2020 PLP 1469 (MLD)

MUHAMMAD NAEEM ANWAR, J.--This civil revision under section 115 of C.P.C. (1908) has been preferred against the judgment and decree of learned Additional District Judge-V, Kohat, dated 24.04.2010, whereby the appeal filed by the petitioner was dismissed, consequently the judgment and decree of learned Civil Judge-III Kohat dated 22.01.2009 was upheld.

2. Brief facts of the case are that respondents Nos.1 to 3 have filed a suit for seeking perpetual and mandatory injunction therein that they are the owner in possession of property bearing Khasra Nos.4121, 4122, 4123, 4124, 4126, 4127 situated in the Ghari Mawaz Khan, Tehsil and District Kohat, which is within the boundaries of Tehsil Administration Kohat, therefore, notice bearing No.6/18/7/C/1236 dated 11.04.2003 issued by the petitioner for "REMOVAL OF UNAUTHORIZED CONSTRUCTION" addressed to respondent No.1 is wrong, against the fact, without lawful authority, based on mala fide and fraud, hence ineffective upon their rights, thus petitioner be directed not to take any action against them. In response to summon, petitioner submitted written statement containing legal and factual objection, however ownership of the respondents was admitted but have taken the plea that as the property situates within the limit of Cantt area thus they were required to get approved their building plan as per cantonment laws. Learned trial Court after framing of issues directed the parties to adduce their evidence. During pendency of suit, the learned trial Court vide order dated 31.05.2003, appointed a local commission in order to determine as to whether the disputed property situates within the limits of Cantonment Board or Tehsil Administration (Municipal Committee, as then it was). Local commission proceeds to the spot and conducted the commission proceedings at the spot in presence of both the parties and has submitted the report to the effect that "Disputed property situates within the limits/boundaries of Municipal Committee." The report was placed on file on 27.06.2003. In accordance with procedure as provided in C.P.C., the report-e-commission was objected by the petitioner. The objections were placed on file on 11.07.2003. However, neither the report-e-commission was got exhibited nor as per the objections, local commissioner was examined. After completion of evidence of both the parties, learned trial Court through its judgment and decree dated 22.10.2009, turned down the objections, confirmed the report-e commission and decreed the suit of respondents. The validity and correctness of the judgment and decree of learned trial was questioned by the petitioner through appeal before the District Judge, Kohat, however, the appeal of petitioner was dismissed by the learned appellate Court vide its judgment and decree dated 24.04.2010, hence this petition.

3. Learned counsel for the petitioner at the very outset contended that controversy revolves around the report-e-commission, which was objected by the petitioner before the learned trial Court but without examining the local commissioner, learned trial Court not only dismissed the objection but confirmed the commission report, which was against the law, thus the judgment and decrees of both the learned Courts below deserves to be set aside. 4 On the other hand, learned counsel for respondents contended that after considering the "terms of reference" of the appointment of local commission coupled with the report as submitted by local commission, qua the evidence of the parties the learned trial Court has rightly confirmed the report. According to him no objections were submitted regarding commission report as this fact was admitted by DW1 in his cross-examination. He also added that the ownership of plaintiff/respondents were not disputed and according to the report-e-commission the property situates within the local limit of Municipal Committee, therefore, the notice was rightly declared as against the law.

5. I have heard the learned counsel for the parties and with their valuable assistance record gone through.

6. It is pertinent to mention here that petitioner has produced their sole witness Mohammad Azam Khan, Record Keeper Cantonment Board Kohat, who in his cross examination has stated that commission report was not objected by petitioner but record reveals otherwise. Learned local commissioner has submitted his report on 27.06.2003 and the petitioner has submitted objection regarding commission report on 11.7.2003, whereas statement of DW.1 was recorded on 03.01.2009 i.e. after 5 years and seven month and the evidence was closed on 03.10.2009.Similarly case was decided on 22.10.2009.Record transpires that after submission of commission report suit remained pending adjudication for six years and four months but during long six years for determining the fat of commission report, statement of local commission was not recorded. The confirmation of commission report was subject to the examination of local commission. So far as the admission of DW.1 that no objection was filed, is an admission against the fact which could not be considered to have any binding effect against the petitioner. Reference can be made to the case law as reported in (2012 MLD 941) in case title Mst Jannoo Mai v. Shamasudin wherein it was held that "It is well settled law that even an admission against the record is also not binding on the parties admitting the fats against the record". Reliance can also be placed on case law reported as Fida Muhammad v. Umar Khitab (2013 CLC 1171), Ghulam Mohiuddin v. Alauddin (2014 YLR 1964). Therefore admission of DW1 was an erroneous one which cannot be considered on estopple against the petitioner.

7. As in the instant case local commission was appointed for local investigation/spot inspection in accordance with the provision of Order XXVI Rule 9, who has submitted his report than the confirmation of report or otherwise was subject to sub-rule (2) of rule 14 of Order XXVI, which reads as: Procedure of Commissioner.-(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same. (3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit."

8. Both the learned Courts below have failed to adopt the proper procedure for determination of objection to the report-e-commission and for that matter commission report, which rendered the judgments and decrees nullity in the eye of law. So without going into the merits of the case, while exercising the power under Section 115 C.P.C., on acceptance of this revision petition, the judgments and decrees of both the Courts below are set aside and the case is remanded back to the learned trial Court with the direction to examine the local commission for determining the fate of commission report and then to decide the case in accordance with law, however, as this is an old case of 2003, the same should be decided within two months, if not earlier, after receipt of the judgment. No order as to cost. ZC/148/P Case remanded.