1. ' Second appeal by the defendants Nos. 1 to 5, in the suit for possession is directed against judgment and decree dated 15-11-1968 of the lower appellate Court affirming those of the trial Court, whereby it had decreed possession of eleven kanals of land in favour of plaintiff.
2. ' Material facts for the decision of the points involved in the appeal briefly summarised are:-- ' 88 kanals, 3 marlas of agricultural land bearing Khasra No, 305, situated in the revenue estate of Daggar Shada of Tehsil Bhakkar, in District Mianwali was in joint ownership of the plaintiff with defendants Nos. 6 to 28. On 4-6-1965, plaintiff instituted a suit against defendants Nos. 1 to 5, namely, Ahmed, Hussaina, sons of Jinda, Muhammada, Sarga, and, Jiwan sons of Hassu for recovery of possession of eleven kanals of land out of Khasra No, 305. It was alleged that the aforesaid defendants had by committing trespass on the land in Khasra No, 305, unauthorisedly taken its possession about four years earlier and constructed their chhappars on it and installed a water pump also. Co-owners in Khasra No, 305, namely, defendants Nos. 6 to 28 were joined as pro forma defendants in the suit, and, no relief was claimed against them. First two defendants were in possession of 1 kanal, 12 marlas, defendants 3 and 4, 7 kanals, 10 marlas, and, defendant No,5, 1 kanal, 18 marlas. Respective portions in possession of these defendants were shown as 305/1, 305/2 and 305/3.
3. ' Upon being served in the suit, defendants Nos. 1 to 5 submitted a joint written statement, and, contested the suit. It was averred that as the land was sikni, value for purposes of court-fee in respect of the suit for possession was incorrectly assessed and less court-fee was paid on the plaint. Further, the defendants denied plaintiffs ownership of the land as also that of defendants Nos.6 to 28. It was asserted that the land in dispute was in possession of defendants Nos. 1 to 5, for the past more than twenty years and constructions had been raised on it by them on the basis of old possession. It was averred that suit was barred by limitation.
4. ' On 8-9-1965, the trial Court framed following issues:--
(1) Is the plaintiff owner of the suit land? OPP.
(2) Is the suit correctly valued for court-fee and jurisdiction? OPP.
(3) Has the plaintiff been in possession of the land in dispute within 12 years of the suit? OPP.
(4) (4) Have the defendants Nos. 1 to 5 been in adverse possession of the suit land for more than 12 years? OPD.
(5) Relief.
5. ' Plaintiff gave evidence of Rana Mukhtar Ahmad, Colony NaibTehsildar, Bhakkar, P.W. 1 who had demarcated the land in dispute and proved his report Ext. P.1 and the plan Ext. P.2, Muhammad Ramzan Halqa Patwari Daggar Shada P.W. 2 who proved naqsha tafawat Ext. P.3, and report in daily diary, Ext. P.4 and produced an extract from register khasra girdawari, Ext. P.5, a jamabandi, Ext. P.6 and closed his affirmative evidence with reservation to appear as his own witness after close of defence evidence. Four D.Ws. Gave evidence for the defence. They were Gul Muhammad, Allah Wasaya, Rab Nawaz and Elahi Bakhsh. In addition to them, Ahmad co-defendant as D.W. 5 himself appeared in the witness-box and recorded his statement. Thereupon, plaintiff made his own statement as P.W.
5. Rana Mukhtar Ahmad P.W. 1 was examined again and thereupon parties' evidence was closed.
6. ' Upon review of record, the trial Court held that land in dispute in possession of defendants Nos. 1 to 5 was part and parcel of Khasra No, 305; valuation of the suit for purposes of court-fee was correct; defendants Nos. 1 to 5 were proved to be in possession of the land in dispute for more than twelve years and the plaintiff had failed to establish his possession within that period. Consequently, issues Nos. 3 and 4 having been answered against the plaintiff, his suit was dismissed on 11-5-1966.
