2016 PLP 107 (YLRN)

S. 8

Suit for possession of immovable property

Maintainability

Arbitration award

Consent decree, implementation of

Limitation

Scope

Contention of plaintiffs was that defendants had occupied suit property owned by them

Suit was decreed concurrently

Validity

District Judge entertained application for making arbitration award as rule of court without having jurisdiction

Alleged arbitration award ought to have been registered

Proper procedure had not been complied with

Consent decree was obtained by the plaintiffs on the same day without arraying necessary and proper party in the application

Said decree could not be termed as valid decree

Plaintiffs had neither incorporated the same in the record nor that was got executed within prescribed period of limitation

Consent decree, in circumstances, carried value not more than an agreement between the parties to the case

Defendants were not party to the consent decree and same had no binding effect upon them

Judgment passed by the court having no jurisdiction had no legal status

Present suit had been filed for implementation of consent decree after 80 years and 5 months, which was not maintainable

No fresh suit could be filed by the same parties who had failed to act upon the decree

Implementation of decree could not be substituted with fresh suit

No document of title had been produced by the plaintiffs on the basis of which arbitration award was completed

Party could succeed according to what was alleged and proved

Except consent decree there was no other document on the file to show ownership of plaintiffs with regard to disputed property

Plaintiffs were bound to prove the facts alleged by them but no effort was made for the same

Plaintiffs had failed to prove their claim through cogent evidence

Short coming on behalf of defendants would not benefit the plaintiffs

Revision was accepted and impugned judgments and decrees of both the courts below were set aside. [Paras. 6, 7, 8, 9, 10 and 11 of the judgment] JUDGMENT ABDUL LATIF KHAN J.

Aggrieved of the judgments and decrees dated 31.3.2008 and 06.6.2009 of learned Civil Judge, Kulachi D.I. Khan and learned Additional District Judge-II, D.I. Khan whereby the suit of the respondents was concurrently decreed.

2. Briefly stated facts leading to the instant revision petition are that the respondents/plaintiffs filed a suit for possession in respect of landed property on the ground of ownership fully described at the heading of the plaint. They alleged in the plaint that originally the suit property with other property was the joint property of predecessor of the plaintiffs namely Abdul Karim Khan, Abdul Rehman Khan, Abdul Rahim Khan son of Dost Muhammad and Muhammad Ayaz. Khan son of Khuwaja Muhammad Khan, who for the purpose of partition of their joint property through arbitration submitted an application on 26.2.1919 under sections 20 and 21 Schedule 2 of C.P.C. in the court of learned District Judge, D.I. Khan for filing arbitration award, registered as Suit No.24 titled Abdul Karim Khan etc v. Muhammad Ayaz Khan and on 26.2.1919 decree was passed as per arbitration award. They further alleged that according to the arbitration award property described in clause-I (mad-I) and clause-II (mad-II) of the plaint came to the lot of Muhammad Ayaz Khan who remained owner in possession of the same during his life and after his demise his legal heirs i.e. plaintiffs Nos.16 to 19 and proforma defendant No.21 succeeded him. Similarly, according to the arbitration award property mentioned in clause-III (mad-III) and clause-IV (mad-IV) was allotted to Abdul Karim Khan etc. who during their life time enjoyed its possession being owner and then succeeded by plaintiffs Nos.1 to

15. They further alleged in the plaint that through registered deed dated 14.5.1999, the defendants Nos.1 to 18 sold out to the defendants No.19 and 20 suit property mentioned in clause-III (mad-III), clause-IV (mad-IV) and one kanal three marlas of the property described in clause-II (mad-II) of the plaint and the defendants Nos.1 to 18 also illegally occupied the property mentioned in clause-I (mad-I) as well as the remaining property described in clause-II (mad-II) of the plaint. The petitioners/defendants appeared before the learned trial court and filed their written statement. The learned trial court after framing issues, recorded evidence of the parties and hearing arguments of the learned counsel for the parties, decreed the suit of the respondents/plaintiffs vide judgment and decree dated 31.3.2008. Appeal preferred by the petitioners against the judgment and decree of the learned trial court, was dismissed on 06.6.2009, hence the instant revision petition.

