2006 PLP 939 (CLC)

JAWWAD S. KHAWAJA, J.

The petitioner/defendant, namely, Hafiz Muhammad Ishfaq, impugns the concurrent decrees of the learned trial Court, dated 14-9-2000 and of the learned Appellate Court, dated 31-3-2001 whereby a suit filed by Hakeem Saeed Ahmad, respondent/plaintiff seeking permanent and mandatory injunction has been decreed.

2. Although this litigation commenced as far back as 4-6-1975 and there have already been two rounds of litigation, the facts necessary for deciding this petition are relatively simple.

3. The petitioner/defendant purchased 3 Kanals 2 Marlas of land through sale-deed dated 6-5-1975. This land was comprised in Khasra No.913. Thereafter, the petitioner raised construction on the area purchased by him. The respondent/plaintiff filed a suit claiming that the petitioner had made an encroachment of one Karam over the land owned by respondent/plaintiff in Khasra No.902/903 on the southern side of the land purchased by him. The respondent/plaintiff, therefore, prayed for mandatory injunction for removal of the encroachment and a permanent injunction to restrain further interference in the property owned by the respondent/plaintiff.

4. The suit was resisted by the petitioner/defendant who denied any encroachment on the plaintiff's property. In view of the controversy between the parties, the sole issue was as to whether or not the petitioner had encroached on the plaintiff's land as alleged in the plaint.

5. Initially Allah Ditta Zafar, Naib Tehsildar, was appointed as Local Commission, who prepared a demarcation report. It is not necessary to dilate on this report because the decree passed by the learned trial Court dated 17-11-1987 based on this report was set side by the learned Appellate Court on 6-7-1988. Through the appellate judgment the aforesaid report was also set aside and the matter was remanded to the learned trial Court with a direction that a fresh commission be appointed for the purpose of demarcation in accordance with the High Court Rules.

6. Post-remand, the learned trial Court appointed Malik Masood Ahmad, Tehsildar, as Local Commission. He firstly submitted an interim report, dated 23-9-1989 but was directed by the learned trial Court to submit a final report. This report dated 22-1-1992 was prepared but has not been proved because the Local Commission did not testify to the same even though on the petitioner's application he was summoned as a witness. The reason for this appears to be that the Tehsildar had been appointed Resident Magistrate in Tehsil Phalia and it seems the matter for his appearance was not attended to by the learned trial Court thereafter.

7. At this juncture it briefly needs to be noted that on 24-5-1993 the trial Court passed an order appointing a new Local Commission. The respondents, however, filed an application seeking review of the order. This application was dismissed on 1-11-1994 but a revision against the said dismissal was allowed on the ground that there was sufficient material on the record and a new demarcation report was, therefore, unnecessary. Although the revisional order was challenged by the petitioner in the High Court and then before the Honourable Supreme Court, it was upheld.

8. The learned Courts below thus, have proceeded on the basis of the report, dated 22-1-1992 while decreeing the suit of the respondent/plaintiff. Learned counsel for the petitioner argued that the report, dated 22-1-1992 was not exhibited through the testimony of the Local Commission. He, however, submitted in the alternate that even if the report was taken into account, the Tehsildar/Local Commission had clearly concluded as follows:-

9. The learned Courts below have, however, proceeded on the basis of an observation made in the report to the effect that some private partition had been effected through Mutation No.235 on 11-10-1922 whereby Khasra No.421 was split up into three Khasra numbers. The Local Commission travelled way beyond the matter referred to him by holding that some error had taken place in demarcating Khasra No.421 in the year 1922 and by observing that if such error was accounted for and rectified, the petitioner's encroachment would be established. The encroachment so identified by the Local Commission is much more than the one indicated by the respondent in his plaint.

10. Learned counsel for the petitioner rightly argued that the Local Commission acted beyond his mandate. It was not for him to suggest rectification of the Revenue Record because this was not disputed between the parties. Both parties had based their respective pleas on the basis of the record as it existed and, therefore, the encroachment, if any, also had to be determined on the basis of the current record. Furthermore, even the private partition vide Mutation No.235, dated 11-10-1922 was in respect of parties who were strangers to the present litigation and neither party herein claimed title through the aforesaid parties.

11. In the above circumstances, I am not left in any doubt that the learned Courts below fell into error by proceeding on the basis of the unwarranted observation of the Local Commission, discussed above, and by ignoring the clear cut finding of the Local Commission reproduced above, which was based on the current Revenue Record relied upon by both sides. At this point it is important to note that the respondent/ plaintiff has never objected to the report.

12. In addition to the above it is to be noted that the respondent Hakeem Muhammad Saeed, being the plaintiff, it was for him to prove that the petitioner had made an encroachment on his property. This fact the respondent/plaintiff clearly failed to prove.

13. In view of the foregoing discussion, I find the impugned decrees to be not sustainable. The same are, therefore, set aside. Consequently, the suit of the respondent/plaintiff stands dismissed. F.B./M-1418/L Petition allowed