PLJ 2004 Lahore 674

Present: MUHAMMAD MUZAMMAL KHAN, J. MUHAMMAD YOUSAF alias BALA-Petitioner

versus

KHUDA DAD and 11 others-Respondents C.R. No. 2326 of 2003, heard on 9.2.2004. (i)

Civil Procedure Code, 1908 (V of 1908)--

—-O.XXVI, R. 10(3)-Report of Local Commissioner-Objection raised by any
party-It was obligatory for the Court to decide such objections first one
way or the other—While doing so Court may confirm the report or direct
such further inquiry as may be necessary.                                 [P. 677] A

(ii) Civil Procedure Code, 1908 (V of 1908)--

—O.XXVI, R. 10--The Court was needed to apply its conscious judicial mind
while adjudicating the objections i.e. confirming or setting aside the
report of local commission.                                                      [P. 677] B

PLD 1967 Dacca 774, AIR 1937 All. 65 ref.

Malik Amjad Parvez, Advocate for Petitioner. „

Ch. Muhammad Ikram, Advocate for Respondents Nosv 1-2.

Nemo for Respondents Nos. 3-12.

Date of hearing: 9.2.2004.

judgment

This civil revision assails judgments and decrees dated 6.3.2003 and 15.7.2003 passed by the learned Civil Judge and learned Additional District Judge, Sialkot, respectively, deciding lis against the petitioner.

2.          Precisely, relevant facts are that Respondents Nos. 1 and 2 filed a
suit for permanent injunction against the petitioners and Respondents Nos.
3 to 12 claiming ownership over two plots measuring 5 marlas and 4 marlas,
as per boundaries given in the plaint, situated within the revenue estate of
Bonkan. Tehsil and District Sialkot. They pleaded that their plots bear
Khasra No. 615 Khewat No. 62 Khatoni No. 246, as those were purchased by
them through two registered sale-deeds dated 3.12.1980. Respondents Nos. 1
and 2 further asserted in their plaint that they are owners in possession of
the plots but petitioner and Respondents Nos. 3 to 12 have threatened to
encroach upon their land, by show of force. According to Respondents Nos. 1
and 2, petitioner and Respondents Nos. 3 to 12 had no such right, title or
interest in the land in possession of the respondents/plaintiffs.

3.          Petitioner b'eing a defendant in the suit contested it by filing his
written statement and pleaded that no doubt Respondents Nos. 1 and 2 have
purchased Khasra No. 615, but boundaries mentioned in the plaint relate to
Khasra No. 624 owned by him. Petitioner also undertook that he has no
design to interfere into possession of Khasra No. 615 owned by Respondents
No. 1 and 2. Controversial pleadings of the parties necessitated framing of
issues and recording of evidence. The learned trial Judge, who was seized of
the matter, in view of a controversy involved between the parties, which
related to demarcation of properties, appointed a local commissioner, who
visited the spot and submitted his report favouring Respondents Nos. 1 and
2 because the local commissioner observed that land mentioned in the plaint
bears Khasra No. 615. This report of the local commissioner was subject to
objections by the petitioner and the local commissioner was examined as
PW. 1. Those objections were not disposed of and at the same time report of
the local commissioner was neither confirmed nor was rejected on the
objections of the petitioner, but inspite of it, it was heavily relied by the trial
Court while decreeing the suit of Respondents Nos. 1 and 2 vide judgment
and decree dated 3.6.2003.

4.    Petitioner aggrieved of the decision of the trial Court dated
3.6.2003 filed an appeal before the learned Additional District Judge raising
specific objections with regard to report of the local commissioner, but there
again he remained unsuccessful as his appeal was dismissed on 15.7.2003
without redress of his grievance regarding determination of his objections to
the report of the local commissioner (Exh. P.I). He has now come up in
revisional jurisdiction of this Court for setting aside the above referred two judgments and decrees of the Courts helow. Respondents Nos. 1 and 2 in response to notice by this Court are represented through their counsel, whereas Respondents Nos. 3 to 12, who appear to be performa respondents, have opted not to appear despite service and repeated calls in the case, hence they are proceeded against ex-parte.