3. Learned counsel for the petitioners contended that the courts below have failed to consider the real controversy between the parties and have wrongly observed with regard to the arbitration and consent decree passed. He argued that the petitioners were not party to the proceedings of the arbitration conducted on 26.2.1919 as well as consent decree obtained on 26.2.1919 in an application filed on the same day which was against established principle of law and procedure prescribed for making arbitration as rule of court. He argued that sons of Dost Muhammad Khan filed a suit/application against one Muhammad Ayaz Khan, their real paternal uncle, got a collusive decree from a court having no jurisdiction to pass a decree as the same was filed before the District Judge. He contended that the petitioners are owners of the property purchased by them through different dates right from 1909 upto 1934 and are in possession of the property as owner since then. But neither they have been arrayed as party to the suit nor their presence was procured in the alleged arbitration proceedings. He argued that the courts below have not adhered to the legal and factual position of the suit and have wrongly observed with special reference to the consent decree passed by District Judge in the year 1919. He further argued that even if the decree is taken to be as correct and competent decree even then neither it has been executed within prescribed period of limitation nor same has been incorporated in the relevant record and the instant suit has been filed on 27.7.1999 after about 80 years and five months, which is hopelessly time barred.

4. As against that, learned counsel for the respondents argued that proper consent decree was passed by the competent court on 26.2.1919 in an application/suit filed for making the arbitration as rule of court on the same day. He argued that both the parties (now respondents) have come to the court together to get a decree on the basis of arbitration deed arrived at between the parties on 24.2.1919 and due to this reason a decree was granted. He argued that the under Rules 20 and 21 of Schedule 2 of C.P.C., the District Judge was competent to pass a decree and as such no illegality was committed nor the District Judge had travelled beyond the jurisdiction bestowed upon him. He further added that the courts below have rightly established the legal and factual position of the instant matter and has rightly decreed the suit in favour of the respondents/plaintiffs. He referred to the agreement deed dated 14.5.1999 and contended that cause of action accrued to the plaintiffs from the execution of said deed and as such the suit is within time.

5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.

6. The perusal of record reveals that Abdul Karim Khan etc. sons of Dost Muhammad Khan entered into arbitration agreement on 24.2.1919 with Muhammad Ayaz Khan their paternal uncle. They filed an application/suit No.24 titled "Abdul Karim Khan etc. v. Muhammad Ayaz Khan" on 26.1.1919 in the court of learned District Judge and a consent decree was passed on the same day i.e. 26.1.1919. The copy of the same posted as Ex:PW1/1 in the instant suit. The courts below have considered the same for the purpose of partition of joint property through arbitration. But perusal of the order dated 26.1.1919 would reveal that no such details or explanation are given in the same order, rather it speaks about the arbitration application filed under Rule 20, Schedule 2 of C.P.C. and even the presence of the defendant was not marked and order has been passed in a slipshod manner without adhering the procedure prescribed for making arbitration award as rule of court. It is pertinent to mention that Rules 20 and 21, Schedule 2 of C.P.C. does not speak about the jurisdiction of learned District Judge to entertain the application on the basis of arbitration award for making rule of court neither C.P.C. nor the Arbitration Act, 1940 speaks about the jurisdiction of the District Judge to entertain such like application for making arbitration award as rule of court. Prior to proniulgation of Arbitration Act, 1940 the provisions of C.P.C. were alive for the purpose of making arbitration award as rule of court but for that purpose proper procedure was laid down which has not been complied with, rather order of the court passed in a cursory manner and that too by the court having no jurisdiction and without arraying the necessary and proper party in the suit, consent decree was obtained which cannot be termed as valid decree as being passed without jurisdiction and by not observing all legal formalities required for that purpose. The respondents/plaintiffs have neither incorporated the same in the record with concerned quarter nor get the consent decree executed within prescribed period of limitation under section 48, C.P.C., specifically attracted to the application for execution of decree.

