2004 PLP 1107 (MLD)

‑‑‑‑O. XXVI, R. 10‑‑‑Interpretation of O. XXVI, R. 10, C.P.C.‑‑‑Report of local commissioner‑‑‑Objection‑‑‑Validity‑‑‑Express language of O. XXVI, R. 10, C.P.C. provided that without adjudication of objections to the report, without accepting or turning down the objections and without confirmation of the report of the local commissioner, it could not have been relied for the decision and for this purpose, Trial Court had to apply its conscious judicial mind for passing a specific order‑‑‑No such exercise was taken by the Trial or Appellate Court and an unconfirmed report of the local commissioner was relied upon‑‑ Judgment of the Courts below, in circumstances, was set aside by High Court. Malik Amjad Parvez, for Petitioner. Ch. Muhammad Ikram for Respondents No. 1 and

2. Nemo for Respondents Nos.3 to

12. Date of hearing: 9th February, 2004. This civil revision assails judgments and decrees, dated 6‑3‑2003 and 15‑7‑2003 passed by the learned Civil Judge and learned Additional District Judge, Sialkot, respectively, deciding lis against the petitioner.

2. Precisely, relevant facts are that respondents Nos. 1 and 2 filed a suit for permanent injunction against the petitioners and respondents Nos. 3 to 12 claiming ownership over two plots measuring 5 Marlas and 4 Marlas, as per boundaries given in the plaint, situated within the Revenue estate of Bonkan, Tehsil and District Sialkot. They pleaded that their plots bears Khasra No.615 Khewat No.62 Khatoni No. 246, as those were purchased by them through two registered sale‑deeds, dated 3‑12‑1980. Respondents No. 1 and 2 further asserted in their plaint that they are owners in possession of the plots but petitioner and respondents Nos. 3 to 12 have threatened to encroach upon their land, by show of force. According to respondents No.1 and 2, petitioner and respondents Nos. 3 to 12 had no such right, title or interest in the land in possession of the respondents/plaintiffs.

3. Petitioner being a defendant in the suit contested it by filing his written statement and pleaded that no doubt respondents No. 1 and 2 have purchased Khasra No.615 but boundaries mentioned in the plaint relate to Khasra No.624 owned by him. Petitioner also undertook that he has no design to interfere into possession of Khasra No.615 owned by respondents No. 1 and

2. Controversial pleadings of the parties necessitated framing of issues and recording of, evidence. The learned trial Judge, who was seized of the matter, in view of a controversy involved between the parties, which related to demarcation of properties, appointed a local commissioner, who visited the spot and submitted his report favourting respondents No. 1 and 2 because the local commissioner observed that land mentioned in the plaint bears Khasra No.615. This report of the local commissioner was subject to objections by the petitioner and the local commissioner was examined as P.W.1. Those objections were not disposed of and at the same time report of the local commissioner was neither confirmed nor was rejected on the objections of the petitioner, but in spite of it, it was heavily relied by the trial Court while decreeing the suit of respondents No. 1 and 2 vide judgment and decree dated 3‑6‑2003.

4. Petitioner aggrieved of the decision of the trial Court, dated 3‑6‑2003 filed an appeal before the learned. Additional District Judge raising specific objections with regard to report of the local commissioner, but there again he remained unsuccessful as his appeal was dismissed on 15‑7‑2003 without redress of his grievance regarding determination of his objections to the report of the local commissioner (Exh.P.1). He has now come up in revisional jurisdiction of this Court for setting aside the above referred two judgments and decrees of the Courts below. Respondents Nos. 1 and 2 in response to notice by this Court are represented through their counsel, whereas respondents Nos.3 to 12, who appear to be pro forma respondents, have opted not to appear despite service and repeated calls in the case, hence they are proceeded against ex parte.

