1987 PLP 2105 (CLC)

‑‑‑ S. 115 &

0. XXVI, R. 9‑‑Appointment of Local Commissioner‑‑ Application for‑‑Non‑prosecution of‑‑ Effect‑ ‑Petitioner made application before Trial Court for appointment of Local Commissioner for demarcation of disputed land‑‑No order having been passed by Trial Court on such application, petitioner failed to take any serious step at any earlier stage either to prosecute such application or by drawing attention of Court towards said application by making another application‑‑Plea for appointment of Local Commissioner having been abandoned by petitioner by his own conduct, petitions, held, could not be permitted to make capital out of his application in matter for getting whole case re‑opened at revision stage. (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑ S. 115‑‑Revisional jurisdiction of High Court, exercise of‑‑Finding on question of fact concurrently arrived at by Courts below, held, could not be interfered with by High Court in exercise of revisional jurisdiction when no misreading or non‑reading of evidence or any other defect justifying interference with that finding was pointed out. Taqi Ahmad Khan for Petitioner. This civil revision has arisen out of a suit brought by the respondents, Syed Shabbir Hussain and others, against the petitioner, Chhota alias ' Mehr Din alias Abdul Hamid, for possession of certain land. It was alleged by the respondents that the said land belonged to them but it has been encroached upon by the petitioner. Suit was resisted by the petitioner. With a view to substantiating their plea, the respondents produced evidence including report of a Field Kanungo who had carried out demarcation and found the disputed land having been encroached upon by the petitioner. The petitioner produced evidence in rebuttal. Relying on the respondents' evidence, however, the suit was decreed by a Civil Judge. Petitioner went in appeal before an Additional District Judge but in vain. Hence this civil revision.

2. It was contended by learned counsel for the petitioner that the Field Kanungo could not carry out the demarcation. This point was not raised by him at any earlier stage of the proceedings. It is therefore, too late in the day for the petitioner to canvass that point. It is, accordingly, not entertained.

3. Another argument advanced by the learned counsel for the petitioner was that the petitioner made an application for appointment of a Local Commissioner for demarcation of the disputed land but no order thereon was passed by the learned trial Court. If the petitioner was serious in prosecuting his application he should have drawn attention of the learned trial Court towards the said application by making another application. No such application was, however, made by the petitioner, when the suit was fixed for arguments or at any earlier stage. It seems that he was not keen to prosecute the application for appointment of Local Commissioner. If the trial Court had not appointed such Commissioner, the petitioner could have the land demarcated by another revenue official and examine him as his witness as was done by the respondents, but no step in this regard was taken by them. I feel that by his own conduct the petitioner had abandoned his plea for appointment of Local Commissioner and, therefore, he cannot be permitted to make capital out of his application in the matter for getting the whole case reopened at this late stage.

4. Whether or not the petitioner had encroached upon the disputed land belonging to the respondents was a question of fact on which there is concurrent finding of the learned lower Court. No misreading or non‑reading of evidence or any other defect justifying interference with that finding was pointed out by the learned counsel. I am, therefore, unable to disturb it.

5. There is no merit in this civil revision. It is dismissed in limine. H.B.T./C‑6/L Revision dismissed.