MUHAMMAD AMEER BHATTI, J. --- This civil revision has arisen from the litigation launched by the present petitioners against the respondent. By way of filing a suit for declaration with permanent injunction for closing the passage passing through the land owned by respondent. This suit was resisted by the respondent by filing written statement wherein he has denied even the existence of the passage in his land. From the divergent pleadings of the parties, five issues were framed and then the parties led their evidence. Plaintiff produced two PWs including himself and also brought on record the documentary evidence Exh.P.1 to P.8. Likewise, defendant appeared himself as Exh.D.W.1 to substantiate his version and also tendered documentary evidence in the shape of Exh.D. 1 to D.4. The learned Trial Court after concluding the trial, decreed the suit on the basis of issue No. 1. The judgment of the learned Trial Court was assailed in appeal by the respondent and same was allowed by reversing the finding on issue No. 1. Hence, this revision petition.
2. 1 have heard the learned counsel for the parties at some length.
3. On bare reading of the judgment of both Courts below, I find that the learned Trial Court decided the issue No. 1 on the basis of the order of the Deputy Commissioner passed in the vague litigation initiated by the parties under Section 133. Cr.P.C. About the same dispute, existence of path, wherein he has permitted to use the path temporarily till the decision of the civil suit pending before the learned Trial Court. This order is available in the record as Exh.P.6 and the suit was decreed by the learned Trial Court. By relying on the observation made by the Deputy Commissioner in this order.
However, the learned 1st Appellate Court relying on Exh.D.2, the order passed by Mr. Muhammad Akram Zaki, Addl. District Judge. Sargodha. Who set aside the order of the Deputy Commissioner dated 26.05.1998, reversed the finding on issue No. 1 by holding that the order dated 26.05.1998 relied upon by the learned Trial Court did not hold the field, hence the suit cannot be decreed on the basis of that order.
4. I further find out that both the Courts below have not decided the issues by taking into consideration, the other evidence available on the record. There seems to be one-point agenda. If the learned 1st Appellate Court was of the opinion that issue No. I had been decided by the learned Trial. Court on the basis of the order dated 26.05.1998 without touching the other evidence available on the record then after setting aside the order of the learned trial Court, the case ought to have been remanded to the learned Trial Court for its fresh decision but instead of that, the learned first Appellate Court, while reversing the finding of the learned Trial Court, dismissed the suit of the present petitioners. I have also scrutinized the available evidence of both the parties with the assistance of the learned counsel for the parties. I come to this conclusion that the case has been dealt with by both the sides in a slipshod manner. Even if 'the parties had not filed an application for appointment of local commission. This power could have been exercised by the learned Trial Court itself to dig out the correct position at the spot. Since it is matter of public importance as the thoroughfare is required for public use and if it has been used earlier for a long time then it must continue to be used in that manner as required under the law. It' the path/passage were in an inaccessible position at the time of filing of suit, C.L.R. then position would have been different but this aspect could have been determined after summoning at least the report of the local commission. There is one 'document available on 'the record of Exh.P.3 the "khasra girdawari which shows "ghair mumkin rasta" which relates to "rabi"
1997, so it is appropriate. Without commenting on the evidence available on the record. Which is otherwise sufficient to justify the remand of the case to the learned Trial Court for decision afresh.
After observing the guidelines given Supra and after providing another opportunity of adducing the evidence to both the parties.
5. For what has been discussed above, this petition is allowed The judgments and decrees of both the Courts below are get aside. The case is remanded back to the learned Trial Court, which shall decide the same strictly in accordance with law within a period of six months from taking the charge of this case. Parties are directed to appear before the learned District Judge on 26.10.2011. Who shall entrust this case to the learned Civil Judge for holding the trial. With this observation, this petition stands disposed of.