JUDGMENTFAZAL KARIM, J.-By this revision petition, under section 115 of the Code of Civil Procedure, the plaintiff, Muhammad Bashir, seeks the revision of the judgment and decree of the learned Additional District Judge, dated 28.10.1989, by which the judgment and decree of the learned Civil Judge, Sialkot, dated25.10.1987, was reversed. The learned Civil Judge had by his judgment dated 25.10.1987, decreed the plaintiffs suit, but the learned Additional District Judge, by accepting the appeal of Lai Din, defendant, dismissed the suit.
2. The suit of the plaintiff, Muhammad Bashir, was a suit for a perpetual injunction restraining the defendant, Lai Din, and the Assistant Commissioner, Sialkot, from dispossessing him unlawfully and forcibly from a part of his house in pursuance of the Assistant Commissioner's order, dated 22.5.1986. It was said that Lai Din, defendant, had made an application before the Assistant Commissioner praying for the demarcation of Khasra No.358 and the Assistant Commissioner had after carrying out the demarcation proceedings, by his order dated 22.5.1986, directed the demolition of a part of the plaintiff's house, that part having been found to stand on Khasra No358.
Khasra No.358, it appears to be common ground between the parties, was a passage. It was the plaintiff's case that the order of the Assistant Commissioner, dated 22.5.1986, was against law, without jurisdiction and collusive. The facts basis of those allegations, were however not mentioned in the plaint. Lai Din, defendant, contested the suit by filing a written statement; according to him the plaintiff had trespassed into a part of Khasra No.358 by raising construction and this he had no right to do. It was pleaded that he had not come to court with dean hands and was, therefore, not entitled to the protection of the court. According to the defendant, the demarcation proceedings has been carried out in accordance with law and the Assistant Commissioner was fully competent to make the order dated 22.5.1986.
3. On the parties' pleadings, the learned Civil Judge formulated the following issues:-
1. Whether the order dated 22.5.,1986 was collusive between the defendants and as such is liable to be set aside? OPP.2. Whether the plaintiff is owner-in-possession of the suit property? OPP.3.
Whether the suit is not maintainable in its present form? OPD.4. Whether the suit property is a public way? OPD.5. Whether the plaintiff has not come to the court with dean hands? OPD.5-A.
Whether the report of the Local Commissioner is liable to be set aside? OPP.6. Relief.
For the purpose of demarcation, Abdul Shafiq, Tehsildar, Sialkot (D.W.4) was appointed as Local Commissioner. He stated that he had served notices upon the parties, Muhammad Bashir, plaintiff and Lai Din, defendant, for the date he inspected the spot and carried out the demarcation; that the plaintiff had refused to accept notice and that he had demarcated the boundaries of Khasra No. 358 and made report, Ex. D.I. He also filed with his report copy of Aks Shaira, Ex.D.2. It also appears that on the application of Lai Din, the Naib Tehsildar, Sialkot, had carried out demarcation of Khasra No. 358 on 9.3.1986; that he had found that the plaintiff had encroached upon a part of Khasra No. 358. After the receipt of this Naib Tehsildar's report the Assistant Commissioner, in his capacity of Collector, issued notices to the plaintiff and other persons who too, according to the Naib Tehsildar's report, dated 9.3.1986, had encroached upon Khasra No358. The plaintiff had appeared before the Assistant Commissioner and made a statement that if Feroz Din, a brother of Lai Din, defendant, removed the encroachment on a part of Khasra No.358 and that the other encroachers also removed their encroachment, he would be prepared to remove the encroachment provided Lai Din, defendant, paid him Rs. 50,000/-. Lai Din's statement was also recorded and it was than that the Assistant Commissioner had made the Order, dated 22.5.1986.
4. The Local Commissioner appointed by the learned Civil Judge had also found that the plaintiff had encroached upon a part of Khasra No. 358.
5. The learned Civil Judge found that the plaintiff was not present when the Local Commissioner had carried out the demarcation; he also noticed that the Local Commissioner had "fixed two undisputed points for demarcating the disputed property. Whereas he was required to demarcate the property from three undisputed points." He, therefore, thought that the Local Commissioner's report (Ex.D.I) was not reliable and was liable to be set aside. On issue No. 4, the learned Civil Judge found that Khasra No. 358 is a public passage. Defendant had failed to prove that the disputed property was part of Khasra No. 358. As to the Naib Tehsildar's report, dated 9.3.1986, (Mark 'B'), the learned Civil Judge was of the opinion that that report "has not been proved formally by examining the concerned witnesses, therefore, it can not be considered in evidence". The finding recorded by the learned Civil Judge on issue No. 1 was that the order of the Assistant Commissioner, dated 22.5.1986 (Ex.P.2) had been made by the Assistant Commissioner after "obtaining the report of demarcation of the disputed property". In his opinion, however, even if the constructions raised by the plaintiff were unlawful "the defendant No.2 was not authorised to order for the demolition of the constructions because only a Civil Court is competent to make such orders." In his view "even if the entire evidence produced by the plaintiff be excluded from the record, the disputed order stands void because the defendant No.2 was not competent at all to make an order for the removal of the constructions and the proper course for the defendant was to seek his remedy through a civil suit."
