P L D 1964 (W (PLP)

JAMIL HUSSAIN RIZVI, J.‑This is a regular first appeal filed by Muhammad Akram, Noor Muhammad and Sher Muhammad defendants against the judgment and the decree dated the 28th of September 1961 passed by the Administrative Civil Judge Rahimyarkhan decreeing the suit for possession of agricultural land filed by the plaintiff‑respondent.

2. By means of a registered sale deed dated, the 4th o September 1955, Exh. P. 5, Faiz Muhammad Khan, Imam Bakhs and Jan Muhammad sold their shares in a joint holding in Chak No. 42/P, Tehsil Khanpur, District Rahimyarkhan, to Muhammad Salim, plaintiff respondent for an amount of Rs. 1,50,700 The details of the land are mentioned in the plaint. Muhammad Akram, Noor Muhammad and Sher Muhammad, defendants were the other co‑sharers in the khata. They claimed that although the vendors were recorded as co‑owners in the revenue papers, but that the whole of the khata had been in them exclusive and adverse possession for the last over 40 years resulting in the extension of the ownership rights of the vendees consequently, Muhammad Salim, plaintiff‑respondent, acquired no right of ownership in the land purchased by him. The parties approached Maulvi Akhtar Ali D. W. to settle their dispute He brought about a compromise between the parties according to which, Muhammad Salim, plaintiff‑respondent, was to transfer the land purchased by him to the defendant‑appellants of receiving an amount of Rs. 36,

000. There is a note underneath the compromise deed in the handwriting of Maulvi Akhtar Ali and signed by him to the effect that Rs. 30,000 was paid to the plaintiff‑respondent in presence of the persons who had assembled for the compromise and that the balance of Rs. 6,000 were to be paid at the time of registration of the sale deed or mutation of the sanctioning of sale these terms were reduced into the writing Exh. D. 1 which is described in its heading as an award, In pursuance of Exh. D. 1, mutation No. 1? of the sale of the land in dispute in favour of the defendant‑appellants was sanctioned on the 14th of July 1956. The plaintiff‑respondent challenged this mutation by way of appeals and revision. He even filed a writ petition in the High Court, but he was unsuccessful throughout. He consequently filed this suit on the 31st of May 1960 against the defendant‑appellants praying that a decree for possession of the land in dispute be passed in his favour. It was stated in the plaint that mutation No. 17 had been wrongly sanctioned in favour of the defendants, that the award on the basis of which the mutation was sanctioned was illegal and inoperative, that it was inadmissible as the arbitrator bad not been appointed by means of a writing and that the arbitrator did not properly inquire into the matter nor he recorded the statements of the parties, that it was not signed by Muhammad Akram, defendant No. 1, that it was a fictitious document, that the parties had not appointed any arbitrator and that the award was also inadmissible, as it was neither stamped nor registered, and the defendants on the basis of such an award could not acquire any title in the property. That Wahid Bakhsh, a brother of the defendants had filed a suit for pre‑emption against the plaintiff‑respondent in which Sher Muhammad, defendant No. 3, stood surety for the sale price, and thereby he admitted the plaintiff-respondent's ownership and he was therefore, estopped. The defendant‑appellants pleaded that mutation No. 17 was entered on the basis of a writing executed by the plaintiff dated the 20th of October 1955 and that he was estopped from challenging the correctness of the mutation. It was further pleaded that they were the owners of the land which had been purchased by the plaintiff‑respondent from the vendees who had no right to sell it. That as he was not entitled to obtain the possession of the land in pursuance of the sale, in order to settle the dispute between the parties they sought the help of Maulvi Akhtar Ali, Retired Deputy Commissioner, Bahawalpur, to act as a mediator and ultimately, the parties after discussions, agreed that the land would stand transferred to the defendant appellants in lieu of Rs. 36,000 which the defendant‑appellants had to pay to the plaintiff‑respondent that an amount of Rs. 30,000 was paid to the plaintiff‑respondent and the balance of Rs. 6,000 was to be paid at the time of the registration of the sale deed or the mutation, that the plaintiff wrote a ruqqa to the Girdawar for the mutation being entered in favour of the defendant appellants, that the defendant‑appellants agreed to the mutation of the land to be effected in favour of the plaintiff‑respondent in pursuance of the sale but when the mutation for the further sale of the land in favour of the defendant‑appellants came up before the Revenue officer he backed out of the agreement ; however, the mutation was validly sanctioned in their favour. On the basis of the pleadings of the parties the following issues were framed by the trial Judge: (1) Does not the plaint disclose cause of action ? (2) Whether the plaint had been properly valued for the purposes of court‑fee ? (3) Whether the award is a fictitious document ? (4) Whether the award is illegal and void for the reasons stated in para. 3 of the plaint ? (5) Whether the plaintiff and the original vendor have been out of possession for more than 12 years and for that reason the suit is barred by limitation ? (6) Whether the alleged award is in fact an agreement between the parties and is not an award ? (7) Did the plaintiff enter into an agreement to sell the land to the defendants and received a sum of Rs. 30,000 from the defendants ? (8) Whether rukka dated 20‑10‑1955 was written by the plaintiff and for that reason the plaintiff is estopped from challenging the rights of the defendants ? (9) is the plaintiff in possession in pursuance of an agreement of sale and for that reason they are entitled to retain the possession ? (10) Whether act of defendant No. 3 by which he stood as surety of pre‑emptor in a pre‑emption suit regarding the land in dispute amounts to admission of the plaintiff's title? (11) Relief.

3. The learned trial Civil Judge decided Issue No. 1 against the defendants on the 20th of December 1960. The decision of this issue has not been challenged before us. The counsel for the parties by their statements dated the 23rd of September 1961 agreed at the valuation of this suit at Rs. 42,443, so issue No. 2 became redundant. Issue No. 3 was given up by the plaintiff‑respondent and so it was decided against him. The finding on this issue has also not been challenged before us. Issues Nos. 4 to 9 were decided against the defendant‑appellants, while issue No. 10 was decided against the plaintiff‑respondent. As a result of the findings on issue Nos. 4 to 9, the plaintiff respondent s suit was decreed with costs.

4. The learned counsel for the defendant‑appellants has challenged the findings of the lower Court on issues Nos. 4 and 6 to 9.

