P L D 2011 Lahore 412 (PLP)

SYED MANSOOR ALI SHAH, J.

Brief facts of the case are that the respondents filed a suit for possession against the petitioner. During the pendency of the suit, with mutual consent of the parties, Tehsildar Bhawana was appointed as Referee under Article 33 of Qanun e-Shahadat Order, 1984. The said Referee submitted his Report on 25-2-2010 before the learned trial Court, thereafter, the suit was decreed in favour of the respondents on the basis of Report of the Referee vide impugned judgment and decree dated 10-3-2010. The petitioners filed an appeal against the said judgment and decree before the learned Additional District Judge, Chiniot which was dismissed vide judgment and decree dated 8-11-2010. Both the judgments and decrees have been challenged by the petitioners in this petition.

2. Counsel for the petitioners contends that the impugned judgments have been passed in violation of Article 33 of Qanun-e-Shahadat Order, 1984 ("QSO, 1984"). It is contended that the Tehsildar appointed as a 'Referee' does not qualify to be a Referee under QSO, 1984 as he has been assigned the task of demarcation and verification of facts by visiting the location and, therefore, the so-called Referee is actually a Local Commission. He further submits that the Referee inquired into the Revenue Record before giving his opinion and, therefore, did not act on his own personal information. Counsel has relied on Saadat v. Sher Muhammad (2004 YLR 1155), Naveed Aziz and another v. Rauf Ali Syed (1996 CLC 1932), Sher Zaman Khan v. Noor Zaman Khan and another (PLD 1977 Lahore 672), Kashmira v. Mst. Malkho (NLR 1992 Civil 318), Wajid Ali and others v. Liaqat Ali and others (2000 YLR 2484), Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763).

3. The counsel for the petitioners further contends that the said Referee is a Local Commission in reality and therefore the petitioners are entitled to file objections against the' report and statement submitted by the said Referee (Local Commission). He further contends that Report filed by so called Referee is in violation of section 67-A (7) of Land Revenue Act, 1967 as well as, High Court Rules and Orders and has placed reliance on Sheikh Allah Ditta v. A.F. Ahmad and Co., and others (PLD 1954 Lahore 608).

4. Learned counsel for respondents submitted that there is no requirement of "personal, knowledge" under Article 33 of the QSO, 1984. He contended that the word "INFORMATION" is used in the said Article and submitted that information has been supplied by the Referee appointed by the court. He contended that the Referee has been appointed on the basis of mutual consent of the parties and the ground taken by the petitioners before the learned Additional District Judge Chiniot was only to the extent that Report of the Referee was ambiguous. He further contended that the Referee was assigned the task to determine who was in possession of Khasra Nos.60/15/01 and 15/02 in addition he was also asked to carry out demarcation. It is contended that the exercise undertaken by the Referee can be split and to the extent of information given by the Referee, it can be treated as an admission of the parties. He submitted that the court relied on information of the Referee and on nothing else while decreeing the suit in favour of the respondents and as the parties had participated in the proceedings before the Referee and therefore were estopped from agitating the matter through the instant Civil Revision. He referred to section 96(3) of the C.P.C. to submit that the petitioners could not have filed the appeal before the learned Additional District Judge, Chiniot because it was a consent order. Learned counsel placed reliance on "Manzoor Hussain and others v. Wali Muhammad and others (PLD 1965 Supreme Court 425), "Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others" (1992 SCMR 718) and "S. Zahir Hussain v. Province of Sindh and another" (1981 CLC 379) in support of his contention.

5. Arguments heard and record perused.

6. During the pendency of the suit for possession filed by the respondents, both the parties approached, the learned trial Court on 19-2-2010 for the appointment of a Referee to determine the boundaries of killas Nos.15/1 and 15/2 in Square No. 60 and to also determine the possession of the petitioners (defendants) in the above mentioned killas. The "Referee" was also to determine if the petitioners (defendants) were in possession of killa No. 15/2 and also the names of all the persons in possession of the said kills. Parties agreed that the Tehsildar Bhawana shall be treated as a Referee under Article 33 of the QSO, 1984 and his report shall be binding on the parties and the suit shall be decided on the basis of the same. The statement recorded by the parties before the court was as follows:--

7. Thereafter an Order was passed appointing Tehsildar Bhawana to act as a Referee.

8. Tehsildar in his Report dated 25-2 2010 submitted that after due measurement of the area the boundaries were demarcated in the presence of the parties and other respectables of the area. He further submitted that after a field visit it was determined that the petitioners were in possession only to the extent of One' Marla in Square No. 60, killa No.15/1.

9. The main question that needs to be answered is whether, Tehsildar Bhawana in the present circumstance of the case constituted a 'Referee' under Article 33 of the Qanun-e-Shahadat Order, 1984.

10. Article 33 and its illustration is reproduced for ready reference:-- "

33. Admission by person expressly referred to by party to suit.--Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions. Illustrations: The question is, whether a horse sold by A to B is sound. A says to B: "Go and ask C: C knows all about it". C's statement is an admission."' (Emphasis supplied)

11. The above Article deals with vicarious admissions i.e., admissions of persons other than the parties. When a party refers to a third person for some information or an opinion on a matter in dispute, the statement made by the third person is receivable as admissions against the person referring.1 The reason is that when a party refers to another person for a statement of his views, the party approves of his utterance in anticipation and adopts that as his own2.

