' JAWWAD S. KHAWAJA, J.---On 5-5-2006 after hearing the revision petition at length, the following order was passed by me:-- "This unfortunate litigation commenced almost forty years ago -when Noor Bukhsh respondent/plaintiff filed a suit seeking possession of the suit property measuring 30 kanals, 17 marlas as described in the plaint. The suit was resisted by the petitioners/defendants on the ground that the respondent/plaintiff was not entitled to possession because the suit-land was owned by the petitioners. The petitioners did not deny the fact that the respondent/plaintiff was owner of 30 kanals, 17 marlas of land in Mauza Chhanni Mughlan. Their case, however, was that the suit-land was located in Mauza Chook Kalan and was owned by them.
(2) It is not in dispute that the two mauzas, Chhanni Mughlan and Mauza Chook Kalan, are adjacent mauzas. Consolidation proceedings were undertaken in Chhanni Mughlan in 1964-65, while the consolidation of Mauza Chook Kalan was effected during 1968-69.
(3) Although this litigation has dragged on for almost four decades, the issue in contention between the parties is very simple. The land on site has to be demarcated to ascertain as to which of the two mouzas it lies in. Muhammad Khan, Naib Tehsildar, Phalia was appointed local commission on 17-7-1984 by the learned trial Court. He submitted a report, dated 30-10-1984, which was objected to in writing by the respondent/plaintiff and orally by the petitioners/defendants. The report was not clear and the Tehsildar/Local Commission was, therefore, summoned for clarification. He appeared in Court but it was noted by thelearned trial Court vide order, dated 5-1- 1985 that he was not in a position to clarify certain aspects of his report. The difficulty in demarcating the land appeared to have arisen because it had for some time, become river borne.
(4) The statement of Muhammad Khan, Local Commission/Naib Tehsildar has been noted in paragraph 7 of the judgment of the learned trial Court. It was also noted by the learned trial Court on the basis of the aforesaid report that during demarcation of Mauza Chook Kalan, the suit-land fell in the entitlement of the petitioners/defendants but when the area of Mauza Chhanni Mughlan was demarcated, the land fell in the entitlement of the respondent/plaintiff. From this itself it is clear that the dispute could have been resolved only after settling the boundary of the two mauzas and thereafter making a determination of the respective landholdings of the petitioners and the respondents/ plaintiff through demarcation. This exercise, unfortunately, has not been done to- date despite two remand orders (noted below) for this purpose.
(5) Here I may add that the report of the Tehsildar/Local Commission, dated 30-10-1984 was cancelled on 30-9-1985 because it did not serve the purpose noted above. Thereafter another local commission, namely, Ch. Imtiaz Ahmad, Naib Tehsildar, Phalia, was appointed. He, however, did not submit any report of demarcation.
(6) On 15-10-1986, the original report, dated 30-10-1984 was restored. The order, dated 15-10-1986 also has relevance because it has been noted therein that it is not possible to resolve the dispute between the parties on the basis of the report, dated 30-10-1984. The learned trial Court felt the necessity of adverting to the revenue record, including the musavis. The Reader of the Court was directed to summon the musavis from the office of the Sadar Qanungo and make it part of the record.
(7) Thereafter, the Court itself undertook an examination of the musavis and also examined Muhammad Sharif, Patwari, who was the Moharar of the Sadar Daftar Qanungo. This person did not visit the site and did not make any demarcation. In fact, his statement is also to the effect that he was not in a position to identify, on site, the respective areas owned by the petitioners in Mauza Chook Kalan or the land owned by the respondent/plaintiff in Mauza Chhanni Mughlan.
