P L D 1992 Lahore 63 (PLP)

This civil revision has arisen out of a suit involving dispute relating to a piece of land. The suit was decreed by a Civil Judge and the appeal preferred against his judgment and decree had not met with success. Hence this civil revision. 2. it was contended by learned counsel for the petitioners that the judgments and decree, under challenge, are mainly based on the demarcation report of a Naib‑Kanungo who was not competent to undertake demarcation of the land ir, question. It was urged by learned counsel for the petitioners that under section 117 of the Punjab Land Revenue Act, 1967, hereinafter referred to as the said Act, only a Revenue Officer could demarcate the land and as the Naib‑Kanungo was not a Revenue Officer he had no authority to make the demarcation in question. In this connection, he invited my attention to section 7 of the said Act which makes a mention of different categories of officers. Plea of learned counsel for the petitioners was that since the two Courts below had taken into consideration his demarcation report, which was not legal evidence for the purpose of this case, their judgments and decrees were not sustainable. Learned counsel for file respondent could not refute the above arguments of learned counsel for the petitioners and submitted that he had no objection to the remand of the suit to the learned trial Court with the direction that it be re‑decided after obtaining fresh demarcation report from a Revenue Officer.

3. Contentions raised by learned counsel for the petitioners against the demarcation report have lot of force. Section 117 of the said Act empowers a Revenue Officer to define the limits of any estate, or of any holding, field or other portion of an estate. According to section 7 of the said Act, there are following classes of Revenue Officers:‑‑ (a) the Board of Revenue; (b) the Commissioner; (c) the Collector; (d) the Assistant Collector of the first grade; and (e) the Assistant Collector of the second grade; The Naib‑Kanungo, who recorded the demarcation report, does not figure in section

7. Therefore, ift terms of the provisions of section 7, he was not competent to make the said report.

4. Rule 67‑A of the Punjab Land Revenue Rules, 1968, framed under the said Act, also requires a Revenue Officer to define the limits of an estate, a holding, field or any portion thereof. According to sub‑rule (1) of rule 67‑A, an application, under section 1.17 of the said Act, for demarcation of any field, etc. is to be made to a Revenue Officer. Clause (b) of sub‑rule (4) says that on the receipt of the application, the Revenue Officer shall fix time and date for demarcation of boundaries and under clause (c) thereof, he is required to cause a notice of the application to be given to‑‑ (i) the parties to the application; (ii) Lambardar of the village in which the land mentioned in the application is situated; (iii) Field Kanungo of the Circle; (iv) Revenue Patwari of the village if the notice is not to be served through him; and (v) any other person whose presence iat the time of demarcation of boundaries is considered necessary or expedient by the Revenue Officer. It has been laid down in sub‑rule (6) that at the time and on the date fixed for demarcation of boundaries, the Revenue Officer shall, in the presence of the parties and other persons mentioned in cJause (c) of sub‑rule (4) as may be present in response to the notice served on them,.cause the measurement of the land to be taken under his personal supervision, strictly in accordance with the instructions and standing orders on the subject issued by the Financial Commissioner and the Board of Revenue, from time to time. Sub‑rule (7) provides that after taking necessary measurement, the Revenue Officer shall prepare a plan and a report. It is also his duty to read out his report to the parties and to record their statements as to whether they have understood the procee&ngs and have any objection against any portion of his report. Sub‑rule (7) further provides that after recording such statements and his opinion thereon, the Revenue Officer, on return to his Headquarter, shall place the report together with the plan of encroached area and statements of the parties, on the file and cause the particulars of the proceedings entered in the relevant column of the register prescribed for the purpose.

5. Above provisions of the said Act and of the rules made thereunder leave no room for doubt that although the Revenue Officer can require the Field Kanungo of the Circle to be present at the time of the demarcation yet the demarcation is to be carried out under the personal suprevision of the Revenue Officer and the necessary plan and the report are also to be prepared by the Revenue Officer himself. 1, therefore, agree with learned counsel for the petitioners and hold that a Field Kanungo much less a Naib Kanungo is not competent to make a demarcation report and as such the demarcation report in question, which was recorded by a Naib‑Kanungo, was not legal evidence for the purpose of deciding the suit giving rise to this revision. In this view of the matter, the Courts below committed a material irregularity in relying on the said report while passing the judgments and decrees assailed herein.

6. Since the suit was not properly decided, it will have to be sent back to the learned trial Court for fresh decision, after setting aside the judgments and B decrees passed by the learned lower Courts. As stated above, learned counsel for the respondent too had no objection to the remand of the suit to the, learned trial Court as he had nothing to say against the arguments of learned counsel for the petitioners with regard to the legality of the demarcation report in question.

7. Resultantly, I accept this civil revision, set aside the judgments and decrees passed by the two Courts below and remand the suit to the learned trial Court for fresh decision after taking the following steps:‑ (i) Tehsildar, Sialkot, shall be appointed as lAical Commissioner to demarcate the land mentioned in the plaint. ii) He shall do the aforesaid exercise personally in accordance with the aforesaid law and rules relating to demarcation of land. (iii) The Local Commissioner shall also record such evidence as might be produced before him by the parties. (iv) On the receipt of the report of the Local Commissioner the learned trial Court shall invite objections of the parties, and if objections were'! received, they would be disposed of in accordance with law. (v) Before recording his fresh judgment the learned trial Court shall afford reasonable opportunity to the parties to address arguments.

8. Parties are left to bear their own costs.

9. Record of the learned trial Court shall be returned to it immediately

10. A copy of this judgment shall be sent to the Member (Revenue), Board of Revenue, Punjab, Lahore, with the request that appropriate I instructions may be issued to the Revenue Officers in the Punjab directing them to strictly follow the law and rules in regard to demarcation proceedings so that the parties may not be put to unnecessary bother and expense as has happened in the instant case. A‑4‑/A‑37/L