7. Plaintiff filed an appeal. It was allowed on 20-4-1967 by learned District Judge, Mianwali who remanded the suit for deciding it afresh after taking more evidence from the parties. Learned District Judge did not seem to be satisfied with the quality of oral evidence given in defence because of its interested and discrepant character. In post-remand, plaintiff produced three more witnesses and the defendants gave evidence of four witnesses. Upon consideration of the material added to the file in conjunction with already existing on it, the trial Court held that Khasra No, 305 was owned by the plaintiff, alongwith defendants Nos. 6 to 28; that the land in dispute was part of Khasra No, 305; that the defendants Nos. 1 to 5 were in its unauthorised possession and the suit filed for recovery of its possession was not barred by limitation. Accordingly, it decreed the suit on 12-10- 1967, in favour of the plaintiff. Defendants Nos. 1 to 5 filed an appeal against the judgment and decree of the trial Court before learned District Judge, Mianwali. The appeal was heard by a learned Additional District Judge to whom it was marked for hearing. He saw no merits in the appeal and dismissed the same on 15-11-1968. That is how the defendants have come up in second appeal to this Court. The appeal was admitted to hearing on 4-3-1969 and execution of the impugned decree was stayed meanwhile.
8. ' At the outset, learned counsel for the appellants conceded plaintiff's ownership of the land in Khasra No, 305 and abandoned pleas of adverse possession, and, bar of limitation raised in defence in the lower Courts. In this view of the statement of learned counsel for the appellants, only material point surviving for decision in the appeal was whether the land in possession of the appellants was proved to be a part of Khasra No, 305, and, two reports of Local Commissioner made in the previously instituted civil suits, since withdrawn, were its adequate proof. Obviously, the kind and quality of oral evidence led in the case was not much helpful for a satisfactory determination of the dispute about the identity of the land in dispute. Cases of boundary disputes and disputes about the identity of lands are apt instances where a Court may order a local investigation under Order XXVI, Rule 9, Civil Procedure Code. Reference with advantage can be made to the cases in Lodna Colliery Co. (1920) Ltd. v. Bholanath Rai and others AIR 1954 Calcutta 233, Vencu Gopal Tari and others v. Nilconta S. Xete and others AIR 1975 Goa 32. It is common ground that in the present suit, neither the plaintiff applied for the appointment of a fresh Local Commissioner for demarcation of piece of land in possession of defendants Nos.1 to 6, nor the trial Court had directed local investigation by a Local Commissioner. Instead, the plaintiff relied upon reports of the Local Commissioner made in the previously instituted two separate civil suits against the defendants which were subsequently withdrawn and tried to prove their accuracy by examining the Local Commissioner, namely, Rana Mukhtar Ahmad, Colony Naib-Tehsildar twice, once as P.W. 1 on 5-2-1966, and, thereafter on 13-4-1966. As P.W. 1, he proved his demarcation report Ext. P.1 and plan Ext. P.2. In his subsequent examination, he proved his other report Ext. P.7. Ext. P.1 was a demarcation report made in the civil suit tiled by plaintiff against Ahmad and Hussaina pertaining to Khasra No,302. When deputed by the trial Court in that suit to discover, whether the defendants were occupants of Khasra No,302, the Local Commissioner reported on 10-5-1965, that possession of Ahmad and Hussaina existed on a piece of land measuring 1 kanal, 12 marlas in Khasra No,305 marked as 305/1 in the attached plan. After this report of the Local Commissioner, the suit in which the report was made was withdrawn by the plaintiff with permission to file a fresh suit on its basis. Similarly, Ext. P.7 was a report by the same Local Commissioner in the civil suit instituted by the plaintiff against Muhammada and Sarga sons of Hassu to recover 11 kanals, 5 Marlas of land, out of Khasra No,305, from their unauthorised possession after removal of the malba from it. Ext. P.7 showed Muhammada and Sarga to be in possession of 7 kanals, 10 marlas of land out of Khasra No,305 which was marked as Khasra No,305/2 in it. Further, it showed that Jiwan son of Hassu was in possession of 1 kanal, 18 marlas of land out of Khasra No,305 shown as 305/3 in the plan. Copy of the plaint in the suit filed by plaintiff against Muhammada and Sarga was not put in evidence but description of parties to the civil suit available in the report Ext. P.7 clearly showed that Jiwan son of Hassu was not a party to this suit. The report of a Local Commissioner and the evidence taken by him is evidence only in the suit in which he made the enquiry but it is not per se evidence in any other suit, unless its accuracy was proved in the ordinary way. This view finds clear support from the cases in Sarat Chandra Rakhit v. Sarala Bala Ghosh and others AIR 1928 Calcutta 63, Ibrahim Beg v. Mt. Aziman and another AIR 1936 Oudh 192, Ghanaya and others v. Mehtab and others AIR 1934 Lah.
