'Through this Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1973, the appellant has called into question the validity and legality of order dated 09.06.2009 passed by the learned Single Judge in Chambers of this Court whereby writ petition of respondent No,5 was disposed of in terms of para No,5 of impugned order.
2. Briefly the facts of the case giving rise to the institution of the instant appeal are that respondent No,5 filed a writ petition stating therein that she and Mst. Ishrat Qamar wife of Abdul Aziz residents of Mohallah Hassan Parwana Colony, Multan, first of all jointly bought part of house No,893 Ward No,8-Muslim measuring 3-marlas 10-sq yards situated at Kumhar Mandi Double Phatak Multan for a consideration of Rs,3,20,000/- vide registered sale deed dated 19.07.2003. Thereafter, they also purchased another part of the said house measuring 1-marlas, 20-sq yards for a consideration of Rs,2,00,000/- vide registered sale deed No,3170 dated 07.08.2004. The possession of said portions of property was delivered to them who started living there peacefully and without any interruption or objection from any corner. It is also discernable from the writ petition that respondent No,5 and said Ishrat Qamar being parda observing ladies executed a Special Power of Attorney on 23.04.2008 in favour of one Javed Ahmad. In May, 2007, respondent No,5 and Ishrat Qamar were intimated by the Land Acquisition Collector that the District Government intends to acquire their fore-noted property. On coming to know about the wrong measurement of the said property f 240- square feet, respondent No,5 and Ishrat Qamar moved an application for correction of measurement f 330-square yards, which was allowed, award was announced and compensation was given to respondent No,5 in accordance with law. It is further stated in the writ petition that respondent No,1 at the instance of respondent No, 4 started development work on the passage abutting with the house of respondent No,5 which is exclusively owned by her and is not the part of acquired land. Being aggrieved respondent No,5 moved an application to respondent No,3 praying therein that the action of respondents Nos.1 and 4 be declared to be without lawful authority and without jurisdiction but no action was taken thereon. Consequently, respondent No,5 filed writ petition before this Court, praying therein as under:- "(i) the aforesaid illegal action of the respondents by way of intruding the private personal property owned and possessed by the petitioner may very graciously be declared as without lawful authority, without jurisdiction, ultra vires, misuse of powers, result of hatched up one conspiracy with the collusion of respondent No,4 who has got no link, title or concern with the said property of petitioner.
(ii) The respondents Nos. 1 to 3 may very kindly be summoned in this Hon'ble Court and after explanation from them that on what capacity and authority they committed such an illegal act of making development work on the property of petitioner, the stern legal action may very kindly be ordered to be taken against them in accordance with law, in the supreme interest of justice.
(iii) Any other relief under the law which this Hon'ble Court may deem fit and appropriate be also awarded in favour of the petitioner. "
3. Respondent No,3 submitted their report and parawise comments. The appellant also filed reply to the writ petition.
4. However, vide order dated 16.04.2009 Syed Kabir Mahmood, Advocate, was appointed as Local Commissioner. The order dated 16.04.2009 is. Reproduced herein below:- 'After arguing the matter at some length bath the parties have agreed that if some counsel of this Court is appointed as Local Commission with the direction to submit report after taking into consideration the relevant documents and after spot inspection they will be satisfied on the findings of the report of Local commission.
2. Syed Kabeer Mahmood, Advocate, present in court, is appointed as Local Commission for his report. Both the parties' are directed to produce the requisite documents in their possession, if any.
He is also directed to visit the spot on 26.04.2009 at 4:00 p.m. And thereafter the Local Commissioner shall submit report within a week. This has unanimously been agreed by the learned counsel for the parties that they will be satisfied if the matter is resolved after receiving the report on the basis of the same. The petitioner and respondent No,5 would pay Rs,5000/- each as commission fee to the Local Commissioner within three.Days. "
5. After receiving the report of the Local Commission the learned Single Judge in Chambers, vide impugned order dated 02.06.2009 disposed of the writ petition in terms of para No,5 of the impugned order,
6. The present appellant filed ICA No,153 of 2009 which was allowed vide order dated 23.12.2009 by the learned Division Bench of this Court. Respondent No,5 assailed the order dated 23.12.2009 before the Hon'ble Supreme Court of Pakistan in CP No,177 of 2010, which was accepted vide order dated 25.02.2010 and the case was remanded to the High Court for fresh decision of this Intra Court Appeal.
