MAULVI ANWARUL HAQ, J. --- On 10.9.1997 the respondents filed a suit against the petitioner. It was stated in the plaint that after having sold one kanal, 4 marlas land out of Khasra No, 5404/2441 (detailed in para-1 of the plaint), the respondents are owners of 12 marlas in the said Khasra number which has been occupied by the petitioner and despite a demarcation report that depicts the encroachment, it has refused to vacate the land. A decree for possession was accordingly prayed for. The petitioner resisted the suit denying the said allegations. Issues were framed.
Evidence of the parties was recorded. The suit was decreed by the learned Trial Court on 5.4.2002. A first appeal was dismissed on 30.1.2003. C.R. No, 3440/03 filed by the petitioner, was allowed by this Court, on 6.5.2004, with the consent of the parties. Both the judgments and decrees were set aside and the Trial Court was directed to appoint a Local Commissioner and direct him to demarcate the land strictly in accordance with the Rules and Orders of this Court. After the remand, a Local Commissioner was appointed who filed his report. The suit was decreed by the learned Trial Court on 8.12.2005 while a learned A.D.J., Gujranwala, dismissed the first appeal of the petitioner on 26.7:2006.
2. Learned counsel for the respondent has put in appearance pursuant to a pre-admission notice.
The copies of the records are available. Both the learned counsel are prepared with their arguments on the main case. This case is accordingly being decided as a pacca case.
3. Learned counsel for the' petitioner contends that report filed by the Local Commissioner after the said remand order passed by this Court is in utter violation of the Rules and Order framed by this Court and this is apparent on its face. Learned counsel for the respondents has contended that the report is in perfect accord with the said Rules and Orders.
4. I have gone through the copies of the records. Both the learned Courts below have primarily relied upon report Ex.P.40 and the statement of the Local Commissioner PW-4 while passing the impugned judgments and decrees. I have examined the said report Ex.P.40, with the assistance of the learned counsel for the parties. The report narrates that Khasra No, 2440 measures 6 kanals, 18 marlas is the ownership of Punchayat Deh and is occupied by the petitioner whereas it has constructed its office. Whereas the . respondents are owners of 12 marlas of land in Khasra No, 2441 which measures 4 kanals, 13 marlas but are not in possession at the spot. Thereafter, he states that with the agreement of all present, he conducted -the measurements with a measuring tape (100 feet in length). He deemed south-Eastern corner of Khasra No, 2881 as a permanent point and commenced measurements. This point was 31 Acres away from the suit land and after placing Kacha Burjis on every Acre, he determined the Western line of Khasra No, 2441 and further determined the entire Khasra number and found an encroachment of 8 marlas in possession of the petitioner. Then, he abruptly stated that he also determined Khasra No, 2440. Out of this Khasra number, 8 marlas are included in the Mithoo Bhaikay Road which is 491/2 feet wide as per record but on the spot it is 74 feet wide. He prepared the encroachment plan Ex.P.41 accordingly. Now he appeared as PW-4 to prove the said report. He admitted that at the spot the entire Khasra No, 2441 had been built upon. There are streets and a Bazar as well. He admitted that the area utilized in the said streets and Bazar pertains to Khasra No, 2441. He stated that no permanent point was available at the spot. He did not obtain the consent of the people present in writing regarding the permanent point fixed by him. He admitted that the Sarhada was not present even at the said point. Then, he stated that he cannot tell the Khasra numbers of the 31 Acres in-between the said permanent point and the suit land. He further admitted that he conducted the measurement only from one side. He also admitted that out of 31 Acres. 10 to 15 Acres are under constructions.
5. Now it will be seen that the primary requirement for a valid demarcation is that the local Commissioner should summon the Field Map (Aks Shajra or Latha) prepared during the last settlement and the measurements are to be conducted with reference to the said document. The report as well as the statement of PW-4 is absolutely silent as to how he conducted the measurement. Even this much is not there as to towards which side he started walking with his measuring tape after determining the said permanent point. No attempt was made to determine any other point as directed by this Court and as prescribed by the Rules and Orders of this Court.
6. I therefore, do find that the said report does not at all meet the criteria laid by this Court and the erstwhile Finance Commissioner for, carrying out demarcation in cases of boundary dispute. The civil revision accordingly is allowed. The impugned judgment and decree passed by the learned A.D.J. is set aside. The result would be that the appeal shall be deemed to be pending in the Court of learned District Judge, Gujranwala, before whom the parties shall appear on 9.1.2007. The learned District Judge shall requisition the records. He shall then proceed to appoint a Local Commissioner preferably a Tehslidar concerned. Clear directions will be issued to him in terms of the Rules and Orders of this Court to conduct demarcation and to prepare an encroachment plan, if he finds an encroachment on the suit land. The report shall be filed in Court. A date will be fixed for inviting objections from any of the parties and after disposing of the objections, the appeal shall be decided on its merits. This exercise to be undertaken and the matters to be concluded within four months of the said date of appearance. No orders as to costs.
7. A copy of this judgment be immediately remitted to the learned District Judge, Gujranwala.