1985 PLP 300 (MLD)

This petition under section 115, C.P.C. calls in question the validity of judgment and decree, dated 16-6-1981 of the learned Additional District Judge, Sialkot whereby he dismissed petitioner's appeal and maintained the judgment and decree of the learned Civil Judge, dated 31-3-1980 dismissing the suit.

2. The relevant facts of the case are that Fateh Muhammad, respondent, herein, moved an application before the Assistant Commissioner, Narowal against the petitioners that they encroached upon 'Abadi Deh Land' and raised construction thereon. The Assistant Commissioner, vide his order, dated 16-12-1978 directed the petitioners to demolish the construction failing which, criminal case would be registered against them. The petitioners challenged the aforesaid order by means of a suit for declaration and sought permanent injunction restraining Fateh Muhammad, respondent from interfering in their possession of the suit property. Before a written statement could be filed on behalf of Fateh Muhammad, joint statement of the counsel for the parties was recorded according to which a Local Commissioner was appointed to inspect the site and report on the following matters:- (a) Whether there was a Chhaparr (village pond) on the disputed site previously? (b) Whether there was any encroachment upon the disputed site? (c) Whether the disputed site of Abadi Deh, was nine Marlas? (d) What was the field number of that site? and (e) Who was in possession of the disputed site?

3. The Local Commissioner on 26-3-1980 reported as under:- (1) That the disputed place was an old Chhaparr in which encroachment had been made. (2) As per revenue record the petitioners encroached upon nine Marlas of 'Abadi Deh Land' and a year and half earlier raised construction thereon.

4. The learned trial Judge after taking into consideration the report of the Local Commissioner dismissed the suit. The learned lower appellate Court maintained the judgment and decree in appeal as aforesaid.

5. Learned counsel for the petitioners contended that the learned lower courts misinterpreted the reference and the report of the Local Commissioner made in that behalf. It was also submitted that the report of the Local Commissioner was vague and inconclusive to decide the dispute between the parties. It was also stated that the application moved by the respondent and order passed thereon by the Assistant Commissioner was not warranted under the law. The petitioners were in possession of the disputed site in their own right and the respondent had no locus standi to interfere in their possession.

6. Learned counsel for the respondent on the other hand stated that the petitioners had encroached upon a portion of 'Shamilat Deh Land' which was a Chhaparr for the use of villagers. The learned lower Court rightly interpreted the report made by the Local Commissioner and dismissed petitioners' suit.

7. I have considered the contentions raised by the learned counsel for the parties and heard Fateh Muhammad, respondent. The latter has stated that he alone was not aggrieved against the action of the petitioners but it was the entire village. The petitioner had encroached et upon a portion of Chhaparr and constructed four-walls and some Katcha houses thereon. He, however, expressed that he had no objection if the case was remanded to the learned trial Court for fresh decision on merits.

8. I have perused the report of the Local Commissioner which is vague .and inconclusive. It does, not mention the field number in which the disputed site is located. It is not based on a plan. Learned counsel for the petitioners raised no objection if impugned judgments are set aside and the case remanded to the learned trial Court for fresh decision in accordance with law.

9. In view of the fact that the parties have agreed for fresh trial of the case on merits and the report of the Local Commissioner being vague and not helpful to decide the dispute, I am inclined to set aside the impugned judgments and decrees of the learned lower Courts and remand the case to the learned Civil Judge, Sialkot for further proceedings in the matter in accordance with law. There shall be no order as to costs. A.A. Revision allowed.