' SYED SAJJAD HASSAN SHAH, J.---The petitioners- plaintiffs have called in question the judgment and decree dated 12-2-2007 passed by learned Additional District Judge-VI, D.I.Khan, whereby the appeal filed against the judgment and decree dated 12-7-2006 of learned Civil Judge-VIII, D.I.Khan was dismissed.
2. The briefly stated facts are that the petitioners-plaintiffs had filed a suit for the recovery of possession of Khasra Nos.2309-203 and 2307 measuring 4 kanal 19 marla as per detail that the respondent No,1-defendant in possession of an area of 13 marla out of Khasra No,2309, the encroached area shown as Khasra. No,1/2309, and out of Khasra Nos.2309 and 2307, respondent No,2-defendant encroached upon an area of 12 marla shown as Khasra Nos.2/2309-2307 after demolishing superstructure raised by the respondents on the suit property. The encroached area was shown in the report of a local commission who was appointed by the Revenue authorities for demarcation.
3. The petitioners-plaintiffs averred in the plaint that they have constructed a house/bungalow on a portion of the suit property measuring 4 kanal 18 marla and rest of the area is vacant site. It is further averred that the petitioners-plaintiffs were residing at Karachi and when returned to their native village, they suspected 'certain encroachment in their property where after they have applied for demarcation as mentioned above. One Syed Bashir Hussain Shah, Naib. Tehsildar, CRBC, D.I.Khan was appointed as local commission to demarcate the property and submit the report. According to his report made on 21-1-1996, the above mentioned area was shown as encroached upon by the' respondents-defendants.
4. The respondents-defendants contested the suit by 'filing their written statement. They have asserted that they are in possession of an area of one kanal 5 marla which they have purchased vide registered deed No,142 attested on 27-2-1979 and they have constructed house and shops and they are owners in possession of said area and no area belonging to the petitioners-plaintiffs has been encroached upon by the respondents-defendants. Later on, respondent No, 1 also purchased vide registered sale-deed No,1029 attested on 18-1-1994, an area of 18x60 feet and constructed the shops over the said property arid also vide agreement deed dated 10-7-1994 and through a decree passed by learned Senior Civil Judge, D.I.Khan, an area of one kanal 5 marla consisting of a house, the detail is given in Para-3 of the written statement. They have refuted the afore-stated report of Naib Tehsildar as it was prepared in their absence and no demarcation was conducted on the spot.
5. The learned trial Court framed issues out of divergent pleas of the parties. Evidence was led by both the parties in support of their respective pleas. During the pendency of suit, on the application of the petitioners-plaintiffs, the learned trial Court appointed another local commission namely Alamgir Khan Tehsildar (retired) to demarcate the suit land and submit the report as per direction of the trial Court, who submitted his report dated 4-6-2006 and is Exh.P.W.1/1 to Exh.P.W.115. The report was objected by the respondents-defendants, where after the local commission was examined as CW-1. After hearing to arguments of the learned counsel for the parties, the learned trial Court dismissed the suit of petitioners plaintiffs. Feeling aggrieved, they assailed the judgment and decree of the trial Court but the appeal was also dismissed. Hence, the instant revision petition.
6. The learned counsel for the parties submitted their written arguments. They have also argued to elaborate their written arguments. I have perused the written arguments and considered the submissions of learned counsel for the parties in the light of record.
7. The moot question involved in this revision petition is that as to whether the respondents- defendants have encroached upon the suit property or not?
8. The petitioners-plaintiffs based their claim on the report of a local commission namely Syed Bashir Hussain Shah Naib Tehsildar. He was examined as P.W.6. Since the claim of the petitioners- plaintiffs had not been supported by the material brought on record in the shape of report etc. Of the said local commission," therefore, the petitioners-plaintiffs moved, another application seeking for the appointment of local commission. The respondents-defendants agreed in their Court statement that the local commission may be appointed for spot inspection and demarcation of the suit property in accordance with law. The learned trial Court appointed Alamgir Khan Tehsildar (retired) who submitted his report. Besides, the said report, the Revenue Record has been produced by the petitioners-plaintiffs in support of their claim. The Revenue Record does not suggest that the respondents-defendants have made any encroachment over the suit property. However, it appears from the perusal of Khasra Girdawri (Exh.P.W.1/3) and record of rights (Exh.P.W.1/D-1 to D-3) pertaining to the years 1970-71 to 1994-95 along with Aks Shajra Kishtwar (Exh.P.W.1/D-4) that Khasra No,2303 measuring 12 marla is shown as 'Ghair Mumkin Rasta' and Khasra No,2309 measuring 3 kanal 10 marla as 'Banjar Qadeem' total area comprised in suit Khasra Numbers is measuring 4 kanal 19 marla which is Ghair Mazrooa'. In the column of 'Lagaan' no revenue is shown to have been fixed.
