1992 PLP 7 (MLD)

(1) Whether the plaintiffs have got a cause of action? (2) Whether the plaintiffs are estopped by their own conduct to bring the present suit? (3) Whether defendants 2 and 3 are owners of 4 Marlas out of the suit property on the basis of arbitration award? (4) Whether the suit is properly valued for the purposes of court-fee and jurisdiction? (5) Whether Shuja Mir was owner of the suit property and the plaintiffs being his legal heirs are entitled to a decree for possession by partition as prayed for? (6) Whether the plaintiffs are entitled to a decree for the recovery of Rs.11,200 from defendant No.1 on the grounds mentioned in their plaint? (7) Whether the suit House No.573/E cannot be partitioned, if so, its effect? (8) To what relief or refers, if any, the plaintiff is entitled to? Additional issue framed by the Appellate Court: -- (9) Whether the suit house to the extent 2/3 was declared ownership of defendants 2 and 3 as a result of valid arbitration award?

3. The learned Senior Civil Judge, discussed the issues in his judgment, dated 28-6-1988 and granted a preliminary decree in favour of the plaintiffs against the defendants. They were also held entitled to Rs.2,975 out of Rs.3,500 kept by Badi-uz-Zaman. While giving finding on issue No.3 and additional issue it was held that the plaintiffs had not accepted the award of Arbitrator nor they had participated in the proceedings, therefore, the award relied upon by the defendants in support of their claim was not binding on them.

4. A day before the judgment was announced, the learned Senior Civil Judge vide order, dated 27-6-1988 dismissed the application filed by the defendants for amendment of their written statement claiming ownership by adverse possession.

5. Ghulam Khan, defendant-petitioner herein, again filed an appeal before the learned Additional District Judge, Bannu challenging the judgment and decree dated 28-6-1988 of the learned trial Judge, who vide his judgment dated 11-1-1989 dismissed the appeal and the plea taken by Ghulam Khan petitioner herein and Muhammad Rasool, respondent No.10, herein, that they had paid 2/3rd share of the sale consideration to Shuja Mir was not accepted. It was held that Mst. Rapey Jana widow of Shuja Mir had transferred her share to her brother Ghulam Khan and her sister's son Muhammad Rasool and for that reason they were in possession of the house as co-sharers. About the plea of defendants that they were entitled to the extent of 2/3rd share in the suit house on the basis of arbitration award, it was held that there was no evidence to show that any arbitration was made by a competent Court and that the arbitration award by Maulvi Abdul Hamid was given on the direction of Martial Law authorities to which the plaintiffs-decree-holders had not consented.

6. Ghulam Khan, defendant-petitioner herein, has now filed this revision petition challenging the judgments and decrees of the Courts below dated 28-6-1988 and 11-1-1989, respectively.

7. Mr. Allah Nawaz Khan, Advocate for the petitioner, argued that since the learned Additional District Judge has not discussed the ground of appeal about the amendment of written statement in the impugned judgment, therefore, he failed to exercise the jurisdiction vested in him by law. He further contended that appeal being continuation of proceedings, entire case including all orders made therein could be thrashed out by the learned Appellate Court. Reliance was placed on Noor Muhammad v. Ghulam Sadiq P L D 1985 Pesh.

127. He next referred to the cases of Mst. Umari v. Faqir Muhammad P L D 1983 Lah. 319 and Muhammad Saeed Mazari v. Muhmmad Sharif 1990 CL C 889 in support of his contention that the Appellate Court was bound to decide the application for amendment of written statement and deciding the main appeal without deciding the application for amendment of written statement, the Court failed to exercise the jurisdiction vested by law. The case of Hyderabad Municipal Corporation v. Messrs Kolambia Interprises 1990 C L C 47 was cited in support of the view that amendment of pleading can be aksed for at any stage of proceedings. He next relied on the case of Syed Akhlaq Hussain v. WAPDA, Lahore 1977 S C M R 284 wherein it is held that amendment under Order 6, Rule 17, C.P.C. should be allowed generally except when it causes injuries to the other side. Learned counsel for the petitioner then contended that plea of adverse possession is not inconsistent with the plea of ownership for which the amendment may be refused and placed reliance on Abdul Aziz v. Multan Electric Supply Corporation Limited P L D 1958 Lab. 614 and P L D 1987 Azad J&K

102. When questioned as to why the order rejecting the application for amendment was not appealed against, it was argued by the petitioner's counsel that the order was not appeal able.

