MOHSIN AKHTAR KAYANI, J.-- Through the instant civil revision, the petitioners have assailed the judgment decree dated 29.10.2015, passed by the learned Additional District Judge-V (East)
Islamabad whereby the regular first appeal under section 96, C.P.C. Filed by respondents Nos.1 to 4 has been allowed and judgment decree dated 30.04.2015 passed by learned Civil Judge (East)
Islamabad has been set-aside and matter has been remanded back to the learned Civil Judge
(East) Islamabad with a direction to appoint some revenue officer as local commission, to carry out demarcation and submit the report about alleged encroachment, to invite objections of the parties and if need be to summon the local commission for recording his statement and then to finally resolve the controversy in accordance with law.
2. Necessary facts forming the background of the instant civil revision petition are that respondents Nos.1 to 4 filed a suit for possession, declaration and permanent injunction before the learned Civil Judge (East) Islamabad on the ground that respondents Nos.1 to 4 are predecessor-in-interest of one Muhammad Rafique who was owner in possession of land measuring 1-Kanal 4-Marlas situated at Khewat No,641, Khatuni No,983, Khasra No,1562, Revenue Estate of Village Shakrial Tehsil and District Islamabad through registered sale deed No,391 dated 11.02.1992. The predecessor-in- interest of respondents Nos.1 to 4 died on 17.2.1992 and immediately after the death of said Muhammad Rafique the suit land was accordingly transferred in the names of present respondents Nos.1 to 4 vide inheritance mutation No,1952 and respondents No,1 to 4 have raised construction of two rooms on the northern side of the suit land, however the dimensions were specifically given in the sale deed. Respondents Nos.1 to 4 have claimed that the petitioners are influential persons and are trying to occupy the suit land belonging to respondents Nos.1 to 4.
Contrary to the said the suit was contested before the learned Civil Judge (East) Islamabad by the petitioners and after the framing of issues, evidence was recorded and finally the suit was dismissed vide judgment and decree dated 30.04.2015 on single issue i.e,, issue No,1 keeping in view the statement got recorded by respondent No,1 as PW-1 whereupon learned trial Court expressed his view in judgment that respondents Nos.1 to 4 being plaintiffs failed to prove their case as the question of dispossession or possession has not been proved on record.
3. After the dismissal of the suit the plaintiffs/respondents Nos.1 to 4 have filed a regular first appeal which was allowed through judgment decree dated 29.10.2015 by the Court of learnea Additional District Judge-V (East) Islamabad and remanded back the to the learned trial Court to resolve the controversy after appointment of Local Commission.
4. Learned counsel for petitioners contends that the instant civil revision has been filed against the reverse findings, although the matter was remanded back but the learned first appellate Court has not given any findings on the issue No,1 rather decided the matter on technicalities. Learned counsel further contends that the appellate Court can not appoint the Local Commission for obtaining the demarcation report as the same is contrary to law in terms of section 173 of the Land Revenue Act, 1967. Learned counsel further contends that in view of section 3 of the Land Revenue Act, 1967 any property whose character has been changed from agricultural to residential in any revenue estate the Revenue Officer cannot demarcate the said property by any means, hence the order is illegal.
5. Learned counsel for petitioner further contends that the previous suit filed by respondents Nos.1 to 4 has been dismissed by the learned Civil Court but the said matter has not been disclosed in entire proceedings even otherwise the earlier suit was dismissed, therefore, principle of resjudicata is applicable in the instant matter.
6. Conversely, learned counsel for respondents Nos.1 to 4 contends that the respondents are owner in possession of land measuring 01-Kanal 04-Marlas with specific boundaries referred in the sale deed but the learned trial Court has non-suited the respondents Nos.1 to 4 purely on technical grounds. Learned counsel further contends that the predecessor of respondents Nos.1 to 4 had purchased the suit land with specific boundaries through a sale deed and after the death of Muhammad Rafique inheritance Mutation No,1952 was endorsed on record. Respondents Nos.1 to 4 were dispossessed from their valuable property through illegal means and the learned trial Court has not appreciated the real controversy whereas the first appellate Court has rightly appointed the Local Commission in order to demarcate the exact possession of the suit land in order to resolve the on ground position.
