' KHAWAJA MUHAMMAD SAEED. J.---This appeal, with the leave of the Court, is directed against the order of the High Court passed on 30-6-2001.
2 The facts relevant for the disposal of this appeal, briefly stated are that, the dispute between the parties is in respect of la td measuring 200' X 85' X -22', omprising Survey No.537-1195/1, situate in village Hamidpur/Dheri Barwan, Tehsil Mirpur. The parties initially remained engaged in litigation before the Revenue Authorities. All the Revenue Authorities declared that the suit-land is the part of 'Shamilat Deh' land and further that in the Revenue papers it is shown as thoroughfare, therefore, the same was held in illegal possession by the plaintiff- respondent. An order for his ejectment was finally passed on 15-12-1996 and according to the record the plaintiff-respondent, stood ejected by Tehsildar Mirpur on 22-1-1998.
3. The plaintiff-respondent through a suit for declaration and perpetual injunction in which he pleaded that the land in dispute was in his possession and further that he has effected improvements by raising construction of houses and shops and has also applied for its allotment as this land was acquired by the Mangla Dam Authoritie.s. He challenged the legality of the orders of Settlement Officer, Mirpur and other Revenue Authorities, whereby it was held that the suit-land was a 'Shamilat Deh' land. Alongwith the suit he applied for a stay order. His request was allowed.
Initially the stay order was issued by the Court, however, on the objections of the appellant, the same was vacated by the Sub-Judge vide his order .Dated 25-1-1997. The decision was upheld by the District Judge on 31-3-1997. Second appeal was filed before the High Court on 10-7-1997, which was dismissed by the Court vide judgment dated 10-7-1997. Right of appeal, with the permission. Of the Court, was availed before this Court but the appeal of the plaintiff-respondent, Barkat Ali, was dismissed by this Court vide judgment dated 26-8-1997. A review petition was filed by him which was also dismissed by this Court vide judgment dated 12-11-1997. The plaintiff-respondent later on moved an application before the trial Court seeking amendment in his plaint in the terms that the disputed piece of land which was in his possession, had been allotted to him. The trial Court dismissed the application by holding that the amendment would change the cause of action. The order of the trial Court was assailed in a revision petition before the High Court. The High Court allowed the application for amendment. The judgment of the High Court was challenged by the appellant, herein, without success before this Court. In the background of these facts amendment in the plaint was allowed to the plaintiff-respondent. After the amendment he moved a fresh application for a stay order. The stay order was refused by the trial Court, however, on appeal the learned District Judge allowed him stay order. The matter was assailed before the High Court by Munshi Khan. The High Court constituted a Commission consisting of Additional Deputy Commissioner, Revenue and Estate Officer, Mirpur Development Authority for local inspection and report, as to whether the land in dispute was a 'Shamilat Deh' land or it stood acquired by the Mirpur Development Authority. This order of the learned Judge in the High Court is the subject- matter of the present appeal before Us.
' Ch. Muhammad Sharif Tariq, the learned counsel for the appellant, argued that it has been unanimously held by the Revenue Authorities that the land in dispute was a 'Shamilat Deh' land and further that it was reserved for thoroughfare. The plaintiff-respondent was, therefore, not entitled to retain its possession who under the orders of the Revenue Authorities stood ejected from the land. The orders passed by Revenue Authorities was assailed by plaintiff-respondent through a suit before the Sub-Judge, Mirpur. Alongwith the benefit he also obtained a stay order which was initially issued in his favour by the trial Court but subsequently on the objections filed by his client, the stay order was cancelled which order remained intact up to this Court. In the judgments it has been specifically observed that the land in dispute was 'Shamilat Deh' land, therefore, the plaintiff- respondent cannot be allowed stay order to deprive the inhabitants of the village from the use of the same. According to the learned counsel, as the land in dispute is a part of 'Shamilat Deh' land, therefore, the trial Court has got no jurisdictional competence to entertain dispute about this land.
He placed reliance upon a case titled Muhammad Hussain Khan and 3 others v. Muhammad Din and 6 others 1987 CLC 2461. In this authority the jurisdiction of Civil Court was challenged by the defendant, therein, in respect of dispute which was related to 'Shamilat Deh' land. It was resolved that the general powers conferred under section 9 of the Code of Civil Procedure to the ordinary Civil Courts, would be subject to such exceptions as may be made by special statutes. It was further held that resolution of dispute with regard to 'Shamilat Deh' land and particularly as it relates to extent of partnership of old and new owners in land which being exclusive function of Commission established under section 4 of Land Reforms Act, jurisdiction of trial Court stands completely ousted to decide such issue.
