' AMIN-UD-DIN KHAN, J.---This civil revision has been filed to call in question the judgment and decree dated 19-6-2004 rendered by the learned Additional District Judge, Faisalabad whereby, the appeal filed by the petitioners-defendants was dismissed while appeal filed by the respondents-plaintiffs was partially accepted against the judgment and decree dated 29-7-2002 handed down by the learned Civil Judge 1st Class, Faisalabad whereby a suit for possession and recovery of mesne profits filed by respondents-plaintiffs was decreed to the extent of possession while it was dismissed to the extent of mesne profits.
2. The facts giving rise to the present revision petition are that the plaintiffs-respondents filed a suit for possession of portion of Property No, 173 fully described in the plaint and also claimed mesne profits of the suit property. Mainly the case of the plaintiffs-respondents was that the defendants- petitioners have encroached upon portion of the property. The suit was contested by the petitioners-defendants who filed written statement denying the averments of the plaint. Upon the divergent pleadings of the parties the following issues were framed by the learned trial Court:-
(1) Whether the plaintiffs have no right and locus standi to file this suit? OPD
(2) Whether this suit is liable to be stayed under section 10, C.P.C.? OPD.
(3) Whether the defendants are entitled to retain the possession of the suit property by maturing their right of adverse possession? OPD.
(4) Whether this suit is time-barred? OPD.
(5) Whether this court lacks jurisdiction to try this suit? OPD.
(6) Whether this suit is false and frivolous and defendants are entitled to special costs under section 35-A of C.P.C.? OPD.
(7) Whether the order of Settlement Commissioner dated 14-12-1976 is illegal, unlawful, against facts, against law, void and inoperative upon the rights of the defendants? OPD.
(8) Whether the plaintiffs are entitled to the possession of the suit property as prayed for? OPP.
(9) Whether the plaintiffs are entitled to the possession of the suit property and mesne profits at the rate of Rs,1000 per month since institution of the suit? OPP.
(10)Whether the plaintiffs are entitled to recover the mesne profits of six years prior to the institution of the suit at the rate of Rs,500 per month? OPP.
(11) Relief.
' Thereafter, the parties led oral and documentary evidence in support of their respective stands.
3. After considering the oral and documentary evidence of the parties and hearing arguments of the learned counsel for the parties the learned Civil Judge 1st Class, Faisalabad decreed the suit of the plaintiffs-respondents to the extent of possession while it was dismissed to the extent of mesne profits and the defendants-petitioners were directed to surrender the possession of the suit property within one month, vide judgment and decree dated 29-7-2002. Feeling aggrieved by the said judgment and decree of the learned trial Court both the parties went in appeal, vide consolidated judgment and decrees dated 19-6-2004, the learned 1st Appellate Court-learned Additional District Judge, Faisalabad dismissed the appeal filed by the petitioners-defendants whereas the appeal filed by the plaintiffs-respondents was partially accepted. Hence, this Civil Revision.
4. The learned counsel for the petitioners-defendants contends that the plaintiffs-respondents are successors of the original owner of 1/3rd of the property mentioned in the plaint, their claim is on the basis of the order passed by the Deputy Settlement Commissioner dated 14-12-1976 which has been produced as Exh.P.1 while by this order identification of the property allegedly encroached by the petitioners-defendants is not identifiable. It is further contended by the learned counsel for the petitioners-defendants that the plaintiffs-respondents moved an application for permission to produce secondary evidence with regard to the site plan annexed with as Exh.P.1 but after that without any reason produced Exh.P.3 allegedly site plan annexed with the decision of the Deputy Settlement Commissioner as Exh.P.3, even this site plan does not show the partition of the suit property. Learned counsel has referred the contents of the site plan as well as note given on the side of this site plan. Further states that there is no mention of possession as well as 1/3rd portion allegedly given to Makhdoom Syed Nazar Hussain Shah predecessor of plaintiffs-respondents. It is also contended that this site plan was not per se admissible which has been produced through the statement of the learned counsel and prayed that the plaintiffs-respondents have miserably failed to prove their case, therefore judgments and decrees passed by both the courts below be set aside, suit be dismissed with costs throughout. Learned counsel has relied upon 2012 SCM R 196 (Sved Mahboob Shah v. Tehsil Nazinz, Pishin and another) to contend that the dispute between the parties could be resolved by demarcation of the suit property by appointment of local commission.
