Mahboob Ahmad etc. Vs Ayub Ahmad etc

Stereo.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

C.R. No.2494 of 2022

Mahboob Ahmad and others v.

Ayub Ahmad and others

JUDGMENT

Date of Hearing 27.09.2022 Petitioners by Raja Tariq Nadeem, Advocate Respondent No.1 Proceeded ex parte Respondent No.2 Mr. Ghulam Abbas Chaudhary, to 7 by Advocate

Rasaal Hasan Syed, J.: This civil revision questions the validity of the judgments and decree dated 24.6.2021 and 30.10.2021 of the courts below whereby the suit for declaration, partition and other reliefs was dismissed under Order VII, Rule 11, C.P.C. and appeal thereagainst also met the same fate.

2.Respondent No.1 filed on 11.6.2019 suit titled “Mian Ayub Ahmad v. Mahboob Ahmad, etc.” against the petitioners herein for partition and permanent injunction; claiming that the parties inter se were brothers and sisters; that to partition joint property an Arbitrator was approached who after haring all concerned announced his Award on 08.9.2012 which was made Rule Of the Court vide order dated 07.10.2013; that the Award did not identify the specific portions of the property assigned to the shareholders; that the defendants in the suit were contemplated to alienate specific and valuable portions and that too in excess of their share and that the Award having not been implemented nor

physically partition ever having taken place the property be partitioned under the order/decree of the court and that the petitioners be restrained from alienating specific or valuable portion of the property. In the plaint Mahboob Ahmad, etc., petitioner Nos.1 to 5 herein, were arrayed as defendant Nos.1 to 5 who moved an application dated 15.9.2010 under Order 1, Rule 10, C.P.C. pointing out that another suit titled “Khizar Ahmad v. Mian Ayub Ahmad” was also pending; that during pendency of the said suit, respondent No.1 had illegally executed sale deed No.3933 dated 11.3.2020 and sale deed No.5113 dated 09.5.2020 and that the said purchasers be impleaded as party to the suit along with Ayub Ahmad and be restrained from alienating the property. The application was allowed, in result, Syed Riaz Hussain Shah, etc. (respondent Nos.2 to 7 herein) were impleaded as defendants. Amended plaint was filed wherein the said respondents were cited as respondent Nos.2 to 7.

3.Another development in the case was that the petitioner Mahboob Ahmad and four others who were defendants in the suit moved an application for their transposition as plaintiffs in the suit and Ayub Ahmad, the plaintiff therein, as defendant; which application was allowed. In the amended plaint dated 07.12.2020 available at page 85 of this petition, the petitioners were shown as plaintiffs while Ayub Ahmad was shown as defendant. Later an application under Order VI, Rule 17, C.P.C. was filed by the petitioners for amending the plaint to incorporate their own stance. Amendment was solicited in paragraph Nos.4, 5 and the prayer clause so as to reflect their

stance which application was allowed, resultantly, an amended plaint was filed which is available at page 111 of the instant petition. Consequent to the amendment and the order of transposition of the status of the parties from plaintiff to defendant and defendant to plaintiff prayer in the plaint was to the effect that a declaration be granted that the parties were bound by the decision of the Arbitrator; that the “khangi taqseem nama” dated 19.11.2018 along with map showing different specific shares of the parties was pending and that the parties were entitled thereto and that the sale deeds by defendant No.1 in favour of other defendants were illegal and the revenue authorities were bound to give effect to the “khangi taqseem nama” dated 19.11.2018 and that the parties could not alter or make any changes in their respective shares or the character and the nature of the property nor they could make any alienation in violation of the partition having already taken place.

4.Strangely enough vide order dated 24.6.2021 of the learned Civil Judge while considering preliminary objections, proceeded to dismiss the suit purportedly under Order VII, Rule 11, C.P.C. with the observation that the suit was barred by law which order was also affirmed in appeal vide judgment dated 30.10.2021.

5.Learned counsel for the petitioners submitted that the pleadings as amended did raise factual controversy which could only be resolved after framing of issues and recording evidence of the parties and that, at best, the court could reject the plaint and could not dismiss the suit under Order VII, Rule 11, C.P.C. and added that findings of fact were made without recording any evidence and that it was

illegally observed that the “khangi taqseem nama” was not binding as it was allegedly against the Award. Learned counsel for the respondents has also been heard who has defended the orders of the courts below.

6.Deeper examination of the pleadings as also the documents annexed with this petition reveals that in the first instance the suit was filed by respondent No.1 against the petitioners wherein his claim was that the Award did not specify the partition of the property assigned; that the partition was not physically made and that the Award was not enforceable and also that the defendants in the suit were contemplating to sell valuable suit property beyond their shares. Later the status of the defendants in the suit was converted into plaintiffs by allowing transposition of the parties, in result, the petitioners herein became plaintiffs while Ayub Ahmed was initially plaintiff was made a defendant. The remaining respondents purchasers purportedly from respondent No.1 were arrayed as defendants and their sale deeds were also impugned. As a result of the amendment in the plaint additional facts were incorporated, prayer of the suit was changed from suit for partition to suit for declaration; that the Award was pending the parties were also bound by the documents i.e. “khangi taqseem nama” dated 19.11.2018 and that the parties were entitled to specific portion allocated therein as per map forming part of the noted documents.

