' MUHAMMAD AZAM KHAN, C.J.---The captioned appeal with the leave of the Court arises out of the judgment and decree of the High Court dated 23rd January, 2009, whereby Civil Appeal No,164 of 2006 filed by respondents herein has been accepted and the judgment and decree of the Additional District Judge Dudyal has been set aside.
2. The plaintiff-appellant filed a suit for recovery of possession of land measuring 1 marla, 1 sarsahi, comprising survey No,754, situate in village Balote, Tehsil Dudyal, in the Court of Civil Judge Dudyal on 17th January, 2005. He alleged in the plaint that the defendants-respondents have encroached upon the land, constructed a wall and are using the same as a passage. After necessary proceedings, the trial Court dismissed the suit on 22nd July, 2005. The plaintiff-appellant filed an appeal in the Court of Additional District Judge Dudyal. The appeal was accepted and the suit of plaintiff was decreed on, 19th January, 2006. Dissatisfied from the judgment and decree of the Additional District Judge, the defendants-respondents filed an appeal in the Azad Jammu and Kashmir High Court on 6th March, 2006. A learned single Judge in the High Court accepted the appeal vide impugned judgment and decree on 23rd January, 2009.
3. Raja Saadat Ali Kayani, Advocate, the learned counsel for the appellant, argued that the judgment and decree of the High Court is against the facts and law. The learned Judge in the High Court accepted the appeal against the record without adverting to the evidence on record. The documentary evidence placed on record was not considered in true perspective.
4. Ch. Jahandad Khan, the learned counsel for respondents Nos. 1 to 4, defended the judgment and decree of the High Court on all counts. He argued that issues Nos.5 and 6 were pivotal issues in the whole case. After going through the documentary as well as the oral evidence the trial Court correctly dismissed the suit of the plaintiff-appellant and the High Court drew the correct conclusion while restoring the judgment and decree of the trial Court. The learned counsel further contended that the suit of the plaintiff was ambiguous and a decree of possession cannot be passed in favour of the plaintiff.
5. Arguments in the case were previously heard on 23rd June, 2011. At the time of recording the judgment, we noticed that the plaintiff in addition to oral evidence also produced documentary evidence consisting of report of Patwari, Exh.PB, along with site map, Exh.PC. The report of Tehsildar, Exh.DB was also tendered in evidence on behalf of defendants, respondents herein. We noted that there appeared some ambiguity in the reports, therefore, Tehsildar Dudyal was directed to get the suit land (survey No,754) measured under his own supervision and submit spot inspection report to the effect that whether 15 marlas of land is in occupation of plaintiff-appellant or not? It was also directed that the spot inspection and measurement shall be conducted by Tehsildar in presence of parties: Tehsildar Dudyal submitted report in the Court and the case was fixed for arguments on 28-11-2012. The learned counsel for the parties relied on the arguments already advanced on the last date of hearing.
6. We have heard the learned counsel for the parties and perused the record including the report of Tehsildar. The plaintiff-appellant filed a suit for recovery of possession of land measuring 1 marla, I sarsahi, out of total land measuring 15 marlas, comprising survey No,754, situate in village Balote, Tehsil Dudyal. It was alleged in the plaint that the defendants, respondents herein, have encroached upon the land on 22nd December, 2004 and occupied the land measuring 1 marla, 1 sarsahi by force and without any right. The measurement of the suit land in the plaint is shown as under:--{{URDU TEXT}} ' It was alleged that the defendants have constructed 3 feet high stone wall and are using it as a passage. It was further alleged in the plaint that the defendants have constructed a 'house on Northern side of the land in dispute about a year ago and have occupied the land of the plaintiff by force which they are using as a path. In the written statement, the defendants claimed that the report filed by the Patwari is fake, fictitious and is the result of collision. They have not encroached upon the land of the plaintiff. The land is a public way which is in use of the habitants of whole village. The plaintiff produced oral as well as documentary evidence in the shape of report of Patwari and site plans (Aks-Masavi) were also produced. The defendants produced oral evidence as well as the report of Tehsildar in evidence. The trial Court dismissed the suit, but the Additional District Judge while accepting the first appeal, decreed the suit. Resultantly, a decree for possession was issued in favour of the plaintiff-appellant.