8. On merits of the case, learned counsel for the petitioner argued that the award Exh.D.W.1/1 was ignored by the lower Courts on the view that it was not made rule of the Court but on the basis of decision reported in P L D 1971 SC 516 and 1972 S C M R 608 this was not necessary. He submitted that Maulvi Abdul Hamid (D.W3) had proved the award who acted as an Arbitrator.

9. Mr. Dost Muhammad Khan, Advocate for the plaintiffs-respondents argued that the learned Additional District Judge had not discussed the grounds of appeal relating to the amendment of written statement because it was not pressed before him. He further contended that when the application for amendment of written statement was dismissed by the trial Court, the defendant-petitioner should have filed a separate revision petition as the order was not appeal able. In support of his contentions, reliance was placed on 1986 C L C 2337 and P L D 1969 Lah.

16. While replying to the arguments on merits of the case, learned counsel for the plaintiffs-respondents argued that the suit house was exclusively purchased by Shuja Mir and that no evidence worth the name was available on the record in support of the plea that the petitioner had also contributed any price in purchase of the house alongwith Shuja Mir. About the rejection of award, it was argued that the daughters of Shuja Mir were not signatories to the proceedings and they never participated in those proceedings. It was contended that under section 47 of the Arbitration Act written agreement is a condition precedent for appointment of Arbitrators. He also questioned the time limit for challenging the award in Court. According to him, even if the award is accepted that was filed on 20-4-1983 when it was given on 9-12-1977 and that Article 178 of the Limitation Act providing 90 days for filing of the award was not complied with. On competency of the revision petition, learned counsel for the plaintiffs-respondents produced the following case-law: -- PLD1983SC53and1983SCMR504.

10. I have heard the learned counsel for the parties and have also perused the record. The proposition of law that appeal being continuation of proceedings, entire case including all orders made therein can be thrashed out is not disputed. To that effect is also the case-law referred to above, but the question is whether the refusal of the trial Court to amend the written statement anti the appellate Court passing no order can be challenged in the revision by the petitioner, when ground was not pressed before the appellate Court. The contention that the learned Additional District Judge was bound to decide the application for amendment of written statement, for, one of the grounds of appeal was relating to the amendment of written statement, is devoid of force because the ground alleged was not pressed. It has been held in Noor Muhammad v. Din Muhammad 1986 C L C 2337 and Mst. Mumtaz Begum v. Sheikh Inayatullah P L D 1969 Lah. 16 that when a certain plea is not discussed in judgment of the Court and questions of law and facts, mentioned in memo of appeal are not pressed, it will be presumed that such point was not pressed and was abandoned. This rule may not be accepted as binding when matter concerning amendments of pleadings is involved, for, acceptance of this rule would be in contradistinction to the rule laid down in the chain of judicial pronouncements that plea of amendment in pleadings can be raised at any stage of the proceedings. It is indeed true that on the ratio of decision in Abdul Aziz v. The Multan Electric Supply Corporation Limited reported in P L D 1958 (W.P.) Lah. 614 that the plea of ownership and adverse possession are not inconsistent but as to when the pleadings are consistent and when they are not, a test is laid down in Alauddin v. Mst. Farkhanda Akhtar P L D 1953 Lah. 331 which is referred in the case of Abdul Aziz (supra). The test laid down is as under: -- "A pleading cannot contain inconsistent allegations of fact. A criterion for finding whether allegations are inconsistent or not would be the answer to the question whether they can or cannot be verified at the same time. If two allegations be such that they cannot both be verified by one and the same person they cannot be allowed to stand and the pleading will be defective. If, however, the allegations be such as can properly be verified at the same time, the pleading cannot be said to suffer from inconsistency."

