' A suit for possession instituted by Roshan Din deceased, the predecessor-in-interest of the petitioners qua the suit property measuring 5 Marlas, 7 Sarsahis was decreed by the trial Court vide judgment dated 16-9-1992 where against the appeal instituted by the respondent/ their predecessor-in-interest, was accepted by the learned Additional District Judge, Faisalabad through judgment dated 10-4-1993. This revision petition has been filed by the petitioner/plaintiff to assail the appellate judgment.
2. The learned counsel for the parties have been heard and material on the record perused with their assistance.
3. There is no dispute that the Roshan Din had purchased land measuring 19 Marlas, 7 Sarsahis comprising Killa Nos.9 and 10 of Square No.65 situated in Chak No.79 RB Tehsil and District Faisalabad vide sale-deed dated 9-12-1988 from Mohabat Khan and Sohbat Khan the predecessors-in-interest of the respondents. In the suit for possession filed by him it was averred that he had " been delivered possession at the spot (Plot No.9/1/1) measuring. 4 Marlas, I Sarsahi, 10/4 measuring 5 Marlas, 7 Sarsahis and 10/3 measuring 9 Marlas, 8 Sarsahis. Forcible dispossession from Plot No.10/4 was alleged to institute the suit by him. In the written statement filed by defendants Nos.2 to 13 such an assertion as to ownership and dispossession of Plot No.10/4 was denied. In the amended written statement an objection as to the suit being time-barred was also taken. After trial the suit was initially decreed but was remanded on appeal, by the learned District Judge, Faisalabad. It was decreed again vide judgment dated 16-9-1992 by the learned trial Court who recorded the finding on Issue No.2-B that the suit was within limitation. Such a view since has been affirmed by the Appellate Court even, therefore, the same is not open to challenge or exception.
' The controversy, therefore, now is narrow and precise inasmuch as that the petitioner/plaintiff who undisputedly had purchased land measuring 19 Marlas, 7 Sarsahis was in possession of the same or he was deprived of 5 Marlas, 7 Sarsahis. The finding recorded by the trial Court with the aid of the Revenue Record was that "it is proved that in reality and initially there was Khasra No.10/4 with the area of 5 Marlas, 7 Sarsahi mutated in favour of the plaintiff, but subsequently by overwriting it was made as 10/2, which is wrong entry." It was also found by him that "the plaintiff has been dispossessed from the suit plot forcibly before the institution of the present suit. The predecessors of defendants Nos.2 to 13 sold the suit Plot No.10/4 and had delivered the possession to the plaintiff according to which Tatimmajat were framed and mutation was sanctioned and the plaintiff has established his rights or title over the disputed property." The learned Appellate Court has, however, considered the matter from a different perspective and taken the view that "the vendors from whom Roshan Din derived his title owned both the numbers namely 10/2 and 10/4 including a lot of other land and there is no reason as to why in particular Roshan Din has to be accepted having purchased 10/4 and not 10/2 particularly so when 10/2 or at least a part thereof is still lying presumably without having been sold to anybody." "While setting aside the finding recorded by the trial Court it was observed that "the only argument that the measurement of the respondent's land is completed by the addition of 10/4 instead of 10/2 alone cannot he sufficient to decree the suit of the respondent." It shows that the same set of evidence was viewed by the two Courts below differently which gave rise to variant findings by them. To me it appears that when such was the stance of the parties and the state of the evidence, the controversy could be resolved by the Court by resorting to the specific procedure laid down in Chapter 1-M of the High Court Rules and orders, Vol.-1, i.e.:--
(1) "Local Inquiry.---In "Hadd-Sikni" suits and other suits of boundary disputes of land, falling within the jurisdiction of a Civil Court, it is generally desirable that enquiry he made on the spot. This can usually be done in the following ways:---
(a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits under section 117(1) of the Punjab Land Revenue Act, 1967 (XVII of 1967). Time for such purpose should be granted under Order XVII, rule 3 of the Code of Civil Procedure;
(b) by appointing a local Commissioner; and
(c) by the Court itself making a local enquiry.
(2) Enquiry by Revenue Officer.---An order of the Revenue Officer made under section 101 of the Land Revenue Act is not conclusive, but when his proceedings have been held in the presence of, or after notice, to the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result it would be a valuable piece of evidence. It may be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate.
(3) Appointment of Commissioner.-- Similarly' the report of the local Commissioner should contain full detail so that the Court may Satisfactorily deal with the objections made against it.
' No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a local Commissioner".
Rule 4 lays down the instructions for the guidance of the local Commissioner. This procedure was not adhered to or followed by the Courts. It appears that such a course was not suggested to the Court by either of the parties yet the Court was obliged to apply/follow the correct procedure. In Nooruddin and 11 others v. Abdul Wahid 2000 SCM R 91 it was observed that "A case, therefore, seemed to have emerged where, travelling beyond the parameters of burden of proof, the original or the Appellate Bench, or both or them, should have embarked upon an inquiry of their own to determine the actual extent of the plaintiff's land and the easementry attachments, if any, belonging to either or both of the parties. This therefore; was a fit case for appointment of a licensed architect or engineer to visit the site and demarcate the plaintiff's property, together with appurtenances, if any, with the necessary aid any assistance of the city survey staff... "Somewhat similar approach had been adopted by this Court in Anwar Club and another v. Muhammad Sarwar PLD 1992 Lahore 63.
In the circumstances the real controversy between the parties could be resolved by following the above procedure, which the Court was obliged to adopt. It is thus that judgments of both the Courts are liable to be set aside, except the concurrent findings on Issue No.2-B. The suit shall be deemed pending, which shall be decided afresh by following the procedure laid down in the High Court Rules and Orders mentioned above. Let the parties cause their presence before the learned trial Court on 30-7-2003.
The revision petition is accepted to the extent and in the terms indicated above. No order as to costs. accordingly.