PLJ 2023 Lahore 293
Specific Relief Act, 1877 (I of 1877)--
----S. 9--Civil Procedure Code, (V of 1908), S. 115--Suit for possession--Decreed--Report of local commission--Appeal--Disposed of on report of local commission--Civil revision--Accepted and case was remanded--Appeal accepted after post remand proceedings--Filing of suit without demarcation--Allotment of two ahatas was contrary to colony manual--Allotment order was not produced--Appointment of local commission with mutual consent--Filing of objections by petitioner--Challenge to--Having consented for appointment of Local Commission and acceptance of its report, petitioner had no cheeks to challenge that Appellate Court could not decide case in light of report of Local Commission--Appellate Court invited objections from parties against report of Local Commission but no objection was filed by private respondents but petitioner filed objections and when he failed to substantiate his objections, Appellate Court spurned same, at this juncture, petitioner could not be allowed to raise objection against validity of report of Local Commission--At time of spot inspection Local Commission not only associated parties but also Patwari to know exact position and upon measurement of land--When verdicts of Courts below are variance, preference is to be given to findings of Appellate Court--Ahata No. 142 was completely allotted to petitioner but without its demarcation by leaps and bounds, private respondents could not be held in illegal occupation of any part thereof--Revision petition dismissed. [Pp. 301, 305 & 306] B, C, D, E & F
2007 SCMR 870.
Civil Procedure Code, 1908 (V of 1908)--
----S. 75 & O.XXVI--Appointment of local commission--Court can appoint a commission inter-alia for local investigation and report submitted by said commission can be used by Court for just decision of case. [P. 297] A
1993 SCMR 1473, 2011 YLR 277, PLD 2009 SC 16 &
2013 CLC 1473 ref.
Mr. Shahid Mehmood Khan Khilji, Advocate for Petitioner.
Rana Shamshad Khan, Additional Advocate General for Respondent No. 1.
Mr. Muhammad Osama Asif, Advocate for Respondents No. 2 to 7.
Date of hearing: 16.11.2022.
PLJ 2023 Lahore 293
Present: Shujaat Ali Khan, J.
ABDUL RASHEED--Petitioner
versus
PROVINCE OF THE PUNJAB etc.--Respondents
C.R. No. 237171 of 2018, heard on 16.11.2022.
Judgment
Shorn of unnecessary details, the facts, forming factual canvas of this petition, are that the petitioner filed a suit for possession with the averments that property bearing Ahata Aroori Nos. 141 & 142, measuring 5-Marlas & 11-Marlas, respectively, situated in Chak No. 121/SB, Tehsil Sillanwali, District Sargodha, was allotted to the him on 04.07.1993 followed by Sale Deed bearing No. 707-1, dated 2012.2003 and Mutation No. 885, dated 29.10.2007. Though, predecessor-in-interest of the respondents instituted multiple proceedings challenging allotment of above Ahatas in favour of the petitioner but remained unsuccessful upto the Board of Revenue, hence allotment in favour of the petitioner attained finality. Thereafter, 7-Marlas land was allotted to the respondents for the purpose of residence. Subsequently, on the request of Respondent No. 2 land measuring 4-Marlas 42 Sq.ft, situated in Ahata No. 142 was given by the petitioner to her temporarily but afterwards the respondents refused to vacate the said property. The suit was decreed by the learned Civil Judge, Sargodha (learned Trial Court) through judgment and decree, dated 24.03.2016, against which the respondents filed an appeal before the learned Additional District Judge, Sargodha (learned Appellate Court) which was disposed of through judgment and decree, dated 11.01.2017, on the basis of report of the Local Commission. Feeling aggrieved of judgment and decree, dated 11.01.2017, passed by learned Appellate Court the petitioner filed Civil Revision No. 603/2017 before this Court which was accepted through order, dated 20.02.2018 and the matter was remanded to learned Appellate Court for decision afresh. During post remand proceedings, learned Appellate Court after calling objections from both the parties qua the report of the Local Commission again accepted the appeal filed by the respondents through judgment and decree, dated 24.05.2018. Aggrieved of judgment and decree, dated 24.05.2018, passed by learned Appellate Court the petitioner has filed this petition.
