2006 PLP 2513 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Impugned in this writ petition is the order dated 26-9-2005 of learned Additional District Judge, Peshawar, whereby the order dated 7-4-2005 of learned Civil Judge, Peshawar, in respect of the confirmation of commission report dated 10-1-2005, was upheld and the revision petition was dismissed.

2. Briefly stated the facts are that Muhammad Akbar, plaintiff, instituted suit against Muhammad Ashiq and others, defendants, for declaration to the effect that plaintiff was owner in possession of suit property having purchased the same from Mst. Mubarak Jan on the basis of sale-deed dated 26-10-1962 and defendants had no concern with it. The plaintiff also prayed for grant of permanent injunction, restraining defendants to interfere with his possessory rights in any manner. The suit was resisted on all grounds, legal as well as factual and claim of the plaintiff was denied. Relevant issues were framed and evidence in support of the respective contentions of the parties was recorded and suit was fixed for arguments. At this stage, plaintiff moved an application for appointment of local commission. The application was opposed and ultimately dismissed. A revision petition was preferred thereagainst, which was accepted by learned Additional District Judge, Peshawar, by order dated 15-2-2003. The case was remanded to the trial Court with direction to appoint a local commissioner to resolve the controversy involved. A commission was appointed but his report was set aside with mutual consent of the parties. Another commissioner was appointed, who submitted his report, which was confirmed by order dated 7-4-2005, maintained in revision petition by order dated 26-9-2005, giving rise to the filing of instant writ petition.

3. Malik Zeb Khan, Advocate for the petitioners, mainly contended that impugned order dated 26-9-2005 is against the law and facts and also contrary to the report of Local Commissioner; that report in question is incomplete, ineffective and immaterial and the same has been accepted by the learned Courts below in a mechanical manner without application of independent mind, which has resulted in complete failure of justice. Mr. Taufeeq Qureshi, Advocate for the respondents, on the other hand, supported the impugned orders of the Courts below and contended that the writ petition is not maintainable. In this regard, he placed reliance on Muhammad Anwar v. Tahira Jabeen and 3 others 2003 CLC 878 and Muhammad Samiullah Khan v. Additional District Judge, Sargodha PLD 2002 Lahore. 56.

4. The record reveals that the local commissioner after proper investigation and inquiry, in the presence of the Patwari Halqa and parties to the suit, prepared a detailed and comprehensive report, which is not open to exception. The mere assertion of learned counsel for the petitioners that report in question is incomplete, ineffective and commissioner failed to resolve the real controversy between the parties, without a positive attempt on his part to substantiate the same is of no consequence. Under Order XXVI, rule 10(2) of the Code of Civil Procedure the report of the Commissioner to whom the commission has been issued by the Court is to be treated as evidence in the suit, although it is not binding on the Court which may arrive at its own conclusion on the basis of the evidence on record, as held in Aziz Fatima Begum v. Oils and Gas Development Corporation, Karachi PLD 1978 Karachi 316.

5. The Courts below are not shown to have been tainted with any illegality or irregularity in absence of which no interference is permissible in constitutional jurisdiction of this Court. The writ petition is bereft of merit, which is hereby dismissed, with no order as to costs. H.B.T./145/P Petition dismissed.