' MIAN HAMID FAROOQ, J.--- We through this single order, propose to decide the afore-noted two petitions, as both arose out of a consolidated judgment dated 29-5-2006.
2. Petitioners seek leave to appeal, against single order dated 29-5-2006, whereby the learned High Court of Sindh, Hyderabad Circuit, accepted two revision petitions (R.As. Nos.88 and 90 of 2003), filed by the respondents.
3. Respondents filed two suits (Suit No,17 of 1998 and Suit No,18 of 1998), for declaration, removal of encroachment, mesne profits and mandatory injunction, one relating to some portion of land in Survey Nos.376 and 377 and the other in respect of Survey No,375, against the petitioners/defendants, who opted not to file written statement and consequently their defence was statedly closed, whereafter the learned trial Court after recording the evidence of the respondents dismissed both the suits, vide judgments and decrees dated 8-3-2000 and 9-2-2000, respectively. The respondents' two appeals (Civil Appeal No,7 of 2000 and Civil Appeal No,6 of 2000) were dismissed by the learned Appellate Court, vide separate judgments both dated 20-5- 2003, which were challenged by the respondents through filing two revision petitions (R.As.88 and 92 of 2003), before the High Court of Sindh, Hyderabad Circuit. During the proceedings in revision petitions, the learned Judge in chambers, on 5-10-2004, after finding that the dispute was with regard to identification of land, appointed Additional Registrar of the High Court of Sindh as Commissioner, with the consent of the parties, and directed him to inspect the site and to furnish his report within two days. Pursuant thereto, the Commissioner, so appointed, submitted his report and the learned Judge in chambers, on the basis of the said report, proceeded to accept both the revision petitions, filed by respondents and decreed the suits, vide consolidated order dated 29-5- 2006. Concluding portion of the impugned order is reproduced below:--- "In the circumstances and deeming in view the undertaking given by both the parties on 5-10-2004 both these revisions are allowed and orders of both the Lower Courts in both these revisions are set aside and Suits of the plaintiff bearing Nos.17 of 1998 and 18 of 1998 are decreed as prayed."
' Hence the present petitions.
4. Learned 'counsel for the petitioners submitted that although the Commissioner was appointed with the consent of the parties, who agreed to be bound by his decision, yet the learned Revisional Court could not set aside the judgments and decrees passed on the basis of evidence on record.
He has added that the petitioners filed objections to the report of the Commissioner, but the same were not decided. Contrarily, learned counsel for the respondents submitted that the Commissioner was appointed by the consent of the parties and, therefore, they are bound by the report of the Commission. He has added that as the parties voluntarily agreed to be bound by the report of the Local Commission, therefore, he was in fact a "Referee" and not a "Local Commissioner".
' He has relied upon Barkat Masih v. Barkat Bibi and 3 others, 1999 YLR 1215 and Muhammad Khan v.
Nazir Ahmed, 2003 SCM R 1911.
5. We have heard the learned counsel for the parties and examined the available record.
6. We find from order dated 5-10-2004 (which was passed by consent of the parties and in presence of their learned counsel) that the Commissioner was appointed to inspect the site and to report as to whether the petitioners encroached upon the land of the respondents bearing Survey No,375 and as to what area was encroached upon by them. Undoubtedly, it was jointly consented by both the parties before the High Court that the revision petitions be disposed of on the basis of report of the Commissioner. The Commissioner found that the petitioners have occupied an area of 181 Ft. In Survey Nos.375 and 1060 sq.Ft. In Survey No,377 and reported against them. The learned High Court, after receipt of the report and as per voluntary commitment and agreement of the parties accepted the revision petitions. It may be noted that the Commissioner was appointed with the consent of the parties, who agreed to be bound by his report, therefore, no objections could be entertained. Under the circumstances, the intention of the parties, manifested from their consent, incorporated in order dated 5-10-2004, was clearly to resolve the dispute on the basis of Commissioner's report. In the said backdrop, it does not lie in the mouth of the petitioners to object to the report of the Commissioner. The petitioners showed dissatisfaction over the report only when it went against the petitioners. Once having given consent for the appointment of the Commissioner and to be bound by it, they cannot be allowed to be turned round and object to the report of the Commissioner. The view of this Court in the case of Muhammad Khan ibid is that when the parties jointly consented that they would be bound by the report of the Local Commissioner, it will amount to refer the matter to such an official as "Referee" and not merely as "Local Commissioner". It has been held in the case of Muhammad Asghar v. Shah Muhammad Awan, PLD 1986 SC 542, that where a party to the proceedings before a Court enters into an agreement of its own free will for disposal of the matter, it cannot turn round and successfully plead that it has no legal right to consent and the Court could not act on such consent. Seen from any angle, the petitioners failed to make out a case for the grant of leave to appeal. We do not find any legal infirmity in the impugned order, which is hereby maintained.
6. (sic) In the above perspective, both the petitions, being meritless, stand dismissed and leave to appeal is refused.