JAWWAD S. KHAWAJA, J.--- The case has been called. None has appeared for the respondents.
They are, therefore, proceeded against ex parte.
2. The petitioners/defendants impugn the concurrent decrees of the learned trial Court dated 14-4- 1991 and of the learned appellate Court dated 10-10-1991 whereby a suit filed by the plaintiffs (respondents Nos.1 to 4 herein) seeking possession of the disputed property in all, measuring 1 Kanal, 9 Marlas, has been decreed.
3. Both Courts below, while decreeing the suit of the respondents/ plaintiffs, have relied on the report (Exh.P.3) dated 11-3-1990 prepared by the Tehsildar Jhang as Local Commission. The Tehsildar appeared as P.W.3 to prove the report.
4. Learned counsel for the petitioners contends that the report does not conform with the requirements of Chapter 1, Part M. Volume I of the High Court Rules and Orders. On this basis, it is argued that reliance on the report (Exh.P.3) was an error on the part of the learned Courts below.
This submission is correct. I have gone through the report and note therein that the coordinates for the purpose of identifying the land in dispute, were taken from a metalled road, but there is no indication, at all, that the coordinates, required by the High Court Rules, were first fixed with the object of preparing the report. Learned counsel further contends that the failure of the Tehsildar to comply with the High Court Rules, rendered the report worthless as a piece of evidence. Even otherwise, when the Tehsildar appeared as P.W.3, he was not in a position to state whether there was a 15' were passage on the disputed Khasra numbers and whether the same had been calculated by him in the share of the defendants. This testimony also "undermines the evidentiary value of the report (Exh.P.3).
5. In the above circumstances, the report (Exh.P.3) is set aside. Since it was the duty of the respondents/plaintiffs to prove that the petitioners were occupying the land belonging to them, it was incumbent upon them to produce evidence in support of their claim. Here it may be noted that the petitioners are in occupation of 2 Marlas out of the disputed land. Only they have impugned the decrees of the learned Courts below. The other defendants, who are respondents Nos.5 to 15 in this petition, have not challenged the impugned decrees. In the circumstances, the decrees of the learned Courts below are modified. Consequently, the suit of the respondents/plaintiffs to the extent of land measuring 2 Marlas, which is in the possession of the present petitioners, is dismissed. The decrees of the learned Courts below, however, are maintained in respect of the remaining defendants (respondents Nos.5 to 15).