1994 PLP 1828 (CLC)

Shahzad Shaukat for Petitioner. Respondents: Ex parte. Date of hearing: 25th April, 1994, Civil revision at the instance of defendant in the suit for perpetual injunction related to a dispute about location of a drinking well, either in Killa No‑1 of Square No. 71 owned by the plaintiffs or Killa No. 5 of Square No. 72 belonging to the defendant‑petitioner. The trial Court dismissed the plaintiffs' suit, on 17‑9‑1978. It held that since the plaintiffs were not in possession of the suit land, suit for perpetual injunction in its existing form did not lie and as far existence of the drinking well in their land, plaintiffs failed to establish it. In appeal preferred by the plaintiffs, decision of the trial Court was reversed and the plaintiffs' suit was decreed by learned District Judge, Faisalabad, on 19‑6‑1980. Thereupon, instant civil revision was instituted by Mst. Saleem Akhtar defendant in the suit. It was admitted to hearing on 4‑4‑1987. Facts of the case in brief are: Killa No. l of Square No. 71 in Chak No. 60/GB of Tehsil Jaranwala was owned by the plaintiffs. Killa No. 3 of Square ~No. 72 in the same Chak was owned by Mst. Saleem Akhtar. A dispute about the location of a drinking well arose between the parties. Plaintiffs had their Killa No. 1 twice demarcated by the revenue staff who found that the well was located in their land. Defendant was not satisfied with the result of demarcation. At her instance, a third demarcation of the respective lands of the parties was conducted by the Revenue Officer. This time, the result favoured her. It was found that the drinking well lay on the side of defendants' land. Plaintiffs instituted a civil suit for perpetual injunction against the defendant in the Civil Court at Jaranwala for relief of perpetual injunction by asserting that a well, a mosque and a graveyard existed on their side of the land and the defendant was not authorised to cause any interference with them or to evict them from their land by force. Defendant contested the suit and asserted that the well was situated in the land owned by her. Other objections were also raised by her. On 12‑7‑1977, the trial Court settled appropriate issues. These were given in the impugned judgments and need not be reproduced for reference. In support of the issues, one of the plaintiffs namely Noor Muhammad appeared as a party‑witness and tendered in evidence extracts from daily‑diary Exh. P‑1 to Exh. P‑3 and closed plaintiffs' evidence. On behalf of the defendant, her father Khair Din acting as her special attorney recorded his statement and produced extracts from register RL‑11 Exh. D‑2, Exh. D‑3 and extract from Register Khasra Girdawari Exh. D‑4, Exh. D‑5 and closed defendants' evidence. In result, the Courts below gave above‑mcntioned conflicting judgments on location of the drinking well. Dispute relating to true location of the "well" could only be resolved by a satisfactory demarcation of the respective Killa numbers of the land owned by opposing parties. Mere oral evidence i.e. the statement of one of the A plaintiffs and, for that matter, that of special attorney in defence were clearly insufficient for a satisfactory decision of the controversial point. Further more, Exh. P‑1 to Exh. P‑3 were taken in evidence without objection by the opposite side. These were merely the extracts from daily‑diary of the village Patwari. Neither original nor certified copies of demarcation reports were put in evidence nor their authors were produced as witnesses for deposing in favour of their correctness. Nonetheless, these were marked exhibits and read in evidence. Similarly, mere entry of existence of a "well" in the land comprised in Killa No. 5 of Square No. 72 owned by the defendant shown in land record in case of a serious dispute about its location was an insufficient piece of evidence for establishing its correct situation. Furthermore, learned District Judge did not much care to read the record for giving a differing judgment. With respect, his approach to the case was a little superficial. The result was a mis‑trial of the suit which also entailed miscarriage of justice. Upon this view of the record, impugned judgments and decrees of the lower Courts could not be sustained. On account of element of serious delay, I was inclined to remit the case to learned District Judge, Faisalabad for deciding of the appeal afresh after taking more evidence about the location of the disputed well and if considered necessary to appoint a Local Commissioner for demarcating the respective lands of the parties for discovering the true location of the disputed well but upon second thought. I decided to send the case back to the trial Court for deciding of it afresh on merits in accordance with law. It may be useful to observe that in case of boundary disputes, demarcation of the respective lands was always a desirable course to adopt by the Courts. Instead of mere oral evidence which is usually conflicting, demarcation of property by a person conversant with the art really assists the issue. Though, respondents were represented by a counsel but he failed to enter appearance at the hearing. Therefore, civil revision was heard ex parte against the respondents. Having regard to the aforesaid, civil revision is allowed; impugned judgments and decrees of the lower Courts are set aside and the suit is remanded to the trial Court for its decision afresh in accordance with law and the observations made above. Costs to be borne as incurred. Records shall be returned to the trial Court. AA./S‑473/L Case remanded.