RASAAL HASAN SYED, J.----Petitioner in this Constitutional petition seeks annulment of order dated 22.12.2020 of the learned Addl. District Judge, Khushab whereby the revision petition of the respondents was allowed by setting aside the order of the learned Trial Court.
2. Facts germane to disposal of the instant petition are that the petitioner instituted a suit for permanent injunction against respondent Nos.1 to 3 claiming that he was in exclusive possession of 8 kanals being part of shamlat deh.
The house of the petitioner with boundary walls and some construction materi al existed on site and that the respondents had no right to interfere in the possession of the petitioner or to damage the trees till partition of the shamlat. The suit was contested by the, respondents on legal as well as factual premises. Issues were framed and evidence was recorded pro and contra. At the stage of final arguments, an application for appointment of local commission was filed for site inspection and report which after contest was dismissed by the learned Civil Judge vide order dated 21.10.2020. The respondents challenged the order in revision petition which was allowed by the learned Addl. District Judge, Khushab vide order dated 22.12.2020. The instant petition assails the order of the learned Revisional Court dated 22.12.2020.
3. Learned counsel for the petitioner submitted that the parties had produced their evidence and the case had ripened for final arguments, there was no dispute qua description of property or demarcation and, being so, the application for appointment of local commission was rightly dismissed by the learned Civil Judge and that the learned Addl. District Judge illegally allowed the appointment of the commission despite the fact that the subject- matter of the controversy could not be left for the determination of the local commission and needed to be decided by the court itself. On the contrary , learned counsel for the respondents Nos.1 to 3 submitted that the impugned order was well-reasoned, no error of law or jurisdiction was pointed out, the appointment of local commission in the peculiar circumstances of the case was necessary for the assistance of the court for effective adjudication of the real matter in controversy and that the order being fair and equitable, Constitutional petition was not legally maintainable.
4. Points raised by the learned counsel for the parties have been duly considered in light of the material filed with the instant petition. It is revealed therefrom that the suit of the petitioner for permanent injunction was in respect of a portion of shamlat deh, the petitioner claimed to be in possessio n as co-sharer in the shamlat being proportionate to his proprietary interest in the mauza. He challenged the claim of the respondents, applied for injunctive relief against interference therein. Parties produced evidence pro and contra. At this stage, the respondents Nos.1 to 3 filed an application for appointment of local commission to inspect the suit property and to submit report about the "old constructed and unconstructed roads at sight and boundaries of the suit property" claiming that the same was necessary for the just and fair decision of the case. The application was declined by the learned Civil Judge vide order dated 21.10.2020 with the observation that the object behind the application was to linger on the matter and that if the application is allowed, it will create complication and lead to endless and multiple proceedings, which will not be warranted by law. In revision, the learned Revisional Court set aside the order observing that in a suit for permanent injunction involving demarcati on of land falling within the village-land/ shamlat deh the appointment of local commission will be relevant in such situation and that while considering the appointment of Local commission, foundational point would be as to whether the report of local commission will be helpful to reach a just conclusion.
Other reasons that prevailed with the learned Addl. District Judge were that during the evidence a question was put by the respondents to the witnesses of the other side as to whether they had any objection to the appointment of the local commission, which offer was accepted. It was observed that the parties had previously been in litigation over the land subject-matter of suit and, in this backdrop, where the witnesses of the petitioner also did not oppose the appointment of local commission it will be appropriate to appoint a local commis sion to assess the surroundings and demarcation, if any, as well as the entitlement of the parties over the suit property and that as a matter of opportunity , in a suit for permanent injunction, it is always deemed necessary that the boundaries of land owned and possessed shall be ascertained by production of relevant record as well as appointment of local commission whose report would be rendered after spot inspection and assessment which would be helpful to the court in adjudication of the issue. With these reasons the learned Addl. District Judge allowed the revision petition subject to payment of Rs.10,000/- as costs for filing the delayed application with the direction that the matter being in relation to village-land/sham/at deh, a seasoned Revenue Officer shall be appointed to prepare a spot report and also obtain photographs of the suit property as well as surrounding places of the connected properties in issue.
5. It may be gleaned from the plaint that the petitioner claimed that he was permanent resident of Khushab, agricultural land of ancestors was in the mauza that evolved upon him through inheritance and that the proprietary and possessory rights vested in the petitioner and that the suit land was part of shamtat deh comprising 8-kanals in which the petitioner was shareholder since the time of his ancestors. Further that the suit property comprised residential site, Ihata, walls, boundaries, trees, etc. and that the respondents had no concern with the same and that they were attempting to forcibly and with mala fide, interfere in the possession and ownership of the petitioner .
