2003 PLP 970 (MLD)

2. It is contended by the learned counsel that the dispute essentially was for demarcating the site claimed as a passage but the procedure prescribed in the Rules and order framed by the Lahore High Court and the law was not followed, which has caused serious prejudice to the rights of the petitioners, resulting in illegal judgments rendered by the two Courts below. Besides pointing out contradictions in the depositions of witnesses and the report of the local commission, it is contended that the respondent/plaintiff had failed to establish his case, as had been set up in the plaint. It is thus contended that the two Courts below acted illegally and with material irregularity in the matter, which judgments need to be set aside.

3. To support the concurrent findings and judgments of the Courts below, it is contended by the learned counsel that the findings recorded and the view taken by the Courts below is based on correct appreciation of the evidence on record which cannot be interfered with by this Court in revisional jurisdiction. Reliance is placed upon Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647, Muhammad Ahsan and 5 others v. Daulat Khan and another (2002 CLC 66), Municipal Committee, Murree through Administrator v. Homi Jamshed Kaikobad (2001 CLC 935) and M.C. Leiah v. Sh. Zafar Iqbal (1986 CLC 2306). It is contended that a new case was sought to be set up than was pleaded by the petitioners in the written statement. It is further contended that Gulraiz Ahmed, Advocate, who had been appointed as commission by the Court, his report and testimony also supported the plea of the respondent/plaintiff.

4. The record of the trial Court has been perused.

5. It may be observed that the rule settled and well-entrenched in our adversarial legal system need no reiteration that the plaintiff in a suit is to succeed on the strength of his own case, if duly Proved, and not the weakness of the case of his opponent.

6. The reading of the plaint would show that it was indeed a suit to which Chapter 1-M of the High Court Rules and Orders (Volume 1) was attracted. Rules 1, 2 and 3 thereof read as follows:-- (1) Local inquiry:

In "Hadd-Shikni" suits and other suits of boundary disputes of land, falling within the jurisdiction of a Civil Court, it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:-- (a) By suggesting that one party or the other should apply to the Revenue officer to fix the limits under section 117(1) of the Punjab Land Revenue Act, 1967 (XVII of 1967). Time for such purpose should be granted under Order XVII, rule 3 of the Code of Civil Procedure; (b) appointing a local commissioner, and (c) by the Court itself making a local enquiry. (2) Enquiry by Revenue Officer.

An order of the Revenue Officer made under section 101 of the Land Revenue Act is not conclusive; but when his proceedings have been held in the presence of, or after notice, to the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result it would be a valuable piece of evidence. It play be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate. (3) Appointment of Commissioner.

Similarly the report of the local commissioner should contain full details so that the Court may satisfactorily deal with the objections made against it. No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a local commissioner." (Underlined by me for emphasis)

7. Rule 4 lays down the instructions for the guidance of local commissioners. It may be noted that in view of the nature of the controversy a somewhat special function had to be undertaken by the local commissioner. It has thus been insisted upon that Revenue Officer should undertake such an exercise, and assist the Court with his report to resolve the controversy. Such a was not adhered to nor followed by the trial Court. It appears that the Court was not conscious of the abovementioned procedure envisaged by the Rules. It simply proceeded to appoint a local commission, who was a local lawyer. The report submitted by the said local commission Exh. P. W .2/ 1 even did not support the plea of the respondent/plaintiff. According .to the said local commission, the suit property was in the nature of Ihata, whereas the plea of the petitioners was that it was a passage leading towards his house. The map drawn by the said local commission even did not correspond the plea of the respondent. It was thus a case in which the procedure set down in the High Court Rules and Orders, referred above, should have been followed, which could have enabled the Court to resolve the controversy between the parties in accordance with law. In Nasir Mia Maji alias Nasir Mia v. Probode Ranjan Paul (PLD 1968 Dacca 270), the importance and statutory force of the Rules framed by the High Court was noted. It was observed that "it is obvious, therefore, that these Rules as long as they are not contrary to the provisions of the Code of Civil Procedure or any other law should be adhered to for regulating the practice of subordinate Courts. In the case of Central Bank of India Limited v. Ehram Jute Baling (1962) 12 PLR Dacca 210, it was observed as follows:-- "The Rules rather prescribe how to give effect to the provisions of the Code of Civil Procedure and do not contravene any provision of the Civil Procedure Code. " The non-adherence to such a course and procedure resulted in illegality curable by invoking section 115 of C.P.C. Since an illegality and material irregularity has been committed by the Courts below, the findings even if concurrently recorded, have no sanctity in law. The precedents cited by the learned counsel, thus are of no help in the context. The judgments of the two Courts below thus cannot be sustained and are set aside. As a result of the above the suit filed by the plaintiff/respondent shall be deemed pending which shall be tried by the leaned trial Judge in accordance with law afresh. The learned counsel for the parties have agreed that till such time, the matter is resolved by the Court, status quo will be maintained by the parties, No order as to costs. Let the parties cause their appearance before the learned trial Court on 23-9-2002. H.B.T./A-632/L Order accordingly.