7. It is contended by the learned counsel for the appellant that the appellant was not given opportunity to file objection on the report of Local Commission, therefore, it has no value. He further contends that the Local Commission, while giving his report, has not bothered and determined the fact that the street is situated since 1890. He further contends that the report of the Local Commission is contrary to the ground realities qua the property in dispute. He further states that the High Court has no power to gather and collect evidence. He further states that the writ petition involves disputed question of fact, hence same was not competent. On the other hand learned counsel for respondent 110.5 has supported the impugned order.
8. Arguments heard. Record perused.
9. The order of appointing the Local Commission by this Court has already been reproduced in para 4 above. The Local Commission has exceeded his jurisdiction while submitting his report, the operative part whereof is reproduced herein below :-- '1 have carefully perused and considered the documentary evidence produced by both the parties. I have arrived at the conclusion that the alleged disputed street is owned by the writ petitioner Mst. Shahida Rani along with Mst. Ishrat Qamar in equal shares, because the respondents have failed to produce cogent documentary evidence to prove that the alleged disputed property which is being claimed as street was owned by any other person. The fact of receiving the compensation/award by Shahida Rani writ petitioner along with Mst. Ishrat Rani also support the claim of the writ petitioner. Even otherwise the respondents also produced two photocopies of applications and a receipt for deposit of the old wooden frame of the door in the office of the Union Council dated 24.08.2004 which shows that {{URDU TEXT}} 'was removed from the spot in order to avoid any untoward happening. The result of the production of evidence, consideration of relevant documents and the spot inspection is that the alleged disputed street situated on the western side is the property owned by writ petitioner. It is not thorough fare. The findings have been arrived at on the basis of documentary evidence submitted by both the parties and the site inspection. "
'The Local Commission was not given the power to decide the ownership rights of the parties. From the plain reading of order of appointing the Local Commission, it appears that after collecting the material from the parties in the shape of documents as well as spot inspection he has to place the same before the Court without any finding thereon. Therefore, the reliance on the finding of the Local Commission by the learned Single Judge in Chambers is not justifiable. Reference may be made to case titled Chaudhry Shah Muhammad and 6 others v. Muhammad Ishaq and 5 others (2001 M LD 1518).
10. At the very outset of the arguments, learned counsel for the appellant has stated at bar that the appellant has filed civil suit qua property in dispute. It is also discernable from the record that writ petition involves disputed question of fact which cannot be decided by this Court without recording of evidence, which is not the domain of this Court. The appellant filed reply to writ petition wherein he denied the fact contained in paras No,4 and 5 of the writ petition with the assertion that the property in dispute had been used as thorough fare since 1890 f more than 100 years.
11. The Local Commission has no jurisdiction to determine the ownership rights of the parties, which is the sole domain of civil court. No opportunity was given to the appellant to file objection to the report of Local Commission. It was the duty of the learned Single Judge in Chambers to fix a date whether they want to file any objection to the report of Local Commission or not.
12. During the arguments learned counsel for respondent No,5 has stated that possession of the disputed land has been taken over from her. It is not the domain of this Court to collect evidence to 'prove the ownership of the parties through the report of Local Commission.
13. Sequel to the above, this ICA is accepted and impugned order dated 09.06.2009 passed by learned Single Judge in Chambers of this Court is set aside. Respondent No,5 if so advised may file a civil suit with regard to her ownership rights and if the same is filed, it will be decided by the learned trial court without being influenced by any observation made by this Court. The parties shall bear their own cost.