MUHAMMAD FARRUKH IRFAN KHAN, J Through the instant civil revision the petitioners have assailed the judgment and decree dated 31.10.2012, passed by the learned Additional District Judge, Bahawalnagar and judgment and decree dated 28.9.2012 of the learned Civil Judge, 1st Class, Bahawalnagar, through the former judgment appeal of the petitioners was dismissed whereas through the latter suit of the respondents for possession was decreed.
2. Facts, in brief, are that the respondents claiming themselves to be the owners of disputed land situated in village Minchinabad and Surajpura, filed a suit for its possession under Section 8 of the Specific Relief Act, 1877 against the petitioners, on the ground that the said land was initially handed over to them for using as a temporary residence has illegally been encroached upon by the petitioners. The suit was resisted in which written statement was filed by the petitioners. The petitioners denied the claim of the plaintiffs/respondents and contended that they are owners of the land in dispute by virtue of registered sale-deeds dated 24.6.1984 and 18.2.2009. Out of the divergent pleadings of the parties, the learned Trial Court framed issues. Alongwith the suit the respondents also filed an. Application for temporary injunction which was allowed. The learned Trial Court, vide order dated 1.6.2010 appointed the Assistant Collector-I/Tehsildar, Minchinabad as a local commission for demarcation of the land in dispute, who submitted his report on 24.2.2011.
The report of the local commission was objected to by the petitioners. However, the learned Trial Court rejected the objections and vide order dated 20.6.2011 confirmed the temporary injunction.
The petitioners challenged the orders dated 7.4.2011 and 20.6.2011 in appeal before the learned Additional District Judge, Minchinabad who disposed of the same on 25.10.2011 in the following terms:- "After addressing the Court at some length they have reached the agreement that the instant revision petition be accepted setting aside the impugned order dated 7.4.2011 with the direction to learned lower Court that fresh commission be issued to Revenue Off icer/Tehsildar, Bahawalnagar for local investigation/demarcation in collaboration with Mian Khalid Mehmood Wattoo, Advocate, President Bar, Tehsil Minchinabad. Report of the local commission will be accepted by the parties and will be binding on them paving the way for decision of the case accordingly. This process may be completed within thirty days. It has been further suggested that fee of the local commission shall be borne by both the. Parties equally.
2. In view of the above agreement and conceding statements of the parties the instant revision petition is accordingly allowed and the impugned order dated 7.4.2011 is set aside. It is directed that fresh commission shall be issued to the above-named persons for local investigation/demarcation under, Order XXVI, Rules 9, 10, C.P.C. And other enabling provisions of law. Such report will be binding on the parties not to be objected upon according to which the learned lower Court will proceed to decide the matter. File be consigned to record room after its completion."
Pursuant to the above order, Tehsildar Bahawalnagar was appointed as a local commission in collaboration with Mian. Khalid Mahmood Wattoo, Advocate/President Tehsil Bar, Minchinabad. The above-said local commission submitted his report on 21.12.2011. The petitioners raised certain objections to the report of the local commission. The learned Trial Court rejected the objections, vide order dated 10.7.2012 and decreed the suit on the basis of the said report of the local commission on 28.9.2012.
The judgment and decree dated 28.9.2012 was assailed before the lower Appellate Court; which was dismissed, vide judgment and decree dated 31.10.2012. Hence, the instant civil revision.
3. Learned counsel for the petitioners contended that the purpose of appointment of a local commission by the learned Trial Court as well as by the learned lower Appellate Court was with reference to disposal of application for grant of temporary injunction; that there was nowhere direction of the learned lower Appellate Court in the order dated 25.10.2011 for final decision of the case on the basis of the report of the local commission; that by deciding the case while relying upon the .Report of the commission the learned Trial Court has committed a grave illegality as such its judgment and decree is not sustainable under the law; that dispensing with the recording of evidence and decreeing the suit of the respondents only on the basis of report of the local commission has resulted in miscarriage of justice and the petitioners have been condemned unheard; that issues were framed after receiving report of the local commission,-hence, it was incumbent upon the learned Trial Court to record evidence of both the parties and then to decide the main case but in the present case the suit has been decided in a mechanical manner; that the main controversy between the parties was with regard to the ownership of the land in dispute, which could only be determined after recording evidence of both the parties; that the local commission had, travelled beyond his authority by reporting that the plaintiffs/respondents were owners of the disputed land; that the alleged agreement and conceding statement of the parties made on 25.10.2011 as being a restriction imposed for seeking remedy against report of the local commission, was against law and the public policy and could not be pressed into by either of the parties, relies on the case of Sardar Muhammad Yasin Khan, Advocate v. Raja Feroze Khan (PLD 1972 AJ&K 46); that even the demarcation was not validly conducted by the local commission, and his report is silent on the point as to whether he had sought guidance, from the field map prepared during last settlement, prior to conducting demarcation; that the suit was not maintainable as the land in dispute was situated in a joint khewat and possession could be sought only by filing suit for partition, relies on the case of Muhammad Shafi and 2 others v. Munshi and 3 others (1979 CLC 230); and that the report of the local commission was not exhibited during the trial and this fact alone is sufficient to set aside the judgment and decrees of the Courts below.