7. Arguments heard, record perused.
8. From the perusal of record it has been revealed that respondents Nos.1 to 4 have filed a suit for possession, declaration and permanent injunction against the petitioners with specific claim that respondents Nos.1 to 4 are owners of the suit land on the basis of registered sale-deed No, 391 dated 11.02.1992 before the Sub-Registrar Islamabad measuring 01-Kanal 04-Marlas and after the death of Muhammad Rafique predecessor-in-interest of respondents Nos.1 to 4 on 17.10.1992 they stepped into the shoe of said Muhammad Rafique, however, the sale deed submitted by respondents Nos.1 to 4 has been exhibited as Exh.P.1. Even the site plan has been discussed in evidence of PW-1 and one Haji Muhammad Qurban PW-2 has also appeared before the Court and confirmed that stance of respondents Nos.1 to 4 in contrast to above mentioned evidence.
Respondents Nos.1 to 4 have contested the suit on the strength of Sher Afzal and Gul Zareen DWs who had appeared as DW-1 and 2 respectively wherein they have taken the specific stance that they have not interfered in the possession of respondents Nos.l. To 4 rather they have not taken over the possession and there is difference of 200 ft. Between the houses of Parveen Akhtar and Gul Zareen.
9. From the pleadings of the parties as well as from the record it is evident that respondents Nos. 1 to 4 claimed to be the owner of land measuring 01-Kanal 04-Marlas situated in Khasra No,1562 which has specifically been mentioned in the sale deed Exh.P.1 however, the petitioners have taken specific defence in their written statement in para No,1 on merits that:- ' "Answering defendants have no concern with the suit land as suit land is situated in Khasra No,1562 while answering defendants are owner in different khasras i.e, 1565, 1566."
' From the perusal of trial Court's judgment it has been revealed that findings given by the learned trial Court are only to the extent of issue No,1 however, no effort has been made to resolve the real controversy specially the complaint of encroachment by respondents Nos.1 to 4 as it is admitted fact that the encroachment on disputed land can only be resolved by way of appointment of Local Commissioner in terms of Order XXVI Rule 9, C.P.C. As there is no other procedure available under the law through which one can inquire about the real issue in the subject matter. It is admitted fact that respondents Nos.1 'a 4 are owner through sale deed Exh.P.1 with specific boundaries and dimensions with following details:- ' "East: Land of Asad Ali West: 20 feet wide street. North: Plot of Jamil Butt. South: 20-feet wide street."
' It is also admitted that respondents Nos.1 to 4 are owner since 1992 on the strength of Exh.P.1 whereas the petitioners have produced the copy of periodical record of rights for the year 1997-98 as Exh.D.2 and periodical record of rights for the year 1987-88 as Exh.D.3 and electricity bill as Exh.D.4 however, the petitioners could not make out their case as to why prejudice has been caused to them if the real controversy of determination of specific territory can be resolved by the appointment of Local Commission they only contested the same on the strength that section 172(1) of the Land Revenue Act, 1967 which bars the jurisdiction of Civil Court and that the land whose status has been changed from agricultural to residential cannot be demarcated by the Revenue Officials in terms of section 3 of the Land Revenue Act, 1967. This interpretation under the Land Revenue Act, 1967 is correct for the purposes of settlement of any dispute regarding any land situated in revenue estate which has been assessed by the Revenue Officials for the purposes of land assessed, Abyana and Malaya but presently no such assess or charge has been recovered by the Revenue Officials against the said land as the status of the said area has already been changed from agricultural to residential and houses are constructed in the said Moza/Revenue estate, therefore, dispute cannot be resolved by the Revenue Officials if the same have been referred to the Revenue Officials but when the matter has been adjudicated upon by the Civil Court being Court of preliminary jurisdiction in terms of section 9, C.P.C. Civil Court can resolve controversy by adopting any means and there is no restriction imposed under the law upon the exercise of powers under Order XXVI, Rule 9, C.P.C. To get the disputed land demarcated as to whether the same falls within the specific Khasra number with specific boundary limits and dimension?