' On the other hand, Ch. Muhammad Reaz Alam, the learned counsel for the plaintiff-respondent, Barkat Ali, argued that initially the suit was filed by his client on the ground that the land in dispute was in his possession and he had moved the concerned authorities for its allotment, whereas after the amendment sought relief on the ground that the disputed piece of land which was in his possession, had been allotted to him and this amendment was allowed to him by the High Court and was kept intact even by this Court, therefore, in the light of the changed circumstances, the learned Judge in the High Court was justified passing the order of appointment of Commission to ascertain as to whether the land in dispute was a 'Shamilat Deh' land or was a part of land which stood acquired for M.D.A. He further argued that no observation should be given in the present litigation as to whether the suit before the trial Court is maintainable or not. He in support of his argument relied upon the following authorities.
' In case titled Sarhad Development Authority through Chairman Peshawar v. Land Acquisition Collector/Deputy Commissioner, Abbottabad and 19 others 1998 SCM R 730, the Commission was appointed by the High Court to evaluate fair compensation for the purpose of finding out potentiality of land in question. This order was assailed before the Supreme Court. In that case it was held that High Court was justified in the appointment of Commission for spot inspection. .
' In case titled Kh. Abdus Subhan v. Khurshid and 11 others 2000 YLR 2898, it was held by this Court that while deciding dispute in respect of ad interim relief the Appellate Courts are not expected to examine closely the merits of the case of the parties because the basic intent and object of an interim relief is to maintain the status quo of the suit-land and not to create a different situation than that existing at the time of filing of suit.
6. We have considered the respective arguments of the learned counsel for the parties and reports of the case-law referred by them besides going though the record of the case.
7. This case has come in third round before this Court. Firstly a petition for leave to appeal was filed by Barkat Ali, plaintiff-respondent, against the judgment of the High Court passed on 31-3-1997, but his petition was dismissed by this Court vide order dated 26-8-1997, by.Holding that he has no legal right in relation to the land in dispute. He filed a review petition before this Court against the said order of this Court which was also dismissed vide order of this Court dated 12-11-1997. After the decision of this Court, the plaintiff-respondent, moved an application seeking amendment in the plaint before the trial Court to the effect that the piece of land stood allotted to him. Previcri.--2y he had Sought the relief on the basis of his possession only. The amendment was refused to him by the trial Court, however, the same was allowed by the High Court in exercise of its revision jurisdiction on 21-9-1998. The order of the High Court was challenged before this Court in appeal with the permission of the Court by the present appellant. His appeal was dismissed by this Court vide order dated 26-5-1999, and the permission allowing the amendment in the plaint to the plaintiff-respondent, was kept intact. After the amendment the plaintiff-respondent applied for the interim relief which was refused to him by the trial Court. On appeal the interim relief was granted to him by the District Judge. A revision was filed by the present appellant against the abovementioned judgment of the District Judge before the High Court on 14-7-2000. If the disputed land is. Within the area acquired by Mirpur Development Authority or not. This order has been assailed in the present appeal before this Court in the third round of litigation on the ground that the dispute about the nature of the property stood already resolved by the Revenue Authorities and also by Civil Courts, including the High Court in the first round of litigation, therefore, the new findings in this regard cannot be substituted on the report of the Commission. This Court, as observed hereinbefore, maintained the judgment of the High Court passed on 10-7-1997. In para.2 of the said judgment of the High Court, the measurement of the land stood incorporated according to the claim of the plaintiff-respondent in the following words:-- "The facts necessary for the disposal of this appeal are that the plaintiff-appellant filed a declaratory suit with the prayer of permanent injunction contending therein that he was in possession of land measuring 200 x 85 x 22/2, on which he raised the construction in the shape of houses and applied for its allotment as the land was acquired by the Mangla Dam Authorities: It was further disclosed that the suit-land was shown as un-allotted by the Settlement Authorities and the same was shown as thoroughfare which is illegal and ineffective against the rights of the plaintiff- appellant and pro forma- respondents. It was also contended that defendant No.1 moved an application for dispossession of the plaintiff-appellant, on which an order for dispossession of the plaintiff from the suit-land was passed. The matter went up to the Board of Revenue. Azad Jammu and Kashmir, without any success. The order is illegal and not maintainable against the rights of the plaintiff-appellant. Alongwith the suit, an application for issuance of temporary injunction was filed. The trial Court initially issued the requisite stay order but withdrew the same later on. An appeal filed with the District Judge also met the same fate."
