FAISAL ZAMAN KHAN, J. Through this petition, orders dated 06.03.2012 and 12.07.2012 passed by respondent Nos. 2 and 3 respectively have been assailed. By virtue of the former order a local commission for demarcation of the property in dispute has been appointed and through the latter, the same has been upheld.
2. The facts giving rise to the present petition are that a regular suit for possession was filed by respondent No.1 against the petitioners on the ground that he is owner of certain land (details of which have been given in paragraph No.1 of the plaint) whereas the petitioners are owners of certain property (details of which have been given in paragraph No.2 of the plaint) and these two properties are adjacent. It was the case of respondent No.1 that out of his land 08-Marlas are being illegally possessed by the petitioners. Written statement was filed by the petitioners denying the claim of respondent No.1, whereupon out of divergent pleadings of the parties issues were framed and evidence was led by the respective parties, where after respondent No.2 through order dated 06.03.2012 appointed the Revenue Officer/Tehsildar as a local commission to conduct demarcation of the property in dispute. The said order was assailed by the petitioners through an appeal, which was dismissed vide order dated 12.07.2012, therefore, this petition.
3. Learned counsel for the petitioners vehemently argues that no doubt under Order XXVI Rule 9 CPC court is invested with the power to appoint a local commission, however, the parameters as given in the said provision have not been followed by the courts below, thus demarcation through local commission could not have been ordered to be made. He further submits that revenue authorities have no jurisdiction to demarcate the property in dispute, therefore, even otherwise the impugned orders are not sustainable. Lastly, he submits that since the right of respondent No.1 to produce his evidence was closed, therefore, through the impugned orders an effort has been made to create evidence for respondent No.1, which is not mandated by law. Places reliance on judgments reported as Nazir Ahmad and others v. Muhammad Qasim and others (2004 SCMR 1292), Jalal Khan and 10 others v. Khandoo Malik and 24 others (2003 SCMR 1351), Rahim Bakhsh and another v. Civil Judge, Lodhran and 3 others (1985 CLC 387), Dr. Tahir Mahmood Awan v.
Tariq Mahmood and another (2006 MLD 1457), Munawar Ahmad and others v. Rehmat Khan (2015 CLC 250), Vice-Chairman Punjab Bar Council and others v. Government of the Punjab and others (PLD 2021 Lahore 544), Zainullah v. Hizbullah and others (PLD 2022 Balochistan 81) and Lahore Municipation v. S. Abdul Rahim and three others (PLJ 1973 Lahore 25).
4. Replying to the above, learned counsel for respondent No.1 as well as the learned law officer supports the impugned orders by relying on Nazir Ahmad and others' Case (Supra).
5. Arguments heard. Record perused.
6. It is not disputed by the learned counsels for the parties that in order to elucidate any issue pending before the court under Order XXVI Rule 9 CPC the court can order appointment of a local commission. For ease of reference, the afore-noted provision is reproduced hereunder:- "9. Commissions to make local investigations. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose or elucidating any mater in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
Provided that, where the [Provincial Government] has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
For the purposes of present case, the catch phrase in the afore-referred provision is the word "elucidate", the dictionary meaning of which is to clear/clarify/illuminate/ to shed light on.
7. Keeping the above provision in view, this Court is of the opinion that in order to clarify a situation about which the court is unclear or is of the view that exercise of such power can bring the court to just and proper conclusion or the issue before it can be resolved with such exercise, a local investigation can be conducted by the court through the medium of a local commission. It would not be out of place to mention here that the opinion/report of the local commission is not binding on the court and once the report is submitted, opportunity is given to the contesting parties to file their objections, which will be adjudicated upon before placing reliance on the report. Even if no objections are raised, the court even otherwise can reject the report or order to appoint a new local commission (so that justice can be done).
8. It is pertinent to mention here that although civil suits are decided on the principle of preponderance of evidence however additional measures including the appointment of local commission can also be adopted by the courts while adjudicating upon the cases depending upon its nature and requirement.
9. Keeping in view the nature of a regular suit for possession where the allegation is that rival party has illegally occupied the land of the plaintiff and for proving this fact the plaintiff will have to prove its ownership over the land in dispute and its dispossession whereupon the other party will put forth its defence justifying or validating its possession. Apart from keeping the evidence led by the parties in view an important tool in the hand of the courts so as to ascertain illegal possession is the local investigation through a commission who can also be ordered demarcation of the land in dispute which will clear all the ambiguities as the evidence of the parties can only be led to the effect that parties are owners of the respective properties, however, without demarcation the issue of illegal occupancy of land cannot be determined otherwise. The judgment in the case of Nazir Ahmad and others (supra), relied upon by both the parties in fact support the view of this Court.