5. Issues Nos. 4 and 6.‑It has been contended by the learned counsel that there was no agreement to appoint an arbitrator, consequently there could be no award. That the so‑called award Exh. D. 1 did not transfer any property, it was merely an agreement to sell, and for that reason the document did not require registration. That if Exh. D. 1 was read along with Exh. D. 8, which is a letter admittedly written by Muhammad Salim, plaintiff‑respondent, to the Girdawar, it was abundantly clear that Exh. D. 1 was nothing more than an agreement to sell. That it was permissible to interpret a document by taking into consideration several documents. The learned counsel relied on Probodh Kumar Das and others v. Dantmara Tea Co. Ltd. and others (AIR 194O PC 1), in support of his last contention. That the description of the document in the title as an award was immaterial as it was the substance of the document which would decide as to what was the intention of the parties at the time of its execution. In support of this proposition, the learned counsel relied on Ma Thaung and another v. Ma Than and others (AIR 1924 PC 88), Nayak Vajesingji Joravarsingji and others v. The Secretary of State for India in Council (A I R 1924 P C 216), Muhammad Abdul Ghani Khan and another v. Mst. Fakhr Jahan Begum and others (AIR 1922 P C 281), v. Rama Rao v. Chellayya Pillai (A I R 1926 Mad. 1208), Mahendra Nath Afandal and another v. Sheikh Samsuddin and others (A I R 1921 Cal. 146), Godha Ram and others v. Sudh Singh arid others (A I R 1929 Lah. 812), Chhotey Lal v. Iqbal Narain and others (A I R 1925 Oudh. 550), Devidas Zowkiram v. Aluwalla Brothers (A I R 1932 Sind 217) and Balvani Vishnu v. Mishrilal Shivnarayan and others (A I R 1925 Bom. 115). It has been further argued that while interpreting a document, a Court should so far as possible, give the document a construction so as to make it admissible. It has been urged that the rulings relied by the lower appellate Court were not applicable. That section 32 of the Arbitration Act would come into play only in case the document Exh. D. 1 was found to be an award.

6. In reply, the learned counsel for the respondent, argued that Exh. D. 1 was an award as envisaged by section 47 of the Arbitration Act. In the alternate, it was argued that Exh. D. 1 even if not an award under the Arbitration Act, was still an award and was hit by section 17 (3) of the Registration Act. The learned counsel has relied on The P. & T. Co‑operative Housing Society, Ltd. v. Ch. Manzoor Ahmad Sahi (P L D 1961 Kar. 53), Nirman Singh and others v. Lal Rudra Partab Nairan Singh (53 I A 220), Badri Chaudhuri v. Mst. Chamoa Chaudhrain (A I R 1937 Pat. 183), and Abdur Razzak Howladar v. Sh. Muhammad Shafi (P L D 1962 S C 134).

7. The exact nature of the document Exh. D. 1 can only be determined after considering the relevant evidence as to how the negotiations between the parties ended into the preparation of this document. The conduct of the parties after the execution of the document will also throw light on the nature of the document. Undoubtedly, the mere heading of the document, one way or the other, cannot determine the nature of the document. The plaintiff‑respondent, in his statement, has described his relations with Maulvi Akhtar Ali as "BHAT NIAZ MANDANAH". He has stated that he was called by him (Maulvi Akhtar Ali) and asked to settle the matter with the defendant‑appellants, that although he agreed for a compromise but he never expressed his willingness to part with the property, that Maulvi Sahib got his signatures on three papers and that after that he went away. As regards the exe cution of Exh. D. 8, he admitted that he had written the same to the Girdawar but the explanation offered by him was that Noor Muhammad defendant had come to him and had told him that he had been directed by Maulvi Sahib to institute a suit for pre‑emption, that Noor Muhammad offered him to take the money as he had a superior right of pre‑emption, that he there upon asked him to pay the money. The defendant‑appellants thereupon asked him to write a letter to the Girdawar so that the mutation might be entered and that they would pay the sale price at the time of the sanctioning of the mutation, consequently he wrote Exh. D. 8 to the Girdawar. That he had entered less amount in Exh. D. 8 at the instance of the defendant appellants because otherwise it would have meant greater expense to them. He admitted the presence of Zia‑ur‑Rahman, Abdul Majid and Abdul Ghafoor D. Ws. at the time he was called b‑4 Maulvi Akhtar Ali at his house and made to sign the papers. The plaintiff admitted that he received the registered notice Exh. D. 7 from the defendant‑appellants. He stated that he had sent a reply to that notice but no such reply has been placed on the record of this case. In support of these contentions of the plaintiff he examined Ch. Shah Muhammad and Dr. Muhammad Abdullah as his witnesses. Both of them stated that they were present when the plaintiff was asked by Maulvi Akhtar Ali to settle the dispute with the defendant‑appellants. That Maulvi Akhtar Ali asked the plaintiff to give back the land to which he declined, thereafter Maulvi Sahib threatened the plaintiff‑respondents and got his signatures by force on three papers. The plaintiff got annoyed and came away. Both of these witnesses stated that the plaintiff had signed on the bottom of blank papers. There is a note by the trial Civil Judge under the statement of Ch. Shah Muhammad which reads "the demeanour of the witness was to some extent unnatural and artificial". The evidence of the plaintiff and his witnesses cannot be believed, if the plaintiff had not agreed to part with the land, there was no question of his signing any papers. The statement of Shah Muhammad and Dr. Muhammad Abdullah is proved to be incorrect by this fact also that the signatures of the plaintiff do not appear at the bottom of the paper. As against this we have the evidence firstly of Maulvi Akhtar Ali with whom the plaintiff‑respondent admitted his cordial relations and also the evidence of Zia‑ur‑Rahman, Hajt Abdul Majid and Abdul Ghafoor whose presence at the relevant time is admitted by the plaintiff respondent. Noor Muhammad defendant also appeared as his own witness. The statement of all these D. Ws. go to prove undoubtedly that the parties willingly entered into an agreement through the good offices of Maulvi Akhtar Ali, who was known to both the parties. The parties willingly agreed that Muhammad Salim would transfer the land in dispute to the appellants who would pay Rs. 36,000 to him. The document Exh. D. 1 was then executed. A plain reading of the document also shows that it was not an award given by Maulvi Akhtar Ali but it recites the agreement that was arrived at between the parties through the intervention of Maulvi Akhtar Ali. Underneath this document, there is an endorsement in the handwriting of Maulvi Akhtar Ali and signed by him saying that Rs. 3 .1,000 were paid by the defendant‑appellants to Muhammad Salim plaintiff‑respondent in presence of the persons who had assembled on that occasion and that the balance of Rs. 6,000 would be paid either at the time of the execution of the registered docu ment or at the time of the mutation. This agreement is dated the 10th of October 1955. agreement, it is noted that the parties had arrived at this compromise in the presence of Muhammad Aslam, Haji Abdul Majid, Haji Abdul Ghafoor, Sh. Ghulam Muhammad, Sh. Zia‑ur‑Rahman and Hakim Wali Muhammad. Out of these, the defendants had examined Zia‑ur -Rahman, Haji Abdul Majid and Haji Abdul Ghafoor. All three of them have supported the defendant‑appellants' case. All these witnesses are absolutely disinterested. Maulvi Sahib is a retired Deputy Commissioner. The parties reposed confidence in him. The matter does not and here because 10 days after this the plaintiff‑respondent wrote Exh. D. 8 to the Girdawar in which he asked him that on the next page of the mutation register of Chak No. 42/P where the mutation of the sale in his favour had been entered, further mutation of the sale of the land to Mian Muhammad Akram, Mian Sher Muhammad and Noor Muhammad for Rs. 36,000 be entered, and the programme for the visit of the Tehsildar be fixed with them and an intimation sent to him, So uptill that day the plaintiff respondent agreed to have the sale of the land in dispute effected in the name of the defendants. It is impossible to accept that there was no agreement between the parties and Muhammad Salim plaintiff‑respondent wrote Exh. D. 8 at the instance of Noor Muhammad defendant as is explained by the plaintiff respondent. If Exhs. D. 1 and D. 8 are read together, it leaves no doubt in one's mind that the case set up by the plaintiff respondent is absolutely false. Maulvi Akhtar Ali and the defendant‑appellants' witnesses who have been examined in this case, were admittedly present at the time of this agreement, they have unanimously stated that a similar copy as Exh. D. 1 was handed over to Muhammad Salim plaintiff‑respondent. If he had not received a copy and had not known the terms on which the parties had agreed he could not have executed the letter Exh. D. 8 to the Girdawar asking him to enter a mutation of sale in favour of the defendant‑appellants for an amount of Rs. 36,

