2006 PLP 1046 (YLR)

MUHAMMAD SAIR ALI, J.--The petitioner Amanat Ali was the plaintiff in the suit for possession of land measuring 244 square feet filed against the respondents Muhammad Din and Muhammad Amin sons of Wali Muhammad on the basis of purchase of property measuring 6 Marlas from Abdul Han-teed through sale-deed dated 1st of October, 1979 (Exh.P.2).

2. The petitioner's claim as plaintiff in the suit was that the alleged land measuring 244 square feet was the vacant land towards the western side of the house purchased by him and this particular land was also the land purchased by him from Abdul Hameed. And that about 3 1/2 years prior to the suit, the respondent defendants illegally and forcibly occupied the land measuring 244 square feet in absence of the petitioner plaintiff and his family members.

3. The respondents as defendants submitted their written statement whereupon five issues were framed. The important issue relating to the ownership of the petitioner plaintiff and his entitlement to recover the possession of the land was serial numbered as Issue No.4. The evidence of the parties was recorded. The learned trial Judge also recorded the statement of Ch. Iintiaz Ali Advocate as C.W. 1 in his capacity as Local Commission appointed for the measurement of the land in occupation of the parties as well as the suit land. The statement of Mukhtar Ahmad Patwari accompanying with C.W. 1 was also recorded as C.W.2. The commission report was exhibited as Exh.C.W.I/1. The learned trial Judge after a detailed analysis of evidence of the parties recorded the following findings on the above said Issue No.4:-- "From the physical measurement of the land of the defendants they are found iii possession of 42 feet of land in excess to their entitlement towards the northern side of their land. Therefore, it is obvious that this 42 feet of land belongs to the present plaintiff. The defendants cannot retain more than three Marlas 54 feet. Therefore, keeping in view of all the above facts and circumstances, it is held that the plaintiff has got cause of action to the extent of 42 feet of suit-land and is entitled to get the possession of this land only from the northern side of the suit-land as shown in the site plan Exh.C.W.1/2. Both the issues are decided accordingly to this extent in favour of the plaintiff."

4. On the basis of the above findings, the learned trial Judge partly decreed the suit to the extent of the land measuring 42 square feet with an added observation that the petitioner plaintiff was entitled to get the possession of this land from the northern side of the disputed land as shown by the Local Commission in the site plan Exh.C.W.1/2. The respondent-defendants were directed to hand over the possession also within a period of one month.

5. Against the above judgment and decree dated 15-6-1993 of the learned Civil Judge Kasur, the respondents appealed. The learned Additional District Judge recorded the impugned judgment and decree on 6-3-1996 accepting the appeal and setting aside the judgment and decree dated 15-6-1993 with the following observations:-- "Admittedly, Muhammad Din son of Sonna is not party to the suit neither it is proved on record that Muhammad Din, defendant and that Muhammad Din son of Sonna whose property is to be joined with that of defendant is one and the same person. Commission has categorically sated that he is not aware whether Muhammad Din, defendant and Muhammad Din son of Sonna are one and the same person. He has also stated that he has nowhere mentioned that as to which of the party is in possession of the disputed property. According to Commission he did not obtain the proof of ownership of the parties. Since it was the duty of the respondent/plaintiff to prove his case as set up in the plaint which he has miserably failed to prove through any cogent, convincing as well as direct evidence. He has himself admitted that appellants/defendants are in possession of three Marlas and 54 square feet of land, therefore, this admission of respondent/plaintiff does a long way to prove the very claim of the appellants that they are in possession of their own property so transferred to them. Resultantly, findings so recorded under both the issues i.e. Issues Nos.2 and 4 by the learned trial Court cannot be upheld so same are set aside."

6. Aggrieved from the above appellate; judgment and decree dated 6-3-1996, this civil revision was filed by Amanat Ali, the plaintiff in the suit.

