P L D 1990 Lahore 116 (PLP)

Plaintiff is the applicant. Suit out of which civil revision has arisen was for a perpetual injunction restraining the defendants/non‑applicants from interfering with the possession of the plaintiff over the property in suit and dismantling the constructions existing upon it on the assumption that it was part of shamilat deh. Defendants resisted the suit and raised number of pleas in defence. Substantial defence taken in the written statement was that the plaintiff had trespassed upon Khasra No.1652 a ghair mumkin talab reserved for the common purposes of the villagers. Alongwith the plaint, plaintiff had also submitted a petition for temporary injunction stopping the apprehended interference and demolition of the existing construction. On 1st of November, 1989 the date fixed for hearing arguments on the petition for temporary injunction, parties to the suit in their joint statements agreed that they would abide by the decision of the Court which it made after local inspection of the property in suit and shall raise no objection against the decision which shall be held binding upon them. They did not prefer to lead evidence in the suit. The trial Court accepted the position and did accordingly. On the same day, the trial Court carried local inspection of the property in suit, sat in the village mosque and after hearing the parties and other residents of the village concluded that the plaintiff had encroached upon 8 kanals, 5 marlas of khasra 1652, part of ghair mumkin talab alongwith a banyan tree by constructing a wall around it an accordingly directed demolition of the constructed boundary wall and restoration of status quo ante of the land in dispute after removal of malba from it by the plaintiff. The trial Court also made a provision for a passage as is indicated in its report dated 1st November, 1989. It also observed that banyan tree shall form part of the talab in khasra 1652, part of village shamilat which henceforth shall be used for the common purposes. Consequently, suit was decided on 4th November, 1989 in accordance with contents of report dated Ist November, 1989 and a decree was drawn up accordingly. Against the decree, plaintiff preferred the appeal and questioned the dispensation. Respondents objected to the maintainability of the appeal on the basis that the decree appealed from was passed with consent of the parties and therefore . no appeal lay against it. Objection raised by the respondents was upheld and appeal dismissed on 19th December, 1989. It is this decision that has been agitated in the petition for civil revision. On behalf of the petitioner, it is contended by his learned counsel that the case‑law relied upon by the lower appellate Court was not attracted to the facts requiring determination in the present case and therefore the impugned decision was not tenable. In course of hearing, learned counsel vainly attempted to distinguish the relied upon case‑law to further his contention that the trial Court acting as a referee was not authorised to hold enquiry and also to carve out a passage for the benefit of a third party. I am afraid, the contention has no serious merits in it. It is well settled that where the parties agree to be bound by the conclusion/decision of the Court in accordance with the deviated procedure agreed upon by them, then the Court assumes the role of a final arbiter between them and its decision tantamounts to a consent judgment and there could be no appeal against it. Real dispute between the parties was as to the nature of the land in khasra 1652, whether it was an ordinary piece of shamilat land ha was devoted for common purposes of the villagers i.e. as a talab. For deciding of this point, parties to the suit instead of undergoing the expense involved in the Court litigation decided that they would not produce any evidence and preferred to abide by the decision of the trial Court arrived at after local inspection and enquiry. In this view, dispute was left to the sole decision of the trial Court to which the parties agreed to be bound and not to raise any objection. Having agreed to this mode of the trial and decision of the dispute by the Court , plaintiff cannot question its result. Not only the plaintiff was bound by the conclusion of the trial Court but he is deemed to have clearly waived and‑ lost his right of appeal. In Sita Ram v. Peare alias Alloo and another reported in AIR 1925 Allahabad 558 (D.B), it was held, "the matter in dispute was left entirely to the decision of the learned Munsif, and, in our opinion, the parties cannot now resile from their agreement and must be bound by the decision of the learned Munsif whether it was, as a matter of fact, right or wrong. The decision, therefore must be treated to have been one based on a compromise between the parties And was no longer open to appeal". In Madan Mohan Gargh v. Munna Lal and others AIR 1928 Allahabad 497, the principle that "where with the acquiescence, of both parties, a Judge departs from the ordinary course of procedure and decides upon a question of fact, it is incompetent for the parties afterwards to assume that they? have then an alternative mode of proceeding and to treat the matter as if it had been heard in due course" was approved by the Division Bench. In Baijnath v. Dhani Ram AIR 1929 Allahabad 577, the same view of law was reiterated. Decision in Onkar Singh and another v. Rameshwar minor and others AIR 1954 Allahabad 786 also assists the point. In (Hakim) Bashir Ahmad v. Sadiq Ali reported in AIR 1929 Oudh 451 (D.B.), it was observed that where the parties give their consent to the Court as to the procedure which the Court is to adopt in matter of coming to a decision on the merits of the case and they also give their consent that such a decision will be binding on them, it is tantamount to saying that the decision will be final and no right of appeal will be exercised by the parties. The parties cannot resile from the agreement and an appeal is incompetent. Section 28 of the Contract Act does not apply to the case and it is not necessary that the agreement should be considered to be an adjustment within the meaning of Order 23 or that the effect of the agreement should be to constitute the Court an arbitrator in controversy. In Ganga Ram and others v. Jagu and another reported in AIR 1934 Lahore 176 (2), it was said that, "As regards the right to appeal, although it was not expressly given up, the parties agreed to accept the decision of the Court as that of an arbitrator and raised no objection to it, and in such circumstances, it would appear, even from Sankara Narayarna Pillai v. Ramaswamiah Pillai AIR 1923 Madras 444, (see remarks at the bottom of p.44 of 47 Mad) on which the learned counsel has relied, that there, would be no right of appeal. I think, an agreement to accept, the decision as that of an arbitrator without any objection, implies that the decision was to be accepted as final and there was to be no right of appeal to another forum". In Rohtas Industries Ltd. and another v. P.N. Gour, Receiver of Murli Hills and others AIR 1957 Patna 16 relying on decision reported in AIR 1939 Patna 514, Court ruled that "where the party invites the Court to adopt a procedure which is not contemplated by the Code of Civil Procedure, and in fact the procedure is extra cursurn curiae, he cannot turn round and say that the Court is to blame for the very procedure which he invited the Court to follow. In each case the appellate Court will try to find as to what the true intention of the party was and the question whether an appeal lies or not will depend upon the conclusion arrived at by the Court". Similar observations are contained in Nemiraja Kottari v. Kinni alias Kanthamma and others AIR 1957 Madras 94 and also a full Bench, decision in Munnaluri Venkateswarlu and another v. Vaddula Narasi Reddy and another AIR 19 ' 61 Andhra Pradesh

71. Judgment obtained by consent clearly operates as an estoppel and once it is established to be by consent, is upappealable. It is valid and binding on. the parties as any other decision decree passed on contest. Looked at thus, it is manifest that the parties had agreed to the decision of the Court in accordance with the local inspection and enquiry to be made by it and undertook to abide by the decision and hold it binding upon them. Therefore, on clear view of the agreed statements of the parties and undertaking given to the Court, either party waived the right to question the ultimate decision and lost right to appeal against it. This is quite evident from their conduct expressed in their joint statements made‑at the trial on 1st November, 1989. As I find myself in entire agreement with the expression of opinions in the above decided cases in addition to the two decisions relied upon by the lower appellate Court, one of this Court reported in 1986 CLC 2270 and the other of the Supreme Court reported as 1989 SCMR 1083, 1 hold that the view which prevailed in the Court below is correct. I would uphold it and dismiss this petition in limine. M.B.A./M‑1834/L??????????????????????????? ???????Petition dismissed.