2. The submissions made by learned counsel for the petitioner can be summed up in the words that when the suit filed by the respondents as well as their predecessor-in-interest challenging allotment in favour of the petitioner was dismissed, they had no cheeks to occupy any part of Ahata No. 142; that learned Appellate Court decided appeal of the respondents on the basis of report of the Local Commission which was not brought on record in accordance with the provisions of Qanoon-e-Shahadat Order, 1984; that ambiguous nature of the report submitted by the Local Commission is evinced from the fact that on the one hand it concluded that if the respondents are not removed from the land, illegally occupied by them, the access of the petitioner to his Ahatas would be blocked but on the other declared that respondents have not encroached upon the land of the petitioner; that mala-fide on the part of the Local Commission is also evident from the fact that just to favour the respondent it measured the allotted property of the petitioner from the watercourse whereas rest of the Ahatas were measured from their outer boundaries; that when the respondents, while filing written statement, admitted that they were illegally occupying a part of the land allotted to the petitioner, learned Appellate Court had no justification to reverse the well-reasoned findings of learned Trial Court.
3. Learned counsel representing Respondents No. 2 to 7, while defending the impugned judgment and decree, rendered by learned Appellate Court, submits that since the petitioner filed suit without demarcation of Ahatas, allotted to him, the same was not proceed-able; that when the petitioner consented for appointment of Local Commission for spot investigation he was bound to accept its report without any objection; that since it was established from the report of the Local Commission that the land allotted to the petitioner was being utilized by him, to the exclusion of anybody else, including the respondents, no illegality has been committed by learned Appellate Court while reversing the findings of learned Trial Court; that at the most the respondents can be considered as illegal occupants on the land owned by the Provincial Government; that since name of Muhammad Yousaf son of Ghulam Yasin is very much present in Mutation No. 876, he cannot be considered as illegal occupant on the land of the petitioner and that the petitioner, while appearing as PW-1, admitted that he did not get demarcated his allotted Ahata Jats, the suit filed by him was not maintainable.
4. Learned Additional Advocate General, while supporting the private respondents, states that according to pleadings of the parties, two Ahatas were allotted to the petitioner which being contrary to the Colony Manual as only one Ahata could be allotted to a landlord proportionate to his holdings in vicinity, the very basis of claim of the petitioner is not tenable; that since the petitioner did not produce allotment letter in his favour just to camouflage allotment of two independent Ahatas against the relevant law, learned Appellate Court rightly reversed the findings of learned Trial Court; that when the petitioner himself mentioned in the plaint that the land measuring 4-Marlas was given to the respondents/their predecessor-in-interest on temporary basis they could not be considered as illegal occupants; that spurious nature of claim of the petitioner is evident from the fact that in the Conveyance Deed area has been mentioned as 16-Marlas whereas in the Schedule it was curtailed to half of the Ahata No. 141 which could not be identified without its proper partition by the Collector; that when the petitioner has been found in possession of the land allotted to him, he cannot allege possession of the respondents over the suit land as illegal.
5. While exercising his right of rebuttal, learned counsel for the petitioner submits that since claim set out in the plaint relates to Ahata No. 142, the same having been allotted to him in entirety, nobody else, including the present respondents, could possess it; that since in the earlier round of litigation allotment in favour of the petitioner has been upheld upto the Board of Revenue, respondents have no cheeks to challenge allotment in favour of the petitioner, at this stage and that the respondents, being illegal occupants over the land, allotted to the petitioner, cannot carry any legal status.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar.
7. According to Section 75 readwith Order XXVI CPC and Chapter 10, Part-B of Lahore High Court Rules and Orders, Volume-I, Court can appoint a commission inter-alia for local investigation and report submitted by the said commission can be used by the Court for just decision of the case. Power of the Court to appoint a Local Commission came under discussion before the Apex Court of the country in the case of Rana Shamshad Ali Khan v. Province of Punjab through Collector, Multan (now Collector, Lodhran) and 4 others (1993 SCMR 1473) wherein it has inter-alia been held as under:
“******The learned Judge in Chambers having granted status quo order in the case, on the application of petitioner, was fully competent to modify that order if the circumstances of the case so justified and for that purpose the learned Judge could pass any incidental order, including the order to appoint a Commissioner to inspect the site, to satisfy himself if the condition of the premises was such that it required modification of the status quo order passed in the case …….”