7.The courts below on the assumption that the properties stood partitioned through Award which was made rule of the Court concluded that the dispute having been settled, no issue was left and that the

subsequent suit was barred-by-law. Perusal of the Award dated 08.9.2012 and the Order dated 07.10.2013 by which it was made Rule Of the Court, it is discernable that Award was a result of reference without intervention of the Court; it was not registered and that the court while accepting the application under sections 14 and 17 of the Arbitration Act, 1940 specifically ordered that subject to registration of the Award it be made rule of the Court. The operative part of order dated 07.10.2013 is as follows: “5. After hearing the arguments and perusing the record it is found that agreement between the parties for appointment of arbitrator has been produced as Ex.A1. The arbitration award has been produced as Ex.A2. The revenue record of property mentioned in the petition has been produced by the petitioner. Respondents have no objection if the arbitration award Ex.A2 is made rule of court. While considering all these facts, arbitration award Ex.A2 is made rule of court subject to registration under Registration Act. Joint property is distributed as per arbitration award Ex.A2.”

(emphasis supplied)

As a matter of fact in the plaint, as it stood after amendment, number of factual questions were raised which would call for effective adjudication viz. whether the Award which was a result of arbitration was without intervention of the court; it declared rights of the parties as a result of partition and immovable property and, therefore, required to be registered and, if so, whether the Award referred in the pleadings had the characteristics of a document which ought to have been registered and whether in terms of the order of the court making the Award rule of the Court, condition of registration of Award was ever fulfilled and, if not, whether the Award shall confer any independent title by partition. It is settled

rule that where the Award declared partition of property or makes a declaration of separate entitlement of the property through arbitration, it could not confer title unless the same is registered and no title in the property could be confirmed in the absence of such registration of the Award in respect of the immovable property. Reference may be made to the case of “Haji Nawab Din v. Sh. Ghulam Haider and another” (1988 SCMR 1623) operative part whereof is as follows:

“The “question of registration of the award was a controversial matter in the sub-continent and there were conflicting views on the subject. For example, the Full Bench case Seonarain Lal, v. Prabhu Chand AIR 1958 Patna 252 holding that an award did not create any title or interest in immovable property hence it did not require registration. This view was accepted in Abdul Karim v. Mirza Bashir Ahmad PLD 1967 Lahore 365 but then this view was reversed in Satish Kumar and others v. Surinder Kumar and others AIR 1970 Supreme Court 833, and now is no longer a good law in India. In our country an amendment was made in the Registration Act by Ordinance No.45 of 1962 which has been fully taken note of and considered in the Pakistan Employees Cooperative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Karachi 474 and what has been held is as follows:- “As in the amended section 49 this clause does not find any place, it is clear that the prohibition contained therein is no, longer operative, with the necessary consequence that the document Exh.41 would become admissible in evidence although it is not registered as required by section 107 of the Transfer of Property Act. In view of the law as obtaining at present, this document would not operate to create any right, but it would certainly be available to prove the nature of the plaintiff”s possession.”

The result of the amendment is that the award is receivable in evidence but by itself it will not “operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent to or in the immovable property.”

The same view was reaffirmed in the case of “Mst. Farida Malik and others v. Dr. Khalida Malik and others” (1998 SCMR 816) wherein it was observed as under:

“32. Next objection to the validity of the Award is on account of non-registration of the same. The award, admittedly, having been made without intervention of the Court, was compulsorily registrable. Such an Award, though in view of the amendment in section 49 of the Registration Act by ordinance XLV of 1962 is receivable in evidence but by itself it does not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent to or in the immovable property. The Award in question was, therefore, ineffective to convey the rights in the properties in favour of respective parties. This very view was also taken in Haji Nawab Din v. Sh. Ghulam Haider and another (1988 SCMR 1623). In this view of the matter, the Award cannot be made rule of the Court.”

8.In the instant case the order making the rule of the Court itself declared that the Award was considered to be rule of the Court subject to registration. It was not claimed that the Award was ever registered nor the courts below ascertained the true factual position. Being so, this question needs to be addressed by allowing the parties opportunity of evidence. In case it ultimately transpires that the Award was registered the question for determination will also be as to whether such an instrument shall create any title effect in partition of the property or will be deemed to be admissible document to serve any useful purpose to assume that joint property was partitioned in accordance with law so as to assign independent entitlement in different portions to different shareholders and, if not, what course will be opened to the parties for conclusive settlement of such dispute. Another question will be to the effect that “khangi taqseem nama” dated 19.11.2018 claimed by

the petitioners on the basis whereof distribution of property with the consent of the all concerned is claimed, as to whether this document was actually executed by the parties and, if so, what will be its effect and whether it could modify the Award if admissible and whether the document is enforceable in law which will require serious deliberation in this case. Considering the matter from any angle it was a suit which could be decided only after evidence and questions raised therein could not be determined without framing issues and recording evidence of the parties. Factual and legal controversy having been raised in the pleadings it was not a case of rejection of plaint under Order VII, Rule 11, C.P.C. The orders of the courts below, therefore, suffer from serious error of jurisdiction and law, are based on misreading of record as well as are contrary to settled rule in the matter and, as such, warrant to be annulled.

9.For reasons supra, the instant revision petition is allowed; impugned judgments/orders of the courts below are set aside and the case is remanded for decision afresh after framing of issues and on merits by giving fair opportunity to both sides.

(RASAAL HASAN SYED)

JUDGE

ANNOUNCED IN OPEN COURT ON 19.10.2022

JUDGE

APPROVED FOR REPORTING

JUDGE

Imran/*