MUHUMMAD AMEER BHA TTI, J.--- This revision petition impugns the concurrent findings of facts recorded by the two courts below dated 19.06.2007 and 17.03.2010, respectively , whereby the suit for possession through declaration instituted, by the petitioner was dismissed by the learned trial court and appeal whereof was also dismissed.
2. The brief facts of the case are that the present petitioners instituted a suit for declaration to the effect that they became Owners of land measuring 04-kanals 09-marlas on the basis of a sale deed No.3122 dated 07.03.1974 purchased for a consideration of Rs. 9,000/-. situated in Square No.83 Killa No.7/1 Khewat No.2588 Khatooni NO.3592, Chak "No.203/RB, Tehsil and District Faisalabad. Contents of the plaint further reveal that the respondents also purchased land measuring 69-kanals 13 marlas from several owners in a different khata, adjacent to the plaintif fs khata but at the time of taking possession of their purchase land, a piece of the land measuring 18-marlas & 4-1/2 'sarsai owned the plaintif fs petitioners was found occupied by the respondents, for which the petitioners despite making all efforts including obtaining of demarcation report from the revenue official remained unsuccessful in constraining them to file a suit for declaration to the effect that possession of the respondents to the extent of 18-marlas 4-1/2 sarsai owned by the plaintif fs/petitioners was illegal, unlawful and ineffective upon their rights and mandato ry and permanent injunction was also prayed therein. The respondents contested the suit by way of filing written statement wherein they raised legal objections and also controverted the factual position and claimed that the defendants/respondents are in possession of the land purchased by them through valid documents. "The learned trial Court considering the divergent pleadings of the parties settled the issues recorded the evidence and ultimately dismissed the suit. The appeal also met with the same fate; hence, this revision petition.
3. The precise contention of the learned counsel for the petitioners is that both the learned Courts below have committed material illegality and irregularity by not ascertaining the position at the spot by appointing the revenue officer as local commission to demarcate the land of both the parties, which being the core issue was essential to resolve the controversy resting between the parties. It is contended that the learned two Courts below have not appreciated the seriousness of the allegations and the valuable rights of the parties and these rights could only be protected/settled alter obtaining the report of demarcation from the revenue officer. In support of these contentions' reliance is placed on Anwar Club and another vs. Muhamma d Sarwar (PLD) 1992 Lahore 63) wherein it is held that Rule 67-A of the Punjab Land Revenue Rules, 1968 framed under the West Pakistan Land Revenue Act, 1967 requires a Revenue Officer to define the limits of an estate, a holding field or any portion thereof Nooruddin and 11 others vs. Abdul W ahid (2000 SCMR 91 ) is also referred.
On the other hand, learned counsel for the respondents vehemently supported the judgments passed by both the learned Courts below . which have dismissed the suit of the petitioners concurrently holding that they have failed to prove their case. therefore, declared them disentitled to get the relief from the Court of law .
4. I have heard the learned counsels for the parties and gone through record of the case.
5. The judgments of both the learned Courts below have concluded the case of the petitioner baseless as he could not bring on record any conclusive evidence to establish encroachment made by the defendants/respondents, whereas in such cases established law is to appoint a commission to determine the boundaries of the land of the parties as Courts are not in a position to settle the dispute merely on the basis of oral assertion. Mere ownership is not enough to declare that parties are in possession accordingly especially when the defendants/respondents side obtained the possession without the interv ention of the revenue staff. in such eventuality to resolve the issue and to do the complete justice, whether parties are in occupation of the land according to their respective ownership forces the Courts to obtain the report from the revenue office according to Rule 67-A of Land Revenue Rules, which lays out a design to resolve such dispute arising between the parties, hence ignoring of such essential exercise the Courts have committed material illegality and irregularity . I am fortified from law laid down in judgment reported as Noorud Din and 11 others vs Abdul Wahid (2000 SCMR 91) and Tariq Yahya Khan and others vs Ali Nawaz and others (1984 CLC 935), which provide guidance to Courts below to appoint a local commission for holding the demarcation especially when such a serious allegation of encroachment has been alleged and parties were unable to prove encroachment by leading any oral or documentary evidence. To determine the question of encroachment in absence of any cogent evidence from both sides obtaining a demarcation report from the revenue officer in line with the provisions of Rule 67-A of the Punjab Land Revenue Rules, 1968 was essential and the only solution/way-out. Admitted position reflecting from the record of the case is that the respondents purchased the land in 1995 and the petitioners raised their voice on illegal possession of their land by the respondents irrespective of the fact that it was based on a report obtained from an incompetent person which sufficiently establishes that petitioners were pursuing and alleging regarding encroachment of their land by the respondents one or the other way from its inception and 'ultimately , filed a suit in the Court of law. Although none of the parties had made any application before the learned trial Court for referring the matter to the revenue officer for demarcation of the land but the Court was under legal obligation notwithstanding any technicalities or hyper technicalities but in order to reach at a just conclusion as all jurisdictio n have been vested with it 'for that purpose. It is expedient to reproduce the relevant paras of the above noted judgments:- (2000 SCMR 91 )
