MUHAMMAD MUZAMMAL KHAN, J.--- This judgment proposes to decide two civil revisions, one in hand and the other C.R. No. 2126/1995, as both these raising similar questions of law and facts, are directed against the same set of respondents, arising out of two different suits but in the alike circumstances. Both the revision petitions are directed against the judgments and decrees dated 20.7.1989 passed by the learned Civil Judge and dated 19.9.1995 and 13.9.1995 by the learned Additional District Judge, Faisalabad, whereby two independent suits for possession through ejectment of the revision petitioners were decreed and two independent appeals of the revision petitioners were dismissed, respectively.
2. Precisely, relevant facts deciphered from plaints of the respondents are that Khawaja Muhammad Subhan grandfather of the respondents was allotted Manmohan Engineering Works over land measuring 3 kanals, 12 marlas located in Killa No. 6, Square No. 90, Khewar No. 5304, Khatoni No. 6030 situated in Chak No. 220/RB, Jamalpur Harcharnpura, Faisalabad and consequent to this allotment Mutation No. 17793 was sanctioned in his favour, which was reflected in Jamabandi for the year 1983-84. The allottee filed an application for demarcation of his allotted property on 26.6.1987, on which demarcation was carried by Tehsildar, Faisalabad (Lyallpur) and the demarcating officer besides preparing hand drawn site plan, prepared a list of encroachers of the property of the allottee in terms of his report dated 26.6.1987. According to the list of the Local Commissioner petitioners were in possession of part of property of the predecessors of the respondents. Mst. Hajran Begum the revision petitioner was shown in possession of 1 marla 3 sarsahis, whereas Muhammad All predecessor of revision petitioner in Civil Revision No. 2126/1995 was shown in possession of 1 marla 2 surashis. On the basis of this report of the Local Commissioner, Khawaja Muhammad Subhan the allottee filed two suits for possession through ejectment of the revision petitioners.
3. Petitioners being defendants in the suits contested those by filing their respective written statements wherein they raised certain preliminary objection regarding locus standi of the original plaintiff to maintain the suit etc. On merits they pleaded that premises of Manmohan Engineering was allotted to Khawaja Muhammad Subhan without any Khasra or Square number and since the petitioners were transferees of Plot No. 218, Square No. 90, Killa No. 6 of Chak No. 220/RB, they were not occupying any part of his property thus suits were claimed to be baseless and frivolous.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge, seized of the suits, after doing the needful vide his judgment and decree dated 20.7.1989 on the basis of his appraisal of evidence decreed both the suits of the respondents.
Pending those suits, original allottee Khawaja Muhammad Subhan died and Muhammad Yousaf his son was substituted in his place as his heir/legal representative.
4. Petitioners aggrieved of the decision of the Trial Court in both' the suits dated 20.7.1989 filed two independent appeals, pending which Muhammad Ali one of the appellants died and his legal representatives who are revision petitioners in Civil Revision No. 2126/1995 were brought on record as appellants. The Appellate Court after hearing the parties dismissed the appeals confirming the findings of the Trial Court, vide judgment and decrees dated 13.9.1995 and 19.9.1995. Thereafter above-noted two revision petitions were filed, which were admitted to regular hearing and after completion of record have now been placed for final determination.
5. Learned counsel for the petitioners submitted that the sole basis of claim of the predecessor of the respondents regarding land in their possession was demarcation report dated 27.6.1987 obtained by him earlier to filing of his suits, which was prepared without site inspection and measurements in accordance with law, at the back of the petitioners, thus the same did not furnish any lawful basis for the decrees impugned. He further submitted that demarcation proceedings were absolutely illegal and contrary to Financial Commissioner's instructions on the subject and thus those were not worth reliance but a contrary decision by the two Courts below negatively reflects on their judgments. He further elaborated his arguments by urging that on the face of the report of the Local Commissioner and site plan, it is evident that neither the property of the respondents was earmarked by fixing boundaries out of the measurements from any of its three sides, as required by law. According to him, the report of the Local Commissioner cannot be justified by any canon known for administration of justice and in case this piece of evidence is excluded from consideration there is not an iota of evidence on the file to show that petitioners are occupying parts of property of the respondents. It was also emphasized that petitioners are not encroachers but they are ,living in their houses raised over land lawfully purchased by them in open auction held by the Settlement Department regarding which PTD were issued in their favour as far back as in the year 1970. Referring to transfer orders of the predecessor of the respondents, it was submitted that it contained no details of land beneath Manmohan Engineering which, according to him, did not at all exist, as is evident from the report of the Local Commissioner (Exh.P.1) and site plan (Exh.P.2). Learned counsel for the petitioners also argued that though the petitioners are not in possession of any part of the property of the respondents, yet if it be proved that land beneath their house measuring 27 x 9 feet was part of the same, suits against them could not have been decreed as this land was auctioned by the Settlement Department earlier to issuance of transfer order in favour of Khawaja Muhammad Subhan. Judgments of the two Courts below were claimed to be tainted with illegality of misreading of evidence on the file and thus were said to be not sustainable.
