' On 24-11-1992 the petitioner filed a suit against the respondent. According to the plaint the petitioner is owner of Khasra No,646 measuring 13 Kanals, 12 Marlas. Demarcation was conducted by a Naib Tehsildar whereby it was found that 8 Kanals, 6 Marlas out of the said land had been encroached. Accordingly, a decree for possession was prayed for. In his written statement, the respondent stated that he is the sole owner in possession of land measuring 8 Kanals, 6 Marlas comprising of Khasra No,646/1. He further reiterated in reply to para.1 of the plaint that he is in possession of Khasra No,646/1. Notwithstanding the said pleadings of the parties, the learned trial Court proceeded to frame the following issues:--
1. Whether the report of Local Commissioner is liable to be set aside? OPD
2. Whether the plaintiff is entitled to get possession of the suit property? OPP
3. Relief.
' Evidence of the parties was recorded. Vide judgment and decree dated 19-5-1998 the suit was decreed as prayed for. Against this judgment and decree, a first appeal was filed by the respondent. While the appeal was pending before learned District Judge, Attock, the parties and their learned counsel made the following statement on 31-5-1999:-- {{URDU TEXT}} ' The learned District Judge passed the following order on the same date;-- {{URDU TEXT}} ' The said said Malik Ahmad Khan Advocate, filed his report on 21-6-1999. According to this report an encroachment of 9 Marlas was found. Despite objections raised by the learned counsel for the petitioner that the measurement and demarcation has not been carried out correctly and that an application was filed before the said learned Advocate at the spot expressing no confidence in the proceedings, the learned District Judge proceeded to partly allow the appeal in terms of the report Exh.C.I.
2. Malik Shahzad Ahmad learned counsel for the petitioner contends with reference to the judgment in the case of Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCM R 763 and the judgment of a learned Division Bench of this Court in the case Naveed Aziz and another v.
Rauf Ali Syed 1996 CLC 1932 that notwithstanding the nomenclature used in the statement and order recorded by the learned District Judge, the said Ahmad Khan, Advocate, was not and could not have been treated as a Referee. He had not laid any information based his own personal knowledge. On the other he had conducted measurement at the spot and presented a demarcation report which was objected to. Thus, he was a Local Commissioner whose fee was also fixed by the Court and his report was subject to objections by the petitioner or for that matter by any of the parties. The learned counsel for the respondent, on the other hand, contends that the said Advocate was appointed for the purpose with consent of the parties who undertook to abide by the "Faisla" of the said Advocate. He relies on the cases of Mst. Lalan v. Noor Muhammad and 12 others 1994 SCM R 1771; Mushtaqur-Rehman and 4 others v. Muhammad Akbar and 5 others 1981 CLC 364; Rehmat, etc. v. Residents of Deh and others 1988 CLC 1922 and Faizul Haq and others v.
Abdul Saleem and others 1990 M LD 106.
3. I have examined the records requisitioned from the learned lower Courts, with the assistance of the learned counsel for the parties. Now the said plaint was accompanied by a report of the Naib Tehsildar who had conducted the demarcation. It was stated in the plaint that out of 13 Kanals, 12 Marlas, an area of 8 Kanals, 6 Marlas in Khasra No,646 had been found to be encroached upon.
Now it was this encroached area which was depicted by describing it as Khasra No,646/1 and regarding which the complaint was made by the petitioner that the respondent had encroached upon the same. Now in the written statement, the respondent stated as follows by way of preliminary objection No,3 and by way of reply to para-1 of the plaint:-- {{URDU TEXT}} ' To my mind the fact that the respondent is in possession of the said suit land stood admitted in the pleadings itself and upon the establishment of title by the petitioner, he was entitled to a decree for possession. Be that as it may, no one bothered to read the pleadings.
4. Now I have already reproduced above the statements as well as the order recorded by the learned District Judge on 31-5-1999. Now it will be seen that in the statement the said Advocate has been mentioned as Arbitrator ( ill"). The learned District Judge opted to amend the statement on his own to describe the Advocate as (Referee) (Arbitrator). However, by now it is settled that the nomenclature in such a matter does not matter at all. Now in the said judgment in the case of Ghulam Farid Khan, delivered by a Bench comprising five Honourable Judges of the Honourable Supreme Court of Pakistan, their Lordships reproduced the statements recorded and the order passed by the learned Court thereon. The said statements and order are almost in line with the statement and order recorded in the present suit. -Their Lordships held that the parties were obviously not seeking any opinion from the person appointed as a Referee but a decision and thus despite the use of the word Referee in the application and statement, the real intention of the parties was to appoint an Arbitrator for resolving the dispute. Their Lordships further noted that the said Referee also did not regard that he had been appointed to merely furnish information on the controversy raised by the appellant before their Lordships. By his "Faisla" the Referee not only divided the immovable and movable properties left by Nawab amongst, his heirs, he also awarded cash amounts to some of them by way of compensation on equitable consideration. He aLo directed the cancellation of the certain mutations of inheritance. His "Faisla", therefore, could hardly be treated as statement furnishing information. Quite clearly he understood his role as that of an Arbitrator and proceeded accordingly, even though in keeping with the statements made by the parties, he described himself as a Referee. As such the "Faisla" of the said Referee could not be said as an admission within the meaning of Article 33 of the Qanun-e-Shahadat Order, 1984. It was an 'award which could not be made rule of the Court without giving an opportunity to the parties, if they so desired, to file objections thereto. The said Division Bench judgment in the Naveed Aziz and another is to the similar effect.
5. Now the said judgment in the case of Mst. Lalan 1994 SCM R 1771 is a leave refusing order. It was decided in accordance with the facts of the said particular case and the said judgment delivered by the larger Bench of the Honourable Supreme Court was not before their Lordships in the latter case. The other cases relied upon by the learned counsel were delivered by Single Judge in Chamber of this Court whereas view to the contrary was expressed in the said Division Bench judgment of this Court.
6. Now in the present case the said statement and the order passed by the learned District Judge did not leave any matter of doubt that the appointment of the said learned Advocate was made as a Local Commissioner. Even directions were issued by the learned District Judge to the manner in which the said Local Commissioner was to proceed in the presence of the Patwari and to conduct the measurement and demarcation. The application filed by the petitioner objecting to the manner of the said proceedings was filed by the said Advocate himself in the Court.
7. Now the said report filed by the said Advocate is not based on his personal knowledge. He conducted some measurement and thereafter arrived at a conclusion. This report by all means is a report of Local Commissioner and is subject to objections by the parties and particularly the petitioner in view of the said state of pleadings on the record where there is no denial that the respondent is, in fact, in possession of the said land.
8, In view of the above discussion, the learned District Judge has acted with material irregularity in the exercise of his jurisdiction while passing the impugned judgment and decree which cannot be sustained. The civil revision is allowed. The impugned judgment and decree dated 21-6-1999 of the learned District Judge, Attock, is set aside. The result would be that the first appeal filed by the respondent shall be deemed to be pending before the learned District Judge, Attock, to whom the records shall be remitted back immediately alongwith a copy of this judgment. He shall in the first instance invite objections to the report and thereafter proceed to decide the same and then to decide the entire appeal, after reading the entire evidence on record and of course the pleadings of the parties. No orders as to costs.
9. The parties to appear before the learned District Judge, Attock, on .28-1-2004.