2011 PLP 872 (YLR)

ATTAULLAH KHAN, J.

Mst. Mehrunissa plaintiff now respondent filed a suit for possession and permanent injunction against the defendant now petitioner. This suit was decreed by the trial Court vide judgment and decree dated 26-1-2003 which was challenged in appeal before the learned Additional District Judge Lakki but in vain and the appeal was dismissed vide judgment and decree dated 21-5-2005.

2. Now through the present revision petition, the above mentioned judgments and decrees of the Courts below have been impugned.

3. The brief facts are that the plaintiff is Hissadar owner in the suit property and finding that her land is less than her share, she submitted an application on 10-3-2000 before the Tehsildar Lakki Marwat for demarcation who appointed a Commission who conducted demarcation and discovered 1-1/2 marlas of land to have been encroached by the defendant. The said encroached land is in possession of the defendant and boundary wall has been raised with two gates. According to the report of the Local Commissioner, the encroached land has been bounded by walls. The plaintiff asked the defendant for return of the encroached land but in vain which resulted into the filing of the present suit.

4. The suit was contested by the defendant which resulted into the framing of the following issues:-- (1) Whether the plaintiff has got a cause of action? (2) Whether the suit is bad for non-joinder of necessary parties? (3) Whether the plaintiff is estopped to bring the present suit? (4) Whether the plaintiff is owner of the suit land? (5) Whether the plaintiff is entitled to the decree for possession as prayed for? (6) Whether the plaintiff is entitled to the decree for perpetual/mandatory injunction as prayed for? (7) Relief?

5. After recording evidence and hearing arguments pro and contra, suit of the plaintiff was decreed whereagainst appeal of the petitioner also failed as mentioned above and hence this revision petition.

6. Learned counsel for the petitioner argued that the property in dispute is constructed one and situated in Abadi, therefore, beyond the jurisdiction of the Revenue hierarchy in view of the bar contained under section 117 of the Land Revenue Act and resultantly the report of Girdawar Circle demarcating the land in question is of significance.

7. On the other hand, learned counsel for the respondent argued that under section 117 of the Land Revenue Act, the Revenue Authorities have jurisdiction to demarcate the land. He further argued that three Commissions have been appointed by the Revenue Officer, Civil Judge and Additional District Judge respectively and its reports support the claim of the plaintiff/respondent.

8. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.

9. We have to examine whether the Revenue Authorities are empowered to entertain the application of the plaintiff for demarcation and whether it can demarcate a property within Urban area or not.

10. Under section 117(2) of the Land Revenue Act, demarcation may be carried out by a Revenue Officer on the application of any person interested in demarcation.

11. The learned counsel for the petitioner is of the view that the demarcation should have been conducted by the Revenue Officer himself. He further argued that under Rule 67-A of the Land Revenue Rules, the Girdawar Circle is not a Revenue Officer, therefore, he is not competent to conduct the demarcation proceedings.

12. In this connection it is pointed out that this Rule has been added by the. Government of Punjab but the Government of KPK has not adopted it and thus it is not applicable in this case. Hence the argument in this respect is of no avail to the petitioner. Reference may be made to 1994 PCr.LJ 2458 wherein it has been held as under: "The learned counsel for the petitioner made two fold submissions, firstly, that the demarcation proceedings should have been conducted by the Revenue Officer himself which is according to them is a requirement of law and secondly that the demarcation proceedings have not been properly conducted. With regard to the first contention, he submitted that according to section 117 of the West Pakistan Land Revenue Act, 1967 read with 67-A the Girdawar Circle or any other official who is not the Revenue Officer is not competent to conduct the demarcation proceedings but it was found that Rule 67-A has been added by the Punjab Government in November, 1973 and which rule has not been added or incorporated by the N.-W.F.P. Government and thus it is not applicable to this Province. As regards section 117, though the Revenue Officer has been empowered to define the limits of any estate or any holding or field or any portion of an estate but it does not mean that the Revenue Officer by himself would go to the spot and conduct the entire proceedings and he could not do the same through any other person well conversant with the job and of whom he is satisfied to do the same correctly and it cannot be inferred from the section by any stretch of imagination that unless he (the Revenue Officer) has conducted the demarcation proceedings himself; those would be a nullity. What the section conveys is that he is the person who has empowered or authorized to define the limits and on the spot may be through any other person but the final decision would be of his."

13. The other argument is that the disputed property is Abadi Deh, therefore, cannot be demarcated under section 117 of the Land Revenue Act. However under the said Act, the Revenue Officer is empowered to conduct demarcation proceedings of the boundaries of the property on the application of an interested person. The said section empowers the Revenue Officer to enter upon the question of demarcation even in the land which is located in the City. Reference may be given to 1982 CLC 1732. In Para-3 thereof it has been held as follows: "Section 3(1) read with section 117--Demarcation of estate

gives powers to Revenue Officer to enter upon question of demarcation of estate even when land located within City".

14. So in view of the above verdict, the Revenue Officer is competent to conduct demarcation.

15. To sumup, the legal position is that under section 117 of the Land Revenue Act, the Revenue Officer is competent to demarcate the land himself or through Girdawar Circle.

16. The factual position is that the application submitted by the plaintiff to the Revenue Officer was processed by the Revenue Officer for appointing a Commission for the purpose of demarcation. Its report was prepared which is available on file. The proceedings were 'conducted in the presence of the parties and encroachment of land measuring 1-1/2 marlas was detected. On the basis of this report, the plaintiff filed a suit.

17. During proceedings in the trial Court, the Court also appointed a Commission who prepared his report and submitted it as Exh.CW. 1/1 This Commission was also examined- by the Court as Exh.CW. I. After all this exercise, the suit was decreed in favour of the plaintiff/respondent. It is also interesting to note that during the appeal proceedings, the appellate Court also appointed a Commission whose report is also available on file. This report also discloses an encroachment of 1-1/2 marlas of land. It further supports the first report prepared by the Revenue Officer.

18. The upshot of my above discussion is that three reports have been prepared by the Revenue Officials, one on the direction of Teshildar, second on the direction of the trial Court and third by the appellate Court. All these three reports support that encroachment have been made to the extent of 1-1/2 marlas by the defendant/petitioner.

19. Both the Courts below have rightly decreed the suit the plaintiff/respondent through the impugned findings which are based on correct, appreciation of evidence and need no interference by this Court in exercise of its revisional jurisdiction under section 115, C.P.C.

20. Besides, the concurrent findings based on facts recorded by the Courts below cannot be set at naught by this Court unless it is established that the same are perverse, erroneous and are the result of misreading or non-reading of material evidence available on record in view of the dicta handed down by the Apex Courts in the cases reported as Abdur Rahim and another v. Mst. Jantay Bibi and others (2000 SCMR 340), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 Supreme Court 291) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 Supreme Court 293).

21. Consequently, I find no merit in this revision petition which is accordingly dismissed leaving the parties to bear their own costs. S.A.K./10/P Revision dismissed.