000. It was contended by the learned counsel for the plaintiff‑respondent that the endorsement of the payment of Rs. 30,000 was made after Muhammad Salim and others had signed Exh. D. 1, that this was done without the knowledge and consent of the plaintiff-respondent and without paying him any money. If there was any truth in his assertion of the plaintiff‑respondent, he would immediately have produced the duplicate copy of the agreement which was given to him and shown to the Court that the note as regards the payment of the money to him was not contained in the copy that was supplied to him. The non‑production of that copy by the plaintiff clearly shows that the endorsement was made on both the copies after the amount of Rs. 30,000 was paid to the plaintiff. When the two mutations Nos. 16 and 17, the first of the sale of the property in the name of the plaintiff‑respondent and the second from the plaintiff‑respondent in the name of the defendant‑appellants came up before the Tehsildar, the defendant‑appellants agreed to have the first mutation effected in the name of the plaintiff respondent because the other mutation of sale in their name had also been entered. If the second mutation had not been entered the defendant‑appellants would certainly have objected to this mutation being sanctioned in favour of the plaintiff‑respondent because their case was that the vendors had lost their title by prescription and the sale in favour of the plaintiff-respondent was invalid. As soon as the first mutation was sanctioned, the plaintiff‑respondent backed out of his agreement to have the mutation sanctioned in favour of the defendant‑appellants, however, the revenue officer ‑was convinced that the parties had agreed at that sale, he consequently sanctioned the mutation. This order of mutation was challenged up to the highest Court but it was upheld. The learned trial nudge relied on Kanshi Ram v. Harnam Das and others (A I R 1940 Lah. 73) and Wazir Ali and others v. Mahbub Ali and others (1940 P L R 134) to hold that Exh. D. 1 was an award. Both of these authorities do not apply to the present case. In A I R 1940 Lah. 73, there was a valid reference to arbitration which is completely wanting in this case. Similarly, there was a valid reference to arbitration in P L R 1940, p.

134. This proposition is not disputed that if there is a valid reference to arbitration and an award is given it does not cease to be an award merely because it is signed by the parties. In the present case the parties had assembled to have their dispute amicably settled in presence of a large number of persons, out of them the main part was played by Maulvi Akhtar Ali to bring about a settlement between the parties which settlement was written by him and was signed by the parties, they acted upon that agreement, the defendant‑appellant‑ paid Rs. 30,000 to the plaintiff‑respondent, who after ten days of that, sent Exh. D. 8 to the Girdawar for a mutation being entered in pursuance of the agreement which had been arrived at between the parties. The learned Civil Judge has relied on Jitendra Nath De and another v. Nagendra Nath De (A I R 1934 Cal. 815) and Ladha Mal v. Sardari Lal and others (A I R 1935 Lah. 30) to hold that an award effecting property of the value of more than Rs. 100 was compulsorily registrable. The proposition laid down in these authorities is not disputed, but the first question is whether Exh. D. 1 was a valid award. They description of a document as an award would not make it an, award. The essential prerequisite of an award is that there should be a reference to arbitration. Maulvi Sahib does not admit that he was appointed an arbitrator. The plaintiff respondent and his witnesses do not admit that they had appointed Maulvi Sahib as an arbitrator. The defendant‑appellants and their witnesses also do not state that Maulvi Akhtar Ali was appointed an arbitrator. The discussions between the parties were only to bring about a settlement of their dispute and after they had willingly agreed, the terms were reduced into a writing, which was inartistically described as an award by Maulvi Akhtar Ali. The parties and Maulvi Akhtar Ali signed it. The names of other persons who were present at the time were noted in the document. I am quite clear in my mind that there was no reference to arbitration and Maulvi Akhtar Ali was not appointed an arbitrator, he only acted as a mediator. I am supported in my view by S. Ramachandra Iyar v. T. S. Narayanaswami Aiyar (A I R 1927 Mad. 426). The authorities cited by the learned counsel for the appellants lay down the general principle as regards the construction of documents. It is brought t in these authorities that it is incumbent upon the Courts of law to study the substance of the proceedings and not to confine its attention to the mere form. The principle that if a document is possible of two constructions, the law favours the construction which would make it valid, has been brought out in A I R 1929 Lah. 812, A I R 1925 Oudh 550, A I R 1925 Bom. 115, A I R 1932 Sind

217. The learned counsel for the plaintiff‑respondent relied on P L D 1961 Kar. 33 and 53 Indian Appeals 220 to support the proposition that mutation proceedings were meant primarily for fiscal purposes and they were by no means judicial proceedings in which the right and title in the property is determined. This is an admitted principle and in this case also no reliance has been placed to arrive at these findings on the mutation proceedings. In addition to Exh. D. 1 the document relied upon is the letter Exh, D. 8 which was written by the plaintiff‑respondent to the Girdawar for entering the mutation: The learned counsel for the respondent has also relied on A I R 1937 Pat.

