' MUHAMMAD GHAZANFAR KHAN, J.---The petitioners Muhammad Ramzan and seven others have filed instant writ petition against the judgment dated 24.4.2015 passed by learned Additional District Judge Paharpur, D . I . Khan, whereby their civil revision against the order dated 07.02.2015 of learned Civil Judge-I, Paharpur, D.I.Khan was dismissed.
2. Brief facts of the case leading to the instant writ petition are that present respondent No,1/plaintiff instituted a suit for declaration to the effect that, proforma defendants Nos.4 to 8 are owners in possession of land measuring 11 kanals 13 marlas in scheme No,446 Khasra No,3667/1 out of total area measuring 12 kanals 07 marlas situated in Mauza Bigwani Shumali Tehsil Paharpur, District D.I.Khan vide register haqdaran-e-zameen for the year 1979-80 while actual defendants Nos.1 to 3 have no concern with it. He also prayed for perpetual injunction- to the effect that actual defendants Nos.1 to 3 be restrained from claiming ownership, raising any construction and transfer of suit property in the name of any person. It is averred in the plaint that predecessor of the plaintiff and proforma defendants Nos.4 to 8 had cordial relations with the defendants, Nos.1 and 2 and due to which he gave possession of the suit land to defendants Nos.1 and 2 temporarily and now. They started interference in the suit property by claiming its ownership and defendant No,1 has transferred land. Measuring 01 marla to defendant No,3 on the basis of Iqrar Nama dated 15.9.2010 which is wrong, fraudulent and ineffective upon his rights.
3. Defendants Nos.1 to 3 contested the suit through submission of their written statement. Issues were framed, pro and contra evidence of the parties was recorded and after hearing arguments of learned counsel for the parties, learned Civil Judge, Paharpur (D.I.Khan) dismissed the suit of the plaintiff vide judgment dated 20.9.2012. The plaintiff filed RCA No,77/XIII of 2012 which was accepted by learned Additional District Judge, Paharpur (D.I.Khan), the impugned judgment and decree dated 20.9.2012 was set aside and the case was remanded to the trial Court with the direction to appoint fresh commission for spot inspection so that it could be brought to the Court that suit property is situated in Khasra No,3667 or in Khasra Nos.3687, 3817, 3817/1 and then decide the suit.
After remand of the case the learned trial Court appointed local commission who submitted his report which was confirmed by the learned trial Court vide order dated 07.02.2015. Dissatisfied with the order dated 07.02.2015 the defendants filed Civil Revision No,02/II of 2015 which was dismissed by the learned Additional District Judge Paharpur (D. I. Khan) vide impugned judgment dated 24.4.2015 hence, the instant petition.
4. Arguments heard and record gone through.
5. The report of local commission and his statement, recorded after objections by one of the parties, reveal that same is clearly in derogation of instructions contained in High Court Rules and Orders Vol.I, Part M(i) which are reproduced for facility:-- "1. Local inquiry. ---In "HaddShikni " suit and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:--
(a) by suggesting that one party or the other should apply to the Revenue Officer fix the limits under section [117(1) of the Punjab Land Revenue Act, 1967 (XVII of 1967)] Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure,
(b) by appointing a local commissioner, and
(c) by the Court itself making a local enquiry.
4. Instructions for the guidance of commissioners.---On the motion of the Judges, the Financial Commissioners have issued the following detailed instructions for the guidance of Revenue officials or Field Kanungos appointed as. Local Commissioners in civil suits of this nature.
' Financial Commissioner's Instructions
(i) If a boundary is in dispute, the Field Kanungo should relay it from the village map prepared at the last Settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross-staff mark out the position and distance of those points. Thus, he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute, as near to it as he can, and, if possible, not more than 200 kadams part, which are shown in the map and which the parties admit to have been undistributed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distance, when thus compared, agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then, lay them out with the cross-staff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map. If there is only a small dispute as to the boundary between two fields the greater part of which is undisturbed then such perpendiculars as may be required to points on the boundaries of these fields shown in the filed map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.
(ii) In the report to be submitted by him, the Field Kanungo must explain in details how he made his measurements. He should submit a copy of the relevant portion of the current Settlement field map of the village showing the fields, if any with their dimensions (karu kan) of which he took measurements, situated between the points mentioned in Instruction No, (i) above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings.
(iii) If a question is raised as to the position of the disputed' boundary according to the field map of the Settlement preceding the current Settlement, that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field to map to be submitted under Instruction No, (ii).
(iv) On the same copy should be shown also, the [limits of existing actual possession].
(v) The areas of the fields abutting on the boundary, in dispute, as recorded at the time of the last Settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with an explanation of the cause or causes of the increase or decrease, if any, discovered.
(vi) When taking his measurements the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements, that they have no objection to make to this (or if they have any objection he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the Correctness of the measurements and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent.
(vii)The above instructions should be followed by ' Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court as Commissioners in suits involving disputed boundaries."
6. In such scenario the impugned order confirming the report commission is not sustainable as it is not the direction of the Court which is to be followed or acted upon but the local commissioner has to follow the law laid down on the subject. Therefore, this writ petition is accepted, the impugned orders dated 24.4.2015 and 07.02.2015 of learned Additional District Judge, Paharpur (D.I.Khan) and learned Civil Judge-I, Paharpur (D.I.Khan) respectively are set aside and the learned trial Court is directed to appoint fresh local commission for inspection of the spot but surely according to the High Court Rules and Orders.