The said view was followed by Hon’ble Supreme Court of Pakistan in a later case reported as Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others (PLD 2009 Supreme Court 16) with the following observation:
“8. As regards the contention that Local Commissioner could not have been appointed without application by any party and that the report furnished by the Commissioner could not have been taken into consideration in determining the amount of compensation by the Referee Court, it may be pointed out here that legally there is no impediment in appointing a Local Commissioner when the evidence brought on record alone is not capable to resolve the controversy.”
The ratio decidendi of above cases was also applied in the cases reported as General Manager, Azad Kashmir Logging and Sawmills Corporation, Muzaffarabad v. Abdul Rehman and 2 others (2013 CLC 1473) and Iqbal M. Hamzah v. Gillette Pakistan Ltd. (2011 YLR 277). In the light of afore-referred judgments there leaves no ambiguity that Court, even the Appellate Court, has power to appoint a commission for spot inspection.
8. Now reverting to merits of the case, I have noted that crux of the arguments advanced by learned counsel for the petitioner is that since report of the Local Commission, appointed by learned Appellate Court, was not brought on record as per law the same could not be used to decide the matter against the petitioner. In this regard, I have noted that on 19.11.2016, learned Appellate Court passed the following order:
“19.11.2016:
Present: Learned counsel for the parties.
Parties in person.
ORDER
An application was moved by learned counsel for the appellants for appointment of local commission with the stance that the respondent/plaintiff had instituted the suit in hand for recovery of possession of land measuring 04 marlas and 42 squares against petitioners/appellants. That the petitioner is illegal occupant over the land in question but Respondent No. 1 Abdur Rasheed is not the owner of this land and land in question is owned by the Provincial Government. That demarcation of the land in question has not been made so far and it was prayed that local commission be deputed so that it be ascertained that either the petitioners are encroachers of 04 marlas and 42 square feet on the land of Respondent No. 1 Abdul Rasheed in Ahata No. 142 and it was prayed that local commission for this purpose be deputed. At the stage of arguments of both the learned counsel for the parties on the application in hand, it was settled between both the parties that local commission be deputed for the measurement of ownership of respondent Abdul Rasheed in Ehata No. 142 and if the petitioners/appellants namely Sat Bharai etc. are found having encroached the land owned by the respondent Abdul Rasheed, they would have got no objection if that encroached piece of land be decreed in favour of the respondent Abdul Rasheed and the petitioners would voluntarily vacate the same without any further proceedings.
2. One of the appellant Muhammad Yousaf is present in person alongwith learned counsel for the appellants and respondent Abdul Rasheed is also present along with his learned counsel, therefore, keeping in view the terms and conditions settled between both the parties to this extent, their statements are separately recorded.
Statement of Ch. Muhammad Feroz Advocate learned counsel for appellants without oath and that of appellant No. 2 Muhammad Yousaf on oath:
States that they have got no objection if a local commission be deputed who would measure the land situated in Ehata No. 142 and keeping in view the ownership of Respondent No. 1 Abdul Rasheed son of Muhammad Shafi in this Ehata, if any piece of land is decreasing in his ownership to the extent the land possessed by appellants in Ehata No. 142 would be adjusted and ownership of Respondent No. 1 Abdul Rasheed in Ehata No. 142 would be completed and with rest of possession of the appellants, Respondent No. 1 Abdul Rasheed would have no concern and in the light of report or local commission the appellants would be bound to vacate that piece of land found in ownership of Respondent No. 1 Abdul Rasheed without any further proceedings.”
RO&AC (Israr Zada)
19.11.2016. Additional District Judge,
Sargodha.
Statement of learned counsel for Respondent No. 1 Rana Muhammad Hanif Advocate without oath and that of Respondent No. 1 Abdul Rasheed son of Muhammad Shafi on oath:
States that statement recorded above from the appellants' side, has been heard and Respondent No. 1 Abdul Rasheed has got no objection if the local commission is deputed who would com the land of Respondent No. 1 according to his ownership of Exh.P-22/sale deed in Ehata No. 142 and a local commission to that extent be deputed in the light of report of which the matter be decided in accordance with law.
RO&AC (Israr Zada)
19.11.2016. Additional District Judge,
Sargodha.