183. This authority is not applicable to the facts of the present case because in the Patna ruling there was a valid reference to arbitration which was followed by an award. It was held to be inadmissible because of its non‑registration, I entirely agree that if the document Exh. D. 1 was an award it would be inadmissible in evidence for want of registration, but as already discussed, I do nor agree with the contention of the learned counsel that Exh. D 1 was an award. The learned counsel has also relied on P L D 1962 S C 134 in support of his contention that the document Exh. D. 1 created rights to property and consequently its registration was compulsory. This authority would be applicable to a case where a document is of the nature as described in this authority. Exh. D. 1 does not create any present right in property. It only recites an agreement arrived at between the parties that the plaintiff‑respondent would transfer the property in dispute to the defendant‑appellants either by registration of a document or by means of a mutations. Exh D. 1 is, therefore, not a document requiring registration I would, therefore set aside the findings of the lower Court on issues Nos. 4 and 6 and hold that the document Exh. D. 1 was merely an agreement to sell and it was not an award.

8. I have already discussed the evidence as regards the payment of Rs. 30,000 by the defendant‑appellants to the plaintiff‑respondent and have no reason to doubt the testimony of Maulvi Akhtar Ali and other defendant‑appellants witnesses whose presence at the time is admitted by the plaintiff respondent. All of them have unanimously stated that the amount of Rs. 30,000 was paid to the plaintiff‑respondent by the defendant. In view of what has been stated above, I hold that the amount of Rs. 30,000 has been paid by the defendant appellants to the plaintiff‑respondent. The finding of the lower Court on issue No. 7 is, therefore, set aside and the issue is decided in favour of the defendant‑appellants.

9. The first part of issue No. 8 has already been decided in favour of the defendant‑appellants. Since I have already held above that be had received the amount of Rs. 30,000 and had willingly executed ruqqa Exh. D. 8 for the mutation of sale of the land in dispute being entered in the name of the defendant appellants, he is, therefore, estopped from challenging the rights of the defendant‑appellants except that the defendants are liable to pay the balance of the sale money to the plaintiff‑respondent which they are directed to deposit in Court for payment to the plaintiff‑respondent within a period of one month of the order of this Court.

10. Issue No. 7.‑The defendant‑appellants were already in possession of the land in dispute. The plaintiff respondent, after he had received Rs. 30,000 on the 10th of October 1955, allowed them to continue in possession. They are, therefore, remain in possession of the land in dispute provided they pay Rs. 6,000 as directed above.

11. In view of my findings on issues Nos. 4, 6, 7, 8 and 9, I would accept this appeal and dismiss the plaintiff-respondent's suit with costs throughout. However, if the defendant‑ appellants fail to deposit the amount of Rs. 6,000 as directed above, the plaintiff‑respondent will be entitled to recover it by execution of this decree. S. A. MAHMOOD, J.‑The facts have been sufficiently stated by my learned brother in his order and I need not repeat them. With the utmost respect to my learned brother, I am led to the conclusion that the document Exh. D. 1 is an award given by an arbitrator appointed by the parties orally, and as it effects property of the value of more than Rs. 100, it required compulsory registration and not having been registered is, inadmissible in evidence. There is also no agreement to refer the dispute to the arbitrator and the absence of an agreement renders the proceedings illegal. i am also of the view, 1 say so with all respect to my learned brother, that it is not established on the record that Rs. 30,000 were paid by the defendants to the plaintiff immediately after the award was given by Maulvi Akhtar Ali, but I agree that he was appointed as an arbitrator, that he gave his award which is Exh. D. 1 and it was accepted by both the parties.

2. The first and foremost question which falls for deter mination in this case is whether Maulvi Akhtar Ali acted as mediator or as an arbitrator. Where a person is asked to act as mediator in the settlement of a dispute and records the settle ment agreed on by the parties, his act is not that of an arbitrator and the record made by him is not an award, and if that record is at all operative it is so only as a contract between those who, have signed it. Subramania Aiyar v. Kalyansundaram (53 I C 283). Three elements are inseparable from every arbitration, namely, (1) a dispute between two persons requiring settlement (2) its submission for settlement to a third person, and (3) a decision by that third person according to his own judgment. A submission is an agreement to take the decision, and not the advice only, of the person or persons to whom the matter is referred. Arbitration is a settlement of a dispute by the decision not of a regular and ordinary Court of law but of one or more persons who are called arbitrators, whose decision the parties agree to accept as binding, whether they agree to the decision or not. The essential difference between a Mediator and Arbitrator is that in the former case the Mediator merely brings about and records a settlement arrived at between the parties which operates as a contract between the parties while in the case of an Arbitrator or Arbitrators, he or they give the award and it is his or their decision which constitutes the award irrespective of whether the parties accept it or not, after it is given. If the parties agree to accept the decision of an Arbitrator, and he has given his decision, it is an award, though he may in his award embody what he has persuaded the parties) to agree to.

3. For a determination whether Maulvi Akhtar Ali acted merely as a mediator or as an arbitrator we have to interpret m the document Exh. D. 1 in the light of the statements made by Maulvi Akhtar Ali and the other evidence produced by the parties. The most important evidence requiring consideration is the document Exh. D. 1 and the statement of Maulvi Akhtar Ali. The document on the face of it isan award. Its title is "An award by Maulvi Akhtar Ali Deputy Commissioner Retired, Bahawalpur State". It recites that dispute, which has been stated in it, having arisen between Mian Wahid Bakhsh, Noor Muhammad and Mian Sher Muhammad (defendants) residents of Mari Allah Bachaya, and Muhammad Salim (plaintiff) of Cbak No. 44/P, the parties have appointed Maulvi Akhtar Ali as an arbitrator to decide the dispute, states that as the parties were neighbours, the dispute between them should be resolved, that in his (Maulvi Akhtar Ali's) view the defendants were in possession, and that the sale in favour of the plaintiff was for Rs. 36,000 which the parties had admitted before him. It recites that demand of Muhammad Salim (plaintiff) was that 62 acres of land should be given to him and Rs. 36,000 should be adjusted, and mutations of exchange should be got sanctioned, but the defendants did not agree to it, and finally that the plaintiff had agreed to sell the land to the defendants for Rs. 36.000 to end the dispute. The arbitrator then records that while giving his decision he had to record that the plaintiff in accepting to sell the land for Rs. 36,000 for the sake of strengthening his relation ship with his neighbours had made a sacrifice for which he deserved applause, that the defendants had also agreed that if they ever intended to sell the land they would sell it to the plaintiff for Rs. 36,

000. The decision recorded as the award of the arbitrator is that Ch. Muhammad Salim would transfer the land in dispute by a mutation in favour of Wahid Bakhsh, Noor Muhammad and Sher Muhammad for a sum of Rs. 36,000 the expenses of which would be borne by the vendees. It is finally recited that the parties have accepted this decision. The document is signed at the bottom by both the parties in token of their acceptance of it.

