P (PLP)

M. R. KAYANI, J.--‑This case was referred by Cornelius, J. to a Division Bench because it involves a question of great im portance which does not appear to be covered by authority. The question is whether a Civil Court can refer to arbitration under the Arbitration Act, a matter involving the legal status of one of the parties for the purposes of the Punjab Alienation of Land Act of 1900, particularly where such status is also a matter of great public interest. The facts of the case are that Muhammad Ji plaintiff‑respondent brought a suit for the possession of 8 marlas of land and kothas built on three marlas thereof against Muhammad Sarwar and Bahawal on the ground that he had bought the land in question from Muhammad Sarwar, who, however, had retracted the transac tion when the mutation came up before a Revenue Officer for attestation. The second defendant, Bahawal, was the father‑in- law of the plaintiff and had been residing in the kothas which the plaintiff had constructed on the land in suit, together with the plaintiff's wife at the time when the plaintiff was on active duty during the War. The plaintiff's wife had subsequently died, and Bahawal had remained in possession. Muhammad Sarwar, the alleged vendor, was an Awan by caste and Muhammad Ji plaintiff described himself in the suit as a Mughal. He alleged that the Revenue Officer had refused to attest the mutation partly on the ground that in the patwari's. daily diary the vendor had described him as a Kashmiri. It needs little explanation that before the issue of Punjab Govern ment Notification No. 637‑8, dated 3rd April 1950 under section 4 of the Punjab Alienation of Land Act, Awaps were and Kashmiris were not statutory agriculturists. The issues that were framed in the suit were :‑

1. Is the plaintiff the owner of the kothas ?

2. Does the sale in his favour contravene the provisions of the Punjab Alienation of Land Act, and if so, what is its effect ?

3. Did Muhammad Sarwar defendant sell eight marlas of land to the plaintiff including the kothas ? It may be explained here that the second issue involves the question whether the plaintiff was a Kashmiri or a Mughal. If he could prove himself to be a Mughal, then since the Mughals are statutory agriculturists, the sale would not be in contravention of the Act. After the issues had been framed, the entire case was referred on the application of the parties to the arbitration of Qazi Abdul Rehman. Pleader, and his report is substantially to the following effect. On the 4th of December 1946 the evidence produced by the parties was recorded at Balot and thereafter a receipt recorded by Muhammad Sarwar defendant in favour of the plaintiff and parchis relating to the purchase of raw material were examined. The evidence produced by the plaintiff proved that he purchased 8 marlas of land from Muhammad Sarwar defendant for Rs. 400 and that at the plaintiff's cost his wife got a house constructed on three marlas of this land. The fard intikhab of 1944‑45 and a copy of the pedigree‑table of the proprietors of village Tota tahsil Kahuta produced by the plaintiff clearly show that the plaintiff is a Mughal by caste. The evidence produced by the defendant is not reliable. Consequently a decree for possession of 8 marlas of land described as Khasra No. 2421/1 together with the house is awarded to the plaintiff against the defendants ". When the award was filed in Court the defendants filed two objections, one being that the arbitrator's clerk was an old enemy of the defendants, that this fact had been concealed by the plaintiff and that the award was vitiated by reason of the clerk's influence on the arbitrator. The other objection was that the arbitrator made interpolations in the evidence of the witnesses recorded by him. The trial Court dismissed these objections, and the Court of Appeal upheld this decision. The same grounds were repeated in the grounds of revision but in the course of arguments the petitioner's counsel raised the point that on the facts of the case the decision of the arbitrator involves a declaration of status, namely, that Muhammad Ji is a Mughal and thus a member of a notified agricultural tribe and that since a decision of this point was reserved by section 4 of the Punjab Alienation of Land Act, for the Deputy Commis sioner, a decision by the arbitrator was clearly incompetent. Cornelius, J., was inclined to this view on the grounds given in the first paragraph of the present judgment, but, as the question appeared to him to be of great importance, he referred it to a larger Bench. . In the course of arguments before the Bench learned counsel for the respondent argued that where some matter of difference between the parties to a suit is referred by themselves to arbitra tion, the award of the arbitrator cannot be questioned by them irrespective of the fact whether the Court or the arbitrator had jurisdiction in that matter or not. The principal authority upon which lie relied is Ghulam Khan v. Muhammad Hassan, a Privy Council ruling reported as I. L. R. 29 Cal.

