MUJAHID MUSTAQEEM AHMED, J.--- Through the instant civil revision, the petitioners/defendants (petitioners) have assailed the judgments and decrees dated 20.06.2006 and 25.05.2010, passed by learned Civil Judge, Gujar Khan and learned Additional District Judge, Gujar Khan respectively, by which the suit of respondent/plaintiff (respondent) for mandatory and permanent injunction stood decreed, mainly on the grounds that the same suffer from misreading and non-reading of evidence and the learned courts below have failed to exercise the jurisdiction vested with them.
2. The pithy facts of the case are that present petitioners and respondent have constructed their house in Khasra No,1829 and 1830 respectively, situated in Village Abadi of Mouza Gohlan, Tehsil.
Gujjar Khan, District Rawalpindi. According to the case of respondent, he was co-owner in possession of house shown against point {{URDU TEXT}} in site plan Exh.P1 and present petitioners have no concern with it. The respondent on the back of his house has left some space (its measurement or area not specified ) for drainage of water. The spouts of the roof also face towards that direction. The petitioners for blocking drainage of respondent, constructed bathroom and manhole, shown against point {{URDU TEXT}} and further intended to raise construction towards that direction without any legal right. Whereas the petitioners have also encroached upon vacant site towards eastern side of house of respondent by installing gate shown in site plan Exh.P1, against point (J) & (1). Prayer has been made for removal of unauthorized construction and permanent injunction restraining the petitioners from encroaching upon vacant land left by the present respondent on the back of his house.
3. The present petitioners vehemently contested the suit, maintaining that they have constructed their house since long in Khasra No,1829 and respondent has no concern with that property.
Whereas respondent has constructed house upon land situated in Khasra No,1830. The petitioners have left space towards eastern direction of their house.
4. To resolve controversy, following issues were framed by the learned trial Court:- ISSUES
1. Whether the plaintiff has no cause of action to file the present suit? OPD 1-A. Whether the report of Local Commission is liable to set aside? OPD Whether the suit is barred by limitation? OPD 3.Whether the plaintiff is estopped by his words and conduct to file the suit? OPD 4.Whether the site plan annexed with the plaint is incorrect? OPD 5.Whether the plaint is liable to be rejected under Order VII, Rule 11, C . P.0 .? OPD 6.Whether the suit is not maintainable in its present form? OPD 7.Whether the plaintiff has filed the suit just to harass the defendants and the defendants are entitled to get special costs under section 35-A of C.P.C.? OPD 8.Whether the plaintiff is entitled to injunction as prayed for? OPP 9.Relief:-
5. Both the parties led their evidence in support of their respective claim. CW-1 Muhammad Altaf, Naib Tehsildar Gujjar Khan, was appointed local commission, who submitted his report Exh.C2. As per his reports the present petitioners have encroached upon land less than 1 Marla of respondent.
The learned Civil Judge while deciding crucial issues No,1-A and 8 against the petitioners and rejecting the objections against the report of local commission, decreed the suit in the following terms:- "In light of my findings under above mentioned issues, suit of the plaintiff is hereby decreed in favour of plaintiff and against the defendant. The defendants are directed to remove their illegal constructions which have been made upon the land/property of the plaintiff. They are further directed not to create any hurdle in the water passage of roof of plaintiff's house illegally and unlawfully. No order as to cost."
Feeling aggrieved by the impugned judgment and decree, present petitioners assailed the same by filing an appeal before learned Additional District Judge, Gujjar Khan, who vide impugned judgment and decree dismissed it. Thus, the present petitioners have assailed these judgments and decrees in revision before this Court on the grounds that the same suffer from misreading and non-reading of evidence. The learned Civil Judge has not given findings on rest of the issues and has decided the same in stereo type manner. The objections of petitioners against the report of local commission were not decided in accordance with law and relying on this report, the claim of respondent stood decreed. The learned Additional District Judge has also not independently decided the objections against report of local commission and has dismissed the appeal in the light of findings of learned civil judge. It has been further added that during pendency of the appeal, the petitioners have moved two applications for the additional evidence but the same were not decided by the Court, thus in view of case law reported as "Muhammad Azam v.
Muhammad Abdullah through L.Rs," (2009 SCMR 326 Supreme Court of Pakistan), the judgment passed by learned Additional District Judge, is liable to be set aside and the appeal remanded for afresh decision.
6.On the other hand, learned counsel for the respondent has controverted all the above submissions and has maintained that the impugned judgments have been passed as a result of proper appreciation of oral as well as documentary evidence and on the basis of valid report of local commission. Prayer has been made for dismissal of the revision petition.
7.Heard. Record perused.