4. The back ground of how the award Exh. D. 1 was delivered is given by Maulvi Akhtar Ali in his statement as D. W.

7. He states that five years ago Ch. Muhammad Salim plaintiff and Noor Muhammad and his brothers (defendants) came to him at Bahawalpur and said to him that they had a dispute about land which they wanted to be settled through him. He told them that he would only agree to act as arbitrator if an arbitration agreement was duly got registered. The plaintiff was willing to execute and register it, but Noor Muhammad stated that as both the parties were willing to accept his decision there was no need to have document registered. They were accompanied by other respectables. He heard both the parties and also took the plaintiff aside so that nothing remained unexplained and he could form a correct opinion about the matters involved. He informed the plaintiff about his opinion as to how the matter should be decided. After some discussion Ch. Muhammad Salim plaintiff accepted his suggestion. They came back to place where the people were assembled and lit started writing his decision and announced it to the persons present. The plaintiff and Noor Muhammad etc. accepted his decision and signed the award. Certain other persons also signed it. He kept the original award with him and gave a copy each to the plaintiff and the defendants. In cross‑examination he stated that he did not record the statement of any party but from the answers which he received and the conversation which hoe had with the parties he came to a certain decision and informed the plaintiff of it and incorporated his decision in detail in F4h. D.

1. Ch. Muhammad Salim was the first to tell him that the parties had agreed to appoint him as an arbitrator. He told the plaintiff that they should not appoint him as an arbitrator but he said that they had decided on it.

4. If the award is read along with the statement of Maulvi Akhtar Ail no doubt is left that tile parties had agreed to appoint Maulvi Akhtar Ali as an arbitrator to give his decision, which they had agreed to accept. Maulvi Akhtar Ali had only wanted an arbitration agreement to be recorded but also a registered one so that he was clear that he was being asked to act as an arbitrator and not a mediator. When the parties went before him they conveyed to him that they wanted him to act as an arbitrator and they were willing to accept his decision and to abide by it. He agreed to act as an arbitrator, and heard the parties and formed an opinion as to how the matter in dispute should be decided. He came to a decision and asked the plaintiff if his decision was agreeable to him and when he accepted it, he reduced "his decision" into writing and described ft as an award by an arbitrator and then announced it to the parties, who accepted it and signed the award. His evidence make it crystal clear that the decision was essentially that of Maulvi Akhtar Ali which he recorded in Exh. D. 1, and which the parties accepted. As the document Exh. D. 1 respresents his decision, it is an award. Maulvi Akhtar Ali had not merely acted as a mediator but his capacity was that of a full‑Begged arbitrator whose decision the parties had agreed to accept.

5. Since the parties clearly intended to appoint Maulvi Akhtar Ali as an arbitrator and to obtain an award from him, it was necessary to have au arbitration agreement, which was not recorded and the arbitration proceedings are illegal for that reason. As the award also effects property of the value of more than Rs. 100 it was compulsorily registrable and not having been registered cannot be admitted in evidence. The mere absence) of an arbitration agreement does not operate to take away the character of the writing of Exh. D. 1 as an award, as it is 1 clearly an award and the parties intended it to be one. I, therefore, agree with the view taken by the trial Court that Exh. D. 1 is inadmissible in evidence and no rights flowed to the defendants from it.

6. The second question is the alleged payment of Rs. 30,000 to the plaintiff out of Rs. 36,000 for which sum he had to transfer the property in dispute to the defendants. Maulvi Akhtar Ali is no doubt a respectful witness and I would normally have been willing to accept his statement but certain circumstances lead me to the conclusion that the payment of Rs. 30,000 to the plaintiff is not proved. There is no explana tion why a receipt for the sum of Rs. 30,000, which is a very large sum, was not obtained from the plaintiff, if the amount was paid. Similarly it does not appear to me to be natural or probable that the defendants would carry a large sum of Rs. 30,000 on their person in anticipation of the matter being settled by Maulvi Akhtar Ali. The ostensible price of the sale of the land in favour of the plaintiff was Rs. 1,50,750 and the chances of settlement could not have been so sure that the defendants would carry such a large sum of money on their person to be paid to the plaintiff there and then. Since there was a dispute between the parties, the least precaution which should have been taken was to obtain a receipt from the plaintiff. When his signatures were obtained from him on the award, why were not his signature obtained under the endorsement of Maulvi Akhtar Ali if the amount was paid. Another reason is that simultaneously document Exh. D. 8 was obtained from him addressed to the Revenue Officer to enter a mutation on his behalf in favour of Muhammad Akram, Sher Muhammad ana Noor Muhammad for transfer of land for Rs. 36,000 but there is no mention in it of receipt of Rs. 30,000 by him. It is true that Maulvi Akhtar Ali states that he prepared 3 copies of the award and gave one copy to the plaintiff also, but it remains an assertion and there is no guarantee that it is true. There is reason for holding that he may be favouring the defendants. It is also true that the plaintiff's denial that he did not sign the award is falsified by his own admission that it bears his signatures, and his evidence and of his witnesses is not very convincing, but the onus of proof with regard to payment of Rs. 30,000 was on the defendants, which, in my view has not been discharged by them. I, therefore, hold that the pay ment of Rs. 30,000 by the defendants to the plaintiff is not proved.

7. For the reasons given above my findings on issues Nos. 6 and 7 are in favour of the plaintiff and against the defendants. The award Exh. D. 1 and the writing Exh. D. 8 are ineffective for conveying the land in dispute to the defendants. It may be mentioned that the sale of land in the State for over Rs. 100 00 had also to be by a registered document.

