' MRS. IRSHAD QAISER, J.---This revision petition is directed against the judgment and decree dated 2-2-2011 passed by learned Additional District Judge-Ill, Abbottabad, whereby while accepting the appeal of the present respondents and 'setting aside the judgment and decree dated 9-7-2010 of learned Civil Judge-XI, Abbottabad remanded the case back to the learned trial Court to find out encroachment over the disputed property through Revenue Officer.
2. The brief and essential facts leading to the present petition are that the present respondents instituted Suit No,227/1 of 2003 on 14-4-2003 seeking ejectment of petitioners through demolition of illegal construction made by them in the area of respondents in 'Khasra' No,392 measuring 1 'Kanal'
16 'Marlas' to the extent of 8 'Marlas', 'Khasra' No,400 measuring 1 'Kanal' 9 'Marlas' to the extent of 2 'Marlas' 1 'Kanal' 7 'Marlas', situated in 'Mauza Chamatti' Tehsil and District Abbottabad and in this regard, File No,323/TA titled "Zarina Jan v. Public at Large" decided on 6-11-1999, after demarcation proceedings, was prepared and the respondents were entitled to recover possession of the encroached area so found. The respondents also prayed for permanent injunction against the petitioners restraining them from changing the nature and making further construction in the encroached area found in their possession.
3. The petitioners contested the suit by filing written statement. Issues were framed and evidence of the parties was recorded by the learned trial Court besides recorded by the learned trial Court besides appointment of local commission for spot inspection, whose report was later on rejected by the trial Court and finally the suit was dismissed on the basis of evidence adduced by the parties, vide judgment and decree dated 9-7-2010. Feeling aggrieved, the respondents preferred Civil Appeal No,122/13 of on 18-8-2010, which was allowed vide judgment and decree dated 2-2-2011 and the case was remanded to the trial Court/Civil Judge-XI, Abbottabad. Hence, this revision filed by the petitioners.
4. Valuable arguments of learned counsel for the parties heard and available record thoroughly perused.
5. Perusal of record would reveal that the claim of the present respondents was that petitioners have made encroachment over the disputed property and the said encroachment was found by the revenue authorities after carrying out demarcation proceedings dated 6-11-1999, which is evident from the file bearing No,323/TA prepared by them. The present petitioners relied upon another demarcation report dated 16-11-1998. During the pendency of the suit, Mr. Tanveer Ahmad Mughal, Advocate was sent for spot inspection, who submitted his report. However, the said report was later on rejected by the learned A trial Court. The issue for resolution relates to demarcation of the disputed property through an expert revenue officer to find out encroachment. The learned trial Court itself observed this position in judgment dated 9-7-2010 and directing the respondents that: "Moreover the demarcation is the function of revenue authorities and plaintiffs are still at liberty to move the proper forum for the fresh demarcation of suit property. " When the solution of the problem between the parties is only to confirm the encroachment over the disputed property and possession thereof then the learned Civil Judge was required to have made appointment of another local commission for this purpose. The learned trial Court, while not doing so, has failed to exercise jurisdiction in this regard and has wrongly and illegally dismissed the suit without any just and reasonable cause. It was the contention of the learned counsel for the petitioner that the suit of the respondents was not maintainable as they did not file any application to the revenue authorities for demarcation of the disputed property. However, this contention of the learned counsel for the petitioner is not legally sustainable, as suit for possession on behalf of one co- heir/co-sharer is always considered to be for or on behalf of other co-heirs/co-sharers. Reliance in this regard is placed on 1991 CLC 1197. In any way, once the trial Court has appointed Mr. Tanveer Ahmad Mughal, Advocate for demarcation who submitted his report and the said report was not relied upon being not carried out in accordance with the enabling provisions of the Land Revenue'
Act, 1967, C then it ought to have resorted to appoint a fresh commission in order to resolve the controversy between the parties, as has been rightly observed by the learned Appellate Court in the impugned judgment.
6. This Court finds that the learned Appellate Court has committed no error by remanding the present case vide the impugned judgment and decree dated 2-2-2011, because the peculiar facts and circumstances of the present case in fact require adjudication on merits to resolve the dispute between the parties after demarcation of the disputed property through the Revenue Officer, as directed by the learned Appellate Court in the said impugned order. It was submitted on behalf of the respondents that commission has been appointed by the learned trial Court after remand.
7. Accordingly, for the reasons stated herein above, the present petition being devoid of legal merit is dismissed and the judgment and order of the learned Appellate Court being unexceptionable is upheld and maintained. As this is an old case, this Court directs the trial Court expeditiously proceed and conclude the trial of the case, within a period of six months.
' Parties are directed to appear before the trial Court on 1-3-2014.