PLJ 1992 Lahore 76
Present: GUL ZARIN kiani, J AHMAD etc.—Appellants
versus
NAWAB
efc.—Respondents
R.S.A.
No.162 of 1969, accepted on 2.2.1991 (Approved for reporting on 3.9.1991) Civil Procedure Code, 1908 (V of
1908)--
—O.XXVI R.9--Suit for
possession-Decree passed in--Appeal against— Whether reports of Local
Commissioner in previous suits, which were withdrawn, are admissible in fresh
suit-Question of-Lower Courts had mainly based their decisions relating to dispute
about identity of land, on reports prepared by Local Commissioner and his
statement in court—In absence of relevant records, it is difficult to find
stages to which suits had reached when these were withdrawn and whether any
objections to reports were filed or not- -Held: It was appropriate for trial court to
have itself deputed Local Commissioner for demarcating land in dispute—Appeal
accepted and case remanded. [Pp.80&81]A&B
Syed Murid Hussain, Advocate for Appellants.
Mr. Allah Wasaya
Malik, Advocate for Respondents Nos. 1,2,9,12,13,16,18 to 21 and 22.
Dale of hearing: 2.2.1991.
judgment
Second appeal by the defendants No. 1 to 5, in the suit for
possession, is directed against judgment and
decree dated 15.11.1968 of the lower appellate Court affirming those of the
trial Court, whereby it had decreed possession of eleven kanals of land in favour of plaintiff. Material
facts for the decision of the points involved in the appeal briefly summarised are:-88 kanals, 3 marlas of
agricultural land bearing khasra No. 305, situated in the revenue estate of Daggar Shada of Tehsil Bhakkar, in
District Mianwali was in joint
ownership of the plaintiff with defendants No. 6 to 28. On 4.6.1965, pluintiff instituted a suit against
defendants No. 1 to 5, namely, Ahmad, Hussain,
sons of Jinda, Muhammada, Sarga, and, Jiwan sons of Hassu for recovery of possession of eleven kanals of land
out of khasra No. 305. It was alleged that the aforesaid defendants had
by committing trespass on the land in khasra
No. 305, unauthorisedly taken its possession about four years earlier and
constructed their chappars on it and installed a water pump also.
Co-owners in khasra No. 305, namely
defendants No. 6 to 28 were joined as proforma defendants in the suit, and, no relief was claimed against them. First
two defendants were in possession of
1 kanal, 12 marlas, defendants 3 and 4, 7 kanals, 10 marlas, and, defendant No. 5, 1 kanal, 18
marlas. Respective portions in possession
of these defendants were shown as 305/1, 305/2 and 305/3.
Upon being served in the suit, defendants No.
1 to 5 submitted a joint written statement, and, coatested the suit. It was averred that as the
land was sikni, value for purposes of
court-fee in respect of the suit for possession was incorrectly assessed and less court-fee was paid on the
plaint. Further, the defendants denied plaintiffs
ownership of the land as also that of defendants No. 6 to 28. It was asserted
that the land-in-dispute was in possession of defendants No. 1 to 5, for the
past more than twenty years and constructions had been raised on it by them on the basis of old possession. It was averred
that suit was barred by limitation.On
8.9.1965, the trial Court framed following issues:-
(1)
Is the plaintiff owner of the suit land? OPP
(2)
Is the suit correctly valued for court-fee and
jurisdiction? OPP.
(3) Has the plaintiff
been in possession of the land in dispute within 12 years of the suit? OPP.
(4) Have the defendants
No. 1 to 5 been in adverse possession of the suit land for more than
12 years? OPD.
(5)
Relief.Plaintiff gave evidence of Rana Mukhtar Ahmad, Colony Naib Tehsildar, Bhakkar, PW-1 who had
demarcated the land in dispute and proved his report Ext. PI and the plan
Ext. P2, Mohammad Ramzan Halqa Patwari Daggar Shada PW-2 who proved naqsha
tafawat Ext. P3, and, report in daily diary, Ext. P4 and produced an extract
from register khasra girdawari, Ext. P5. a jamabandi, Ext. P6 and closed
his affirmative evidence with reservation to appear as his own witness after close of
defence evidence. Four D.Ws gave evidence for the defence. They were Gul Muhammad, Allah Wasaya, Rab Nawaz
and Elahi Bakhsh. In addition to them,
Ahmad co-defendant as DW-5 himself appeared in the witness-box and recorded his statement. Thereupon, plaintiff made
his won statement as PW-5. Rana
Mukhtar Ahmad PW-1 was examined again and thereupon parties' evidence was closed.Upon review of record, the trial court held that land-in-dispute in
possession of defendants No.l to 5
was part and parcel of Khasra No.305; valuation of the suit for purposes of court-fee was correct;
defendants No. 1 to 5 were proved to be in possession of the land in dispute for more than twelve years and the
plaintiff had failed to establish his
possession within that period. Consequently, issues No3 and 4 having been answered against the plaintiff,
his suit was dismissed on 11.5.1966.
plaintiff filed an appeal. It was allowed on 20.4.1967 by learned District Judge, Mianwali who remanded the suit for
deciding it afresh after taking more evidence
from the parties. Learned District Judge did not seem to be satisfied with the quality of oral evidence given in
defence because of its interested and discrepant
character. In post-remand, plaintiff produced three more witnesses. and the defendants gave evidence of four
witnesses. Upon consideration of the material added to the file in conjunction
with already existing on it, the trial court held thai khasra No. 305 was owned by the plaintiff, alongwith
defendants No. 6 to 28; that the
land-in-dispute was part of khasra No.305; that the defendants No.l to 5 were in its unauthorised possession and the suit
filed for recovery of its possession
was not barred by limitation. Accordingly, it decreed the suit on 12.10.1967, in favour of the plaintiff. Defendants
No.l to 5 filed an appeal against the
Judgement and decree of the trial court before learned District Judge Mianwali.