ORDER:
Thus, with the mutual consent of learned counsel for both the sides Mr.Iftikhar Hussain Baloch Advocate is deputed as local commission, who is directed to visit and inspect the land situated in Ehata No. 142. After having measurement, the land in possession of Respondent No. 1 Abdul Rasheed son of Muhammad Shafi according to his entitlement, if there seems any deficit, the same would be completed from the land possessed by the appellants in Ehata No. 142 and after having made site plan of the same worth mentioning relevant surroundings and its width and length in measurement, the same be produced in the Court on the next date of hearing. The fee of local commission is fixed Rs. 10,000/- out of which Rs. 7000/- be paid by the petitioners/appellants and remaining Rs. 3000/- be paid by the Respondent No. 1 Abdul Rasheed. To come up for report of local commission on 01.12.2016.
Announced (Israr Zada)
19.11.2016. Additional District Judge,
Sargodha.
From the above quoted order, coupled with statements of Respondent No. 2 along with his counsel as well as that of the petitioner along with his counsel, it is abundantly clear that the Local Commission was appointed with mutual consent of the parties for site inspection and submission of report according to the allotted area of the petitioner and his possession, thus, at this stage it does not lie in the mouth of learned counsel for the petitioner that since report of the Local Commission was not brought on record in line with the provisions of Qanoon-e-Shahadat Order, 1984 the same was inconsequential, has no substance.
9. Admittedly, the question before learned Appellate Court revolved around measurement of land underneath the petitioner, thus, learned Appellate Court was well within its power to appoint Local Commission as the same was supported by law laid down in the cases reported as Sher Muhammad and others v. Muhammad Afzal and others (PLD 2011 Lahore 412) and Hussain and others v. Faiz Muhammad and others (1989 MLD 3651).
10. The order passed by learned Appellate Court, referred in the above paragraph, makes it abundantly clear that the Local Commission was appointed with consent of the parties, thus, its report could not be lightly ignored by the Court except providing the parties concerned a chance to file their objections against the said report and if the objections are over-ruled the Court should not feel shy to decide the matter in the light of said report. The said question came under discussion in the cases reported as Bhai Khan and others v. Shakeel and others (2009 SCMR 594), Wazir Hussain Shah and 7 others v. Ali Shah and 3 others (PLD 2011 Supreme Court (AJ&K) 25), Mst. Lalan v. Noor Muhammad and 12 others (1994 SCMR 1771) and Abdullah and 5 others v. Abdur Rehman and 9 others (2004 YLR 295). In the case of Mst. Lalan (Supra) the Apex Court of the country has laid law to the following effect:
“Learned Counsel for the petitioner submitted that as the evidence had been recorded by Ch. Muhammad Akram, Advocate, as such he was an Arbitrator, therefore, an opportunity should have been given to the petitioner to file objection to the award. This contention has no force. Ch. Muhammad Akram was appointed to resolve the dispute, by the parties themselves. He had taken the evidence to settle the real dispute between the parties. Such evidence was necessary because the contention of the petitioner was that there was an alternate passage for the use of the respondents, and that they had not been using such passage. After taking evidence, Ch. Muhammad Akram resolved the controversy which formed the basis of the judgment of the Additional District Judge. Even if Ch. Muhammad Akram be treated as Arbitrator, there was no allegation of misconduct against him, therefore, his report was properly accepted by the Courts below. The learned High Court has adverted to the facts of the case and observed as under:
“Report of the referee Exh.C.1 on the basis whereof the judgment has been rendered by the learned first appellate Court clearly reflects the right of passage of the respondents on the basis of easement of necessity inasmuch as they do not possess an alternate passage, consequently, it cannot be said that the report has neither been misread or the learned lower appellate Court has rendered a wrong judgment.”
If conduct of the petitioner is adjudged in the light of afore-referred decision of the superior Courts there leaves no ambiguity that having consented for appointment of Local Commission and acceptance of its report, the petitioner had no cheeks to challenge that learned Appellate Court could not decide the case in the light of report of the Local Commission.
11. A perusal of the judgment, passed by learned Appellate Court, shows that though during post remand proceedings, learned Appellate Court invited objections from parties against report of the Local Commission but no objection was filed by the private respondents but the petitioner filed objections and when he failed to substantiate his objections, learned Appellate Court spurned the same, thus, at this juncture, the petitioner could not be allowed to raise objection against validity of report of the Local Commission.
