1983 PLP 366 (SCMR)

SHAFIUR RAHMAN, J.‑These two petitions between the same parties relating to different lands raise the same question of law and are being disposed of by this order.

2. The petitioners and the respondents own agricultural land which happen to be contiguous. The respondents suspected encroachment on their land and they filed an application for getting it demarcated by the revenue staff which was done on 7‑10‑1977 with police assistance as the parties were on inimical terms. The respondents thereafter instituted civil suits for pos session of the property so encroached upon by the petitioners. During the pendency of the suit the trial Court at first appointed Tehsildar (Settlement) Mianwali as local Commissioner but he did not submit his report whereupon he was replaced by a Naib‑Tehsildar (Settlement) who also reported his inability. . It is said that with the consent of the counsel for both the parties a retired Qanoongo was appointed local Commissioner whose report was made the basis and the suit of the plaintiff‑respondents was decreed in terms of his report. That judgments and decrees have been maintained on appeal by the District Judge and on second appeal by the High Court.

3. The learned counsel for the petitioner contended that the civil Court bad no jurisdiction to determine the question of encroachment as it was a matter exclusively within the jurisdiction of the Revenue Officer. It is further contended that the statement of Patwari that at the, time of demarcation by the local Commissioner be found no encroachment should have been prefer red over that of the local Commissioner. Finally it was said that there was an encroachment on the petitioners' land by the respondents and till that encroachment was removed the plaintiffs' have been allowed to succeed.

4. It is correct that the mere demarcation of the boundaries of the agricul tural land is a matter within the exclusive domain of the revenue authorities However, to claim possession of the area demarcated and encroached upon a suit has necessarily to be filed in a civil Court. This aspect of the matte has been specifically dealt with in the Rules and Orders of the High Court Vol. I, p. 67 on the subject of "Procedure in Hadd‑shikni cases" and it has been directed that no person other than a Revenue Officer or a retired officer below the rank of field Qanoongo should be appointed as local Commissioner. This requirement will clearly displace the statement of the Patwari. The effort of the trial Court to get the services of serving revenue officers failed and the next, best available course was adopted, namely, a retired field Qanoongo was appointed for the purposes and this was done with the agreement of the parties. The report of the Commissioner is not found to suffer from any taint. While concluding the learned counsel for the petitioner contended that the possession of the petitioners was adverse to the owners for the required number of years. It is doubtful where the encroachment itself was denied how can adverse possession be claimed and in any case, the factual inquiry required to be undertaken for establishing it has not been got done at the appropriate stage. The fact that the petitioners' land has also been encroached upon by the respondents is irrelevant for the purposes of the present case which is confined to a particular piece of land and to none else. We find no merit in the petition and the leave to appeal is refused. Petition refused.