7. The arguments of the learned counsel for the parties were heard. On 30-11-2004, the learned counsel for the parties got a joint statement recorded and by consensus requested for appointment of Municipals Engineer as Local Commission to re-demarcate the property respectively in possession of the parties and also to indicate the boundaries thereof etc. The learned counsel for the parties also categorically stated "that the report so submitted by the Commission jointly appointed by the learned counsel for the parties will be acceptable to them and this civil revision be decided in terms of the report". Order dated 30-11-2004 being significant and having bearing upon the controversy between the parties is reproduced hereunder: "To crystallize and define the specific controversy involved in the present civil revision arising out of the suit for possession filed by the petitioner/plaintiff qua 244 square feet against the respondents Muhammad Din and others, the learned counsel for the parties jointly state and admit as under: i. That the respondents/defendants in the suit are the owners in possession of 3 Marlas, 544 square feet and the said land was duly allotted to them by the Settlement Authorities; ii. That the petitioner/plaintiff purchased the land measuring about 6 Marlas through sale-deed dated 29th August, 1979 (Exh.P.2); iii. The petitioner/plaintiff claims that out of the above purchased 6 Marlas, the respondents illegally and unlawfully took possession of 244 square feet of land and are since then in occupation thereof in excess of' their own land measuring 3 Marlas, 54 square feet; iv. The learned counsel for the respondent defendants however claims that the respondent/ defendants only occupy and possess 3 Marlas, 54 square feet owned by them and they do not own or possess any land even an inch of land beyond the land transferred to them by the Settlement Authorities. The learned counsel thus states that the only controversy involved here in is as to whether the respondent/ defendants possess any land beyond 3 Marlas and 54 square feet and as to whether the petitioner plaintiff possesses land less than 6 Marlas and the deficient land was the suit land in possession of the respondent defendants; v. Both the learned counsel for the parties state that the controversy has not been properly attended to by the learned Courts below and they request that some Commission be appointed to examine and inspect the property/land under occupation of the parties along with its proper dimensions and boundaries in order to settle the controversy; and vi. That the report so submitted by the Commission jointly appointed by the learned counsel for the parties will be acceptable to them and this civil revision be decided in terms of' the report. "

2. According to the joint request of the learned counsel for the parties in terms of the above recorded consensus, Municipal Engineer of the Town Municipal Administration Kasur is appointed as Commission to inspect, examine and measure the above said properties of both the parties and submit the report to this Court by or before 17th of' January, 2005. The Commission should ensure correctness and exactitude of the measurements and should determine the exact area of the land/building in possession of each party in keeping with the above recorded consensus statements. Boundaries should also be defined specifically and the site plan be prepared clearly and concisely as per the scale. The parties shall pay Rs.6,000 to the Commission as fee Rs.3,000 shall be paid by each party to the Commission. "

3. The learned counsel for the petitioner undertakes to supply the certified copy of this order to the Municipal Engineer/Commission who shall thereupon give notices to the parties for the date of inspection/measurement of the properties of the parties. The parties shall be present on the notified day and are directed to co-operate with the Commission."

8. The report was submitted by the Commission as appointed above. The learned counsel for the petitioner filed objections thereto which have been answered by the learned counsel for the respondents.

9. Confronted with the above report, the learned counsel for the petitioner in order to substantiate his objections stated that the Commission failed to determine the possession and ownership of respondent No.1 i.e. Muhammad Din son of Wali Muhammad. He further stated that Muhammad Din son of' Sohna shown on the south eastern corner of' the entire property in the site plan as possessing 2 Marls, 115 square feet was in fact respondent No.1 Muhammad Din son of' Wali Muhammad and as such taking the total land in possession of Muhammad Amin respondent No.2 and Muhammad Din son of Sohna as the property of the respondents inherited from their father Wali Muhammad, they held much in excess of their entitlement which cannot exceed 3 Marlas and 54 square feet as per PTD upon which the allotment was made to their father. He further contended that if' the property shown in the site plan by the Local Commission appointed by this Court is taken to be the joint property of Muhammad Din, respondent No.1 and Muhammad Amin, respondent No.2, even then they held 42 square feet in excess of their entitlement and these 42 square feet in fact belong to the petitioner in minimum. Further stated that this calculation has been done by the Local Commission and by him as counsel for the petitioner on the basis that the respondents also held the disputed passage/ property measuring 167 square feet as well. Contrarily the learned counsel for the respondents contended as under: (i) That 6 Marlas of land as purchased by the petitioner from Abdul Hameed through Exh.P.2 (the sale-deed) mentioned two rooms on the southern side as in occupation of the respondents and these two rooms in total in fact are the property stated in the PTD in favour of Wali Muhammad; the father of the respondents; (ii) That the petitioner had purchased the property from Abdul flamed who was allotted the same on the basis of PTD which has not been produced. It is thus doubtful as to whether the original vendor Abdul Hameed owned the entire 6 Marlas purportedly mentioned as the property transferred to the petitioner/plaintiff; (iii) That the petitioner in his suit as P.W.5 admitted Muhammad Din son of Sonna as occupant of some property and also admitted him to be a different person from Muhammad Din son of Wali Muhammad; the respondent; (iv) That the petitioner admitted the respondents to be in possession of their own property measuring 3 Marlas, 54 square feet; (v) That the petitioner has in fact taken excess property on the western side where 10 feet public street exists and as such he is not entitled to any further claim against the respondents; (vi) That the petitioner has failed to prove Issue No.4 through his evidence; and (vii) That the learned Additional District Judge has therefore correctly passed the impugned judgment and decree.

10. I have heard the learned counsel for the parties in detail and have also considered the record, the previous report of the Local Commission exhibited as Exh.C.W.1/1 along with the site plan (Exh.C.W.1/2) and the present Local Commission's Report submitted along with the site plan. Significant to state that the learned counsel for the parties in their statement dated 30-11-2004 jointly requested with consensus that an expert Local Commission i.e. Municipal Engineer be appointed to re-measure the properties in possession of the parties others. The basis for this request was their admission recorded in order dated 30-11-2004 as under: (v) "Both the learned counsel for the parties state that the controversy has not been properly attended to by the learned Courts below and they request that some Commission be appointed to examine and inspect the property/land under occupation of the parties along with? its proper dimensions and boundaries in order to settle the controversy."