5. Learned counsel for the petitioner submits that both the Courts below have incorrectly not adverted to objections to the report of the local commissioner (Exh.P.1) and without decision of these objections, report of the local commissioner could not have been relied upon. He further submits that statements of P.W.1 clearly demonstrated that instructions issued by the Financial Commissioner contained in High Court Rules and Orders were not followed while demarcating the land in question and in this manner no proper measurements were done at the spot. It has also been contended that the only controversy, which hinged between the parties is whether the boundaries mentioned by respondents No. 1 and 2 in their plaint relate to Khasra No.615 purchased by them or to Khasra No.624 owned by the petitioner, but this controversy remained undecided, in an unlawful manner. It is also the grievance of the petitioner that without confirming report of the local commissioner, it could not have been based upon for decision of the suit.

6. Learned counsel appearing on behalf of respondents No. 1 and 2 has supported the judgments/decrees impugned and denied the assertions of the petitioner, besides urging that the objections of the petitioner were frivolous and baseless, hence required no determination. According to him, no doubt, measurements were not done according to the instructions of the Financial Commissioner but those were undertaken correctly lit presence of the petitioner, without any objection from him. It has also been contended on behalf of the respondents No. 1 and 2 that reliance on the report of the local commissioner has the effect of confirming the report and there was no necessity to pass any specific order in this behalf. Learned counsel for respondents No. 1 and 2 further submitted that according to Revenue Record land bearing Khasra No.615 was owned by respondents No. 1 and 2 wherewith petitioner has no right or title. He also relied on the admission of the petitioner whereunder he undertook not to interfere into the land owned by respondents No. 1 and

2. His precise assertion is that after undertaking by the petitioner, he is estopped to file instant revision petition.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Case of the petitioner was that respondents No. 1 and 2 are owners of two plots measuring 5 Marlas and 4 Marlas falling in Khasra No.615, but the land, boundaries of which have been given in para. 1‑A(a‑b) of the plaint, is owned by him. This controversy could only be resolved through: demarcation and the trial Court adopted a rightful procedure by appointing a local commissioner under Order XXVI rules 9 and 10, C.P.C. Petitioner had raised objections to the report of the local commissioner, which were duly replied by his adversaries through two different replies. On objections by the petitioner, the local commissioner was examined as P.W.1. After this exercise, it was obligatory for the trial Court under Order XXVI rule 10(3), C.P.C. to decide objections to the report of the local Commissioner, one way or the other, and while doing so, to confirm it or if dissatisfied for any reason, to direct such further inquiry as may be necessary, in the circumstances of the case. My this view gets support from the cases of Ahmad Hossain alias Tipu Mia v. Abdus Samad Shah and others (PLD 1967 Dacca 774) and Mst. Mariam and another v. Mst. Amina and others (AIR 1937 Allahabad 65).

8. It is obvious from the express language of rule 10 of Order XXVI, C.P.C that without adjudication of objections to the report, without accepting or turning down those objections and without confirmation of the report of the local commissioner, it could not have been relied for the decision and for this purpose, trial Court was needed to apply its conscious judicial mind and to pass a specific order thereon. Undeniably, no exercise was taken by the trial Court and an unconfirmed report of the local commissioner was banked upon for the impugned decisions. Similarly, Appellate Court has not adverted to his aspect of the case in spite of specific objections in the memo of appeal. Since the dispute between the, parties was not resolved in a lawful manner, I am left with no other option except to set aside both the judgments and decrees, dated 3‑6‑2003 and 15‑7‑2003 passed by the learned Civil Judge and learned Additional District Judge, Sialkot, respectively, which, for the reasons noted above, are done with material irregularities and illegalities inviting invocation of revisional jurisdiction by this Court. This revision petition is consequently accepted and the above referred judgments and decrees are set aside, with the result that suit of the respondents Nos. 1 and 2 will be deemed to be pending before the trial Court who will decide it afresh after deciding the fate of the report of the local commissioner by adjudication on the objections raised thereagainst by the petitioner. There will be no order as to costs. Parties, are directed to appear before the trial Court on 23‑2‑2004. M.A.W./M‑73/L Revision accepted.