It is also contended that both the courts below have not decided that how much property has been encroached upon by the defendants-petitioners? Learned counsel has also relied upon the following cases-law:-- 1987 CLC 659 [Lahore] (Niaz Ahmad v. Fida Muhammad)
' 1989 MLD 3651 [Lahore] (Hussain and others v. Faiz Muhammad and others)
' 1989 CLC 1 [Lahore] Noor Hussain v. Fauji Foundation (Hospital), and ' 2003 MLD 1430 [Lahore] Jane 'Margrat William v. Abdul Hamid Mian.
5. On the other hand, learned counsel for the respondents while referring the judgment of august Supreme Court of Pakistan dated 5-4-1974 passed in Civil Petitions for Special Leave to Appeals Nos.352 and 353 of 1973 has stated that the matter was resolved between the parties and predecessor of the plaintiffs-respondents namely Makhdoom Syed Nazar Hussain was declared owner of 1/3rd of the suit property, the relevant portion of the said para is reproduced as under:- "xxxx There is thus little substance in both the petitions except to observe that in effecting partition of the two buildings, the claim of the petitioner to receive 1/3rd share in the frontage may be kept in view. In case he is not given any share in the frontage of the two buildings he may be compensated by allocation of a larger share in the back portion. The manner in which the partition will be affected nevertheless will be the exclusive discretion of the Settlement authorities."
' It is further contended that after partition by the Deputy Settlement Commissioner through Exh.P.1, the petitioners-defendants challenged the same through various writ petitions and even the matter again referred to the august Supreme Court of Pakistan and the same was decided against the petitioners-defendants. It is next contended that the plaintiffs-respondents have fully proved their case pleaded by them and there are concurrent findings recorded by the courts below. The learned counsel with regard to the mesne profits has relied upon 2007 YLR 2212 [Lahore) (Mst.
Bilquis Bequnz and others v. Khalid Hameed Khan and others).
6. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record with their assistance with due care and caution.
7. I believe that there is no dispute with regard to the title of 1/3rd of the suit property of the plaintiffs-respondents. The real controversy between the parties is whether the petitioners- defendants have encroached upon the property of the plaintiffs-respondents or not? For proving the same the plaintiffs-respondents were bound under the law to specifically prove the partition of the suit property 17 metes and bounds and then to prove the encroachment of the petitioners- defendants upon the property falling in their share. When confronted to the learned counsel for the plaintiffs-respondents that whether in Exh.P.3, he can show the portion with calculation of 1/3rd of the whole of the property as claimed by the plaintiffs-respondents and whether there are marks of the share of each share-holder as ABCD, as has been marked in the order of the Deputy Settlement Commissioner dated 14-12-1976. Learned counsel has frankly admitted that in this site plan specific portion of the plaintiffs-respondents is not mentioned and further that marks ABCD mentioned in the order of the Deputy Settlement Commissioner are also not available on this site plan. Without going into the admissibility of this site plan an objection has been raised by the learned counsel for the petitioners-defendants that this site plan is otherwise not helpful to the plaintiffs-respondents.
8. This being so, as the pivotal point in issue in the suit has not been concentrated upon by the parties and to prove the actual matter in issue or question determinable by the courts no proper evidence has been produced by the parties, therefore, further discussion on evidence or merits of the case may not prejudice the case of either of the parties as valuable rights of the parties are involved in this lis and the matter in issue is very old one. Therefore, in the interest of justice, I deem it appropriate to set aside both the judgments and decrees passed by both the courts below as the same do not match with the evidence available on the file and remand the case in the light of the judgment referred by the learned counsel for the petitioners with the direction to the learned trial court to re-determine the real question in issue between the parties after appointing local commission for site inspection and preparation of the site plan and measurement of the whole of property No,173 and to show actual possession of the parties on the portion of the property, as it is admitted between the parties that the plaintiffs-respondents are owners of 1/3rd of the property mentioned in the plaint and share of the parties is not in dispute. Therefore, the only question determinable by the courts was to get whole of the property measured and to get the site plan prepared with measurement and then to determine as to whether the defendants-petitioners are in possession of the portion of the suit property. For this purpose any Engineer from the Building Department can be appointed as local commission as in the administration of justice it is the primary duty of the court to reach to a right conclusion and to take the aid of all the permissible means if the court requires any further evidence, the parties may be invited to produce evidence for reaching upon a right conclusion.
9. For what has been discussed above, this civil revision is accepted and the judgments and decrees passed by both the courts below are set aside and the case is remanded to the learned trial Court in the light of the observations made above by this Court.