1. The captioned appeal has been preferred against judgment and decree recorded by learned Additional District Judge Dadyal dated 22.01.2019 qua an appeal filed by the appellant herein against judgment and decree dated 17.09.2018 recorded by Civil Judge Dadyal has been dropped.
2. Detailed facts of the captioned appeal are, appellant herein filed a suit for perpetual injunction against respondents herein in the Court of Civil Judge Dadyal on 09.04.2008 wherein it was pleaded that plaintiff and proforma defendants are owners in village Thara and are in possession of 20 kanals of shamilat land since long. It was further stated that Defendants No. 1 to 5 are flexing their muscles to dispossess the plaintiff from Shamilat land, hence, suit may be decreed.
3. Defendants contested the suit by filing written statement, wherein it was pleaded that plaintiff and proforma defendants are not in possession of shamilat deh land, hence the suit is liable to be sacked. The learned trial Court framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence and at conclusion of the proceedings, dismissed the suit for want of proof vide its judgment and decree dated 17.09.2018. Appeal filed before Additional District Judge Dadyal met the same fate as was dishonoured vide its impugned judgment and decree dated 22.01.2019, hence the captioned appeals.
4. The learned counsel for the appellant vehemently argued that though the possession of plaintiff and proforma defendants could not be proved to the extent of 20 kanals of land, however a local commission was appointed by the Court which reported that plaintiff and proforma defendants are in possession of 3 kanals and 4 marlas of land, hence the suit to that extent was liable to be decreed but both the Courts below failed to appreciate the said ticklish controversy and wrongly dismissed the suit. The learned advocate also stated that the threat of forceful dispossession on behalf of real defendants was also proved from the evidence however the Courts below failed to appreciate the relevant evidence in its true perspective and reached at a wrong conclusion, hence requested that the suit to the extent of 3 kanals of 4 marlas of land may be decreed.
5. The learned counsel for the respondents supported the impugned judgment on all counts by submitted that it was categorically pleaded in his plaint that the plaintiff and proforma defendants are in possession of 20 kanals of shamilat land but they could not prove their stance, hence no relief contrary to the pleadings can be extended in their favour, thus the appeal is liable to show the doors.
6. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.
7. It is evident from the record that plaintiff pleaded in his plaint that he alongwith proforma defendants are in possession of 20 kanals of shamilat deh land of village Thara. The trial Court appointed local commission for spot inspection and report. As per report of local commission, plaintiff and proforma defendants are in possession of 3 kanals and 4 marlas of land. The commission was appointed with the consent of the parties and the parties have not objected to the report of the Commission, thus the report of commission has become final and role of commission turned into a referee, hence both the parties were bound to its report. Reliance may be placed on PLJ 2011 SC (AJ&K) 68 and PLD 2011 SC (AJK) 25.
8. As according to the report, the plaintiff and proforma defendants are in possession of 3 kanals and 4 marlas of Shamilat deh land, hence no one can be allowed to dispossess them without following due process of law by taking law in his hands, thus it was enjoined upon the Court below to decree the suit to the extent of 3 kanals and 4 marlas of land which was in possession of plaintiff and proforma defendants. From the statements of witnesses produced by plaintiff as well as from the statement of attorney of plaintiff it has amply substantiated without blemish that there was a threat of forcible dispossessing the plaintiff and proforma defendants by the defendants but the Court below wrongly observed that the plaintiff could not prove any threat on behalf of defendants to dispossess him.
9. The argument advanced by the learned counsel for the respondents that the plaintiff claimed his possession on 20 kanals of shamilat land, however as per report of local commission, he is in possession of only 3 kanals and 4 marlas of land, thus relief cannot be granted to the plaintiff beyond pleadings has got no plausible substance because though the plaintiff could not prove his claim to the extent of 20 kanals of land but his stance to the extent of 3 kanals and 4 marlas was endorsed by evidence. Law is well settled that a villager of the deli who is in possession of Shamilat deh land cannot be dispossessed without following due process of law and the Civil Court is fully competent to decree a suit for perpetual injunction regarding shamilat deh land subject to legal partition of the land. Reliance may be placed on 2014 SCR 1537.
10. The sum and substance of the above discussion is, the appeal stands accepted, the suit filed by plaintiff/appellant is hereby decreed to the extent of 3 kanals and 4 marlas of shamilat land which as per report of local commission is in possession of plaintiff and proforma defendants.