2006 PLP 1028 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

This judgment proposes to decide three civil revisions, one in hand and the other Civil Revision No.2048 of 2004 and Civil Revision No.2049 of 2004, as all these raise similar questions of law/facts, require determination of alike dispute and are directed against same set of respondents. All these petitions challenged appellate judgments/decrees dated 7-7-2004 passed by the learned District Judge, Khushab, whereby three appeals of the respondents were accepted and three suits filed by the revision petitioners were dismissed, reversing judgments/decrees of the trial Court dated 8-11-2003.

2. Precisely, relevant facts for disposal of these revision petitions are that all the revision petitioners filed three distinct suits for declaration with permanent injunction, averring that they were owners in possession of properties, as claimed in their respective plaints (i.e. Shops Nos.4239/B/1/1 and 4239/B/1/2 situated in Khasra No.4981/3211 in Civil Revision No.2047 of 2004, House No.4239-B/1/A in Civil Revision No.2048 of 2004 and House No.4235A/RN in Civil Revision No.2049 of 2004, all located within the municipal limits of Khushab) and the respondents had no right, title or interest therein, thus, they may be declared owners. Petitioners also prayed, by way of consequential relief that respondents may be restrained through decrees for permanent injunction from interfering in their lawful possession over the shops/houses.

3. Respondents being defendants in all the three suits, contested the same by filing their written statements, wherein certain preliminary objections regarding lack of jurisdiction of Civil Court and incorrect description of suit properties were raised besides challenging locus standi of the petitioners to file their suits. On merits, respondents pleaded that petitioners have encroached upon the land owned by Railway Department and they have no right to remain in possession thereof. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of the matters, after doing the needful, decreed all the three suits vide his judgments/decrees dated 8-11-2003.

4. Respondents being aggrieved of the decision by the trial Court filed three different appeals before the learned District Judge, Khushab, where they succeeded as the .same were accepted and by reversing judgments/decrees of the trial Court all the three suits of the petitioners were dismissed with no order as to costs, vide appellate judgments/ decrees dated 7-7-2004. Petitioners thereafter filed above noted three revision petitions and respondents in response to notice by this Court appeared and were represented through their counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended with all the three revision petitions. Petitioners had produced voluminous documentary evidence to prove their ownership in Khasra No.4976/4981/3211 of Khewat No.1029 vide Jamabandi for the year 1989-90 and report of Naib Tehsildar, Khushab dated 12-6-1983 (Exh.P.4) showing demarcation of suit property on their application. Similarly, respondents had also produced a demarcation report dated 20-3-1995 (Exh.D.6) prepared by Tehsildar, Khushab on application of the respondents. Minute examination of both these demarcation reports revealed that suit property being located within the municipal limits of Khushab was demarcated by two Revenue Officers under the provisions of West Pakistan Land Revenue Act, 1967, without putting to rest the controversy between the parties, whereunder their respective claimed Khasra numbers were undeniably adjacent to each other because none of these reports gave any clear verdict of overlapping of properties allegedly raised by the petitioners through encroachment as per claim of the respondents. Both the Khasra numbers, the one 3211 claimed to be owned by the petitioners and the other 3192 alleged to have been encroached by them, as per assertions of the respondents, are adjacent to each other and are abutting a metalled road as per Shajra Akse produced by the Revenue Patwari of the Circle. It is not disputed between the parties that suit properties are no more agricultural land and are building sites, located within the municipal limits of Khushab. Such properties could not have been demarcated by the officials working in revenue hierarchy under West Pakistan Land Revenue Act, 1967, as its section 3, excluded land kept as site of a town or village from its operation. Language of the provision of law, under discussion, accepts no ambiguity that demarcation of land kept/used as a building site could not have been done under the provisions of Act of 1967, which was A subject to their process only for certain restricted physical purposes like recovery of land revenue etc. In forming this view, I have to my credit a chain of judgments including the cases of Ghulam Rasul v. Ikram Ullah and another PLD 1965 (W,P.) Lah. 429; Tahir Hanif v. Member, Board of Revenue and others 1982 CLC 1732; Syed Aslam Shah and 3 others v. Mst. Sakina and another 1988 MLD 1596 and Pervez Ahmed Khan Burki and 3 others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31.

6. I feel no hesitation to hold that both the demarcation reports produced by the parties i.e. Exh.P.4 and Exh.D.6, besides the fact that those do not resolve controversy between the parties, were unauthorizedly prepared by the Revenue Officers. Report of the Local Commissioner (Exh.P.4) was prepared as far back as on 12-6-1984 i.e. about nine years earlier to the institution of the suits, which were filed in the year 1993 and report Exh.D.6 was got prepared by the respondents on 20-3-1995, pending suit, and in none of those, their adversaries were associated. Report Exh.P.4. did recite that notice to Director, Land Management Railway Department was issued but it is silent as to whether service of any of the concerned employee was effected because the learned Local Commissioner did not mark presence of any of the respondents on the day of demarcation. Be that as it may, the report B prepared nine years earlier to the institution of suit could not be based for settlement of dispute inter parties in a just/fair manner.

7. From the above resume of facts since both the reports of the Local Commissioners above discussed, had no legal sanctity, being prepared unauthorizedly, for just decision of the case and to resolve controversy between the parties for all times to come, by resort to provisions of Order XXVI, rules 9 and 10, C.P.C., which equipped the Courts below to have site inspection/demarcation under their mandate from some expert revenue official, had to be made but both the Courts below being oblivious of their jurisdiction, erroneously attempted to decide the dispute relying on illegal reports of the Local Commissioners. Scan of appellate judgment revealed that no finding with clarity could be given by the learned District Judge with regard to Shops bearing Nos.4239-B/1/1-2 and houses were really located in Khasra No.4988/3211, as there was no such evidence on the file. Learned counsel for the parties especially for the respondents could not satisfy my judicial conscience that dispute can really be resolved by excluding both the above referred reports of the Local Commissioners and according to my humble view the only viable way out was to have report under rule 9 of Order XXVI, of C.P.C., which was neither adverted nor was resorted C by any of the two Courts below. Since I intend to remand all the three cases for fresh decision after demarcation under the orders of trial Court, I avoided to discuss merits/demerits of the cases of the parties lest the same may not prejudice minds of the Courts below where the cases will again go for determination.

8. For the reasons noted above, the judgments/decrees dated 8-11-2003 and 7-7-2004 passed by the learned Civil Judge and learned District Judge, Khushab, in all the three suits of the revision petitioners are set aside, being tainted with material illegalities and irregularities and all the three cases are remanded back to the trial Court with a direction to decide all the three suits afresh after having fresh demarcation of both the Khasra numbers of the parties through some senior revenue expert, at the joint expense of the parties to be shared by them equally, in accordance with law, on the basis of evidence available on the record. Parties are directed to appear before the learned District Judge, Khushab on 24-4-2006 for onward entrustment and the learned Civil Judge will decide the matters, in terms above narrated, within a period of six months,- from the date of taking cognizance thereof. There will be no order as to costs. F.B./K-20/L???????????????????????????????????????????????????????????????????????????????????????? Petitions disposed of