11. The second basis of the joint request of the learned counsel for the parties was that the respondents/defendants only occupied and possessed 3 Marlas and 54 square feet falling in their ownership and that they did not own or possess even an inch of land beyond the land transferred? to their father by the Settlement Department. Further that both the learned counsel for the parties staled on this premise that "the only controversy involved herein is as to whether the respondent/ defendants possess any land beyond 3 Marlas and 54 square feet and as to whether the petitioner plaintiff possesses land less than 6 Marlas and the deficient land was the suit land in possession of the respondent/ defendants". The learned counsel in fact got their statement recorded in order to get a fair and proper settlement of the controversy for ever for their clients. It was in this regard that they stated that "the report so submitted by the Commission jointly appointed by the learned counsel for the parties will be acceptable to them and this civil revision be decided in terms of the report".

12. In view of the above statement of the learned counsel and in view of the arguments addressed by the learned counsel for the parties, it was not within the mandate of the Local Commission to determine the ownership of the parties. The Local Commission as appointed on the joint request of the learned counsel for the parties was only directed by this Court "to inspect, examine and measure the above said properties of both the parties and submit the report to this Court" and "should ensure correctness and exactitude of the measurements". The Local Commission should also "determine the exact area of the land/building in possession of each party in keeping with the above recorded consensus statements" and "Boundaries should also be defined specifically and the site plan be prepared clearly and concisely as per the scale."

13. It is not objected to by the learned counsel for the parties that the site plan is deficient in any manner whatsoever. It has also not been objected to that the site plan is not as per the scale and does not contain the boundaries as well as specific measurements of the properties in respective possession of the parties. This Court is thus of the opinion that the learned Local Commission as appointed by this Court had carried out the Commission proceedings in accordance with the law as well as strictly in accordance with the directions of this Court. The objections as filed by the learned counsel for the petitioner are therefore rejected.

14. Now attending to the arguments of the learned counsel for the respondents, I find a lot of material in his statement that Muhammad Din son of Sohna was admitted by the petitioner to be a person different from Muhammad Din son of Wali Muhammad. The land measuring 2 Marlas, 115 square feet shown to be in possession of Muhammad Din son of Sohna therefore cannot be at present counted as part of the land owned and possessed by Muhammad Amin and Muhammad Din sons of Wali Muhammad and others. Furthermore the petitioner/plaintiff cannot be allowed to take the benefit of his own omission as he failed to implead Muhammad Din son of Sohna in the suit. In view of this fact that Muhammad Din son of Sohna was not a party, all the observations made by the learned Courts below as well as by this Court shall relate to the controversy and the litigated questions between the parties herein.

15. The learned counsel for the respondents had himself in the joint statement dated 30-11-2004 sought appointment of the Local Commission by conceding that the learned Courts below had not properly attended to the controversy and the litigated questions between the parties. The statement so recorded binds the respondents and they cannot be allowed to wriggle out this statement. No substantial objection to the report of the Local Commission and the site plan has been raised. As per the report and the site plan, the respondents occupied and possessed 2 Marlas, 154 square feet shown in blue plus 167 square feet of the disputed passage or property. The total thus comes to 3 Marlas, 96 square feet.

16. The learned counsel for the parties have calculated the land so shown to be in occupation of the respondents as 3 Marlas, 96 square feet. As per the statement of the learned counsel for the parties recorded in the above reproduced order dated 30-11-2004, it was stated by the learned counsel for the respondents that the entitlement of the respondents at maximum was 3 Marlas and 54 square feet and they did not own or possess even an inch in excess of 3 Marlas, 54 square feet. As per the report and the site plan and also findings of the learned trial Court, the respondents are in occupation of land measuring 42 square feet in excess of their entitlement.

17. I have no reason to disbelieve the measurements carried out by the Local Commission appointed by this Court and the report given by him in absence of any specific objections from the respondents. The objections filed by the petitioner have already been rejected. Reiterating the fact that the measurements as carried out by the Commission have been admitted to be according to the scale and correct, there is no room to dispute the same.

18. In view of what has been discussed above, this civil revision is accepted in the following terms; (i) That the impugned judgment and decree dated 6-3-1996 passed by the learned Additional District Judge Kasur is set aside; (ii) That the judgment and decree dated 15-6-1993 of the learned trial Judge decreeing the petitioner's suit for possession to the extent of 42 square feet in upheld and restored; and (iii) That the parties shall bear their own costs.

19. Decided as above. M.H./A-544/L???????????????????????????????????????????????????????????????????????? Order accordingly.