8. I hold that the defendants are not entitled to hold the land in pursuance of the award Exh. D. 1 and document Exh. D.

8. Agreeing with the trial Court I would dismiss this appeal, but would leave the parties to bear their own costs throughout. In view of the difference of opinion between us, this case is referred to the learned Chief Justice to refer it to a third learned Judge for its decision. The parties may be informed of this order. MUHAMMAD YAQUB ALI, J.‑The facts giving rise to this first appeal are fully set out in the dissenting judgment of my learned brethren S. A. Mahmood and J. H. Rizvi, JJ. Only the points on which they have differed may, therefore, be set out for the purposes of this order. While J. H. Rizvi, J. has found that the document Exh. D. 1 was merely an agreement to sell and not an award and, as such, did not require to be stamped and registered (Issues Nos. 4 and 6). S. A. Mahmood, J. has construed Exh. D. 1 as an award and found it to be illegal as it was not preceded by a written agreement of arbitration and inadmissible in evidence for want of stamp and registration. The next point of disagreement is about the payment of Rs. 30,000 by the defendants (appellants) to the plaintiff (respondent) as sale price: of the land in dispute (Issue No. 7). Whereas J. H. Rizvi, J. has found that the amount was paid to the respondent as mentioned in the endorsement to that effect in Exh. D. 1, S. A. Mahmood, J. has disbelieved it altogether. The other two issues pressed before the Division Bench pertained to execution of ruqqa Exh. D. 8 by the plaintiff asking the Girdawar to enter mutation of the land in suit in favour of the defendant‑appellants and whether the appellants were in possession in pursuance of the agreement of sale Exh. D. 1 and, as such, were entitled to remain in possession (issues Nos. 8 and 9). J. H. Rizvi, J. has found both these issues in favour of the appellants but S. A. Mahmood, J. has recorded no finding on them. The points on which the learned Judges have differed are, thus, covered by issues Nos. 4, 6 and 7.

2. Before recording my own findings on the points on which my learned brethren have differed, it is necessary to dispose of a preliminary objection raised by the counsel for the respondent about the competence of this reference, and my jurisdiction to deal with it. It is said that inasmuch as J. H. Rizvi and S. A. Mahmood, JJ. have not expressly sated the points of fact and law on which they have differed, there is no proper reference as required by section 98 of the Civil Procedure Code and the 26th clause of the Letters Patent of this Court. Similarly, objection is taken to the omission on the part of the learned Judges to have jointly made an order that the appeal be laid before another Judge for determination in accordance with the majority opinion. Reliance is placed in support of this contention on Muhammad Bashir v. Wilayat Begum (P L D 1962 Lah. 993), in which the learned Judge has, differing with the earlier view of this Court and other High Courts of the Sub‑Continent, held that if the order of reference is not jointly made by both the Judges, the order of the Chief Justice sending the appeal for disposal to the third Judge is without jurisdiction nor has the third Judge jurisdiction to dispose of the appeal.

3. The relevant part of section 98 of the Code reads‑-- "98. (1) * * * * * * (2) * * * * * * * Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then he heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it." The 26th clause of the Letters Patent is to the following effect :‑ "And "And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915 ; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it." The material words in the proviso to section 98 (2) are "they may state the point of law on which they differ". Similarly, in the 26th clause of the Letters Patent it is provided "they shall state the point upon which they differ". No special form is prescribed in either of the provisions for stating the point upon which the Judges have come to differ. It may be in the form of a dissenting judgment which will include the points of difference as well as reasons given in their support or in the form of a separate order expressly stating the point or points of fact or law on which the Judges who first heard the appeal or the case have differed. The appeal or the case "shall then be placed before one or more other Judges and shall be decided according to the opinion of the majority of the Judges who have heard the appeal or the case, including those who first heard it". The reference to one or more other Judges is, thus, provided for by law and does not depend for its validity on the order of the Judges who have differed on point or points arising in the determination of the appeal or the case. It follows that if only one of the two Judges signs the order that the appeal or the case be laid before one or more other Judges or even if there is no such order the reference to a third `Judge' under the orders of the Chief Justice or even by the Office will not be wanting any jurisdiction.

4. Mst. Sardar Bibi v. Haq Nawaz Khan (A I R 1934 Lah. 371), Ch. Muhammad Tufail v. Mst. Barkat Bibi and another (P L D 1955 Lah. 1) and Civil & Military Gazette v. Ghulam Rasul (P L D 1956 Lah. 365) bear observations to the effect that the point or points of fact or law on which the members of a Divi sion Bench have come to disagree must be expressed separately otherwise the reference to the third Judge will be defective ; but It was held that if reasons could be ascertained from the dissenting judgments, it was unnecessary to remit the case to the members of the Division Bench for indicating the points of difference. In my humble opinion, it is not the requirement of law that apart from writing dissenting judgments the members of a Division Bench should expressly record the point or points on which they have come to difer, but it is unnecessary to analyse this aspect of the case any further because in each case the point or points on which the members of a Division Bench have differed can invariably be ascertained by the perusal of the dissenting judgment. The matter is, thus, of an academic interest only.

5. In Telu Mal v. Subha Singh and another (90 P R 1880) a Full Bench of the Punjab Chief Court held that a reference by one of the two Judges, who have differed, was not contrary to section 575 of the Civil Procedure Code, 1877. But the learned Judge in Muhammad Bashir v. Wilayat Begum did not choose to follow it on account of difference in the phraseology of section 575 and the present section 98 of the Code. The discussion to be found at pages 997 and 998 of the report is to the following effect :‑ "I am clear in my mind that there is a fundamental difference between the omission of the Judges to mention the point or points of difference and the omission of one of the Judges to take any part in the act of indicating that the case be heard on the points of difference. In my view the former omission can be treated as one of form only while the latter cannot be so treated. Or, to put the same thing in a different language, the former omission can be treated to be a curable irregularity while the latter cannot be so treated because it involves a question of jurisdiction. I need not consider the three decisions cited by Mr. A. R. Shaikh wherein the omission of the Judge who had differed to mention the point or points on which they differed was treated to be a curable irregularity, of which three decisions I might mention one was given by myself. As regards the decision given in the case reported as Telu Mal v. Subha Singh and another it should be borne in mind that it interpreted section 575 of the Code of Civil Procedure, 1877, which was to the effect that if two Judges hearing an appeal differed on any point or points the case had to be referred to some other Judge car Judges. The language in which section 575 of the Code of Civil Procedure, 1877, was couched did not make it incumbent that the Judges who had differed should make a reference while clause 26 of the Letters Patent of this Court, which Is the t3rovision of law under consideration, says clearly that the Judges who had not been able to agree on a point or points arising fn an appeal heard by them should state the point or points on which they had not been able to come to an agreed finding. Why the law‑maker thought it necessary to say that in case the Judges were equally divided the Judges who had not been able to agree with regard to the decision should state the point or points on which they differed is not difficult to under stand, but even if one were to be of the view that there could be no reasonable ground why all the Judges who had differed should state so the fact remains that the law requires that they should do so and in the face of this clear dictate of the law it is not open to any Judge to say that non‑compliance with the provision, which, as I have already said, relates to jurisdiction, is immaterial and can be treated as a mere irregularity." With respect to the learned Judge, there is an obvious contradic tion in this statement of law inasmuch as in the beginning it is held that the omission of the Judges to mention (state) the point or points of difference was a curable irregularity, in the concluding part section 575 of the Code of Civil Procedure, 1877, is dis tinguished from the 26th clause of the Letters Patent on the ground that whereas the former did not make it incumbent that the Judges who have differed should make a reference the latter says clearly that the Judges who have not been able to agree should state the point or points on which they have not been able to give agreed finding, and froze this difference it is concluded that non‑compliance with this provision relates to jurisdiction and is not a mere irregularity.