"None of the above, can be construed to be an impediment invocable against the impugned judgment. The only thing amiss in the original and the appellate judgments lies in the possibility that completed justice, in accordance with law, may not have been done. Thus, while it was for the plaintiffs to have established the dimensions of their property and while the plaintiffs could succeed only on the strength of their own case, as distinguished from any weakness in the defence, the material on the record suggests that there may have been a piece and parcel of land, catering to an easement, either belonging to one or the other party or both of them, should have embarked upon an inquiry of their own to deter mine the actual extent of the plaintiffs' land and the casementry attachments, if any, belonging to either or both of the parties. This, therefore, was fit case for appointmen t of a licensed architect or engineer to visit the site and demarcate the plaintiffs' property , together with appurtenances, if any, with the necessary aid and assistance of the city survey staff but, initially , at the expense of the plaintiffs, because it is they who had approached the Court for relief. For such purpose the High Court appeal is remanded. The needful may be done by the Division Beach within four months of the communication, where after , depending upon the emerging circumstances, such Bench may either maintain its earlier findings or come to a different conclusion. This appeal, accordingly , stands allowed in terms, but with no order as to costs."
(1984 CLC 935 )
"It is no doubt true that finding on questions of fact is normally not interfered with in revision but in cases where the finding of fact has been recorded either by ignoring the material evidence on record or as a result of complete misdirection and missing the real issues in controversy , no such sanctity would attach to that finding whether that be of fact or law. In the present case, I have been left with the impression that the two Courts below have adopted rather relaxed attitude and not realized the seriousness of the allegations and that valuable rights of two parties were involved and these rights are not to be dealt with in a cursory manner . It is bounden duty of the civil Courts not to get caught up in technicalities or hyper- technicalities as the case may be, but try to reach the truth because all jurisdictions are designed for that purpose. In a matter of this nature all that was required to be done was to hold a proper inquiry . The Court have appointed a commission who could have submitted his report after associating both the parties and carried out the measurement at the site and worked out the area which was being claimed by the two parties on the basis of transfer under Settlement Scheme No. VII as well as on the basis of allotment made by the Settlement and Rehabilitation authority , the cat would have been out of bag within 10 minutes. There has been failure of justice in this case and that has obliged me to come to the aid. of petitioners by setting aside the impugned orders and sending the case back to the learned trial Court."
In view of the above circumstances and taking guidelines from the judgments referred to above, 1 am of the view that the Courts below have committed material illegality and irregularity by not appointing the local commission for determination of boundaries of both the claimants by way or demarcation regarding the disputed land according to their ownership deeds, therefore, the judgments of both the learned Courts below are hereby set-aside.
Consequently , the matter is remanded back to the learned trial Court to appoint the Local Commission as provided under Rule 67- A of the Punjab Land Revenue Rules. 1968, who shall hold the inquiry , record the statements of the parties and taking into consideration the revenue record in respect of the suit land submit the report before the learned trial Court, which shall re-adjudicate the matter after receiving the said report and objection of the parties in accordance with law . No order as to costs.
It does it expedient to reproduce the, guidance given in the judgment reported as Anwar Club and another vs Muhammad Sarwar (PLD) 1992 Lahore 63) to carryout the demarcation.
(i) Tehsildar , Sialkot, shall be appointed as Local Commissioner to demarcate the land mentioned in the plaint.
(ii) He shall do the aforesaid exercise personally in accordance with the aforesaid law and rules relating to demarcation of land.
(iii) The Local Commissioner shall also record such evidence as might be produced before him by the parties.
On the receipt of the report of the Local Commissioner the learned trial Court shall invite objections of the parties, and if objections were received, they would be disposed of in accordance with law .
Before recording his fresh judgment, the learned trial Court shall afford reasonable opportunity to the parties to address arguments the parties are directed to appear before the learned Senior Civil Judge. Faisalabad, on 09.01.2018, who shall take on this matter either himself or entrust the same to any court of competent jurisdiction for re-adjudication in accordance with law .
6. In view of the above, this revision petition stands accepted and case remanded.