1989 PLP 3651 (MLD)

Sardar Roshan Ali Sindhu for Respondents. JUDGMENT. This revision petition arises out of a suit filed by the respondents for possession of land measuring 12 Marals bearing Khasra Nos.2441/1,2 and 2442/2 situate in Mankera, Tehsil and District Bhakkar on the basis of their ownership against the petitioners who had allegedly encroached upon it some six years before the filing of the suit. This suit was contested by the petitioners who stated that the land in their occupation did not belong to the respondents but was Abadi Deh over which they had constructed their houses and were in occupation in their own right. The trial court after framing the necessary issues recorded evidence of the parties. During the course of trial, on 23rd of January, 1980, a Local Commissioner was appointed by the court with the direction to find out the Khsara numbers of the land underneath the houses of the petitioners. The Local Commissioner submitted his report on 10th of April, 1980 to which objections were filed by the respondents. The learned trial Court, heard the arguments in the main suit as also on the objection to the report of Local Commissioner. On 2nd of November, 1980 the learned trial Court upheld the objections and rejected the report of the Local Commissioner. On the same day the learned Civil Judge decreed the suit in favour of the respondent holding that the petitioners were m illegal occupation of the land in dispute. This judgment of the trial Court was affirmed by the Additional District Judge who dismissed the appeal filed by the petitioners on 20th of January, 1983. Hence this civil revision.

2. The main dispute between the parties in the present case is regarding the identity of the land in occupation of the petitioners. Respondents‑plaintiffs claimed that they were owners of the said land while petitioners asserted that the land was Abadi Deh of which they are in possession in their own rights. Both the Courts while repelling this plea of the petitioners have relied upon Rozenamcha Ex.P2 according to which petitioners were in the illegal occupation of the disputed land. This report was made in some proceedings relating to delivery of possession. It was not prepared in the presence of the petitioners nor the exact nature of proceedings m which this report was made and the manner of doing so, is discernible on the record. In these circumstances of the case, the report alone was not sufficient for returning of finding against the petitioners. As already noticed, the learned trial Court had itself appointed a Local Commissioner for ascertaining the correct, factual position regarding the identity of the land. However, after having set aside the report the trial Court instead appointing afresh Commission proceeded to decide the suit on the same day without applying its mind to the question regarding the appointment of a fresh Local Commissioner. In cases where the dispute is regarding the identity of t tic property it is always desirable in the interest of justice that local investigation be ordered by appointment of Local Commission. In Noor Hussain v. Fauji Foundation Hospital 1989 CLC 1 it was observed that: "The object of the local investigation is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence would enable the Court to properly understand and assess the evidence on the record." The same authority also deals with the value of a report similar to Rozenamcha Waqiati Ex. P2 and in this context it was observed that such a report could not be relied upon if its author had not been examined and the report had been made in the absence of the other party. In the present case the trial Court, acted illegally and not adverting to the question of appointment of a fresh Local Commission which was amply justified. In view of what has been stated above this civil revision is accepted, the judgments and decrees of the two Courts below are set aside and the suit is remanded to the trial Court with a direction that it should appoint a Revenue official as the Local Commissioner to demarcate the land and to ascertain the Khasra numbers of land in possession of the petitioners. The costs of Commission shall be borne by the petitioners. The trial Court shall decide the suit afresh in accordance with law. The parties shall appear before the trial Court on 11th of May,1989. H.B.T./H‑129/L Revision accepted.