10. Civil Courts have all kind of powers to resolve the issue of parties concerning the demarcation and even after the change of status/nature of the land when residential house has been constructed. The first appellate Court has only directed to get the demarcation through the Revenue Officials as they are the most expert persons in the said field whereas if any other individual has been appointed as Local Commission the demarcation could not be carried out in its true perspective. In order to understand the controversy it is necessary to analyze powers of the Court in terms of section 75, C.P.C. Which has been reproduced below:-- "75. Power of Court to issue commission. Subject to such conditions and limitations as may be prescribed the Court may issue a commission-..
(a) to examine any person ;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition. "
' And Order XXVI Rule 9, C.P.C. Is also reproduced below:-- "9. Commission to make local investigation. ---In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damage or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:-- ' Provided that, where the [Provincial Government] has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
' In view of above provisions of law the emphasis has been given on the terms "Local Investigation" required for the purposes of lucidity in matter in dispute, the Court may issue a commission to such persons as it thinks fit for the purposes of investigation. *Above referred terminology indicates certain special powers available to the Civil Court through which the Court can collect information, inquire into the matter, record evidence, in order to formulate its opinion to get the issue resolved in its true perspective as without appointment of Local Commission the Court could not have a clear view and the just decision can not be achieved specially when the matter is related to a local dispute regarding encroachment which otherwise requires the probe on site and as such there is no direct evidence regarding the identification and nature of the site. The very purpose of Local Commission in terms of section 75 read with Order XXVI, Rule 9, C.P.C. Can only be the mandate as the Civil Courts have jurisdiction to adjudicate upon the suit of civil nature in terms of section 9, C.P.C. Whereas the instant matter falls within the definition of a disputed question of civil nature where one party claims the right on the basis of registered sale deed in which the dimensions and site has been mentioned but on ground the same could not be ascertained hence, rights of respondents who were plaintiffs are to be determined only with the help of tool referred in section 75 and Order XXVI, Rule 9, C.P.C. And when any action is brought for the enforcement of rights or obligation of a citizen the same are called as the suit of civil nature. It is mandatory duty to facilitate the parties to secure their rights and Civil Procedure Code provides an elaborative form of mechanism and tools to the individual as well as to the Courts for determination of real controversy. Learned counsel for petitioners has objected on the appointment of Local Commission as same will be considered as filling lacuna to overcome the weaknesses in the evidence. Learned counsel has also argued that such belated stage appointment of Local Commission is to give a premium to the respondents. Learned counsel has put his reliance upon 1999 YLR 2732 [Lahore] Miraj Din v. Additional District Judge, Ferozwala District Sheikhupura and 2 others":-- ' "O. XXVI, R. 9---Local Commissioner, appointment of---Application for such appointment at a stage when the evidence of both the parties was completed-- Validity---Such an appointment at belated stage would not advance the interest of justice-Party could not be allowed to fill in lacunae or to cover up the weaknesses in its evidence by deploying such device which might otherwise not be ordinarily available---Local Commissioner was not appointed in circumstances."
' In view of specific objections on the appointment of Local Commission by the learned counsel through the above case law, I have all regards for judgment referred above from Lahore jurisdiction however, the said case law is not applicable in the instant matter on the ground that the same is related to the pre-emption suit however, the said case law is not applicable to the present case as the matter in question relates to a constructed property which is different in its nature from the agricultural land especially when the evidence is insufficient on record which cannot be led to a conclusive determination of rights of the parties then resort to appoint Local commission is need of the hour hence the contention raised by the learned counsel for petitioners is not tenable in the above mentioned circumstances.
11. Learned first appellate Court has rightly given its findings for determination of real controversy as it is imperative upon the first appellate Court to decide the question on the basis of fairness, good consciousness and to achieve the true administration of justice especially when the documentary evidence has not been appreciated by the learned trial Court. Although, the respondents Nos.1 to 4 have not requested the learned trial Court as well as the first appellate Court to appoint a Local Commission, however, the first appellate Court on the basis of available record considered it appropriate to appoint the Local Commission specially when the findings of the first appellate Court are in clear terms, which are reproduced as under:-- ' "It is settled law that in the cases of Had-Shakni/encroachments when the evidence brought on record is not capable to resolve the controversy, then the recourse can be made to Order XXVI Rule 9, C.P.C. Even without any application by the parties. The learned trial court has left the dispute unresolved meaning thereby that the appellants are left to first approach the revenue hierarchy for determination of the suit land; thereafter if any encroachment on the part of respondents is found, then to file second suit about which the respondents would take the objection of maintainability under section 11 of C.P.C. The said course would result into multiple proceedings and it can be avoided by making the local investigation through the appointment of local commission. In this situation, the findings recorded by learned trial court qua issue No, 1 without obtaining the report of demarcation are unjustified and factually incorrect, therefore, while accepting the application of the appellants filed under Order XXVI Rule 9; C. P. C. The suit of the appellants/plaintiffs is liable to be remanded for decision afresh, after obtaining the report of local commission about the demarcation/any encroachment."