A decree for permanent injunction was claimed with these circumstances. The stance of the respondents, to the contrary , was that the petitioner had no cause of action. The suit was barred by rule of estoppel. The description of the properties was incorrect, khata number and khatuni number were not disclosed, the land in dispute was shamlat deh which had not been partitioned, the plaint was liable to be rejected and that previously the petitioner had filed a suit for declaration titled "Haji Muhammad Nazir v. Naara Khan and others" , in which his application for injunction was rejected on 06.12.2012 and appeal there against was also dismissed on 03.7.2013, whereafter an application for amendment was moved which too was declined, the order was challenged in revision and the revision was also dismissed and that later on the petitioner withdrew the suit with permission to file a fresh one subject to payment of costs and that the petitioner had relinquished the claim of declaration by filing a simple suit for permanent injunction which was not maintainable and further that the petitioner was neither owner in the deh nor had any share in the shamlat . Instead the respondents were owners and shareholders in the shamlat and in possession thereof and that proper remedy for the petitioner was to seek partition which being not claimed suit for permanent injunction simpliciter was not legally maintainable. The stance of the petitioner was vehemently controverted by the respondents. Parties lead their evidence. At a later stage, the respondents sought appointment of local commission to submit a site repor t which application was dismissed by the learned Civil Judge, primarily for the reason that it was belated and that the parties had to stand on their own legs and to prove their respective 'stances through admissible evidence and that they could not be permitted to procure evidence through pressure of appointment of local commission and using the court order .
6. The learned Addl. District Judge to the contrary , concluded that the application was dismissed on technicalities despite the fact that the parties had to stand on their own feet and produce their respective evidence pro and contra in support of their suit for injunc tion but considering the facts and circumstances of the instant case, appointment of local commission was necessary for fair and just adjudication of the controversy .
7. As noted supra, the dispute is with regard to a piece of land which is part of shamlat deh and, as yet, has not been partitioned. The petitioner claims that since the time of his forefathers, the property was in possession of his ancestors and that the same devolved upon him through inheritance and that he was in possession of the ladd inclusive of kotha jat, etc., existing in a part of shamlat which was, according to the petitioner , proportionate to the proprietary interest in the mauza.
8. Order XXVI, Rule 9, C.P.C. contains the mandate that commission can be appointed to report after site inspection in regard to possession, characteristics of land, area of shamlat, possession of claimant as holder of proprietary interest in the village and also as to the exact entitlement in the shamlat as per proprietary interest in the village. No doubt it is for the court to decide the substantive questions arising in the suit but if keeping in view the nature of the dispute and ground realities in mind, site inspection will be beneficial, then procedure under Order XXVI, Rule 9, C.P.C. may be adopted. Appointment of local commission is made only for the purpose of elucidation and rendering assistance to the court in correctly appreciating the controversy by C having the knowledge of the state of affairs at site. It is for this reason that the court is empowered under Order XVIII, Rule 18, C.P.C. to even make site inspection itself, if need be. Delay in filing application for appointment of local commission in itself cannot be a sole reason to reject the same.
9. In "Rehman Dad and another v. Major Raja Sajwal Khan and others" (1976 SCMR 350) the objection that if an application for local commission was allowed it will re-open the case as after the report of local commission objections will have to be filed and parties will be entitled to lead evidence which fact shall cause delay in disposal of the case, did not find favour with the Supreme Court of Pakistan as it was observed that the ground given by the learned Civil Judge for refusing appointment of local commission was arbitrary and extraneous to the legal principles and that in case of peculiar nature of the subject-matter , the report of the local commission after objections, could facilitate the court to formulate its opinion on the questions involved and, as such, it would be judicious exercise of discretion if such application was allowed. In "Province of Punjab through Collector , Bahawalpur and others v. Sh. Hassan Ali and others" (PLD 2009 SC 16) it was observed that in a suit in which the court deems a local investigation to be required or proper for the purpose of facilitating any matter in dispute or for ascertaining market-value of the property , the court may under Order XXVI, Rule 9, C.P.C. issue a commission to such person as it deems fit to carry out such investigation and to make a report . In "Nasir -ud-Din and others v.
Surreya Begum and others" (1994 MLD 1937 ) it was observed that in case of a dispute between the parties with regard to extent of their respective portions transferred to them, the court after perusing the evidence if finds that the question of determination of the built up area as well as vacant land, could not be fully resolved from evidence on record, the court could appoint a local commission to carry out the measurements on the spot with a view to determine the built up area and vacant land transferred to the parties. In "Zahooruddin v. Haji Hussain through his legal heirs and others" (PLD 1991 Kar. 205) it was observed that where the area and dimensions of the property were involved, necessary inspection and report could be the best evidence in such matters. In "Iltaf Hussain v.
