2002 PLP 1499 (MLD)

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑ Suit for declaration‑‑‑Application for grant of temporary injunction‑‑ Application for temporary, injunction having been dismissed by Trial Court, applicant filed appeal against order of Trial Court‑‑‑Applicant, during pendency of appeal made offers that Court could direct Halqa Revenue Officer to conduct demarcation of property in question and in case alleged encroachment, was found, same should be removed and that demarcation report would not be objected to by him‑‑‑Court accepted the offer and directed ‑demarcation accordingly‑‑‑Revenue Officer after demarcation, reported that applicant had encroached upon public thoroughfare and on said report Appellate Court dismissed appeal filed by applicant against order of Trial Court‑‑‑No objection was raised by plaintiff to the said report for more than 40 days from submission of report by Revenue Officer‑‑‑Applicant, in circumstances, could not make any grouse on said account‑‑‑Matter of temporary injunction was to be decided on tentative appraisement of case‑‑‑Proceedings having been conducted with consent of parties, applicant had no prima facie case-‑ Appellate Court, in circumstances, had not committed any error of law and Court also could not be said to have acted with any material irregularity in exercise of its jurisdiction while dismissing appeal of applicant‑‑‑No case for interference of High Court in exercise of its revisional jurisdiction having been made out, revision petition was dismissed. Muhammad Salim Chaudhry for Petitioner. Ali Muhammad Chaudhry for Respondents Date of hearing: 20th February, 2001. On 17‑2‑2000 the petitioner alongwith respondent No.11 filed a suit against respondents Nos.1 to

10. In the plaint it was stated that the plaintiff and respondent No.9 purchased 2 Kanals, 17 Marlas of land from respondent No. 10 about 14 years ago where they 'have built a house, a boundary wall, etc., that respondent No.8 is trying to demolish the said structures and for the purpose he gave an application to respondent No.2 and on the basis of some demarcation made on 2‑2‑2000 the respondents are trying to demolish the house under orders dated 11‑2‑2000 passed by respondent No.2. With these averments a decree was sought for a declaration that the said demarcation report dated 2‑2‑2000 and ‑order dated 11‑2‑2000 are illegal and that the respondents be restrained from demolishing the structures. Alongwith the suit an application praying for a temporary injunction on the said lines was also filed. The suit as well as the application was contested by respondent No.8 who filed a written statement and a written reply. It was stated in the written statement that the plaintiffs had in fact encroached upon Khasra No.692 which is a thoroughfare and have blocked the sane and the said respondent accordingly moved the official respondents in the matter. The learned trial Court vide order, dated 12‑4‑2000 dismissed the said application for temporary injunction. A first appeal filed by the said plaintiffs was heard by a learned Additional District Judge, Gujrat. On 31‑7‑2000 the present petitioner who was appellant No.2 was present alongwith his learned counsel.. An offer was got recorded that let the Court direct the Halqa Revenue Officer to conduct demarcation and in case an encroachment is found the same shall be removed. It was further undertaken that the demarcation report will not be objected. This offer was accepted by the learned counsel appearing for the respondent and he also gave an undertaking that the demarcation report will not be objected. On the same date the learned Additional District Judge issued a direction to the Halqa Revenue Officer to conduct demarcation and to report as to whether the said appellants have raised any construction at Khasra No.692 and also as to whether the said Khasra number is a thoroughfare and as to whether any other person is in possession of the same. It was also directed that a fee of Rs.1,000 shall be paid in equal shares by the said appellants and the present respondent No.

8. The case was then adjourned to 11‑9‑2000 to wait for the report. The report was filed by the said Revenue Officer on 9‑9‑2000. It was reported that the said appellants had encroached upon a public thoroughfare comprising Khasra No.692. The learned Additional District Judge then heard arguments on 20‑9‑2000 and dismissed the appeal vide judgment dated 25‑9‑2000. Ch. Ali Muhammad, Advocate has put to appearance for the contesting respondents. Necessary records are available. This case is being decided as a Pacca matter.

2. Learned counsel for the petitioners contends that the learned Additional District Judge has proceeded to pass the impugned order only on the basis of the said report. According to the learned counsel Halqa Revenue Officer was a party to the suit opposing the claim of the petitioner and it was not expected of him to give a fair report and the same was not acceptable. Learned counsel for respondent No.8, on the other hand, contends that the appeal had been filed by the petitioner and his co‑plaintiff. They themselves made an offer that the matter be decided in a particular manner which offer was accepted. Both the parties gave an undertaking that the matter be decided through demarcation by the Halqa Revenue officer and that they will not object to the report. He relies on the case of Mushtaq‑ur‑Rehman and 4 others v. Muhammad Akbar and 5 others (1981 CLC 364) and Muhammad Ijaz and 3 others v. M. Khurshid Malik and 4 others (1986 CLC 2270) to argue that the order of learned Additional District Judges is for all purposes a consent order and cannot be questioned.

3. I have gone through the records. The detail of proceedings recorded by, me above is borne out from there. So far as the said contention of the learned counsel for the petitioner is concerned, suffice it to say, that nobody other than the petitioner and his learned counsel suggested to the learned Additional District Judge that the demarcation be got conducted by the Halqa Revenue Officer. The learned Additional District Judge with consent of the parties directed the said officer to conduct demarcation. The order was passed on 31‑7‑2000. The case had been adjourned to 11‑9‑2000. No objection was raised during this period of more than 40 days when the report was filed. The petitioner, therefore, cannot make any grouse on the said account. Besides the matter of temporary injunction is decided on tentative appraisement of the case and to my mind the said proceedings conducted with the consent of the parties and the result thereof to support the findings of the learned Additional District Judge that the petitioner has no prima facie case. In e this view of the matter he has not committed any error of law and cannot be said to have acted with any material irregularity in the exercise of his jurisdiction while dismissing the appeal of the petitioner and his co‑plaintiffs who has not bothered to challenge the said order. No case for interference with the impugned orders of the learned Courts below within the four corners of section 115, C.P.C. has been made out. The civil revision is accordingly dismissed leaving the parties to bear their own costs. H.B.T./I‑124/L