6. Learned counsel appearing on behalf of the respondents opposed the arguments of the petitioners and supporting the concurrent judgments of the two Courts below, supported the demarcation proceedings and submitted that all the illegal occupants of property of the respondents, whose list was prepared by the Local Commissioner, were required to join proceedings of measurements at the spot and few of those after measurements signed the report Exh.P.1 and in this manner an attempt was made to built the case that petitioners were also given notice of demarcation proceedings. Learned counsel for the respondents referring to PTD of the petitioners (Exh.D.7) submitted that no particulars of land allotted to them were mentioned therein, hence on the basis of it they could not defined the suit. It was also argued that petitioners earlier filed a suit challenging demarcation report, which was dismissed thus it is not open for them to raise any kind of objection to the report of the Local Commissioner. Learned counsel for the respondents further argued that concurrent findings of facts returned by two Courts below, after due appraisal of evidence on the file, are not open to challenge in revisional jurisdiction of this Court, unless some misreading and non-reading of evidence on the file is established. He emphasized that the findings impugned being immune from interference by this Court may be maintained.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Primarily, controversy which hinges for determination is whether petitioners were really in possession of land forming part of allotment of the predecessor of the respondents i.e. Khawaja Muhammad Subhan. In order to establish this fact, respondents mainly relied on report of the Local Commissioner Exh.P.1. A bare perusal of report dated 27.6.1987 shows that no actual measurements were carried by the Local Commissioner at the spot and if at all those were taken such action was not reflected therein. Local Commissioner on pointing out of predecessor of the respondents Muhammad Yousaf assumed the land shown by him as Killa No. 6 of Square No. 90, because it was not fixed by erecting boundaries by him bringing measurements from any permanent place like road, well etc. The report simply recites that Killa No. 6 is surrounded on its north Rajbah Sarwala and road track, .Whereas on its southern side there is Makhdoom Road and on its other two sides there are buildings. The Local. Commissioner while appearing in the witness-box as PW.2 did not detail his actions of measurements at the site which, as a matter of fact, were not taken by him.
Non-mentioning of such acts in the report was fatal to it, as earlier decided by this Court in the case of Muhammad Suleman and another Vs. Abdul Rashid and 6 others (PLD 1975 Lah. 42). Fixing of boundaries of Killa in question by measurements of surrounding land/properties was necessary and mandatory for the Local Commissioner in terms of Financial Commissioner's instructions as adopted by this Court in High Court Rules and Orders Volume-V, Chapter 1-D. The Local Commissioner did not issue any notice to the petitioners, Patwari concerned for production of record at the time of demarcation and he was not equipped with any "Tatimma" or "Sawas". He during his cross-examination stated that the measurement was done according to site plan of Settlement Department, but neither its copy was appended with the report nor any reference thereto was made by him in the report. Whenever an application for demarcation of the land is made to the Revenue Officer under Section 117 of the Land Revenue Act, 1967, the same is to be dealt with under Rule 67-A of the Land Revenue Rules, 1968. This rule in depth enumerates the steps to be taken by the Revenue in .R. dealing with such application under sub-rule 4(c)(v). Revenue Officer is bound to cause a notice in Form-33-P to be issued in duplicate to any person whose presence at the time of demarcation of the boundaries was considered to be necessary or expedient for the revenue officer The rule also lays down that after completion the entries in the register maintained for this purpose in the office shall be made, but none of these steps was taken and entries as required were not made.
Examination of Exh.P.1 to Exh.P.3 in the light of statements of PW.2 and PW.3 establishes that report of the Local Commissioner dated 27.6.1987 was presumptive and was not worth reliance because he assumed that property of the respondents is surrounded on three sides by road Rajbah and permanent building, thus according to him, there was no question of any encroachment from these sides. His finding was that petitioners being on western side must have encroached over the proerty subject of demarcation, but this imaginary way of locating some property was not permissible under law. Besides all this, petitioners also produced demarcation report carried on application of Khawaja Muhammad Subhan on 30.6.1959 as Exh.D.1 which also shows some encroachment by the persons, whose list was attached thereto as Exh.D.3, but names of the petitioners were not mentioned therein. This report has material changes as compared to report Exh.P.1, negatively reflecting on it.
'8. No doubt, petitioners had earlier filed a suit for declaration with permanent injunction on the basis of their permanent transfer deeds with the prayer that respondents should not evict them wherein they also 'challenged demarcation report dated 27.6.1987, which was dismissed, but dismissal does not make the report Exh.P.1 as lawful. Properties of parties were, undeniably urban even at the time of allotment by Deputy Settlement and Rehabilitation Commissioner, for this reason as well, Revenue Officer was not competent to undertake the exercise of demarcation. CL.R.
Under law, the Revenue Officer could only demarcate boundaries of any estate or any part thereof, under the provisions already discussed. Predecessor of the respondents, who was plaintiff, was required to prove his title to property in possession of the petitioners through some lawful/cogent evidence in absence of which his suit could not have been decreed. Even otherwise, since there was the only dispute of demarcation which could have resolved the controversy for all times to come, the Trial Court should have invoked its own jurisdiction in this behalf, inspite of report Exh.P.1, but both the Courts below being oblivious of their jurisdiction under Order XXVI, Rule 9, CPC proceeded to decide this lis without adverting to legality or otherwise of the said report.
9. For the reasons noted above, I have no hesitation to hold that report of the Local Commissioner and site plan list of encroachers there-along, do not reflect correct position at the spot and did not furnish lawful basis for the decision impugned. The above-noted factors escaped notice of the two Courts below at the time of decision of the lis, hence those being suffered with material irregularity cannot be allowed to be maintained, with the result that judgments on the basis thereof deserve to be reversed. Both the revision petitions consequently are accepted and judgment and decrees impugned are set aside and the case is remitted back to the Trial Court for taking legal action in terms of Order XXVI, Rule 9, CPC and after site inspection to determine whether properties of the parties overlap each other or not and after confirmation of the report obtained through Local Commissioner, to decide the suit afresh in accordance with law. Parties are directed to appear before the Trial Court on 16.12.2004 There will be no order as to costs.