Syed Abu-ul-Fazal filed a suit seeking declaration and permanent injunction against the defendants-respondents herein in order to restrain them from constructing over any portion of the pathway adjoining the house of the plaintiff-petitioner with further prayer for demolition of superstructure, if any. Defendants-respondents contested the suit. Finding the parties at variance on a number of issues, the learned Civil Judge, Mansehra recorded such evidence as has been adduced by the parties in support of their pleadings and eventually dismissed the suit.
2. The plaintiff-petitioner preferred an appeal against the judgment of dismissal of his suit with the Additional District Judge, Mansehra. During the pendency of the appeal an application was submitted by the plaintiff-petitioner for withdrawal of the suit and the appeal on formal grounds.
The learned appellate Court, however, after hearing the arguments of the parties on the application for withdrawal, dismissed the appeal. Hence the instant revision petition.
3. I have heard S. Abdul Salam Sarwar, Advocate learned counsel for the petitioner and Syed Amir Shah, Advocate learned counsel for the respondent at length and also gone through the record of the case with considerable degree of care.
4. Assailing the impugned judgments of both the learned lower Courts, the learned counsel for the plaintiff-petitioner inter alia contended that the learned trial Court failed to dispose of the application dated 20-11-1983 moved by his client :or the appointment of a Commissioner. He referred to the order-sheets of the trial Court from 20-11-1983 till 18-9-1984 fixed for arguments on the application but instead of deciding the question of appointment of Commissioner., the learned trial Court decided the suit and dismissed the same. He further maintained that the learned appellate Court also failed to apply its mind to this important question and hence both the judgments are liable to be set aside and the case merits to be remanded back to the trial Court for appointment of the Commissioner and deciding the case in the light of the local investigation thus conducted.
5. Learned counsel for the respondents-defendants, however, tried to rely on the evidence brought on the record other than the matter relating to the appointment of a Commissioner and submitted that both the learned lower Courts have rightly dismissed the suit of the plaintiff-petitioner.
6. A perusal of the record would reveal that the dispute between the parties pertains to a pathway adjoining to their residential houses. The learned trial Court while deciding issues 1 and 6 against the plaintiff petitioner, although has discussed the case from various aspects as emerged from the oral and documentary evidence produced by the parties, yet I do not find any mention whatsoever pertaining to the request made by the plaintiff-petitioner for the appointment of a local commissioner in order to ascertain the factual position on the spot, though an application in this behalf was formally made, the reply thereto was filed and the same was fixed for arguments on a number of hearings as indicated from the order-sheet.
7.In this context of the matter while I have no hesitation in holding that failure on the part of the trial Court to decide the question of appointment of a local commissioner would fatally affect its impugned decision of the whole suit, I may also emphasise that in such a case where a right of way is claimed over certain land and the claim is denied by the opposite-party and rather the very existence of any such path way is refuted it is not only essential but a legal A necessity resort to OXXVI R, 9 and the locale of the alleged pathway, if any, should be ascertained by means of local investigation. Failure on the part of a Court to follow this course, is likely to reflect on its decision given otherwise and it would tantamount to be an ineffective decision on the plaintiffs alleged prayer of a disputed pathway. Moreover, in such a situation local investigation can be considered as the best evidence for arriving at a just decision of the case.
8. Thus without entering into the controversy relating to the findings of the learned trial Court or that of the learned appellate Court on the issues framed, I deem it fair and in the interest of justice to set aside the impugned judgments and decrees of both the learned lower Courts and remand the case back to the trial Court for conducting local investigation into the matter by appointing a Commissioner for ascertaining the truth or otherwise of the alleged path way and for giving decision in the case afresh by taking into account all the evidence-oral or documentary-produced by the parties, besides the report of the Commissioner so appointed. The Commissioner, fee shall be borne by the plaintiff.
9. To this extent, this revision is allowed. I am mindful of the fact that this litigation has already taken almost 7 years and in this view of the matter the learned trial Court is directed to finalize the proceedings within 6 months of the receipt of this file.
10. The office is directed to forward the record of the case to the Civil Judge, Mansehra without any loss of time.
11. Cost shall follow the events.