7. The sole point for determination is whether the plaintiff is owner of land measuring 15 marlas, comprising survey No,754, khata No,663/3/241, khewat No,35/4 situate in village Balote, and the defendants have encroached upon the land measuring 1 marla, I sarsahi. To prove his case, apart from oral evidence, the plaintiff produced Patwari, Abdul Waheed, in evidence and also produced report, Exh.PB, according to which the defendants have encroached upon the land which is in the ownership of the plaintiff. The ownership of plaintiff is proved from the copy of record-of-rights pertaining to year 2001-2002, Exh.PD. Patwari also proved the possession of plaintiff through Khasra girdawri, Exh.PE, pertaining to year 2004 wherein the plaintiff is entered as owner in' possession of the land. It is proved from the record and statement of plaintiff that he is in ownership of land measuring 15 marlas, comprising survey No,754. The learned Judge in the High Court has discarded the report of. Patwari on the ground that under section 117 of the Land Revenue Act, Patwari is not competent to make demarcation of the land and the report has no evidentiary value.
8. In the Azad Jammu and Kashmir, initially Punjab Land Revenue Act, 1887 (Act XVII of 1887) was in force which was repealed vide AJ&K Adaptation of Laws Act, 1988 and the West Pakistan Land Revenue Act, 1967 was adapted. Section 117 of the West Pakistan Land Revenue Act, 1967 deals with the powers of Revenue Officer to define boundaries. We deem it appropriate to reproduce section 117 which is as under:-- "117. Power of Revenue Officer to define boundaries.---(1) A Revenue. Officer may, for the purpose of framing any record or making any assessment under this Act, or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or repaired.
(2) In defining the limits of any land under subsection (1) the Revenue Officer may cause, boundary marks to be erected on any boundary already determined by, or by order of, any court or Revenue Officer or any Forest Settlement Officer appointed under the Forests Act, 1927 (Act XVI of 1927), or restore any boundary mark already set up by, or by order of any Court or any such Officer."
' Section 117 vests the power of demarcation in the Revenue Officer for the purpose of framing any record or making any assessm ent under the Land Revenue Act. The Revenue Officer is also authorized to define the limits of any estate or of any holding, field or other portion on the application of any interested person. The Revenue Officers are defined in section 7 of the West Pakistan Land Revenue Act, 1967, which includes; (a) the Board of Revenue, (b) the Commissioner,
(c) the Collector (d) the Assistant Collector of 1st grade and (e) the Assistant Collector of 2nd grade. The categories of Revenue Officers described in section 7 exclude the Patwari or Qanungo.
Only the officers from Assistant Collector of 1st or 2nd grade upto the Board of Revenue have power to demarcate the land. The question which needs resolution is whether under section 117 it is enjoined upon the Assistant Collector 2nd grade (Tehsildar) to himself proceed to spot for demarcation of land under his personal supervision or he may entrust the matter to a subordinate field staff, i,e, Patwari or Qanungo. The learned single Judge in the High Court has rejected the report submitted by the Patwari on the strength of a judgment of Lahore High Court titled Anwar Club and another v. Muhammad Sarwar (PLD 1992 Lahore 63). In the referred case the suit was decreed while relying upon the report of Naib Qanungo. It was argued before the Lahore High Court that under section 117 of the Punjab Land Revenue Act, 1967, only a Revenue Officer has power to demarcate the land. The Court held that Naib Qanungo was not a Revenue Officer, therefore, he had no authority to make the demarcation in question. The judgment was delivered in the light of rule 67-A of Punjab Land Revenue Rules, 1968 framed under the said Act. Under sub-rule (6) of rule 67-A, the Revenue Officer is bound to demarcate the land under the personal supervision in presence of parties and persons mentioned in clause (c) of sub-rule (4) strictly in accordance with the instructions and standing orders on the subject issued from time to time by the Financial Commissioner and Board of Revenue. The said rule, i,e, 67-A, was added by Punjab Notification No,2313-37/629-LR-I, Gazette, Part III dated 23rd November, 1973. This rule is enforceable only in Punjab.
9. The West Pakistan Land Revenue Act, 1967 along with the Rules has been adapted in Azad Jammu and Kashmir through Act VII of 1988 of the Assembly on 9th June, 1988. The rules framed by the Punjab Government have not been adapted in Azad Jammu and Kashmir. The referred judgment is based on rule 67-A, which provision of law is not in force in Azad Jammu and Kashmir, therefore, reliance cannot be placed on the referred judgment.
10. The Revenue Office is empowered to define boundaries under section 117 of the West Pakistan Land Revenue Act. The procedure for exercising powers by the Revenue Officer is laid down in Chapter IV of West Pakistan Land Revenue Act, 1967. Under section 20(3) of the said Act, a Revenue officer may refer any case which he is empowered to dispose of under this Act to another Revenue Officer subordinate to him for investigation and report and may decide the case upon such report, after .Giving the parties concerned an opportunity of being heard. Under this section it is not necessary for a Revenue Officer to decide each and every case personally which he is empowered to decide. He may refer the case to a subordinate officer. The powers of demarcation are only vested in a Revenue Officer. It is sufficient compliance of provisions of section if a Revenue Officer deputes some field officer, who in his opinion is competent and well conversant in his work to conduct the business of demarcation and define the boundaries. Section 117 starts with the words "A Revenue Officer may". The expression "may" in common parlance is used to denote discretion and permissible sense has also been used in mandatory form. The use of expression "shall" or "may" in an enactment is not always a sure guide in ascertaining whether the legislature intended it to be directory or mandatory, unless the scheme of the Act, the purpose with which it was enacted, the end which it sought to achieve and the possible consequences of doing or filing to do an act are taken into consideration. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction; but not when those directions are followed upon by an express provision that in default of following them, the acts shall be null and void.