(8) Despite the above facts, the learned trial Court proceeded to decree the suit of the respondent/plaintiff on 16-3-1989. Theprincipal reason, which found favor with the learned trial Court, was that the respondent/plaintiff was shown as owner of the land described in the plaint vide jambandi (Exh.P-3) for the year, 1966-67. The learned trial Court also relied on the testimony of one Karam Hassan, examined by the respondent as (P.W.1), who prepared a naqsha tafawat (Exh.P-1). These circumstances, however, have little bearing on the dispute between the parties, firstly, because the title of the respondent/ plaintiff in the land described in his plaint was never disputed by the petitioners. Secondly, no sanctity could attach to the naqsha tafawat (Exh.P-1), which was prepared by P.W.1 privately, without associating the petitioners in the preparation of the said document.
(9) The decision of the learned trial Court has been upheld by the learned appellate Court vide judgment and decree, dated 17-6-1990. The same facts, which weighed with the learned trial Court, have also prevailed with the learned appellate Court. The impugned decrees of the learned trial Court and the learned appellant Court are clearly misconceived because the controversy between the parties, as noted above, could only have been resolved by examining the record and by demarcating the site of both mauzas. Had this exercise been undertaken, the contention between the parties could have been settled many years ago.
(10) Based on the above discussion, I am not in the slightest doubt that the impugned decrees, though concurrent, are not legally sustainable because the same are not based on evidence relevant for resolving the dispute between the parties. The question now remains as to what course of action should be adopted in this petition. The record shows that initially an ex parte decree was passed against the petitioners on 29-4-1976. This decree was set aside. On 29-12-1977, a decree to the extent of 29 Kanals 7 Marlas was then passed in favor of the respondent/plaintiff. On appeal filed by the petitioners, the case was remanded vide appellate order, dated 23-4-1978. The appellate Court observed that a proper and detailed demarcation was required.
(11) On 31-10-1981 without obtaining a fresh report, the suit of the respondent/plaintiff was again decreed. On appeal, it was remanded a second time vide appellate order, dated 22-6-1983. Once again, it was observed by the appellate Court that a fresh local commission was required to be appointed.
(12) Considering that the litigation has spanned four decades and theparties have gone through three rounds of litigation, it appears to me harsh and unduly onerous for the parties, to remand the case, yet again, to the learned trial Court.
(13) The learned Law Officer, present in Court in connection with some other case, shall ascertain from the Board of Revenue the name of a responsible functionary of the Revenue Department, who can undertake the demarcation in respect of the two mauzas so that this prolonged litigation can, if possible, be brought to an end without the necessity of a remand to the learned trial Court.
(14) To come up on 17-5-2006."
2. On the last date of hearing i,e, 25-9-2006, the following order was passed:--- "The Tehsildar has not, as yet, submitted his report pursuant to the previous two orders. Learned counsel for the petitioners points out that the petitioners appeared before the Tehsildar but the respondents failed to do so. Learned counsel for the respondents states that he had written to the respondents conveying to them the order of the Court, dated 5-5-2006 but has not received any response from them. Learned counsel for the petitioners states that the respondents have sold the property to some vendees and have, therefore, lost interest in this case.
(2) The learned Law Officer shall find out from the Tehsildar as to why the report, sought by the previous orders, has not been submitted in Court.
(3) To come up on 28-9-2006."
3. Today the learned Law Officer has submitted in Court the, report of the Tehsildar, who has stated that Muhammad Ashraf (petitioner No,2) had stated that for the time being, he also does not seek a demarcation. Learned counsel for the petitioners states that, according to his instructions, the petitioners have sold a part of their property to the same vendee to whom the respondents have sold their property. It is for this reason that the petitioners are not 'interested in having the property demarcated.
4. Since both parties do not wish to stay bogged down in this prolonged litigation, this revision petition is disposed of in the light of the above noted orders, but with the clarification that either of them may approach the Revenue Authorities to obtain demarcation of the boundaries of the two mauzas viz. Chhanni Mughlan and Chook Kalan as also demarcation of the areas .Respectively owned by the parties. If the Revenue Authorities are approached for this purpose, they shall proceedin the light of this judgment. The decrees of the learned Courts below are modified accordingly.