' MALIK MANZOOR HUSSAIN, J.--- This revision petition is directed against judgment and decree dated 10-7-2012, passed by learned Additional District Judge-I/Izafi Zilla Qazi, Chitral, whereby the appeal filed by petitioners was dismissed and judgment and decree dated 18-6-2011, passed by the dial Court, had been maintained.
2. Briefly, the facts of the case are that the petitioners/plaintiffs filed a suit for declaration, possession and permanent injunction, fully described in the heading of the plaint. The suit was contested by respondents and after conclusion of trial, the learned Trial Court dismissed the suit of petitioners. Being dissatisfied the petitioners preferred appeal and the same has been dismissed through the impugned judgment, hence the instant revision petition.
3. Learned counsel for petitioners contended that the petitioners through cogent evidence have proved that the suit property was ancestral property of late Haji Bola Khan, which devolved upon the petitioners after his death. It was also contended that both the learned Courts below failed to properly appreciate the fact that the property was temporarily given to the respondents by Haji Bola Khan. He further contended that the respondents have got no concern with the ownership of suit property and the deed dated 7-12-1984, relied upon by the respondents was forged and fictitious one. Lastly, learned counsel for petitioners contended that the petitioners filed application for appointment of commissioner to ascertain the boundaries of the disputed land and the same has wrongly been dismissed by learned Appellate Court.
4. Conversely, learned counsel for respondents, by supporting the judgments of both the Courts below contended that the suit property was purchased by the respondents through deed dated 7- 12-1984, from Haji Bola Khan and are in possession of the same as owner from the date of purchase. He further contended that the respondents proved the deed through cogent evidence and the fact of execution of deed, was duly admitted by witnesses of petitioners.
' Arguments heard, record perused.
5. Perusal of record reveals that deed dated 7-12-1984, was duly executed by the predecessor in interest of petitioners (Haji Bola Khan) A for a sale consideration of Rs.50,000. The boundaries of the disputed land were duly mentioned in the deed and after taking possession, the respondents not only improved the land by spending huge amount but they have constructed their houses. The graveyard of respondent is also situated in the suit land and the respondents also planted fruit bearing trees from last 30 years in the suit land. In order to prove the deed dated 7-12-1984, the respondents produced the scribe and the marginal witnesses as DW.2 and DW.3, who supported the execution of deed and the transfer of possession. On the other hand not a single witness or document had been produced by petitioners in order to prove the contention of petitioners. The petitioners also failed to prove the fact that they have given the property in dispute to the respondents temporarily or as Sadqa (gift). This Court has also noticed that the site plan (Zamima) annexed by respondent along with written statement, wherein the boundaries of property and descriptions were fully given, had not been denied by the petitioners during trial. This document is available on file as Exh.DW.1/3.
6. As far as contention of learned counsel that the learned Appellate Court was bound to allow the application of petitioners for appointment of local commissioner is concerned, this Court cannot agree with the proposition developed by the petitioners.
7. It is well-settled that Court has the .Discretion to order a legating section under Order XXVI, Rule 9, C.P.C. But the language of Order XXVI, Rule 9, C.P.C. Clearly establishes the fact that the same is discretionary and not mandatory. It is settled principle of law that in case the controversy can be resolved by producing evidence by the parties, then spot inspection through local commission is not permissible. Reliance can be placed on "Nazir Ahmad and others v. Muhammad Qasim and others" 2004 SCM R 1292, "Dr. Tahir Mehmood Awan v. Tariq Mehmood and others" 2006 M LD 1457 and "Jalal Khan and 10 others v. Kando Malik and 24 others" 2003 SCM R 1351.
8. Both the Courts below have properly thrashed the material available on file and correctly applied the law while delivering the impugned judgment. It is well-settled that concurrent findings of fact could not be disturbed in revisional jurisdiction of this Court until and unless the impugned judgment is perverse or patently illegal.
' In view of what has been discussed above, this petition being devoid of merits, is dismissed.