6. It is further of interest to notice that in Civil & Military Gazette v. Ghulam Rasul, the late M. R. Kayani, J. (as he then was) and Mr. Justice Akhlaque Husain differed as to the amount for which a plaintiff's suit should be decreed. The former held that the plaintiff should be granted a decree for Rs. 600 with proportionate costs, but the latter granted a decree for Rs. 250 only and that the parties shall receive and pay costs in this Court and the Court below in proportion to their success and failure The words used in the two judgments are: "I would decree the plaintiff's suit" and "I would, therefore, hold that the plaintiff is entitled to Rs. 600 with proportionate costs". Neither they wrote separate orders expressly stating the points o: difference nor was the note "In view of the difference of opinion, the appeal will be heard by a third Judge" signed by both the learned Judges. This omission was taken notice of by the learned Judge and disposed it of with the following observations :‑ "The points on which my learned brothers were divided in opinion have not been specified as they should have been under Clause 26 of the Letters Patent, but that omission does not make any material difference or affect my jurisdiction to deal with the case." It is obvious that for reasons which appealed to the learned Judge in Muhammad Bashir v. Wilayat Begum, he formed a completely different opinion, but with respect I would prefer to follow the earlier view adopted by him in Civil & Military Gazette v. Ghulam Rasul. The preliminary objection raised by the learned counsel for the respondent to the competence of the reference and my jurisdiction to deal with it is, thus, without any substance.

7. Turning to the merits of the case, I have no hesitation in agreeing with the findings of my learned brother J. H. Rizvi, J. on issues Nos. 4 and 6 to

9. Issues Nos. 4 and 6 read‑ (4) Whether the award is illegal and void for the reasons stated in para. 3 of the plaint? (6) Whether the alleged award is In fact an agreement between the parties and is not an award? The document Exh. D. 1 has no doubt been drawn up as an award but when viewed against the background in which it came about and its operative part, it becomes manifest that Maulvi Akhtar Ali whether as an arbitrator or mediator did nothing but put down in writing the agreement reached at between the con tending parties through his persuation and the influence of the respectables who had assembled at his place in Bahawalpur for this purpose. The land in dispute measuring 1214 kanals 4 marlas is situated in Chak 42/P, Tahsil Khanpur, District Rahiniyarkhan and is part of two Khatas jointly owned by Faiz Muhammad, Imam Bakhsh arid Jan Muhammad, along with Muhammad Akram, Nur Muhammad and Sher Muhammad defendants (appellants), but the latter claimed that in fart they were the owners and had been in possession thereof since ages without paying any legan or batai to the former. Chaudhary Muhammad Saleem plaintiff (respondent) on account of certain differences with the defendants purchased this area of land from the said Faiz Muhammad etc. in lieu of an ostensible sum of Rs. 1,50,750 and got a sale‑deed executed and registered in his name on the 4th of September 1955. In pursuance to it he got mutation No. 16 entered in the revenue papers which was strenuously opposed by the defendants on the ground of their possession. During these proceedings the parties came to an understanding that Maulvi Akhtar Ali, retired Deputy Commissioner and man of some parts in the defunct State of Bahawalpur, be approached for mediation. Both the parties accordingly called upon him at Bahawalpur who suggested that a formal arbitration agreement should be executed but Nur Muhammad defendant ruled it out on the ground that whatever decision was handed down by him shall be acceptable to both the parties. A date was, thereupon, fixed for hearing the respective cause of the disputants who on the named date assembled at the house of Maulvi Akhtar Ali along with other friends and well‑wishers. For the proceedings which ensued one must refer to the recital in Exh. D.

1. In substance, Maulvi Akhtar Ali heard the claim of both the parties, talked to them in the assembly as well as in privacy and formed the opinion that the defendants had remained in possession of the land all along and not Faiz Muhammad etc. vendors of the plaintiff as recorded in the revenue papers and since the defendants had resiled from an agreement to sell 62 acres of land to the plaintiff, the latter had purchased the land in dispute in lieu of Rs. 36,000, which amount was admitted by both the parties as correct.

8. Then follows the operative part of Exh. D. 1 which is to the following effect :‑ "In order to put an end to the dispute Muhammad Saleem made an offer that if that 62 acres of land was sold to him Rs. 36,000 may be set off against the price and an exchange of that land be made with the land in dispute. This was not agreed to by Sher Muhammad etc., who say that they do not want to sell their land. Muhammad Saleem (vendee) in order to put an end to the dispute is prepared to make a sacrifice and transfer one‑half of the land in dispute to Mian Muhammad Akram and the other half to Mian Nur Muhammad and Mian Sher Muhammad and received from them Rs. 36,000 * * * * * While deciding it, I make note that Ch. Muhammad Saleem has made a good sacrifice to keep his relations on a friendly basis with neighbours and he is entitled to be congatulated for it. Mian Nur Muhammad, Mian Sher Muhammad and Mian Wahid Bakhsh have also agreed that if they contemplate sale of 62 acres of land at any time thereafter they must sell it to Mian Muhammad Saleem at the prevailing market price. This act on their behalf is also worthy of congratulation. Ch. Muhammad Saleem will transfer the land in dispute either by a registered sale deed or by means of mutation for Rs. 36,000 and the requisite expenses will be borne by Mian Sahiban (i.e. defendants). The parties are present and they have accepted this decision. Copy of it will be given to either of them." Below it are the signatures of the parties and some witnesses, but in the copy Exh. D. 1 produced by the defendants the signatures of only one of them, namely, Sher Muhammad, the plaintiff and two witnesses are appended. These are followed by a note "Rs. 30,000 have been paid in my presence by Mian Sahiban to Ch, Muhammad Saleem in the assembly, while the balance of Rs. 6,000 will be payable at the time of registration of the sale‑deed or attestation of mutation. (Sd.) Akhtar Ali. 10‑10‑55."

9. The picture which one gathers from the above recitals in Exh. D. 1 is that Maulvi Akhtar Ali acted as a mediator while) the actual decision was taken by the plaintiff and agreed to by the defendants. Exh. D. 1 is, thus, the memoranda of the proceedings resulting in the agreement arrived at between the parties through the mediation of Maulvi Akhtar Ali and is admissible in evidence as such, though expressed in the form of an award.

