' TANVIR BASHIR ANSARI, J.---The respondents filed a suit for possession after demolition of two rooms constructed by the defendants after allegedly encroaching upon two Marlas of land belonging to the plaintiffs. It was contended that the plaintiffs were the owners of land in Khasra No,415 and that the property in dispute had been constructed after making encroachment upon the said Khasra No, by the defendants.
2. The suit was resisted by the defendants (petitioners herein). It was denied that any encroachment was made by the defendants upon the Khasra No, of the plaintiffs or that the construction was unlawfully made.
3. From the divergent pleadings of the parties, the learned trial Court framed the following issues:-- - ISSUES:
(1) Whether the defendants have encroached upon the land of the plaintiffs and the plaintiffs are entitled to the relief as prayed for? OPP.
(2) Whether the suit of the plaintiffs is not maintainable in its present form? OPD
(3) Whether the plaintiffs are estopped to bring this suit by their words and conduct? OPD
(4) Whether the suit of the plaintiffs has not been properly valued for the purposes of court-fee and jurisdiction, if so, what is its valuation? OPD
(5) Whether the defendants occupied the suit-land 15/16 years before and the suit-land is a portion of Nala Aik? OPD
(6) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD (6-A) Whether the report of Local Commission is liable to be set aside? OPD
(2) Relief.
4. In support of their claim, the plaintiffs examined Abdul Razaq Patwari P.W.1. Muhammad Ashraf one of the plaintiffs as P.W.2 and Muhammad Younis P.W.3. In documentary evidence, the plaintiffs produced copy of site plan Exh.P.I, copy of Register Haqdaran-iZamin Exh.P.2 and report of local commissioner Exh. P .3 .
' On the other hand, the defendants produced Muhammad Sadiq D. W.1 and Khadim Hussain one of the defendants as D .W. 2 .
5. The learned trial Court after appraising the evidence placed reliance upon the report of the local commissioner Exh.P.3 wherein encroachment of 5 Marlas and 3 Sirsahis was found to have been made by the defendants and came to the conclusion upon Issues Nos. 1 and 5 that the defendants had indeed encroached upon the land of the plaintiff to the extent mentioned in the report of the local commissioner. It was also found that the mere long period of occupation shall not give any right to the defendants to protect their possession. Finding the remaining issues in favour of the plaintiffs and against the defendants, the suit for possession was decreed vide judgment and decree, dated 20-9-1995.
6. The petitioners preferred an appeal. The learned appellate Court reappraised the evidence on the record. The learned appellate Court also felt persuaded by the report of the local commissioner to concur with the findings of the learned trial Court and the defendants have indeed committed encroachment upon the land of the plaintiffs. Consequently, vide judgment and decree, dated 22- 2-1997, the appeal of the petitioners was dismissed.
7. Ch. Ghulam Hassan Gulshan, Advocate for the petitioners has assailed the concurrent findings of fact of both the learned lower Courts on the ground that both the forums erred in placing reliance upon the report of the local commissioner did not notice that the other evidence produced by the plaintiffs themselves ran counter to the said report Exh.P.3. The learned counsel made reference to the statement of Abdul Razaq Patwari P.W.1 who was produced by the plaintiffs themselves with particular mention of the following deposition:-- {{URDU TEXT}} ' Similarly reference has been made to the statement of P.W.2 Muhammad Ashraf who stated his ignorance regarding the location of the house of the defendants as to in which Khasra No, they were situated. He has further admitted that:--- {{URDU TEXT}} ' The learned counsel for the petitioners has submitted that the report of a local commissioner even if accepted cannot assume any better status than a mere piece of evidence. It is submitted that even the local commissioner did not appear in the witness-box and did not subject himself to cross-examination and that it would militate against the efficacy of his report Exh.P.3. It is further submitted that both the learned lower Courts have failed to consider the weakness in the evidence of P.W.1 and P.W.2 which did not substantiate the case of the plaintiffs and the reliance in toto upon the report of the local commissioner was not warranted in law.
8. On the other hand, it has been contended by the learned counsel for the respondents that both the learned lower Courts have correctly come to the conclusion that the defendants/petitioners have encroached upon the land of the plaintiffs in Khasra No,415 and that in revisional jurisdiction, the concurrent findings of fact may not be interfered with.
' It is further submitted that no mala fides in the local commissioner have been alleged and that in such circumstances, there was no justifiable reasons for ignoring the report of the local commissioner which was rightly believed.
9. Arguments have been heard and record perused.
10. The evidence recorded on behalf of the plaintiffs comprises of the statements of Abdul Razaq Patwari P.W.1. Muhammad Ashraf one of the plaintiffs as P.W.2 and Muhammad Younis P.W.3. As far as the statement of P.W.1 is concerned, in view of the excerpts from his statement referred to above, it cannot be said that either P.W.1 or P,W.2 has substantiated the case of the plaintiffs in any manner. In fact, P.W.1 who is a Patwari Halqa Haji Pur was produced by the plaintiffs themselves and he has categorically stated that the wall of the house of the defendants is situated on the boundary of Khasra No,415 and that this boundary of Khasra No,415 is also delineated by a barbed wire. It is further admitted that the disputed construction by the defendants is separate from the barbed wire. He has further stated that the disputed house is situated at the end of Khasra No,410 and that the houses in dispute are beyond the limit of Bagh of the plaintiffs which according to the plaintiffs fell in Khasra No, 415 belonging to them. Similarly, the statement of Muhammad Ashraf plaintiff P.W.2 is not adequate to advance the plaintiffs case. It is on the record that the disputed rooms stood constructed for many years before the institution of the suit and that at the time when the defendants were raising the construction, no objection was made by the plaintiffs against the construction before any forum. The further admission that between the Bagh of the plaintiffs and the disputed house, there is a barbed wire in existence also goes to negate the claim of the plaintiffs.
11. In this view of the matter, the learned lower Courts should have placed the report of the local commissioner in juxtaposition with the remaining evidence of the plaintiffs and if after doing so, they came to the conclusion that the encroachment is established only then a decree for possession could have been passed. As hereinbefore observed, there are marked contradictions between the statements of P.W.1 and P.W.2 when seen in the light of the report of the local commissioner Exh. The local commissioner has not appeared in Court to support his report or to subject himself to cross-examination. The reliance placed upon such a report was in appropriate and unsafe.
12. In view of the foregoing discussion, the Civil Revision is accepted and the judgment and decree, dated 22-2-1997 of the learned Appellate Court and the judgment and decree, dated 20-9-1995 of the learned trial Court is set aside. The parties to bear their own costs.