The appeal was heard by a learned Additional District Judge to whom it was marked for hearing. He saw no merits in the
appeal and dismissed the same on 15.11.1968. That is how the defendants have
come up in second appeal to this Court.
The appeal was admitted to hearing on 4.3.1969 and execution of the impugned decree was stayed meanwhile.At the outset, learned counsel for the appellants
conceded plaintiffs ownership of the
land in khasra No. 305 and abandoned pleas of adverse possession, and, bar of limitation raised in
defence in the lower Courts. In this view
of the statement of learned counsel for the appellants, only material point
surviving for decision in the appeal was, whether the land in possession of the
appellants was proved to be apart of
khasra No. 305, and, two reports of Local Commissioner made in the previously
instituted civil suits, since withdrawn were its adequate proof.Obviously, the kind and quality of oral evidence led
in the case was not much helpful for a satisfactory determination of the
dispute about the identity of the
land-in-dispute. Cases of boundary disputes and disputes about the identity
of land are apt instances where a Court may order a local investigation under
Order XXVI Rule 9, Civil Procedure Code. Reference with advantage can be made to the cases in Lodna Colliery
Co.(1920), Ltd., versus Bholanath Rai and others—A..I.R 1954 Calcutta 233, Vencu Gopal Tari
and others versus Nilconta S. Xcte and otliers-A.l.R. 1975
Goa 32. It is common ground that in the
present suit, neither the plaintiff applied
for the appointment of a fresh Local Commissioner for demarcation of
piece of land in possession of defendants 1 to 6 nor the trial Court had directed local investigation by a Local
Commissioner. Instead, the plaintiff
relied upon reports of the Local Commissioner made in the previously instituted
two separate civil suits against the defendants which were subsequently. withdrawn, and tried to prove their accuracy by
examining the Local Commissioner,
namely, Rana Mukhtar Ahmad, Colony Naib Tehsildar twice, once as PW-1 on 5.2.1966, and, thereafter on
13.4.1966. As PW-1, he proved his demarcation
report Ext.Pl and plan Ext.P2. In his subsequent examination, he proved
his other report Ext.P7.Ext.Pl was a demarcation report made in the civil suit filed by plaintiff against Ahmad and
Hussaina pertaining to khasra No.302. When deputed by the trial Court in
that suit to discover, whether the defendants were
occupants of khasra No.302, the Local Commissioner reported on 10.5.1965, that
possession of Ahmad and Hussaina existed on a piece of land measuring 1 kanal, 12 marlas in khasra No 305 marked as 305/1
in the attached plan. After this report
of the Local Commissioner, the suit in which the report was made was withdrawn by the plaintiff with permission to
file a fresh suit on its basis. Similarly, Ext.P. 7 was a report by the
same Local Commissioner in the civil suit instituted by the plaintiff against Muhammda, and, Sarga sons of Hassu to recover
11 kanals, 5 marlas of land out of
khasra No.305 from their unauthorised possession after removal of the malba
from it. ExtP7 showed Muhammada, and, Sarga to be in possession of 7 kanals, 10 mafias of land out of khasra No.305
which was marked as khasra No.305/2 in it. Further, it showed that Jiwan
son of Hassu was in possession of 1 kanal,
18 marlas of land out of khasra No 305 shown as 305/3 in the plan . Copy of the plaint in the suit filed by
plaintiff against Muhammada and Sarga was not put in evidence but
description of parties to the civil suit available in the report Ext.P. 7 clearly showed that Jiwan son of Hassu was not a
party to this suit. The report of a
Local Commissioner and the evidence taken by him is report of the Commissioner and are further
entitled to substantiate the same by giving
evidence and the court must fix a date to enable them to file the objections if any to the report of the Commissioner. On the
present record, that procedure does
not seem to have been followed. Having examined the Commissioner's reports
Ext.pl, p7 and plan Ext.p2 in the context of instructions laid down for determining boundary disputes and identity of
lands incorporated in Volume 1 of the
Rules and Orders of the High Court, Chapter 1-M, there is reason to think that the result reached and conclusions formed
were unsatisfactory. In these circumstances,
it was appropriate for the trial Court to have itself deputed the Local Commissioner for demarcating the
land-in-dispute in accordance with the rules
on the subject for discovering, whether the defendants' possession existed on
any part of khasra No.305 owned by the plaintiff alongwith defendants No.6 to
28.In view of the foregoing reasons,
second appeal is allowed, impugned judgments and decrees passed in the
lower Courts are set aside and the suit is remanded
to the trial Court to appoint a Local Commissioner, preferably a Revenue Officer experienced in field work, to
carry out fresh demarcation of the land
in dispute for finding out whether the portions of land in dispute in possession of defendants No.l to 5 were part of
khasra No.305 and decide the matter
afresh accordingly. The expenses of the Commission shall be shared by the parties equally. Except for the limited extent
indicated above, findings on other issues are not disturbed and those
shall remain intact for the lower Courts. Costs of litigation in this Court shall be borne by the parties.Records be returned to the trial Court to enable it
to proceed with the trial of the suit in accordance with the direction
contained in the judgment of this Court.
(MBC) (Approved for reporting) Appeal accepted.