6. In reversing the learned Civil Judge, the learned Additional District Judge held that the plaintiff had not produced any evidence, "that he is owner of suit property"; that it was proved that Khasra No.358 was a passage; and that the learned Civil Judge was not justified in setting aside the Local Commissioner's report, Ex.D.2, for the plaintiff had been served and had not appeared before the Local Commissioner. In the view of the learned Additional District Judge the finding of the learned Civil Judge, that the report of the Local Commissioner was not in accordance with law, was not justified, "because two demarcations were made, one by the Revenue Department and second by the Local Commissioner, appointed by the court and the results of these demarcations is the same that the plaintiff/respondent No.1 has encroached upon a thoroughfare upto 9 Karam x 2 Karam."
The learned Additional District Judge concluded that as the plaintiff had failed to prove that he was owner of the suit land, "he cannot get the decree prayed for because law does not help the usurper."
7. It appears that neither the learned Civil Judge nor the learned Additional District Judge had his attention called to the provisions of Chapter X of the Punjab Land Revenue Act, 1967. That chapter provides for surveys and boundaries. By its section 117," a Revenue Officer may, for the purpose of framing any record or making any assessment under the Act or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or repaired."
Section 118 provides that "when any land is being surveyed in pursuance of rules under section 116, any Revenue Officer directing the survey may, by notice or proclamation, requrire all persons having rights or interests in the land to attend personally or through authorised agent, and indicate, within a specified time, by temporary marks of a kind to be described in the notice or proclamation, the limits of those rights or interests." Section 122 is important. It enacts that the settlement of a boundary under any of the foregoing provisions of Chapter X "shall, subject to the provisions of Chapter XIII, (which chapter provides for appeals, reviews and revisions, be determiniative (a) of the proper position of the boundary line or boundary marks, and (b) of the rights of the land-owners on either side of the boundary fixed in respect of the land adjudged to appertain, or not to appertain, to their respective holdings." It further provides that "where a boundary has been so fixed, the Collector may, under rules to be framed in this behalf by the Board of Revenue with the previous approval of Government, evict any land-owner who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding.
8. Reference may also be made to section 172 of the Punjab Land Revenue Act, 1967; it excludes the jurisdiction of the civil court "in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act".
9. Now the dispute between the parties was whether the plaintiffs construction stood on a part of Khasra No.358. The parties were not at issue on the point that Khasra No.358 was a public passage; this fact was fully borne out by the entries of the record of rights also. The dispute being as to the limits of Khasra No.358, it obviously lay within the jurisdiction of the revenue officers under section
117. The plaintiff did say in his plaint that the order of the Assistant Commissioner, dated 22.5.1986, was without jurisdiction and illegal; he did not, however, mention the grounds going to the validity of the order. In his statement as P.W.4, Muhammad Bashir, plaintiff, admitted that the defendant had approached the Assistant Commissioner for defining the limits of Khasra No.358 and that the Tehsildar had visited the spot. He, however, denied that any demarcation had taken place or that he was present at the time pf demarcation. His statement appeard to receive a lie from the report of the Naib Tehsildar. Dated 9.3.1986, which shows that he and the defendant, Lai Din, and many others were present when the Naib Tehsildar had demarcated Khasra No.358 and had found that the plaintiff and a number of other persons had encroached upon Khasra No.358. After having received the Naib Tehsildar's report, dated 9.3.1986, the Assistant Commissioner issued notice to the plaintiff and others and before him in his statement (Ex.D.6) Muhammad Bashir, plaintiff, had agreed to remove the encroachment if others agreed to do so. The Naib Tchsildar's report dated 9.3.1986 was part of the official record and was admissible in evidence without formal proof and the learned Civil Judge was wrong in excluding it from consideration. It is also plain from the provisions of sactions 116,117,118 and 122 of the Land Revenue Act that the Assistant Commissioner, in his capacity of Collector, was competent to make the order, dated 22.5.1986. It follows, therefore, that the learned Civil Judge's view that the Collector was not competent to make that order, was not correct.
10. It is noteworthy that in the repealed Punjab Land Revenue Act, 1887, Section 101, there was power in the Revenue Officer, on the application of any person interested, to define the limits of any estate or of any holding, field or other portion of an estate but there was no provision in that Act such as Section 122 of the 1967 Act, declaring that the settlement of a boundary under the provisions of Chapter X thereof shall be determinative a) of the proper position of the boundary line or boundary marks, and b) of the rights of the land-owners on either side of the boundary fixed in respect of the land adjudged to appertain, or not to appertain, to their respective holdings or empowering the Collector to evict any land owner "who is wrongly in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims". Had the learned Civil Judge had his attention invited to the provisions of Section 122, he would not have held, as he did, that the Collector was not competent to "make an order for the removal of the constructions and the proper course for the defendant was to seek his remedy through a Civil suit".
11. The plaintiffs suit, it further appears, was expressly barred, by Section 172 of the Land Revenue Act, for the matter of eviction of the plaintiff, as a person who had encroached upon Khasra No.358, was a matter which the Collector was empowered by the Act to dispose of. Even if the suit was not expressly barred, it did not lie because before invoking the civil Court's jurisdiction, the plaintiff had not availed himself of the remedy of appeal and revision under the Land Revenue Act. (See Mian Muhammad Latif Vs. Province of West Pakistan- PLD 1970 Supreme Court 180 and Abdul Aziz Vs. Arif Ali- PLD 1978 Lahore 441).
12. In this view of the matter, I do not think that it is necessary to decide the question whether the Local Commissioner's report was rightly set aside.
13. Consequently, the revision petition is dismissed but as the ground on which the revision petition fails is different from the ground on which the learned Additional District Judge had dismissed the appeal, the parties are left to bear their own costs.