2018 PLP 282 (YLRN)

MUHAMMAD ALAM, J.

Appellants/defendants have questioned the validity of order dated 15-12-2015 of the District Judge Astore, through this appeal. For ready reference, the prayer part of the appeal in hand is reproduced hereunder:-- PRAYER "It is therefore, humbly requested that this Hon'ble Court may be pleased to set aside the impugned judgment/order dated 15-12-2015 passed by District Court/1st Appellate Court Astore in Civil 1st Appeal No.14/2015 by accepting this appeal in favour of appellants/defendants. It is further requested that the judgment/ decree of trial court/Civil Court Astore dated 28-03-2015 passed by Civil Judge Astore in Civil Suit No.35/09 may graciously be up-held to meet the ends of law, justice and equity."

2. Learned Additional Advocate General, at the outset of his arguments, requested for converting this appeal into civil revision. I agree with the Learned Additional Advocate General and hereby convert this appeal into civil revision. So, hereinafter, I am using word petitioners for appellants/ defendants.

3. I have heard learned Additional Advocate General and counsel for respondents and have gone through the material available on file. I have thoughtfully considered arguments advanced by the parties. The admitted state of affairs of the case in hand play very important role in coming to a correct conclusion of the case. Parties admitted at bar that there is no dispute of any land or landed property between the parties, although we find mention of landed property as subject matter of suit in different parts of the plaint. In the heading of plaint, respondents/plaintiffs have very specifically prayed for declaration to the extent of lands measuring 5 kanals and 15 marlas described in khewat No.22/07, Khisra No.88. Anyhow, respondents/plaintiffs have omitted to write the name of the village where such lands situated. In the end of the plaint, respondents/plaintiffs have given a different version of remedy, wherein, respondents/plaintiffs have prayed for permanent injunction restraining petitioners from taking water through the suit channel and also prayed for possession of the lands that petitioners encroached and the lands that came in construction of the suit channel. I confronted respondent/plaintiff No.1, present in the Court, and his counsel with the said different parts of plaint, wherein, subject matter of the suit is landed property. Even then, the so present respondent/plaintiff and his counsel frankly conceded that no landed property has ever remained subject matter of the suit. Said respondent/plaintiff further admitted at bar that the only dispute between parties is suit channel. So, the only question for determination is whether suit for suit channel is maintainable and correct and whether the Civil Court has any power to pass any decree or grant any relief regarding the suit channel? It is not disputed that respondents/ plaintiffs did not challenge any order of any of petitioners/defendants through which they have allegedly dug a new channel. Obviously, Astore is a settled area and in settled areas, water channels, paths, roads and streets are regulated through proper settlement, and if, as alleged by the respondents/plaintiffs that petitioners/ defendants dug the suit channel in violation of any such regulation, respondents/plaintiffs could challenge such action of petitioners in the revenue forum till it is exhausted in its apex forum, i.e., the Court of Revenue Commissioner. Admittedly, respondents/ plaintiffs did not resort to said forum and instead, moved the Civil Court, who completed the proceedings in the trial court and then in the first appellate court.

4. Plain perusal of judgment/order dated 28-3-15 shows that the learned trial court has passed its findings on issues Nos.1 to 8 without any reference to any kind of evidence of the parties. So, the findings of the trial court are evidently in contravention of mandatory provisions of Order XX Sub-Rule (2) of Rule 4 and Rule 5 C.P.C. Impugned judgment has also been written in ignorance of provisions of Rule 31 of Order XLI, C.P.C. The first appellate court has based impugned order on the commission report that he obtained through his own order of reference. The nature of the subject reference, obviously shows that the same was directed under Order XXVI, Rules 9 and 10, C.P.C. and such reports are never conclusive evident of any fact referred to such commission. The report of the commissioner and the evidence that he recorded is evidence in the suit and must be read accordingly. Accepting the same as conclusive evidence or relying on the same by the first appellate court is obviously against the spirit and import of the said provision of law. Impugned order has very clearly been passed on the sole basis of the said commission report and the same act of the learned first appellate court is very strange and wrong practice, amounting to a material irregularity.

5. Result of above discussion is that both the orders of both the courts below, i.e., order dated 28-03-2015 of the Civil Court passed in Civil Suit No.35/09 and impugned judgment/order dated 15-12-2015 are result of misreading of evidence and can be termed result of material irregularities, therefore, are set aside. Suit of the respondents/ plaintiffs found not maintainable unless and until respondents/plaintiffs exhausted revenue forum. Plaint of the suit, therefore, stands rejected. Petition accepted accordingly. Parties to bear their own costs. This file be consigned to record. ZC/52/GB Appeal accepted.