' MIAN HAMID FAROOQ, J.--Respondent No,1, claiming to be in possession of the suit property and acknowledging the petitioner as co-sharer in joint Khata filed the suit for permanent injunction seeking decree to restrain the petitioner from interfering in his possession qua the suit property.
The plaint was accompanied with an application for the grant of temporary injunction to the effect that the petitioner be restrained from interfering in his possession and from alienating the suit property. The petitioner/ defendant contested the both through the written statement and reply, inter alia, pleading that "Ihata" stood partitioned and as a result whereof her father had been in use and possession of 17 marlas of land till his death. The learned trial court appointed a Local Commission with the direction to visit the site and to report about the possession of the suit property. The Local Commission submitted his report, to which respondent No,1 filed the objections.
The learned trial court dismissed the application for the grant of temporary injunction, vide order dated 31-1-2007. On appeal the learned Additional District Judge allowed respondent No, l's appeal and accepted his application, vide impugned judgment, dated 24-5-2007, hence the present petition.
2. Learned counsel for-- the petitioner contends that although the Commission reported in favour of the petitioner and the learned trial court dismissed respondent No,l's application yet the learned Appellate Court passed the impugned judgment without considering the report of the Local Commission. He has added that the property has already been partitioned. Conversely, the learned counsel for the respondent has supported the impugned judgment.
3. I have heard the learned counsel and examined the available record. The learned trial court, while- appointing the Local Commission, directed him to visit the site and to report that who is in possession over the suit property and for how long. Thus the only reference before the learned Local Commission was to visit the spot and to report as to who is in possession of the suit property and for how long. The learned Local Commission recorded the evidence of the parties and then submitted his report commenting and opining of the matters and issues, which were never referred to the Commission . The questions/points addressed by the learned Local Commission in his report were never referred to him, thus the Local Commission has gone outside the scope of reference. He was only to ascertain as to who is in possession at the time of his visit and for how long. To my mind the learned Local Commission has exceeded from his jurisdiction. It is settled law that Local Commission is not to assume the role of a Court and such questions going to the roots of the case are to be decided by the Court itself after recording evidence. The learned trial Court, while relying upon the report of the Local Commission, has misdirected itself, more so when neither the report was admitted in evidence nor Local Commission was examined as a witness. In view of these tentative findings, which will not impress the learned trial Court at the time of decision of the suit. I feel that the learned trial court illegally dismissed the application for temporary injunction.
4. I have examined the judgment of the learned appellate court in juxta position with the order of the learned trial court and find that it proceeded in right direction and the learned Judge after adverting to every aspect of the case has rightly reversed the findings of the learned trial Court.
The findings of the learned Appellate Court, as compared to the order passed by the learned trial court, are not only in accordance with the record of the case but also in consonance with the law on the subject. I am not persuaded to set aside the impugned judgment.
5. In my view as the impugned judgment is not in violation of the principle of administration of justice, thus the judgment of the learned appellate court should ordinarily be preferred. If any case is needed, judgments, reported as Mir Muhammad alias Miral v. Ghulam Muhammad (PLD 1996 Karachi 202), Illamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others (1999 CLC 313) and Aasa v. Ibrahim (2000 CLC 500) can be referred.
6. After examining the impugned judgment, I find that it is neither arbitrary nor fanciful, therefore, l am not inclined to upset the impugned order in view of the judgment reported as Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139), wherein it has, inter alia, been held that discretionary orders of subordinate courts cannot be interfered with unless found fanciful and arbitrary.
7. In the above perspective, I am of the view that the learned appellate court while deciding the matter has neither committed any illegality nor any material irregularity, thus I am not inclined to interfere in the impugned judgment which is here by maintained.
8. In view of the above, the present petition stands dismissed.