10. The next important issue is about the payment of Rs. 30,000 by the defendants to the plaintiff as evidenced by the foot‑note to Exh. D.

1. The reasons for which S. A. Mahmood, J. has discarded it are that no receipt for payment of such a large sum was obtained from the plaintiff, the absence of signatures of the plaintiff below the note of Maulvi Akhtar Ali recording pay ment of Rs. 30,000 to him, the impossibility that the defendants carried the large amount of Rs. 30,000 with them to the venue of arbitration proceedings while the ostensible sale price mentioned in the sale‑deed by Faiz Bakhsh etc. was its. 1,50,750, "that simultaneously document Exh. D. 8 was obtained from him addressed to the Revenue Officer to enter a mutation on his behalf in favour of Muhammad Akram, Sher Muhammad and Nur Muhammad for transfer of land for Rs. 36,000 but there is no mention in it of receipt of Rs. 30,000 by him,"

11. As to the impossibility of the defendants carrying a large sum of Rs. 30,000, with them to the venue of the arbitration or mediation proceedings at the residence of Maulvi Akhtar Ali, it is significant that although Nur Muhammad defendant appeared in the witness‑box and in examination‑in‑chief stated that ht: had placed Rs. 30,000 on the cable lying in front of Maulvi Akhtar Ali, he was not asked to explain as to how did he happen to carry with him such a large amount. This objec tion is, therefore, not open to the plaintiff. Secondly, though the sale price in Exh. P. 5 is mentioned as Rs. 1,50,750 the actual amount paid before the Sub‑Registrar was Rs. 26,'18 while the balance of Rs. 1,24,532 was stated to have been received as advance. It may be mentioned in this behalf that although the plaintiff denied being a signatory to the original of Exh. D. 1 and claimed to have signed some blank papers at the instance of Maulvi Akhtar Ali, S. A. Mahmood, J. has disbelieved him and in concurrence with J. H. Rizvi, J. found that "he (Maulvi Akhtar Ali) was appointed as an arbitrator, that he gave his award which is Exh. D. 1 and it was accepted by both the parties." And it may be recalled that in Exh. D. 1 it is set out that both the parties agreed that the plaintiff had paid Rs. 36,000 only to Faiz Muhammad etc. as sale price of the land in dispute. The amount which the defendants thought they may be required to pay to the plaintiff in case an agreement was reached was thus, in the neighbourhood of Rs. 30,000 and not Rs. 1,50,750, as mentioned in the sale‑deed Exh. P.

5. The carrying of this sum by the defendants was, thus, not a wholly impossible phenomena as considered by my learned brother S. A. Mahmood, J.

12. As to the failure to obtain a receipt for the payment of this large amount to the plaintiff, the omission to obtain the plaintiff's signature below the note of Maulvi Akhtar Ali that Rs. 30,000 was paid by the defendants to him and non‑retention of this payment in the ruqqa Exh. D. 8, it is enough to point out that while the original of D, 1 remained with Maulvi Akhtar Ali its copies were supplied to both the parties which bore their signatures. Thus, if a copy similar to Exh. D. 1 was supplied to the plaintiff and my learned brother S. A. Mahmood, J. has not disbelieved the defendants' evidence on this point and the foot note in question did not appear on it, he had only to produce that copy to throw out the defendants case on this point. Correspond ingly, if this note appeared in the copy of the plaintiff as well as the copy Exh. D. 1 supplied to the defendants it was unnecessary to obtain a separate receipt from the plaintiff in token of the payment of Rs. 30,000 to him. We also have the evidence of Maulvi Akhtar Ali, whom my learned brother S. A. Mahmood has described as "no doubt a respectable witness" (paragraph 6) and others who have testified to the payment of Rs. 30,000 to the plaintiff by the defendants before the foot‑note to the Exh. D. 1 was written. It is further significant to note that neither during the protracted mutation proceedings nor in the plaint the correct ness of the foot‑note to Exh. D. 1 reciting payment of Rs. 30,000 to the plaintiff was specifically denied.

13. As to non‑mention of receipt of Rs. 30,000 by the plaintiff in the ruqqa Exh. D. 8, my learned brother S. A. Mahmood has assumed that it was got written by the plaintiff simultaneously with the execution of the original of Exh. D.

1. In fact, it was written by the plaintiff 10 days later. It reads: "My dear brother Muhammad Ahsan Sahib, Greetings --next to mutation entered in my name in the register (of mutations) Chak 42/P enter a mutation of sale by me in the name of Muhammad Akram Sahib, Mian Sher Muhammad and Nur Muhammad one‑half in lieu of Rs. 36,000 and fit it (for attestation) before Tahsildar Sahib according to their wishes and also inform me about it. Thanks. Sincerely, Muhammad Saleem 20‑10‑55." The tanor of the letter also leaves no doubt that it was written by the plaintiff after the arrangement evidenced by Exh. D. 1 was arrived at between the parties and not simulteneously with it. The non‑mention of the receipt of Rs. 30,000 by the plaintiff in Exh. D. 1 could, therefore, be explained by him only and no adverse inference could be drawn from the omission against the defendants. 1, thus, feel satisfied that the sum of Rs. 30,000 was received by the plaintiff in the presence of Maulvi Akhtar Ali and others who had assembled at his residence when the arrange ment exhibited by Exh. D. 1 was arrived at and this endorsement to that effect on Exh. D. 1 is correct.

14. As pointed out above, my learned brother S. A. Mahmood, J. has recorded no finding on issue No.

9. I would not, therefore, dilate on it, but in passing may observe that this issue embodies a plea of part‑performance under section 53 A of the Transfer of Property Act and even if it was found that Exh. D. 1 is an award and was inadmissible in evidence on account of want of stamp and registration, the plaintiff stands non‑suited once it is found that in pursuance to it the defendants had paid to him the sum of Rs. 30,000.

15. In the result, I agree with the findings of my learned brother J. H. Rizvi, J. on issues Nos. 4 and 6 to 9, and direct that the appeal be laid before the Division Bench for disposal. In view of the majority opinion on issues Nos. 4, 6, 7, 8 and 9, this appeal is accepted and the judgment of the trial Judge is set aside. The suit filed by the plaintiff‑respondent shall stand dismissed with costs throughout. The defendant‑appellant will deposit Rs. 6,000 in the Court of the trial Judge within one month from today failing which the plaintiff‑respondent will be entitled to recover this amount by means of the execution of this decree. K. B. A. Appeal accepted.