4. Conversely, the learned counsel for the respondents submitted that order dated 25.10.2011 was passed by the learned lower Appellate Court with the consent of the parties, in presence of their learned counsel and as such had a binding effect on both the parties; that the learned Trial Court rightly decreed the suit on the basis of the report submitted by the local commission, which was appointed in compliance with the order dated 25.10.2011; that as the local commission was appointed with consent of the parties and they had voluntarily agreed to be bound by his report, he had actually performed his duties as a referee and not a local commission, relies upon the case of Barkat Masih v. Barkat Bibi and 3 others (1999 YLR 1215); that report of the local commission in view of the agreement of the parties not to dispute the same was a sufficient ground to decide the suit finally, referred Ashiq Hussain and others v. Muhammad Yasin (2003 CLC 890) that the petitioners were estopped by their words and conduct to dispute the report of the local commission; that the land in dispute does not, fall in a joint Khata, therefore, suit for possession was competent.
5. Arguments heard. Record perused.
6. The main controversy between the parties related to the ownership of the land in dispute. Both the parties had been claiming ownership of the same on the basis of their title documents. The respondents denied the claim of the petitioners that they are owners in possession of the land in dispute by virtue of registered sale-deeds. Apparently, it was a matter in which location of the lands owned by the parties was to be determined. To ascertain the exact location of the land of both the parties the learned Trial Court had felt the necessity of demarcation at the site. In this regard the first and then second local commission, as per order dated 25.10.2011 were appointed.
Report of the local commission, Tehsildar, Bahawalnagar has been perused. It is signed by Mr. Khalid Mehmood, Advocate/President Tehsil Bar, Minchinabad, Girdawar Halka and Patwari Halka.
In the report of the local commission it is stated that according to Register Haqdaran Zamin for the year 2009-2010 disputed land falls in Khata No. 365, Mauza Minchinabad and according to Register Haqdaran Zamin for the year 20102011 it comes within Khata Nos. 83, 91, of Mauza Surajpura, Tehsil Minchinabad, District Bahawalnagar. It is Also reported that according to Register Haqdaran Zamin for the year 2010-11 the petitioners/defendants were shown owners in Khata No. 1, measuring 2 kanals, 1 marla. The report further states that in Khata No. 1 Rectangle No 453/13, Killa' Nos.4 and 5 do not exist. A bare perusal of the order dated 25.10.2011 shows that the local commission was appointed just to know the exact location of the property in dispute. It is not understandable as to how on the basis of the said report the suit of the respondents could have been decreed, rejecting the objections raised by the petitioners. The learned Trial Court has failed to take into account the legal. Scope of appointment of a local commission and status of his report for the purposes of deciding the suit. The case of Barkat Masih (supra) has no application to the present case for the reason that firstly, in the instant litigation the parties have not agreed to be bound by the report of the local commission and secondly it did not qualify as an opinion of the referee. In any eventuality this Court is unable to subscribe to the view taken in the case of Barkat Masih' (supra) for the reason that a referee is someone who is required to make statement on his knowledge or belief whereas a local commission appointed under Order XXVI is to report the factual condition at site after carrying out spot inspection. The role of a referee and that of a local commission are not interchangeable in any circumstances. In this respect this Court is fortified by the judgments cited as Muhammad Hanif Khan and another v. Ghulam Farid Khan and others (PLD 1988 Lahore 250) and Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763). In both the cited cases role of the "referee" and that of a "local commission" has been distinguished and it is concluded that the person appointed as a "Referee" is required to make a statement on the basis of his knowledge and belief whereas an "Arbitrator" has to decide a dispute after hearing both the parties and examining the record produced before him by the parties in support of their respective claim. Admittedly, the report of the local commission does not per se form part of the record. It is thus expedient to reproduce Order XXVI, Rules 9 and 10 of the C.P.C. Hereinbelow:--- "9. Commission to make local investigation. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual not profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the [Provincial Government] has made rules as to the persons to. Whom such commission shall be issued, the Court shall be bound by such rules."
"10. Procedure of Commissioner.-- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
(2) Report and depositions to be evidenced in suit.
Commissioner may be examined in person. The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the commissioner personally in open Court touching any of the matter referred to him or mentioned in his, report or as to his report, or as to the manner in which he has made investigation."
A careful perusal of the above provision of law shows that the report of the local commission may form part of the record but the parties are at liberty to examine the local commission. The report together with the evidence recorded by the local commission is legal evidence in the suit but the said evidence is always subject to the rights of the other party to prove it to be correct or incorrect in accordance with law. Similarly it is also a settled law that a report of a local commission cannot be relied upon without disposing of the objections to the report. Reliance in this regard is placed on A.I Hassan v. Sher Muhammad and another (2007 CLC 969) and Muhammad Yousaf alias Bala v.
Khuda Dad and 11 others (2004 MLD 1107). Both the Courts below have also failed to take notice of the fact that report of the local commission despite being evidence in the suit is not binding on the Court which may arrive at its own conclusion on the basis of evidence on the record. Reliance in this regard is placed on the cases of Abdul Shakoor v. Muhammad Zafarullah Khan and others (2007 CLC 1661), Azim Khan and 3 others v. Muhammad Akbar and 13 others (2006 YLR 2513) and Mushtaq-ur-Rehman and 4 others v. Muhammad Akbar and 5 others (1981 CLC 364).
7. The impugned judgments and decrees were passed in a mechanical manner without adverting to the fact that a report of the local commission was only solicited for the purpose of grant of otherwise of the interim relief. The order dated 25.10.2011 was clearly passed in appeal/revision questioning the order dated 20.6.2011 confirming temporary injunction in favour of the respondents. Ordinarily the said report could only be utilized for deciding the limited question of temporary injunction. Although the parties were free to rely upon the said report and to prove the same during the course of trial.
8. For the foregoing reasons, it is held that the impugned judgments and decree are not sustainable in the eye of law and are, therefore, set aside. Resultantly, the instant civil revision stands accepted, leaving the parties to bear their own cost.
Civil revision .