8. In the plaint or in site plan Exh.P1, the respondent has not specified the area which was left by him for drainage purpose and in his occupation. Similarly, he has not mentioned the area or measurement of land, which has been encroached upon by present petitioners. Testimony of PW- 1/plaintiff and PW-2/bother of plaintiff is contradictory in this regard, who have deposed that 2-1/2 feet land and 3 feet land was left towards back of the house. Both of them even in their examination in chief have not deposed that as and when the petitioners have encroached upon their land. PW-1 conceded that regarding such illegal encroachment, no FIR was got lodged against the present petitioners. DW-1 Zahid Munir-petitioner deposed that his house was constructed even prior to his birth and he has not encroached upon any land owned by respondent. DW-2 Muhammad Suleman also made similar statement.
9.CW-1/Muhammad Altaf, Naib Tehsildar in his examination in chief proved his report Exh.C2.
During cross-examination he conceded that none of the parties was having revenue record at the time of spot inspection and they by mutual consent pointed out permanent place: He conceded that Khasra Nos,1834, 1836, 1837 and 1840 are not permanent places. He also conceded that he has measured the land with ordinary measurement Tape (Feeta) and has not used Chain (Jareeb). In the last para of cross-examination he conceded that he has not noted down the objections of the parties. PWs have conceded that local commission has not informed them at spot, about measurement/area encroached upon by the petitioners. Thus the parties have no knowledge of outcome of spot inspection, so they have no opportunity to pray for verification of this report or raise any objection about its legality.
10.Before examining the validity of above report of local commission, it is deemed appropriate to refer the mode and manner of conducting demarcation proceedings by the local commission and preparation of report. In this regard Rules and Orders of the Lahore High Court Volum-I, Chapter 1- M: Procedure in "Hadd-Shikni Cases" is relevant. In Rule 4, on the motion of 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, which is as under:- "(i) If a boundary is in dispute, the 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 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" apart, which are shown in the map and which the parties admit to have been undisturbed. 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 distances, 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 as shown in the field 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 detail 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 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."
In celebrated precedent 'Sheikh Allah Ditta v. A.F. Ahmad & Co. and others' (PLD 1954 Lahore 608)
D.B. Judgment Authored by Mr. M.R. Kayani, J, (relevant page 614), the above procedure of demarcation has been described with a brevity. In celebrated precedent 'Dr. Jalal Khan v. Qazi Naseer Ahmed, District Depute Officer, (Revenue), Kharian, District Gujrat and 6 others' (2005 MLD 814 Lahore), it has been laid down that Demarcating Officer is required to measure the properties subject of demarcation from three permanent places and he is required to show such measurement in his report by erecting boundaries of each Khasra number intervening--- Measurements shown in demarcation report have to be made according to 'Shajra Aks' or 'Masavi' without which the demarcating officer cannot find out at the, spot, whether the measurement done by him is according to the revenue record or not. In case law 'Mst. Hajran Begum v. Kh.
Muhammad Yousaf and Legal Heirs (2005 MLD 592 Lahore) detailed procedure for conducting demarcation proceedings has been referred, under West Pakistan Land Revenue Act, XVII of 1967 and Rule 67-A of West Pakistan Land Revenue Rules, 1968 read with Order XXVI, Rule 9, Code of Civil Procedure, 1908.
11. If the report of local commission is examined in the light of celebrated precedents noticed supra, the irresistible conclusion is that the local commission has not conducted demarcation proceedings in accordance with law. The learned Civil Judge has also not seriously examined the report of local commission, objection of petitioners and evidence in support of these objections and in stereo type fashion rejected the objections and blindly relied upon the report and decreed the suit. Similarly, learned Additional District Judge has not independently examined and discussed the objections against the report of local commission.
12. The learned Civil Judge in para of relief has not specified the encroached area, from which encroachment is to be removed by the present petitioners. He has not even mentioned. this the encroachment is to be removed as per site plan Exh.P1 or site plan prepared by the local commission. As such no executable decree has been passed.
13.The last but not the least, I have examined issue No,8, which is not exhaustive one and depicting the case of respondent. So, I recast this issue as under:- Issue No,8.
"Whether the plaintiff has left some land in back of his house situated in Khasra No,1830 for drainage, spouts of roof of his house also face to that direction and the defendants have encroached upon it by constructing gate, Bathroom and gutter and the plaintiff is entitled to mandatory and permanent injunction as prayed for? OPP
14. As a corollary of above discussion, I have come to irresistible conclusion that impugned judgments are result of misreading and non-reading of evidence. The learned Courts below have failed to exercise jurisdiction vested with them, which resulted in material irregularity and injustice.
The dispute between the neighbours' is pending since long, so while accepting the revision petition and setting aside the impugned judgments and decrees and report of local commission, the case is remanded to the learned Civil Judge, Gujar Khan with the direction to afford a fair opportunity of evidence to the parties in respect of amended issue No, a, appoint fresh seasoned, well experienced and honest local commission with the concurrence of parties and their counsel, on whom they have full faith and confidence for demarcation of the suit/ disputed property in the light of above demarcation rules/procedure and thereafter, the suit be decided afresh in accordance with law. The above observations are tentative, will not prejudice the Court or the parties, during course of fresh adjudication of lis.
15.The parties and their learned counsel, are directed to appear before the learned trial Court on 23.12.2016.