9. The suit property and the surrounding properties have been converted into residential area. The first demarcation report was prepared as per application of the petitioners moved to EAC Revenue but the Revenue hierarchy has no jurisdiction to pass the order of demarcation. The Collector can only direct for the demarcation of agricultural property as per, the provision of section 117 of Land Revenue Act, 1967 and the Rules framed thereunder.
10. Be that as it may, even otherwise the report of local commission is not in accordance with the Rules. The local commission admitted as correct that the original 'Masawi' was not available at the time of demarcation. He further stated that the house constructed in the suit property, as pointed out in Exh.P.W.4/4, is surrounded by boundary wall. He further stated that towards eastern side of the suit property, house of one Sanaullah Khan Miankhel is situated and Khasra No,2303 measuring 12 marla is used as path. According to his report, one kanal 5 marla of land was found in possession of respondents-defendants as encroached area. The learned trial Court appointed Alamgir Khan (Retd) Tehsildar for conducting the demarcation of suit land and that of the respondents- defendants according to the ownership and their possession. He has returned the report which was objected by the respondents-plaintiffs alone. The local commission was examined as CW-1. His report is Exh.C.W.1/1 to Exh.C.W.1/5, according to which, the respondents- defendants were found in one kanal encroached area in their possession. The witness, in his cross- examination, admitted that it was a cursory measurement which was made in absence of the Patwari Halqa of the said revenue estate. He further stated that a bungalow has been constructed in one Khasra number and another Khasra number is used as Nth and in third one, the boundary wall and a small room of Yasin have been constructed. In between the house of Abdur Rashid and said bungalow, plot of Ghulam Yasin is situated in which a Kotha has been constructed. He further admitted that in the light of Photostat Masawi' the measurement of suit property was made cursorily and no extract from the Revenue Record has been annexed with his report.
11. The material and common defect in both the reports is that the building situated over the suit property has neither been measured nor to this effect, any detail has been provided. More so, the exact pointatioin of the constructed area has not been shown in both the Aks Masawi. For want of actual measurement and its full detail, the proper area either underneath the house or of the rest of the suit property is not ascertainable, therefore, it cannot he said with certainty that how much area is in possession of the petitioners-plaintiffs and if it is less than their entitlement, who has encroached upon it, as there are other contiguous owners having their constructed properties adjacent to the suit property. The highlighting of this fact in the reports was necessary for the reason that in the Revenue Record, the house has not been shown anywhere in disputed Khasra numbers.
12. Viewing the above stated aspect of the case in the light of the provision contained in Order VII Rule 3, C.P.C, it transpires that the description of the property is essentially to be given in the plaint to identify the same, if the property is not ascertainable from Khasra number as shown in the Revenue Record.' In the alike circumstances, the petitioners- plaintiffs must have described the exact pointation of the encroached area allegedly found in Khasra No,2309 measuring 3 kanal 10 marla and another Khasra No,2307 comprised of an area of 17 marla but they failed to mention the same in the plaint with its full particulars, as such, the maintainability of the suit itself has become doubtful. Furthermore, both the demarcation reports are inconsistent about the area allegedly encroached upon by the respondents-defendants. The petitioners-plaintiffs have filed the suit on the basis of earlier report, but they failed to prove the same in accordance with law, inasmuch as the subsequent report has also been rejected by the learned trial Court being not in accordance with the true factual position as discernable from tile record, thus cause of action would also yet to be established. Reliance may be placed on the case of Muhammad Qasim v. Bashir Ahmad and 2 others (PLD 1991 AJK 1).
13. The respondents-defendants in their written statement have asserted that they have acquired the title in the suit property through registered sale deeds but the petitioners-plaintiffs have not challenged their title deeds in their plaint. This is another defect fatal to the suit of the petitioners- plaintiffs.
14. The petitioners-plaintiffs in support of their claim, did not appear in Court, however, Saeed ur Rehman, attorney of the petitioners-plaintiffs was examined as P.W.7 who was unaware of the true facts of the case and could not stand the test of cross-examination. Anyway, he candidly admitted that "it is correct that the houses and the boundary wall have been constructed by the defendants in their own ownership."
' He further admitted as correct that the property of the petitioners-plaintiffs and that of the respondents-defendants are separated by a path which is being used by the people at large. He further stated that the path is 12 feet wide. He admitted it correct that the suit property is surrounded by houses and Yasin respondent-defendant has no house in the suit property, however, his Kotha may be situated at a distance of 13 marla from the plot of Sanaullah Miankhel (contiguous owner to the suit property).
15. Both the learned Courts below, after their detail discussion on each and every factual and legal aspect of the case, returned their findings by non-suiting the petitioners-plaintiffs. While deeply scrutinizing the record of the case, this Court could not find any illegality or irregularity much less jurisdictional error in the judgments and decrees passed by both the Courts below. The judgments and decrees of the Courts below are maintained and resultantly, the instant revision petition being without any substance is hereby dismissed, leaving the parties to bear their own costs.