' MAULVI ANWARUL HAQ, J.- On 29-5-1996, the petitioners filed a suit against the respondents. In the plaint, it was stated that the suit plots described in the plaint, 10 Marlas each (tbtal one Kanal) were sold to the petitioners ,by the respondents under "Kachi Abadi Scheme". The same was effected by means of a registered sale-deed dated 20-3-1984. Possession was delivered and the petitioners have raised construction thereon. The respondents have, however, issued notice on 12-5-1996 threatening to dispossess thbm. They presented their documents but of no avail. A declaration and permanent injunction was accordingly sought. The respondents in their written statement admitted the sale of the said plots Nos.3 and 4 of 10 Marlas each to the petitioners but they alleged that the petitioners have encroached upon 17 Marlas of government land by raising boundary wall.
Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit on 2-3-2002. First appeal filed by the respondents has been allowed by the learned ADJ-II, Bhakkar on 17-1-2003.
2. Learned counsel for the petitioner contends that the learned ADJ has very correctly noted that it is a boundary dispute between the parties encroachment being alleged by the respondents.
According to the learned counsel there was nothing wrong with the local commissioner's report relied upon by the learned trial Court but even if learned ADJ was not satisfied with the same, he.Should have appointed a fresh local commissioner. Learned A.A.-G. For respondents Nos.l to 3 and Malik Shafqat Rasool Gorchha, Advocate for respondent No.4 have not much to say to oppose the said contentions.
3. I have gone through the copies of the records. The pleadings have already been noted by me above. It will be seen that the sale of the said plots in favour of the petitioners was admitted.
Allegation of the respondents was that they had encroached upon some Government or Municipal land. To my mind, it was for the respondents to have proved the said fact. Be that as it may,, learned trial Court appointed a local commissioner on the application of the petitioners. He is Rana Muhammad Yaseen, Advocate. He entered the witness box as P.W.l and proved his report Exh.P.4.
According to this report there was no encroachment.
4. Learned ADJ has not said a word as to what is wrong with the report. He however, has observed that an Advocate should not have been appointed and rather a revenue officer or some officer of the respondent-Department should have been appointed as local commissioner to conduct demarcation. Although no other specific reason has been stated, the impugned judgment gives an impression that the learned ADJ was not satisfied that the respondent-department were represented. After having thus expressed his dissatisfaction with the proceedings of the local commissioner and expressing opinion noted above, learned ADJ ought to have appointed a local commissioner in accordance therewith. Result is that the matter remains unresolved. The impugned judgment of the learned ADJ, therefore, decides nothing and as such squarely falls within the mischief of section 115, C.P.C. The C.R. Accordingly is allowed. Result would be that the first appeal filed by the respondents shall be deemed to be pending before the learned District Judge, Bhakkar, before whom the parties will appear on 4-2007. Learned District Judge shall requisition the records and then proceed either himself or entrust the matter to some learned ADJ who shall appoint a revenue officer preferably a local Tehsildar who will conduct demarcation proceedings after notice to both the parties. Fee of local commissioner to be fixed by the learned District Judge or the learned A.D.J. Will be paid by both,the parties in equal share. The Tehsildar shall also be called upon to prepare an encroachment plan if some encroachment is found. Upon receipt of the report, the parties will be given a chance to file objections and after disposal of the same the first appeal shall be decided on the evidence earlier recorded as also the said report in accordance with law.
5. No orders as to costs.
6. A copy of this judgment be remitted to the learned District Judge, Bhakkar immediately by the office.