11. In the case before us, the defendant-petitioner did not claim adverse possession as an alternate plea in the written statement. The amendment is sought to include the plea of adverse possession. He had claimed the joint ownership of the suit house with the heirs of Shuja Mir on the ground that a portion of sale price was contributed by him when Shuja Mir had purchased the house in open auction. No evidence worth the name has been produced to show that any price was paid by him. P.T.D. was issued in the name of Shuja Mir. This, if defendant-petitioner is allowed to amend his written statement, he would not be able to verify the two pleas of ownership and adverse possession. These two pleas in the instant case are quite inconsistent, because on the one hand ownership is claimed on the basis of purchase and on the other hand no overt act to the knowledge of co-owners is alleged. In Muhammad Sadiq v. Noor Hussain P L D 1987 Azad J&K 102 amendment to claim adverse possession was allowed because it was supported by the evidence of notoriety and continuity of possession for more than 12 years. These constituents of adverse possession are lacking in this case. The amendment if allowed would change the nature of the suit nor it is necessary for resolving the real question in controversy between the parties as is the requirement of Order 6, Rule 17, C.P.C. In this view of the matter prayer for amendment of written statement cannot be acceded to and is, therefore, rejected.

12. On merits of the case, learned counsel for the petitioner referred to the Arbitration Award. Exh.D.W.l/1. The Courts below rejected this award as it was not made rule of the Court nor the plaintiffs-respondents were signatories of the arbitration proceedings. The award Exh.D.W.l/1 would show that it was given in a dispute between Ghulam Rasool and Mir Sahib Jan. They were disputing inter se to have purchased the house jointly with Shuja Mir. The daughters of Shuja Mir, plaintiffs-respondents 1 and 2 herein, were not parties to the arbitration. Learned counsel for the petitioner cited the cases of Muhammad Salim v. Muhammad Akram P L D 1971 SC 516 and Muhammad Ibrahim v. Maulvi Bahrain 1972 S C M R 608 in support of his contention that for resolving the dispute through arbitration, no written submission or reference is required. I have carefully gone through the case-law referred to above. In the former case parties had agreed for settlement of the dispute through arbitration. The question also involved was whether the person acting as an Arbitrator was a Mediator. It was held that since there was no inquiry of any judicial nature, the proceedings held before the Mediator lacked the essential characteristics of an arbitration and in case of award by the Arbitrator, the provisions of section 47 of the Arbitration Act would apply. In the case of Muhammad Ibrahim (supra) the facts were that one of the plaintiffs was the only signatory to arbitration agreement but all appeared before the Arbitrators raising no objection. In view of these facts it was held by the august Supreme Court that Courts below were right in holding that all had agreed to arbitration and no objection on that score could be raised at appellate stage. The case-law cited on the subject is not applicable to the facts of the case in hand. The award Exh.D.W.l/1 is silent as to who appointed Maulvi Hamid as the Arbitrator. It bas come in evidence That in a dispute regarding suit house between Shuja Mir and Ghulam Rasool, the Martial Law authorities had appointed Maulvi Hamid as the Arbitrator, to which the plaintiffs-respondents were not parties. I am, therefore, of the view that concurrent findings of fact of the two Courts that the award of arbitrators is not binding on the plaintiff respondents and that Shuja Mir was the. sole owner of the property are unexceptionable requiring no interference under section 115, C.P.C. In Kanwal Mian etc. v. Fateh Khan etc. P L D 1983 SC 53 it is held that `erroneous decisions of fact ordinarily is not revise able except in cases where same is based on no evidence or. In admissible evidence or be so perverse that grave injustice has resulted there from'. In 1984 S C M R 504 it has been held that mere fact that findings of Courts below may be wrong on a point of fact or on a point of law un relatable to the exercise of jurisdiction would not bring the case within the four corners of section 115, C.P.C. In the instant case the decision arrived at is based on the correct appraisal of evidence requiring no interference by High Court.

13. This revision petition being devoid of merit is therefore, dismissed with no order as to costs. AA./1259/P Revision dismissed