' In para.4 of the same judgment the suit-land in the light of the available record has declared as 'Shamilat Deh' land by the High Court. This para. Of the judgment being relevant is reproduced below:-- "I have heard the learned counsel for the parties and also gone through the record, According to the record, the suit-land is Shamilat and declared as a thoroughfare by the Revenue Authorities and the same is in illegal possession of the plaintiff-appellant for which dispossession was ordered by the Tehsildar, Mirpur, respondent No.6. The matter went up to the Board of Revenue through various appeals and revisions but the order was maintained. The plaintiff-appellant has now challenged the order in the Civil Court on the ground that the suit-land was acquired by the Mangla Dam Authorities and the plaintiff had as acquired by the Mangla Dam Authorities and the plaintiff had applied for its allotment. The assertion of the plaintiff-appellant is not substantiated by any Revenue Record, rather the same is contradicted by various orders passed by the Mangla Dam Authorities which rejected the plaintiff's application on the ground of the suit-land having not been acquired as per record of the Revenue Authorities. Therefore. The plaintiff is not possessed of any legal right for filing the suit. In the light of the facts narrated above, the plaintiff-appellant has no prima facie case, a necessary ingredient for issuance of stay order. As discussed above, the plaintiff-appellant had no legal right for filing the suit, as such it can easily be determined that the balance of convenience did not lean in his favour. Both the Courts below concurrently decided against the issuance of stay order in favour of the plaintiff-appellant. I have no reason to disagree with the orders recorded by the subordinate Courts which have been passed after due consideration of facts and law. The cases, 'Haji Gulab Din v. Qurban Ali and others' decided by the Supreme Court of Azad Jammu and Kashmir on June 24, 1995 and 'Raja Shahsawar and others v.
Muhammad lqbal and others' decided by the Supreme Court of Azad Jammu and Kashmir on September 27, 1995, referred to by the learned counsel for the appellant, 'with their distinct facts, are not applicable to the case in hand, as such, the proposition resolved therein is not helpful to the appellant's case. The appeal, therefore, stands dismissed."
8. In the light of this finding which was upheld by this Court, firstly when leave to appeal was refused to the plaintiff-respondent, and secondly when his review petition was dismissed against the leave refusing order of this Court. The appointment of the commission in the light of these admitted facts cannot be justified. There is no cavil that is within the competence of the Court seized with the matter, to appoint the commission, however, it is a matter of judicial discretion.
Under the provisions of the Civil Procedure Code, the Court can issue a commission for the examination of any person who on account of his sickness or infirmity is unable to attend it or where the evidence available before the Court is equally balanced and the Court feels necessary to elucidate such evidence in the light of the report prepared after the local inspection by the commission. Even the Court can resolve boundary disputes and disputes relating to the identity of land by issuing commission for the purpose of spot inspection. However, the commission cannot be appointed, if the evidence on the record is clear and such report shall result in filling in the lacuna or shall improve the weak evidence of any party to the litigation.
9. In the present case, the Court has not observed that the evidence available on record was hindering the due administration of justice, therefore, it was felt necessary to issue the commission.
As said earlier, the dispute about the nature of the property, stood resoliied by the Revenue Authorities as well as by the High Court in its judgment dated 10-7-1997, therefore, it is our considered opinion that there was no need to issue the commission. The dispute in respect of land measuring 200' x 85' x 22', between the parties had been resolved by the Revenue Authorities as well as by civil Courts while deciding matter relating to the stay order. The Mirpur. Development Authority may seek the indulgence of competent forum if any land acquired by it is treated by the inhabitants of the area or by Revenue Authorities as a part of 'Shamilat Deh' land. So far the parties are concerned, the controversy must necessarily be resolved in the light of the previous litigation and documents made by the parties available on record in their evidence.
' In view of above, while allowing this appeal, the order of the High Court dated 30-6-2001, is set aside with costs. The parties shall appear before the High Court on 28-3-2002, for further necessary orders.