' In view of above well reasoned judgment of the learned first appellate Court it is imperative to appoint a Local Commission as the similar situation is pointed out in 2006 CLC 1028 [Lahore], "Khizar Hayat and another v. Pakistan Railways through Chairman, Pakistan Railway, Lahore and 2 others.", wherein it was held that:-- "7. From the above resume of facts since both the reports of the Local Commissioners above discussed, had no legal sanctity, being prepared unauthorizedly, for just decision of the case and to resolve -controversy between the parties for all times to come, by resort to provisions of Order XXVI, Rules 9 and 10, C.P.C., which equipped the Courts below to have site inspection/demarcation under their mandate from some expert revenue official, had to be made but both the Courts below being oblivious of their jurisdiction, erroneously attempted to decide the dispute relying on illegal reports of the Local. Commissioners. Scan of appellate judgment revealed that no finding with clarity could be given by the learned District Judge with regard to Shops bearing Nos.4239- B/1/1-2 and houses were really located in Khasra No,4988/3211, as there was no such evidence on the file. Learned counsel for the parties especially for the respondents could not satisfy my judicial conscience that dispute can really be resolved by excluding both the above referred reports of the Local Commissioners and according to my humble view the only viable Way out was to have report under Rule 9 of Order XXVI, of C.P.C; which was neither adverted nor was resorted by any of the two Courts below. Since I intend to remand all the three cases for fresh decision after demarcation under the orders of trial Court, I avoided to discuss merits/demerits of the cases of the parties lest the same may not prejudice minds of the Courts below where the cases will again go for determination.
8. For the reasons noted above, the judgments/decrees dated 8-11-2003 and 7-7-2004 passed by the learned Civil Judge and learned District Judge, 'Khushab, in all the three suits of the revision petitions are set aside; being tainted with material illegalities and irregularities and all the three cases are remanded back to the trial Court with a direction to decide all the three suits afresh after having fresh demarcation of both the Khasra numbers of the parties through some senior revenue expert, at the joint expense of the parties to be shared by them equally, in accordance with law."
' Similarly in another case 2005 M LD 814 [Lahore], "Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue), Kharian, District Gujrat and 6 others", wherein it was held that:-- ' "Under law, the Revenue Officer could only demarcate boundaries of any estate or any part thereof under the provisions already discussed. Predecessor of the respondents, who was plaintiff, was required to prove his title to property in possession of the petitioners through some lawful/cogent evidence, in absence of which his suit could not have been decreed. Even otherwise, since there was the only dispute of demarcation which could have resolved the controversy for all times to come, the trial Court should have invoked its own jurisdiction in this behalf in spite of report Exh.P.1, but both the Courts below, being oblivious of their jurisdiction under Order XXVI, Rule 9, C.P.C. Proceeded to decide the lis without adverting to legality or otherwise of the said report."
12. In last the learned first appellate Court has sufficient powers in terms of Order XLI, C.P.C. To issue specific directions to the learned trial Court to determine the real controversy and impugned order is well within four corners of law and the entire issue needs re-determination as remanded by the learned first appellate Court however, keeping in view the judgment and decree passed by the learned trial Court it is not appropriate that matter should be remanded to the same Court who has already disclosed his mind, therefore, learned District and Sessions Judge (East) Islamabad is directed to entrust the same to another civil Court who shall proceed with the direction given by the learned first Appellate Court in accordance with law.
13. In view of above discussion, I am of the view that the impugned judgment does not warrant any interference as the petitioners fail to demonstrate any illegal exercise of jurisdiction in terms of section 115, C.P.C., hence the instant civil revision being devoid of merits stands dismissed.