MUHAMMAD AMEER BHATTI, J. --- This revision petition is directed against the concurrent findings of fact recorded by the learned Courts below vide judgments dated 22.01.2009 and 08.12.2005, respectively, whereby the suit instituted by the respondent seeking partition of the propertyin- question was finally decreed and appeal whereof, preferred by the present petitioner was dismissed confirming the judgment of the learned Trial Court. hence, this revision petition.
2. At the very outset, learned counsel for the petitioner submits that during proceedings of the suit, Local Commission namely Sheikh Liaquat Ali, Advocate was appointed with consent of the parties except the present petitioner to conceive the mode and manner of partition of suit property. The Local Commissioner after preparing his report submitted the same before the learned Trial Court and with permission of the Court petitioner submitted his objections, however same were rejected summarily and suit was decreed on the basis of report of the Local Commissioner.
3. The foremost contention of the learned counsel for the petitioner is that the objections have not been dealt with in accordance with law as neither any opportunity to substantiate his objections has been provided to the petitioner nor the Local Commissioner was summoned to testify his report providing the opportunity of cross-examination to the parties, which is material illegality and irregularity floating on the surface of record, thus the impugned judgments of Courts below based on conclusive report of the Local Commissioner are nullity in the eye of law. Besides this, it is added that it was the prime duty of learned Trial Court to summon the Local Commissioner to appear in the witness-box especially when one of the party expressed reservation againstreport of the Local Commissioner. Reliance is placed on Muhammad Ramzan v. Mst. Aisha and others (2014 SCM R 151), Mst. Mehr Afzoon v. Mst. Khatoon and others (2013 YLR 2185), Khurshid Begum v. Akram Zahoor and 5 others (2004 YLR 1364) and AIR 1929 Lahore 782. In all these judgments; it has been settled that the objections must have been dealt with in accordance with law by providing the opportunity to lead evidence in order to substantiate his objection(s) and it is further approved that the Local Commissioner shall also be summoned for recording his evidence. Relevant portion from the case-law viz. Muhammad Ramzan's case, is reproduced hereunder:--- "Having heard the learned counsel for the parties, we find that the proceedings conducted by the Commission for the partition of the property are inherently defective, for the reason that no notice had been issued to all the defendants/judgment-debtors of the preliminary decree before finalizing the report; besides from the record, it transpires that the contesting respondents had filed objections to the report and those objections were/are not dealt with by the learned Court in accordance with law. These two vital aspects of the matter have been taken into account by the learned revisional Court while interfering with the decisions of the two Courts and remanding the matter."
Another argument advanced by the learned counsel is that the report of the Local Commissioner is also defective as demarcation was not carried-out in accordance with the provisions of High Court Rules and .Orders, as the measurement points have not been fixed by the Local Commission, hence, the demarcation report had lost its evidentiary value. Relies on Col. Mahboob Khan v. Abdur Rashid and another (1993 M LD 1599) and Tehsil Municipal Administration/Tehsil Council Naushera Virkan District Guiranwala throuqh its Nazim v. Mst. Zubaida Begum and 4 others (2007 C.L.R. 307) wherein it has been held that measurements were to be conducted with reference to the Field Map (Akas Shijra or Latha) for valid demarcation and failure of which was held to be in contravention of prescribed criteria by the Rules and Orders of this Court.
4. On the other hand, learned counsel for the respondents relying on Bhai Khan and others v.
Shakeel and others (2009 SCM R 594) contends that when the Local Commission was appointed with consent of the parties and the petitioner through his written statement gave an impression that he had no concern with the suit property, then filing of objections to the report are not permissible, therefore, the learned Courts below have not committed any illegality while passing the decree by rightly considering the report a conclusive piece of evidence. Further contends that the concurrent findings of fact recorded by two Courts are not permissible to be interfered with by this Court in view of ratio laid down in Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 Supreme Court 291), thus this Court may lay-off his hands to interfere with concurrent findings of fact.
5. I have considered the arguments of learned counsel for the parties and gone through record of the case.
6. The judgment, referred to by the learned counsel for the respondents in Bhai Khan's case (2009 SCM R 594) is distinguishable on facts and circumstances, hence, not squarely applicable to this case inasmuch as in the said case-law the matter with regard to determine the encroached area, occupied by one of the parties, was consented to be decided on the basis of report of the Local Commissioner to be appointed by this Court with consent of the parties, while hearing the revision petition. In such eventuality, apex Court held that since the Local Commissioner was appointed with approval of the parties and in addition to that undertaking was also given that fate of the case be decided on the basis of the report acceptable to both the parties. After giving that consent, nobody could be allowed to raise objection regarding validity of Local Commissioner's report.
Whereas, in the case in-hand, facts are altogether 'different. The Local Commissioner was appointed to invent division mode of the suit property, who in his report declared the petitioner to be encroacher of some piece of land belonging to the owner of that Khasra whereof petitioner submitted objections which had to be dealt with in accordance with law. Examination of record transpires that objections were decided summarily without providing any opportunity to substantiate his objections and final decree was passed considering the report of Local Commissioner a conclusive piece of evidence contrary to the law laid down by Hon'ble Supreme Court in case reported in Muhammad Ramzan's case (2014 SCM R 151) wherein the viewpoint of Hon'ble Supreme Court is clear and obvious that where objections qua report of Local Commissioner have not been dealt with by the learned Trial Court in accordance with law, the remand of case for re-decision after deciding the objections of the parties qua Local Commissioner's report in accordance with law ordered by High Court was approved by Hon'ble Supreme Court, hence. I must hold that the learned Courts below have overlooked the verdicts given by apex Court as well as this Court and decided the matter in hasty manner, therefore, their decisions being not sustainable in the eye of law are hereby set aside and in consequence whereof the suit between the parties shall be deemed to be pending before the learned Trial Court, which shall re-decide the same after deciding fate of the objections of the petitioner with regard to report of Local Commissioner in accordance with law and if, to substantiate the objections, any party seeks permission to lead evidence same shall be granted and if the parties are agreed to lead no further evidence then this fact shall also be reflected from the orders. With these observations, this revision petition stands accepted and case remanded.
7. The parties are directed to appear before the learned Senior Civil Judge, Attack on 17.11.2016, who shall decide the matter either himself or entrust the same to any. other Court of competent jurisdiction for its decision expeditiously in the terms indicated above.