of the Court and if any objection is not filed and the mediation is accepted by the Court unobjected, then it is not questionable through an appeal or revision. The award of mediator cannot be changed without the consent of the parties concerned, on the pretext of final decree. Both the Courts below have exercised jurisdiction not so vested in them under the law and thus, the judgments of the Courts below are liable to be set aside. In the result and for the foregoing reasons, on acceptance of this revision petition, both the judgments and decrees of the Courts below are set aside and the application of respondent No.1 for the grant of final decree is dismissed. The parties are left to bear their own costs. H.B.T./586/P?????????????????????????????????????????????????????????????????????????????????????? Revision accepted.