For reference operative part of the judgment is reproduced hereunder:- "5-A. ....Order 26, rule 9, C.P.C. provides that "in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court". The words underlined above would clearly indicate that Local Commissions are appointed only to get certain explanations and clarifications regarding the matters in confusion. There are occasions when the evidence on record does not furnish a clear picture and certain ambiguities become apparent on record. In such circumstances, the Courts are empowered to issue Local Commission so as to elucidate, clarify or explain the matter in question...."
10. Keeping in view the above and placing it in juxtaposition with the facts of the present case, as discussed in the preceding paragraphs, there is no dispute with regard to the ownership of the parties and the only issue is that as to whether petitioners are illegally occupying 08-Marlas of land owned by respondent No.1. The record would further reflect that for seeking demarcation of the property in dispute respondent No.1 approached the revenue authorities and the Patwari Halqa demarcated the property on 01.06.2006, however, upon the objection of the petitioners, the afore- noted report was cancelled with the observation that revenue courts have no jurisdiction to demarcate the property and the civil court should be approached, whereupon challenge was thrown by respondent No.1 to the above order before the Revenue Authorities in which he successively failed on the ground that only civil court has the jurisdiction to adjudicate upon the issue, whereupon present litigation was initiated by respondent No.1. Further perusal of the record would show that respondent No.1 produced his oral, as well as, documentary evidence and since the complete documentary evidence was not produced by respondent No.1, therefore, to that extent his right to produce evidence was closed, however his remaining evidence including oral and documentary evidence is available for adjudication.
11. In the afore-referred circumstances, the arguments advanced by learned counsel for the petitioners that revenue court has no jurisdiction and the right of respondent No.1 to produce his evidence has been closed loses its significance as respondent No.2/trial court while considering the admissible evidence of the parties and the checkered history of the case in order to aid itself and to resolve the controversy ordered to appoint a local commission and appointed a revenue officer for demarcation of the land in dispute and as the said jurisdiction has been exercised by the civil court (and not the revenue court), therefore, the question of bar of jurisdiction of revenue court loses its efficacy. Moreover, right of production of partial documentary evidence of respondent No.1 has been closed, which does not mean that his evidence (oral as well as documentary) which has already validly been produced and is available on the record cannot be considered.
12. Be that as it may, Order XXVI Rule 9 CPC invest sufficient powers upon the courts to appoint the local commission for investigation so as to clarify itself as at the end of the day it is the court who has to decide the issue pending before it. Even otherwise, no illegality has been committed by the courts below by ordering demarcation of the property in dispute so as to decide the controversy pending before it in a befitting and proper manner as demarcation does not mean that it is ordered for creating evidence for a particular party. As discussed above, the appointment of local commission qua demarcation is only to elucidate the pending matter and to verify the situation on ground enabling the courts to arrive at a just and proper conclusion, therefore, there is no circumstance to create evidence for any party hence the impugned orders are in accordance with law.
13. It shall be apposite to mention here that the jurisdiction exercised by this Court is discretionary in nature and even if a relief can be granted to a certain party, the same can be refused on the touchstone of Article 199 of the Constitution of the Islamic Republic of Pakistan and in the case in hand as the trial court deemed it appropriate to appoint a local commission (for its clarity) hence this Court has no mandate to doubt the wisdom of the trial court especially so when it is invested with the power to appoint the local commission thus any interference made by this Court would amount to stifling with the pending proceedings before the trial court which is not mandated by law. For reference, reliance can be placed on judgments reported as Abdul Rashid v. Pakistan and others (1969 SCMR 141), Nawab Syed Raunaq Ali, etc. v. Chief Settlement Commissioner and others (PLD 1973 S. C. 236), Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 S. C. 166), Inayat Khan and others v. Allah Ditta and others (2007 SCMR 655), Ch. Muhammad Shafi v. Shamim Khanum (2007 SCMR 838), Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others (PLD 2009 S. C. 28), Tasnim Jalal and others v. Deputy Director, A.N.F. and others (2010 SCMR 72), Muhammad Fiaz Khan v. Ajmer Khan and another (2010 SCMR 105), Javed Masih and others v. Additional District Judge, Lahore and others (2010 SCMR 795), Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another (2010 SCMR 817), Dr. Ayesha Sabir v. Fida ul Haq (2010 SCMR 1811) and Muhammad Arif v. Uzma Afzal and others (2011 SCMR 374).
14. As regards the judgments cited by the learned counsel for the petitioners, the same but for the case of Nazir Ahmad and others (supra) being outcome of different facts and circumstances are not applicable to the case in hand.
15. For what has been discussed above, this petition is dismissed.
16. Before parting with the judgment, it is unfortunate and sad to note that this petition is pending before this Court since 2012 and as an interim measure the proceedings before the trial court have been stayed therefore, a direction is issued to the trial court to decide the main case within a period of four months from the receipt of a certified copy of this judgment.