167. The plaintiff in that case claimed 4,000 acres of land on the allegation that Government had agreed to give to his father a lease of 6,000 acres of waste land, of which 4,000 was to be granted at once and the remainder would be reserved until such time as lessee should cultivate the 4,000 acres already given by means of a canal to be constructed by himself, and to be brought from the river Sutlej. Before the lease was granted the plaintiff's father died in 1882, and the plaintiff associated with himself Muhammad Mehndi Khan, the father of the defendants, giving him a fourth share in the lease on the terms that Muhammad Mehndi should at his own cost construct the canal, bring the lands under cultivation, and, after recouping himself for the whole of the outlay, should then account to the plaintiff for three‑fourths of the profits of the undertaking.?The lease of 4,000 acres was granted in the joint names of the plaintiff and Muhammad Mehndi Khan but it did not specify the shares agreed upon. Muhammad Mehndi Khan had then taken over the management according to the agreement and has eventually obtained in leis exclusive name from the Government a lease of the remaining 2,000 acre. This, according to the plaint, was in violation of the agreement, The defendants alleged that the agreement was to the elect that in consideration of the expenditure incurred by Muhammad Mehndi Khan, the plaintiff should retain only 200 acres. They raised tile defence that the case was not cognizable by any Court, the Government alone as the lessor of the parties being competent to determine their respective rights and shares under the lease and further that the Civil Court could not entertain the claim, especially that portion of it which related to the accounts. One of the issues framed was : Is the jurisdiction of the Civil Courts barred as regards the whole or any portion of the claim ? This was decided by the Subordinate judge, in favour of the plaintiff and thereafter the parties referred the entire case to arbitration. The arbitrator decided, among other things, that the suit was cognizable by the Civil Court. The award was objected to by the defendants, but the objections were overruled and a decree given in accordance with the award. From this decree the defendants appealed to the Chief Court of the Punjab. The Chief Court, sitting as Full Bench, field that no appeal lay, but suggested that an application might be made in revision. An application having been made, the Court altered the decree in some details. On further appeal, their Lordships of the Privy Council held that "in the case of an award the revision would be more objectionable than an appeal. If an application in revision were admissible in a case like the present, the finality of any award would be open to question. Their Lordships are, however, of opinion that such an application is incompetent. The application in revision in the present case was avowedly an application to set aside the award. As such it was plainly prohibited by the Limitation Act, of which the Court is bound to lake notice, though no objection is made by the parties. In the next place, even if the application had been in time, it could not in their Lordship's opinion be brought under section

622. The question whether the suit was competent was one of the issues in the suit and as such referred to the arbitrators. They were not indeed bound to give an award on each point. They had to give an award on the whole case. In point of fact, however, they did decide the question. They may have erred in law, but arbitrators may be judges of law as well as judges of fact and an error in law certainly does not vitiate an award. The award having been duly made and not having been corrected or modified, and the application to, set it aside having been refused, the Subordinate judge had no option but to pronounce a decree in accordance with it. The Subordinate judge does not appear to have exercised a jurisdiction not vested in him by law or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of his jurisdiction illeg ally or with material irregularity. He appears to have followed strictly the course prescribed by the Code. When their Lordships of the Privy Counsel were deciding this point, the law of arbitration was governed by the Second Schedule of the Code of Civil Procedure and the only provision for appeal in this Schedule was contained in paragraph 16 sub‑para: (2), which is as follows:‑

"Upon the judgment so pronounced a decree shall follow, no appeal shall lie from such decree except in so far and as the decree is in excess of, or not in accordance with, the award." Under the Arbitration Act, 1940, however, the grounds upon which an appeal may be filed have been made more extensive. These grounds are stated in section 39 which is as follows:‑

