' Impugned herein are the judgments and decrees dated 6-2-2003 and 12-9-2003 of the Civil Judge and District Judge Abbottabad dismissing the suit of the petitioner seeking decree for permanent injunction in respect of the suit path claimed to have been used by the petitioner for a very long time as an access path to his residential house. The suit was resisted by the defendant, therefore, trial was held, evidence was recorded and then the impugned judgment was rendered which was affirmed in appeal.
2. True that concurrent findings recorded by two Courts below normally are not to be interfered with by this Court in its revisional jurisdiction but here in this case both the learned Courts below have failed to determine two important points/issues having direct bearing, overriding and super imposing effect on all other issues involved in the case which may be stated below:-- "(i) Both the Courts failed to understand the nature of the suit and the right claimed as to whether the petitioner has sought the right of his easement by way of prescription or by way of necessity.
Neither any clear issue was framed nor findings have been recorded to that effect in a fair manner.
(ii) The Revenue Record is available in the shape of only Jamabandi which gives one Khasra number to the entire village 'Abadi' and in no way explains all the paths, including the suit path as to what is its area, its location and survey number and this is the only document relied upon by the two Courts below."
3. It is undeniable fact that in villages for such paths no self-explanatory and detail record is meant but only these are shown in the map of the village but with no area and rights of the adjoining and adjacent owners over it. In such circumstances when it is primary obligation of the Court to do justice to all and in all cases and circumstances it was more essential to have appointed a local commissioner for local inquiry and inspection and to have brought on record further evidence for the clarification of the ambiguity because of the absence of clear Revenue Record. Failure to fulfil its obligation imposed by the law as well as principle of justice, both the trial Court and appeal Court have rendered their impugned judgments in vacuum and it amounts to failure to exercise jurisdiction which is an illegality of the nature occasioning failure of justice, therefore, the impugned judgments are not sustainable in law.
4. Accordingly both the impugned judgments and decrees are set aside and the case is remanded to the trial Court with the following directions/instructions:--
(a) to appoint a local commission and to give him clear terms of reference to locate the property, prepare sketch of the same,
(b) to demarcate and measure the house of the petitioner and defendant both with reference to the claimed area and thereafter to demarcate the suit path,
(c) to gave report as to how long the petitioner has been in use of the path without any interruption or objection made by the respondent and what was/is its correct area,
(d) whether there is any alternate path leading to the house of the petitioner and whether that is more feasible than the suit path to be used by the petitioner and whether he has any right of way over that path, to bring on record further evidence through local inspection as to what is the custom in the area per 'Wajib-ul-Arz' and if possible and available copies of the field book be also brought on record, whereafter a detail report be submitted to the Court.
The trial Court would be at liberty to record further evidence if it is essential for the just decision of the case. Petition accepted in the above terms, however, in view of the nature of the controversy, trial Court shall conclude the case within six months after receiving the file on remand.