7. The consent decree carries value not more than an agreement between the parties to the case, notwithstanding the fact, that it bore the seal of court, as the petitioners were not party to the consent decree, therefore, it has no binding effect upon the petitioners. Even otherwise the judgment passed by the court having no jurisdiction has no legal status, particularly when the same has not been acted upon either through execution or incorporate of the record for period of more than 80 years. The instant suit filed by the plaintiffs (parties to the consent decree) against the petitioners for implementation of the consent decree after 80 years and 5 months would not in eventuality be competent, both on the score of limitation as well as maintainability as the proceedings of a decree, if at all considered to be a valid one, no fresh suit can be filed by the same parties, who have failed to act upon the decree as required under the law. It is pertinent to mention that implementation of a decree, if validly passed, cannot be substituted with a fresh suit as the same is legally barred and both the courts below have ignored all these aspects of the case, providing room for the plaintiffs to get a decree against the established principle of law.

8. The perusal of .the record reveals that no title document has been produced by the plaintiffs in support of their claim on the basis of which alleged arbitration agreement was reduced into writing. Even the order dated 26.2.1919 along with application moved before the then District Judge, copies of which were placed on file as Ex:PW1/1, does not contain any title document as between the parties to the consent decree regarding ownership of the property in dispute or otherwise. The learned counsel appearing on behalf of the respondents when confronted with the situation, was unable to meet the query, as on the basis of which document they entered into arbitration agreement, later on was culminated into consent decree. It is established principle of law that party only succeeds according to what was alleged and proved. The learned counsel conceded that except consent decree there was no other document available on file to show the ownership of the respondents in respect of the suit property. The plaintiffs were under obligation to prove the case as the burden is heavily lies upon them in a suit or as they would fail if no evidence at all were given other side. The initial burden lies upon the plaintiffs to desire the court to give judgment in their favour to any legal right or liability hinges upon existence of the facts duly asserted and shall be proved through cogent evidence. In the instant case no serious effort made to prove the facts alleged by the plaintiffs and law applicable thereto, also does not favour the plaintiffs besides the mischief of limitation.

9. The alleged arbitration award ought to have been registered as required under the law and in the instant case no registration of the award was made, rather the alleged award was reduced into writing on 24.2.1919 and application for making rule of court was made on 26.2.1919 and on the same day a consent decree was passed with unnecessary haste violating of legal and procedural bars, which caused having doubt and makes the entire proceedings as nullity in the eyes of law.

10. The petitioners have based their claim in respect of suit property on the basis of various deeds executed from 1909 to 1934 in different dates and the agreement to sell dated 14.5.1999 was scribed in favour of some of the defendants on behalf of rest of the defendants which has been challenged by the respondents in the instant suit, however, as the plaintiffs have failed to prove their claim through cogent evidence, therefore, any shortcoming on behalf of the defendants would give no benefit the plaintiffs in any way, as to prove the case burden heavily lies upon the plaintiffs. The plea that right to sue gave cause of action to the respondents in the year 1999 on the strength of agreement to sell was misconceived for the reason that the plaintiffs have based their claim on the basis of consent decree, which has not seen the light of day till 1999 and the instant suit is in fact filed for implementation and execution of that consent decree, passed way back in the year 1999 under the garb of challenging agreement deed, which is not permissible under the law. The courts below have swayed with consideration other than judicial by ignoring the legal questions including jurisdiction, beside procedure prescribed under the law, which makes the impugned judgments and decrees bad and perverse, warranting inference by this court in revisional jurisdiction.

11. For the foregoing reasons, the instant revision petition stand accepted, the impugned judgments and decrees of the learned lower courts are set aside and suit of the respondents/plaintiffs stands dismissed with no order as to costs. ZC/561/P Revision accepted.