1. Sarkar on Evidence (1999)-Section 20 of the Indian Evidence Act, 1872.

2. Hirachand Kothari v. State of Rajasthan-AIR 1985 SC 998 (at 1001).

12. Article 33 of QSO, 1984 provides that STATEMENT OF INFORMATION of a third person referred to by the party in dispute shall constitute the admission of the referring party. The scope of Statement of Information has earlier come up before the courts and it has been held that the Statement of Information means the information in possession of the Referee prior to his appointment as a Referee. The Referee cannot set out to find or cull out information by visiting the location, examining the record 'or by recording the statement of the witnesses. A Referee cannot procure, determine or inquire into facts to obtain the information sought by the referring parties. Statement of information under Article 33 does not require that the Referee makes an effort to collect or decipher the said information. The information must 3 be in his knowledge prior to his appointment as a Referee. Illustration to Article 33 clearly provides that "C knows all about it." This imputes prior knowledge of the relevant fact to the Referee. He can however, make an effort to juggle or refresh his memory by consulting his notes or going through his diary but cannot inquire or discover new facts and base his information on the same. He cannot embark on a fresh inquiry to determine the fact. Reliance is placed on Sher Zaman Khan v. Noor Zaman Khan and another (PLD 1977 Lah. 672), Kashmira v. Mst. Malkho (NLR 1992 Civil 318), Naveed Azizand another v. Rauf Ali Syed (1996 CLC 1932), Wajid Ali and others v. Liaqat Ali and others (2000 YLR 2484), Abdullah and 5 others v. Abdur Rehman and 9 others (2004 YLR 295), Nazir Ahmad and others v. Muhammad Qasim and others (2004 SCMR 1292), Muhammad Ashraf v. Abdur Rehman (1993 CLC 1875), Kamaluddin v. Muhammad Shaft and another (1997 CLC 1555), Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763). Qamar-ud-Din v. Abdul Latif and others (2010 YLR 114), Province of Punjab through District Collector, Multan and 5 others v. Messrs Khalid Hussain and Company Government Contractors (2007 MLD 1366), Mushtaq Ahmad v. Muhammad Ismail (PLD 2012 190), Chiragh Din v. Muhammad Shafi (2002 YLR 2479), Zulifqar Ali Shah and 5 others v. Muhammad Hussain and 6 others (2002 YLR 1560), Fait-ul-Haq and another v. Abdus Salam and 3 others (1990 MLD 106), Mst. Ayesha v. Matee-ur-Rehman and others (2007MLD 1318), Haji Anwar Ali and others v. Bashir Ahmad (2002 CLC 421) and Muhammad Saeed v. Mst. Shamim Akhtar and others (2010 YLR 2987).

13. Any fresh inquiry or determination of facts requiring any act of assessment, verification or valuation to be undertaken goes outside the scope of statement of information under Article 33 of the Qanun-e-Shahadat Order, 1984. Any such act of determination or verification transforms the Referee into either a Local Commission or an Arbitrator as the case may be.

14. In the present case, the statements recorded before the learned trial Court by the parties assign a specific task of hadd bardari (demarcation of the boundary) to the Tehsildar. The statement of the .parties repeatedly required the Tehsildar to determine the possession of the petitioners in killa No. 15/02. This exercise set out the Tehsildar to collect and verify information by visiting the site indisputably implying that the Tehsildar did not have off the cuff information or knowledge of the said possession. For a Tehsildar to pass as a Referee, he should have had prior knowledge of possession of the parties and the learned trial Court should have simply summoned the Tehsildar for a statement of information rather than sending him off on an assignment requiring determination of facts. The Report of the Tehsildar dated 25-2-2010 once again reveals that the Tehsildar collected field information and does not show that the Tehsildar had prior knowledge of the possession of the petitioners in the relevant killa.

15. The contention of the counsel for the respondents that petitioners participated in the process and never raised any objection does not carry force, as silence, consent or conduct of the parties cannot override the express mandate of Article 33 of the QSO, 1984 besides the learned trial Court never granted time to the petitioners to file objections. The second submission of the counsel for the respondents that the Report and the statement of the Tehsildar can be severed and the statement can pass for the Statement of Information under Article 33 of QSO, 1984. This submission facially attractive lacks merit. This is because the statement is also based on verification and determination of facts showing that the Tehsildar did not have prior knowledge, and additionally, impugned order dated 10-3-2010 is solely based on the Report of the Tehsildar and not on the statement of the Referee.

16. The case law relied upon by the counsel for the respondents has little relevance to the case in hand and hardly advances the case of the respondents.

17. I, therefore, hold that the Tehsildar was acting as a Local Commission and not as a Referee. Therefore, the learned trial court was under an obligation to have fixed a date for filing of objections, if any, by the parties to the Report of the Local Commission but could not have hurriedly proceeded to decree the suit on the basis of the said Report.

18. For the above reasons the impugned judgments and decrees are set aside. Suit for possession filed by the respondents will be deemed to be pending before the learned trial Court and will proceed from the stage when the Report of the Tehsildar Bhawana was filed before the learned Trial Court. The parties are free to file their objections against the said Report, if so, advised in accordance with law.

19. For the above reasons this petition is allowed. M.A.K./S-72/L Petition allowed.