2000SCMR623 (PLP)

NASIR ASLAM ZAHID, J.

This petition has been filed by the Cantonment Board, Quetta seeking leave against the judgment, dated 30-6-1997 of the Balochistan High Court dismissing their Regular First Appeal and confirming the judgment of the Civil Judge, Quetta, whereby suit of respondent for possession and removal of encroachment had been decreed. We have heard Mr. Muhammad Riaz Ahmed, learned Advocate-on Record for the petitioner.

2. Respondent claimed to be the owner of the disputed land in Tappa Saddar, Quetta, on which road for Jinnah Town was constructed in 1968 by the petitioner Cantonment Board during which the disputed land measuring 7895 sq.ft. of the respondent was encroached upon, according to the respondent. During the hearing of the suit a Local Commissioner was appointed to demarcate the land. A second Local Commissioner was also appointed. Relying on the evidence and reports/sketches prepared by the Commissioners, the suit of the plaintiff/respondent was decreed and petitioner was directed to hand over possession of the encroached area of the respondent or to pay compensation for the same. The said judgment of the Civil Court was challenged in appeal before the High Court. During the pendency of the appeal, parties agreed for appointment of three-member Local Commission to ascertain the boundaries and actual area of the alleged encroached land. Appeal was disposed of in the earlier round by judgment, dated 16-11-1995 and the matter was remanded to the trial Court as follows:-- "Learned counsel have given statement in writing for appointment of following three (3) persons as Local Commissioners to ascertain boundaries and actual area of land, belonging to respective parties. They have further expressed that report shall be final:- (i) Assistant Commissioner, Revenue Office of the Commissioner, Quetta. (ii) Mr. Farooq, S.D.O., Military Estate Office, Quetta Cantt. (iii) Mr. Amir Jan Qanoongo, Tehsil Quetta, It is observed thatAssistant Commissioner Revenue (of the Office of the Commissioner, Quetta. Division) shall be the Chairman and supervise process of measurement. Site inspection and fixation of boundaries to be carried out by other two members. Requisite report be prepared by above named persons within one month before trial Court with notice to parties. Accordingly with consent of learned counsel for the parties impugned judgment, ,dated 8-5-1995 passed by learned Civil Judge-1, Quetta is set aside. On submission of report trial Court, shall decide the matter afresh on its own merits according to law. Appeal disposed of in the above terms. Parties are left to bear their own costs. On remand, the three-member Commission made the inspection and then submitted .report but there was difference of opinion inasmuch as two members of the Commission found in favour of the respondent as regards the encroachment by the petitioner whereas the 3rd member was of the view that the boundaries could not be determined without the Survey Department being associated. Without any further evidence, relying upon the majority view of the three-member Commission, suit of the respondent was decreed which led the petitioner to file an appeal before the High Court which has been dismissed by the impugned judgment, dated 30-6-1997.

3. After hearing learned counsel and going through the record including the impugned judgment of the High Court, we are of the view that a case for grant of leave is made out, Accordingly this petition is allowed and leave is granted to consider the following:-- (a) Whether in view of the order, dated 16-1 T-1995 passed by the High Court in the earlier round of appeal, the trial Court rightly accepted the majority view of two members of the three-member Commission discarding the view of the 3rd member? (b) Whether the judgment of the trial Court in the earlier round having been set aside and the matter remanded, the trial Court rightly decided the suit solely on the majority view of the Commission without recording any further evidence or carrying out any other inquiry as contemplated in the order, dated 16-11-1995 passed by the High Court in the previous appeal? H.B.T./C-42/S ., Leave granted.