12. The Local Commission, who was appointed with mutual consent of the parties submitted its report, dated 15.12.2016, along with site plan which is imaged below:
A perusal of the afore afore-imaged report shows that at the time of spot inspection the Local Commission not only associated the parties but also Muhammad Khan Patwari to know the exact position and upon measurement of the land, underneath the petitioner, he came to the conclusion that Ahata No. 142, allotted to the petitioner, was under his exclusive possession and respondents did not encroach upon any part of it. In the wake of such unequivocal findings of the Local Commission learned Appellate Court was left with no option but to accept the appeal filed by the respondents.
13. This Court is cognizant of the fact that Local Commission is appointed for aid of the Court to arrive at a just conclusion and authenticity of the report submitted by the Local Commission cannot lightly be ruled out especially when parties concerned have failed to impugn its validity by filing substantial objections convincing the Court to discard the report of the Local Commission. Reliance in this regard is placed on the cases reported as Biladar Khan v. Faridoon Khan and others (PLD 2003 Peshawar 23), Uttam Kumar Das and another v. Ajgar Ali Meah and others (PLD 1995 Dacca 15), Zaheer-ur-Din and others v. Mst. Khurshida Begum (1996 CLC 580), Sultan Eraj Zaman Khan and another v. The Collector, Land Acquisition, Khanpur Dam and another (1996 CLC 287) and Messrs Kausar and Co. v. Messrs Universal Insurance Co. (Pvt) Ltd. (1991 MLD 1774).
14. There is no cavil with the fact that no lis can be decided only on the basis of report of Local Commission but when the Local Commission was appointed by Court with mutual consent of the parties and undertaking that they would abide by the findings of the Local Commission, Court can decide the matter on the basis thereof. Further, if a party is aggrieved of report of the Local Commission can file objections against its report but when the said objections are spurned by the Court, matter between the parties can be decided on the basis of report of the Local Commission. Further, when name of one of the respondents, Muhammad Yousaf son of Ghulam Yasin, has been mentioned in the column of ownership in Mutation No. 876, the respondents cannot be considered in illegal possession of the land, allotted to the petitioner.
15. It is well established by now that when verdicts of the Courts below are variance, preference is to be given to the findings of the Appellate Court. Reliance in this regard is placed on the case reported as Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others (2007 SCMR 870).
16. During the course of arguments, learned counsel for the petitioner put much emphasis on the point that since allotment in favour of the petitioner was validated upto the Board of Revenue, the respondents cannot be allowed to challenge the same at this stage. In this regard, I am of the view that since question involved in this petition is as to whether the private respondents are in illegal occupation of any part of the land allotted to the petitioner or not, the plea raised by learned counsel for the petitioner has hardly any relevance with the point involved in this petition.
17. Now taking up plea of the petitioner that since Ahata No. 142 was allotted to the petitioner in its entirety, to the exclusion of anybody else, the private respondents could not be allowed to illegally possess any part thereof under the garb of any allotment letter in favour of their predecessor-in-interest, I am of the view that there is no cavil with the fact that Ahata No. 142 was completely allotted to the petitioner but without its demarcation by leaps and bounds, the private respondents could not be held in illegal occupation of any part thereof especially when it has been reported by the Local Commission that the petitioner is in possession of the allotted Ahata. The safest recourse for the petitioner was/is to get demarcation of his allotted Ahata and if it is opined that any part thereof is in illegal occupation of private respondents, the law would take its own course but at present the findings of learned Appellate Court cannot be upset merely on the ground that Ahata No. 142 was allotted to the petitioner as a whole.
18. During arguments, learned counsel representing the petitioner repeatedly contended that learned Appellate Court decided the matter solely on the basis of report of the Local Commission. The said stance of the learned counsel stands contradicted from the contents of the judgment passed by learned Appellate Court inasmuch as while discussing the report of the Local Commission learned Appellate Court observed in unequivocal words that when the petitioner failed to establish that private respondents have encroached upon any inch of his land, he was not entitled to get the sought for decree. To fortify its findings, learned Appellate Court has referred to specific portions of statement of the petitioner recorded as PW.1. In the given scenario, the contention urged by learned counsel for the petitioner carries no weight.
19. For what has been discussed above, I see no force in this petition which is hereby dismissed with the observation that the petitioner would be at liberty to get demarcated the Ahatas allotted to him and if anything favouring his claim comes on surface, he would be at liberty to institute proceedings before the appropriate forum. Further, if the respondents raise any construction impeding his access to his allotted Ahata, he would be within his right to approach the forum concerned for redressal of his grievance. No order as to costs.
(Y.A.) Petition dismissed
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