"An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order. "An order‑

(i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award. In subsection (2) of section 2 it is stated that no second appeal shall lie from an 9rder passed in appeal under this section appeal to the Privy Council should not be affected. It was, argued that if the Arbitration Act had been operative at the time of the decision of the Privy Council, an appeal could lie under clause (vi) of subsection (1) of section 39 from the order of the Subordinate judge refusing to set aside the award. This is true, but if such an appeal were preferred, it would not suc ceed unless it could be shown that one of the grounds for the setting aside of the award enumerated in section 30 existed. Those grounds are

(a) that an arbitrator or umpire has mis-conducted himself or the proceedings, (b) that an award has been awarded after the issue of the order by the Court superseding the arbitration ox after arbitration pro ceedings have become invalid under section 35; (c) that an award has been improperly procured or is otherwise invalid. I do not think it can be argued that the award is "otherwise invalid" because it was not desirable, in view of the provisions of section 4 of the Punjab Alienation of Land Act, that the arbitrator should decide a question involving the agri cultural caste of one of the parties. Section 4 no doubt gives powers to the Deputy Commissioner to determine whether person is or is not a member of a notified agricultural tribe, but in subsection (3) of that section it is stated that in passing an order in this behalf the Deputy Commissioner shall not be bound by any decree of a Civil Court, so that if a decree resulting from arbitration decides the caste of a person, the Deputy Commissioner need not be bound by it. Further the circumstance that under the Arbitration Act an appeal lies from a decree based on an award on more extensive grounds than was the case under the Second Schedule is no ground for arguing that in consequence of such extension the scope of section 115 of the Code of Civil Procedure, under which revision lies to the High Court, is also extended. Under section 21 of the Arbitration Act, " where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference," and under section 22 the Court is then required to appoint an arbitrator. Even assuming that the words. " in any suit " imply only a suit of which the Court can become lawfully cognizant, then the suit in the present case being one for the possession of land on he basis of a sale‑deed, the Subordinate judge was competent to try it and on the plain wording of section 21, the parties to the suit could refer to arbitration " any matter in difference between them " which was involved in the suit. The Subordinate judge therefore, when acting under section 21, was within his jurisdiction and we are not concerned with the jurisdiction of the arbitrator. An arbitrator has no jurisdiction except that which is conferred on him by the parties, and the fact, therefore, that he was not a proper person to determine a matter of public interest such as the agricultural caste of a person who may, thereby, derive great benefit in his dealing with other people, does not bring the case within section 115 of the Code of Civil Procedure. In Jafar v. Abdul Ghafoor (A.

1. R. 1943 Oudh 304) where certain execution proceedings were referred to arbitration with the consent of the parties and an order in terms of the award was passed, it was held that it was not open to any party to challenge the validity of the award in revision on the ground that the reference could be made only in suit and not in execution proceed ings. It was observed that " even though the award was invalid on any ground whatsoever, the objection to the invalidity of the award should not, be entertained by an appellate or revisional Court, as to hold otherwise would be to assail the finality of the award which it is the very purpose of the statute to maintain ". In Hari Shanker and another v. Mr. Amraoti arid another (A. I. R. 1944 Lah. 280) where the suit was for a declaration that a certain sale was ineffective and the matter was referred to arbitration, on an objection being taken in appeal that such suit could not have been referred to arbitration, it was held that such objection should not be allowed at the stage of an appeal. In Sukhnath Rai v. Nehal Chand (59 I. C. 801) where a part of the subject‑matter of the suit was not within the pecuniary jurisdiction of the Court, it was held that the applicants for revision having accepted the decision of the Munsif, and submitted themselves to the decision of the Arbitration Court, it was not open to them to seek a reversal of the award on the ground of want of jurisdiction. We respectfully adopt the reasoning of the Privy Council and hold that as in making the reference to arbitration the Court had not violated any provision of section 115 Civil Procedure Code, the application for revision 'does' not lie. It is, therefore, un‑necessary to decide whether a question involving the legal status of any party can be referred to arbitration. The petition is dismissed, but in view of the complicated nature of the question involved, the parties are left to bear their own costs. A. H.????????????????????????????????????????????Petition dismissed.