Zafar Iqbal and others" (2015 CLC 447) it was observed that appointment of a local commission to carry out local investigation could be made if the court deemed the same to be requisite or proper . It was further observed that the appointment of local commission was proper to decide the /is as without spot inspection exact location of both parties could not be proved and that dismissal of the application for appointment of local commission on the assumption of delay in concluding the suit or recording the evidence of the parties could not be a ground to reject the application for appointment of local commission where investigation of the ground realities was found to be necessary and that such discretion, if exercised, could not be interfered with in Constitutional jurisdiction. In "Muhammad Yousaf alias Bala v. Khuda Dad and 11 others" (2004 MLD 1107) it was observed that where the controversy between the parties was with regard to the boundaries of land owned by them, the same could only be resolved through demarcation and, therefore, the learned trial court was right in adopting the procedure of appointing local commission under Order XXVI, Rules 9 and 10, C.P.C. In "Niaz Ahmad v. Fida Muhammad" (1987 CLC 659) it was observed that if the dispute between the parties involved only demarcation of area and evidence on record being insuf ficient to adjudicate upon the controversy , proper course for determination of the dispute would be to issue a commission through a competent person to visit the site, demarcate the area transferred to each party and that the court could decide the case in light of the evidence on record and the report after affording opportunity to raise objections.
10. Considering the consistent rule in the precedents noted supra it is manifest that in instances where the dispute pertains to description of property , the parties are in issue with respect to their entitlement, the property subject- matter of dispute is shamlat deh and the claim of possession and proportionate entitlement is seriously in issue, identification of respective areas and entitlement of the parties being essential, local investigation could be made through the commission to secure the exact picture of the site and to verify the ground realities and state of affairs on the spot. It is true that the decision as to entitlement of the parties or the proprie tary interest will be the exclusive jurisdiction of the court, while the objective of local investigation shall be to obtain the picture of the site and property to understand and appreciate the controversy raised in evidence and through the pleadings.
11. Under Order XXVI, Rules 9 and 10, C.P.C. the report of the local commission as also the evidence collected by the local commission, form part of the evidence while the ultimate decision rests with the court. It is always deemed just, fair and necessary for effective adjudication of dispute in regard to description and boundaries of property claimed by the respective parties that a site report be secured. The learned Civil Judge mainly dismissed the application on the assumption that it was delayed and, if allowed, will result in further proceedings by inviting objections, concluding evidence and such course will lead to endless litigation. In adopting this approach it was little appreciated that this could not be the sole ground to dismiss the application without considering the other attending factors and that the court was required to consider whether in the specific facts and circumstances 'of the case and the nature of the dispute, site report shall be helpful for proper adjudication of the case and, if so, then of course, the appointment of local commission shall be just and fair. The learned Addl. District Judge, rightly observed that the suit was for permanent injunction and no respective property claim by the parties as share in shamlat deh. The rights and possession of the petitio ner qua the property and also the descrip tion of the property as well as the plan attached, were disputed by the respondents, the petitioner filed a suit for declaration wherein application for injunction was dismissed and stay was later on withdrawn with permission to file a fresh one and, in these circumstances, it was essential that the issue be resolved for all times to come by taking all possible measures to reach the truth of the matter and to determine the controversy in a just and fair manner to the satisfaction of both the parties and for the delayed filing of the application, the learned Addl. District Judge rightly imposed costs of Rs.10,000/- upon the respondents. The order of the learned Addl. District Judge directing the appointment of some seasoned revenue officer as local commission in the matter to prepare a spot inspection appears to be a fair, just and reasonable approach. In "Jalal Khan and 10 others v. Khandoo Malik and 24 others"
(2003 SCMR 1351 ) to which the learned counsel for the petitioner made reference, had distinguishable facts. In the said case, the suit was finally dismissed, appeal filed by the other side was also dismissed but in the revision the case was remanded to the learned Appellate Court and, in post-remand proceedings, at the appellate stage, an application for appointment of local commission was made which was declined by the court with the observation that sufficient evidence existed on- the record for decision of the appeal and, as such, appointment of commission was not deemed necessary which order was not interfered with and Leave was refused. In the instant case, the learned Addl. District Judge, took into consideration all the material facts, nature of the dispute in the suit and recorded cogent reasons for which to appoint the local commission for site inspection which was deemed necessary . The order , as such, does not suf fer from any error of law or jurisdiction nor calls for any interference.
12. For the reasons supra, there is no substance in the instant Constitutional petition which is, accordingly , dismissed.