Reference may be made to a case reported as Ghulam Hassan v. Jamshaid Ali and others (2001 SCM R 1001) wherein it was observed as under:-- "13. It is an established principle of law that where the Legislature has provided a penalty/consequences for the non compliance, the said provision would be mandatory in nature and where such consequences are not provided it would be termed as directory."
' Section 117 of the West Pakistan Land Revenue Act, 1967 is not clothed with the words of adverse consequences or invalidating effect in case of non-compliance, thus by using the word "may" the intention of Legislature appear that the provision is not mandatory. It was left to the discretion of Revenue Officer whether he himself defines the boundaries or deputes some competent subordinate staff to complete the proceedings for defining the boundaries.
11. Since the power of demarcation vests in the Revenue Officer, the report of demarcation by a subordinate, deputed for the purpose, is not final till it is approved and signed by the Revenue Officer after hearing the parties and application of mind. In a - case titled Sher Ali Khan v. Miram Shah and 26 others (1995 M LD 308). While interpreting section 117 of the West Pakistan Land Revenue Act, 1967 it was observed as under:-- "4. The learned counsel for the petitioner made, two-fold submissions, firstly, that the demarcation proceedings should have been conducted by the. Revenue Officer himself which is, according to them, a requirement of law and secondly, that the" demarcation proceedings have not been properly conducted. With regard to the first contention, he submitted that according to section 117 of the West Pakistan Land Revenue Act, 1967 read with Rule 67-A, the Girdawar Circle or any other official who is not the Revenue Officer is not competent to conduct the demarcation proceedings but it was found that rule 667-A has been added by the Punjab Government in November, 1973 and which rule has not been added or incorporated by the N.-W.F.P. Government and thus it is not applicable to this Province. As regards section 117, though the Revenue Officer has been empowered to define the limits of any estate or any holding or field or other portion of an estate, but it does not mean that the Revenue Officer by himself would go to the spot and conduct the entire proceedings and he could not do the same through any other person well-conversant with the job and of whom he is satisfied to do the same correctly and it cannot be inferred from the section by any stretch of imagination that unless he (the Revenue Officer) has conducted the demarcation proceedings himself, those would be a nullity. What the section conveys is that he is the person who has empowered or authorized to define the limits and on the spot may be through any other person but the final decision would be of his The demarcation report submitted by Patwari on the orders of Tehsildar (Assistant Collector 2nd grade), without being approved by Tehsildar is not reliable.
12. On Court -order Tehsildar submitted demarcation report of Survey No,754. He reported that he inspected the spot in presence of parties and field staff. He also consulted the report submitted by Patwari on 8th January, 2005 regarding survey No,754. He measured survey No,754 while fixing the adjacent survey numbers. The report of Patwari dated 8th January, 2005 was, found correct. He also reported that a passage starts from survey No,752 which goes up to survey No,731. He has marked the same with red ink in the map. He reported that the passage passes through the survey No,752, 2 marlas, through survey No,753, 2 marlas and through survey No,741,. 3 marlas and the same is entered as thoroughfare in the Revenue Record. He also reported that 1 marla land from survey No,754 is being used as a path without entry in the Revenue Record. What transpires from the report is that in the Revenue Record the thoroughfare is entered only in survey Nos.752, 753 and
741. We have also perused the copy of site plan (Aks Masavi) submitted with the report by Tehsildar. A thoroughfare is shown in the said site plan with red ink. It is shown on the Southern side of survey Nos.752, 753 and 741, while survey No, 754 is on the Southern side of the same. The encroached area of survey No,754 has also been shown in the map. The report is clear that the land measuring 1 marla from survey No,754 has been included in the path. It is proved that the plaintiff-appellant is owner of the land measuring 1 marla, which is encroached upon by the defendants by using it as a path. The plaintiff-appellant is entitled for decree of possession. The judgment and decree of the High Court is not sustainable.
13. The result of above discussion is that we accept the appeal, set aside the judgment and decree of the High Court dated 23-1-2009 and restore that of Additional District Judge Dudya1 dated 19-1- 2006.