SYED ARSHAD ALI, J.--- Respondent/plaintif f on 09.02.201 1 filed an application before Collector , Mansehra for demarcation of his property in the disputed land. The said application was marked to the concerned Teshildar , who appointed Girdawar Circle PW-3, for demarcation of the suit property . The Girdawar Circle submitted his report dated 12.03.201 1, wherein the present petitioners along with Jamil and others were stated to have encroached upon the land of present respondent in Khasra Nos,2192/1, 2190/1, 7743/1 and 2244/1. On the basis of said report respondent filed a suit for possession of the suit land in the Court of learned Senior Civil Judge, Mansehra.
2. The petitioners filed their joint written statement, wherein they have raised an objection and stated that no notice was given to them in the demarcation proceedings, hence, the entire demarcation proceedings are illegal. The learned trial Court allowed the parties to lead their respective evidence. During proceedings before the learned trial Court, respondent filed an application for appointment of local commission to re-demarcate the suit property as the present petitioners had an objection on the earlier demarcation. The present petitioners did not object the said application. The learned trial Court vide judgment and decree dated 26.06.2015 decreed the suit of respondent for possession 02 kanals 14 marlas while rest of the suit was dismissed. Appeal filed against aforesaid judgment and decree was dismissed by learned Appellate Court vide judgment and decree dated 18.07:2016.
3. Arguments heard and record perused.
4. Perusal of record reveals that patwari halqa appeared as PW-1 and produced the revenue record, which shows that the parties are not co-owner in the suit property . Since during proceedings before learned trial Court no commission was appointed by the learn ed trial Court to re-demarcate the suit property , hence, only evidence regarding the allegedly encroached by the petitioners upon the property of respondent is the demarcation report of Girdawar Circle, which was exhibited as Ex:PW2/1. The said report is ambiguou s and vague regarding certain mandatory requirements of spot inspection and establishment of Khasra. The commission PW-3 even did not prepare the site plan/sketch of the measurement/spot inspection. The report is completely silent as to whether any effort has been made by the PW-3 to first point out three permanent places from Aks Shajra Kishtwar , which were made basic points for measurement so as to reach the disputed khasra number . Although PW-3 had reported to have undertaken the measurement at the spot but how and in what manner the said exercise was undertaken is not reflected in his report. Whether he had followed the rules of demarcation as provided in High Court Rules and Orders also does not reflect from the said report. Indeed under the rules of demarcation the revenue officer was legally bound to first trace some permanent point/structure wherefrom he shall undertake the measurement by establishing each Khasra number intervening the disputed Khasra number and to reach the disputed Khasra number keeping in view the description and measurement of each arm of Khasra numbers as provided in shajra kishtwar . Thereafter to counter take the said measurement from other permanent places/points. This entire measurement should be reflected in separately prepared sketch, wherein the encroached property should be separately marked enabling the Court to render definite opinion on the encroachment, if any, made by the defendant. Principles and procedure governing the demarcation of a disputed property in cases of encroachment by the contiguous owners has been laid down in High Court Rules and Orders (Volume 1, Chapter 1, Part M (i)).
The same is reproduced below:-- "(i) Procedure in "Hadd-Shikni Cases"
1. Local inquiry .-- In "Hadd-Shikni" suits 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 to 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 .
2. Enquiry by Revenue Officer---An order of the Revenue Officer made under section 101 of the Land Revenue Act is not conclusive; but when his proceedings have been held in the presence of, or after notice, to the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result it would be a valuable piece of evidence. It may be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate.
3. Appointment of Commissioner .---Similarly the report of the local commissioner should contain full details so that the Court may satisfactorily deal with the objections made against it.
No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a local commissioner .
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-staf f 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 kadam s 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-staf f 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 positi on 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 dif ficulties 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."
Hence, the report of revenue officer Ex: PW2/1 is not worth reliance as it does not disclose the real controversy between the parties. As the aforesaid report of commission does not provide the true picture of encroachment and there is no other evidence on the file to decide the issue of encroachment, hence this Court is left with no option but to set aside both impugned judgments and decrees which are based on no evidence/incorrect evidence.
However , the matter cannot be left unattended due to deficient demarcation report. Indeed it is an established principle of law that nobody should suffer for the negligence and act of public servant. If the statutory functionary has failed to perform his duties in accordance with law, the plaintif f cannot be made to suffer for the said omission/negligence. Particularly when the Court is also equipped with the powe rs to appoint commission under Order 26 and the Rule ibid for spot inspection.
5. For what has been discussed above, this petition is accepted and the impug ned judgments and decrees of learned lower Courts are set aside and the case is remanded to the learned trial Court for appointing commission comprised of an expert revenue officer not below rank of Girdawar for demarcation of the disputed property and thereafter to decide the case strictly in accordance with law. It is an old case, therefore, the learned trial Court is expected to decide the same within a period of three months.