5.       Learned counsel for the petitioner submits that both the Courts
below have incorrectly not adverted to objections to the report of the local
commissioner (Exh. P.I) and without decision of these objections, report of
the local commissioner could not have been relied upon. He further submits
that statement of PW. 1 clearly demonstrated that instructions issued by the
Financial Commissioner contained in High Court Rules and Orders were not
followed while demarcating the land in question and in this manner no
proper measurements were done at the spot. It has also been contended that
the only controversy, which hinged between the parties is whether the
boundaries mentioned by Respondents Nos. 1 and 2 in their plaint relate to
Khasra No. 615 purchased by them or to Khasra No. 624 owned by the
petitioner, but this controversy remained undecided, in an unlawful manner.
It is also the grievance of the petitioner that without confirming report of the
local commissioner, it could not have been based upon for decision of the
suit.

6.        Learned counsel appearing on behalf of Respondents Nos. 1 and 2
has supported the judgments/decrees impugned and denied the assertions of
the petitioner, besides urging that the objections of the petitioner were
frivolous and baseless, hence required no determination. According to him,
no doubt, measurements were not done according to the instructions of the
Financial Commissioner but those were undertaken correctly in presence of
the petitioner, without any objection from him. It has also been contended
on behalf of Respondents Nos. 1 and 2 that reliance on the report of the local
commissioner has the effect of confirming the report and there was no
necessity to pass any specific order in this behalf. Learned counsel for
Respondents Nos. 1 and 2 further submitted that according to revenue
record land bearing Khasra No. 615 was owned by Respondents Nos. 1 and 2
wherewith petitioner has no right or title. He also relied on the admission of
the petitioner where-under he undertook not to interfere into the land
owned by Respondents Nos. 1 and 2. His precise assertion is that after
undertaking by the petitioner, he is estopped to file instant revision petition.

7.    I have anxiously considered the respective arguments of the
learned counsel for the parties and have examined the record, appended
herewith. Case of the petitioner was that respondents Nos. 1 and 2 are
owners of two plots measuring 5 marlas and 4 marlas falling in Khasra No.
615, but the land, boundaries of which have been given in Para 1-A (a-b) of
the plaint, is owned by him. This controversy could only be resolved through
demarcation and the trial Court adopted a rightful procedure by appointing a
local commissioner under Order XXVI Rules 9 and 10 CPC. Petitioner .had
raised objections to the report of the local commissioner, which were duly

replied by his adversaries through two different replies. On objections by the petitioner, the local commissioner was examined as PW. 1. After this exercise, it was obligatory for the trial Court under Order XXVI Rule 10(3) CPC to decide objections to the report of the local commissioner, one way or the other, and while doing so, to confirm it or if dissatisfied for any reason, to direct such further inquiry as may be necessary, in the circumstances of the case. My this view gets support from the cases of Ahmad Hussain alias Tipu Mia vs. Abdus Samad Shah and others (PLD 1967- Dacca 774) and M. Mariam and another vs. Mt. Amina and others (AIR 1937 Allahabad 65).

8. It is obvious from the express language of Rule 10 of Order XXVI CPC that without adjudication of objections to the report, without accepting or turning down those objections and without confirmation of the report of the local commissioner, it could not have been relied for the decision and for this purpose, trial Court was needed to apply its conscious judicial mind and tl pass a specific order thereon. Undeniably, no such exercise was taken by the trial Court and an unconfirmed report of the local commissioner was banked upon for the impugned decisions. Similarly, appellate Court has not adverted to this aspect of the case inspite of specific objections in the memo of appeal. Since the dispute between the parties was not resolved in a lawful manner, I am left with no other option except to set aside both the judgments and decrees dated 3.6.2003 and 15.7.2003 passed by the learned Civil Judge and learned Additional District Judge, Sialkot,. respectively, which, for the reasons noted above, are done with material irregularities and illegalities inviting invocation of revisional jurisdiction by this Court. This revision petition is consequently accepted and the above referred judgments and decrees are set aside, with the result that suit of the Respondents Nos. 1 and 2 will be deemed to be pending before the trial Court who will decide it afresh after deciding the fate of the report of the local commissioner by adjudication on the objections raised there-against by the petitioner. There will be no order as to costs. Parties are directed to appear before the trial Court on 23.2.2004.

(J.R.)                                                                              Petition accepted.