2014 PLP 946 (SCMR)

JAWWAD S. KHAWAJA, J.

The appellant-defendant impugns the revisional judgment passed by the High Court dated 1-11-2013 whereby Civil Revision No. 8 of 2010, filed by the respondents-plaintiffs was allowed and as a consequence, the concurrent decrees of the learned trial and appellate Courts dismissing the suit of the respondents-plaintiffs, were set aside.

2. The facts of this case are straight forward. For the reasons appearing below, we propose to remand the case. Accordingly we do not intend to embark upon a detailed assessment/evaluation of the entire evidence on record.

3. The suit of the respondent-plaintiffs admittedly was based upon a report prepared by a retired Naib Tehsildar. The Naib Tehsildar had been appointed as Commission by the A.C. (Grade-I) and not by the Civil Court. The present appeal can be disposed of by deciding if the report had been proved in accordance with law. The onus of proving the report was on the respondents-plaintiffs. According to the report, the land belonging to the respondents-plaintiffs was comprised in Khasra Nos.2/858-600/232, measuring in all 384 kanals, 9 marlas. The case set up by the respondents-plaintiffs was that 11 kanals, 17 marlas out of this land has been encroached upon by the appellant-defendant and as such the respondents-plaintiffs were entitled to possession thereof. The report which was dated 25-5-1997 and was brought on record as Exh.P.W.-3/3 has been commented upon by the learned Additional District Judge in some detail. The said Court has also noted the deficiencies in the report. For ease of reference, the relevant part of the appellate judgment dated 2-11-2009 is reproduced as under:-- "Two points are worth consideration. First, during the demarcation proceedings, one Rabnawaz, a retired Naib Tehsildar, was appointed as commission, who inspected the spot, measured the suit land from permanent spots and submitted his report dated 25-5-1997, copy of which is Exh.P.W.3/D

1. Several anomalies are visible from the said report and the demarcation proceedings. Firstly, the report commission was not signed by the then Presiding Officer of the Court/the Revenue Officer. Secondly, no notice was served on the respondent/defendant by the Revenue Officer. Hence, the report commission was accepted without notice to and hearing of the respondent/defendant. Thirdly, the respondent/defendant was not even served for the purpose of demarcation proceedings by the commission. The notice dated 7-8-1996 (copy Exh.P.W.3/6), issued to the respondent/defendant and six others, reveal that he was orally served, but his signatures were not obtained by the serving officer. Another notice dated 20-11-1996 (copy Exh.P.W.3/9) issued to respondent/defendant and others, shows that the respondent had refused to acknowledge the notice. But to this effect, neither any detailed report was submitted by the serving officer nor was the serving officer examined by the commission. Fourthly, the commission report was accepted by the Revenue Officer on 19-10-1998, after about one year and five months. The record transpires that the appellant submitted an application, (copy Exh.P.W.3/2) on 9-1-1996 for the demarcation of the disputed land. The report commission was submitted on 25-5-1997, after about one year and four months. As a whole, it took about two years and nine months to conclude the demarcation proceedings, including the confirmation of the report commission. Despite all these anomalies, the commission was not examined as a witness before the learned trial Court. Learned counsel for the appellant submitted that the commission, namely, Rabnawaz, retired Naib Tehsildar, had passed away, but his death certificate was not produced. Nor was any witness produced to prove his signatures on the commission proceedings conducted by him".

4. The above reasoning is valid but has not been addressed by the High Court through the impugned judgment passed in its revisional jurisdiction. The High Court has, without examining the validity or the proof required for the report to be treated as evidence, has proceeded to rely on the same. Para 7 of the impugned judgment takes into account some factors but does not advert to the various anomalies and deficiencies noted by the learned appellate Court for concluding that the report of the Commission had not been proved and, therefore, could not be made the basis for a decree of possession in favour of the respondents/plaintiffs.

5. In view of the foregoing discussion, we set aside the impugned judgment dated 1-11-2013. We also set aside the judgments and decrees of the trial and the appellate Courts and remand the case to the learned trial Court to enable the parties to lead evidence and also to ensure that the respondents-plaintiffs are not non-suited without being given an opportunity of proving the report or adducing evidence to show that the appellant-defendant, as noted, encroached upon 11 kanals, 17 marlas of land belonging to the respondents-plaintiffs. Since both the parties are represented before us, they are directed to appear before the learned Senior Civil Judge, D.I. Khan on 7-4-2014 who may either himself hear the matter or entrust the same to some other competent Court having jurisdiction to try the same. MWA/M-17/SC Case remanded.