' IJAZ UL AHSAN, J.---This petition arises out of the judgment and decree of the learned Addl. District Judge, Shakargarh dated 6-5-2009 through which the appeal filed by the respondents was accepted, the judgment and decree of the learned trial Court was set aside and the suit of the respondents was decreed while dismissing their claim for return of Rs,3,200.
2. The respondents filed a suit for possession regarding property measuring 18 Marlas in Khasra No,1573, situated at Village Morli, claiming to be its owners and also claimed an amount of Rs,3,200.
It was alleged in the suit that the petitioners had occupied the aforesaid property A illegally and despite having entered into an agreement with the respondents to vacate the said property on 3- 7-1992 and having received a sum of Rs,3,200 in this regard, they failed to vacate possession of the property in favour of the respondent. It was, therefore, contended that possession of the property may be granted to the respondents and the petitioners may also be directed to return the said amount.
3. The suit was contested by the petitioners. Various legal and factual objections were raised. It was claimed that the petitioners were in possession of the suit property since 1950-55 and had also raised construction on the same about 15/18 years ago. It was also submitted that the respondents had purchased Keekar trees standing on the suit property. The amount had been paid, however, the same was returned, therefore, there was no question of the return of the said amount again or vacation of the possession of the suit property.
4. The learned trial Court framed as many as seven issues, Issue No,1 was cast in the following terms:- "Whether the plaintiffs are owners of the suit property, defendants are its illegal occupants and plaintiffs are entitled for its possession? OPP"
5. The parties led their evidence and vide order dated 22-7-1998, the suit of the respondents was dismissed. The said judgment and decree was assailed in appeal. Vide order dated 29-1-2002, the appeal was c accepted and the case was remanded to the trial Court with a direction to the trial Court to obtain a fresh report of a local Commissioner and on the basis of such report decide the case.
6. On remand, a Revenue Officer was appointed as the local Commission to ascertain the facts regarding possession. The local Commission submitted his report dated 22-11-2004 before the learned trial Court in the presence of the petitioners. The petitioners filed objections regarding the report of the local Commission, which were dismissed vide order dated 27-9-2005. The said order of the learned trial Court was not assailed and as such, attained finality. The learned trial Court thereafter proceeded to conduct a trial. While giving its findings on issue No,1, the learned trial Court, instead of considering the report of D the local Commission appointed by it, repeated the findings earlier given to the following effect:-- "The Halqa Girdawar is no more a Revenue Officer and his demarcation report is not warranted by law. Atleast, demarcation should have been conducted by a Revenue Officer and plaintiffs should have produced him in their evidence. In this way, the plaintiffs have failed to prove their case through their evidence. The plaintiffs have miserably failed to establish their cases, therefore, the issue is not decided in favour of the plaintiffs."
7. On the basis of the above finding, the learned trial Court proceeded to dismiss the suit of the respondents vide judgment and decree dated 16-5-2006.
8. The respondents assailed the E aforesaid order again by way of an appeal. Vide judgment and decree dated 6-5-2009, the appeal was accepted by the learned appellate Court.
9. I have heard the learned counsel for the parties.
10. The learned counsel for the petitioners contends that the First Appellate Court has illegally relied upon the report of demarcation dated 22-11-2004 prepared by Din Muhammad, Naib Tehsildar, because the said report was neither accepted during evidence nor did he said Naib Tehsildar appear as a witness before the trial Court. He, therefore, submits that the said report was not worthy of reliance and could not be considered as evidence in terms of the provisions of Qanun-e- Shahadat Order, , 1984. The learned counsel further submits that the land in question was allotted to the petitioners in 1947/48, they had constructed residential houses on the same and the relevant documentary evidence in this regard was also produced before the learned trial Court. The construction undertaken by the petitioners was existing in Khasra number 1573, therefore, the same could not have been allotted to the respondents. The learned counsel finally argued that the suit was for possession of land and a decree for possession of land could not have been passed without dealing with the construction, which was admittedly existing on the suit-land.
11. The learned counsel for the respondents has submitted that the order passed by the learned Civil Judge was patently defective insofar as he did not consider a material piece of evidence i.e, the report of the local Commission duly appointed by the said Court. He submits that the report was prepared in the presence of the petitioners, they filed objections against the same, which were dismissed vide order dated 27-9-2005. Since the report was not challenged, it had attained finality.
He further points out that reliance of the learned appellate Court on the said report was justified by reason of application under Order XLVIII Rule 27, C.P.C. Filed by the respondents, which was duly respondent to by the petitioners and the learned appellate Court had observed that since the report of the local Commission was available on the record, and objections of the petitioners/defendants had been dismissed, the Court, would take judicial notice of the same at the appropriate time. It is further pointed out that the entitlement of the petitioner is evident from Exh.D-3, which shows that land measuring 3 Kanals comprised in Khasra No,1573 has been allotted to the respondents and was owned by them. In this view of the matter, the learned counsel submits that this document, other related documents, oral evidence and the report of, the local Commission established ownership of the respondents and the petitioners had no lawful claim on any land in Khasra No,1573.
12. In addition to the above, the other controversy involved in the matter was whether the property occupied by the petitioners was the same which was owned by the respondents. To resolve this controversy, on the direction of the learned appellate Court, a Revenue Officer was appointed as a local Commission by the learned trial Court. He submitted his report on 25-11-2005 on which objections were filed by the petitioners. Such objections were dismissed by the trial Court. No appeal or revision was filed by the petitioners against the said order and the same attained finality.
The only objection against the report of revenue officer raised before the appellate Court was that it was not a part of the record and therefore, could not be relied upon by the Court. In this regard, the respondents moved an application during pendency of the appeal. It was prayed in the said application that the report of the local Commission be made part of the record, but the same was disposed of by holding that the document was available on record and could be taken judicial notice of while deciding the appeal. It was noticed by the learned appellate Court that objections had been filed by the petitioners against the report, which were rejected. No appeal or revision was filed against such rejection, the local Commission was appointed with the consent of both the parties, the report was prepared by the local Commission in presence of the parties and the local Commission had reported as follows:- "Khasra No,1573 is in unlawful possession of the petitioners, who had installed a water connection (NULKA) constructed a house and Haveli on the said land. A site-plan showing the illegal encroachment, separately prepared is attached."
13. It is clear from a perusal of the record including copies of Revenue Records, oral evidence and report of the local Commission, that the petitioners had encroached on the land in question and the F learned trial Court neither applied its mind nor gave its finding on these material aspects of the case. As far as the evidentiary value of the report of the local Commission is concerned, I am of the opinion, that the objection raised by the learned counsel for the petitioners is of a hypertechnical nature and does not hold much ground in view of the facts and circumstances in which tile report was procured, submitted and relied upon. The fact that objections were filed and dismissed and not challenged, lends further support in favouor of the evidentiary value of the report, which in my opinion, could be taken judicial notice of, as was rightly done by the learned appellate Court.
14. There is sufficient material available on record establishing title and ownership of the respondents over the suit G property. The petitioners have not been able to make out a case either of ownership or of entitlement to the land, which has been occupied by them as encroachers. As far as the argument of the learned counsel for the petitioners relating to construction on the property in question is concerned, I am of the opinion, that the construction was undertaken by the petitioners on their own risk and cost. The fact that an encroacher undertakes construction on a piece of land, which does not belong to him, does not H create a right or title in the land underneath.
15. In view of the above, I do not find any misreading or non-reading of evidence illegality or material irregularity in the judgment and decree of the learned first appellate Court. The same is affirmed. This petition is accordingly dismissed.