890. As observed above, previous suits instituted by the plaintiff were withdrawn from the Court with permission to file and proceed afresh on the existing cause of action.
9. Rana Mukhtar Ahmad, who was examined twice deposed that he had demarcated the land in dispute and found it in possession of the defendants Nos. 1 to 5, in proportions indicated in his reports Exts. P.1 and P.7. It could not be gainsaid that Jiwan son of Hassu defendant No,5, in the present suit was not a party to the previously instituted suits filed by the plaintiff. Therefore, the report prepared behind his back of which he had no notice could not be treated as a valid piece of evidence against him for finally binding him with the conclusions reached in it. In Becharam Choudhuri and others v. Puma Chandra Chatterji and others AIR 1925 Calcutta 845, Sashi Bhusan Basuri v. Moti Bala Dassi and others AIR (32) 1945 Calcutta 317, Baisnab Das Mohanta v. Nani Gopal Das and others PLD 1963 Dacca 504, there are observations that when a Court grants leave to file a fresh suit or proceeding on the identical cause of action, the withdrawn suit has no existence in the eye of law. It is available for no purpose and the parties are relegated exactly to the same position which they occupied before the suit was brought. In Haji Hakimullah v. Saghiruddin and 2 others PLD 1975 Kar. 509, absoluteness of the rule was relaxed in favour of "admissions" made by the parties in the previous suit for proof in the subsequent civil suit. As far the evidentiary value attachable to the report of a Local Commissioner in the civil suit, later withdrawn, with leave from the Court to file it afresh on the identical cause, learned counsel for the parties had not referred the Court to any decided case nor have I been able to discover any. Be that as it may, lower Courts had mainly based their decisions relating to the dispute about identity of the land on the reports prepared by the Local Commissioner and his statement in Court. In absence of relevant records from the earlier suits brought on file in accordance with the requirements of law, it is difficult to find as to the stages, the suits had reached when those were withdrawn from the Court. It is not known, whether the parties were called upon by the Court to file objections to the report of the Commissioner or that they omitted to object to the report and if objections were taken by either party, what was the fate of those objections when the suits were permitted to be withdrawn from the Court with liberty to institute fresh suits on the result of the reports of the Commissioner. As far as the instant suit was concerned, opportunity to take objections to the report of the Commissioner and substantiate them by evidence was not allowed to the party adversely affected by the reports of the Commissioner. It is well-settled that parties are entitled to take objections to the report of the Commissioner and are further entitled to substantiate the same by giving evidence and the Court must fix a date to enable them to file the objections, if any, to the report of the Commissioner. On the present record, that procedure does not seem to have been followed. Having examined the Commissioner's reports Ext. P.1, P.7 and plan Ext. P.2 in the context of instructions laid down for determining boundary disputes and identity of lands incorporated in Volume 1 of the Rules and Orders of the High Court, Chapter 1-M, there is reason to think that the result reached and conclusions formed were unsatisfactory. In these circumstances, it was appropriate for the trial Court to have itself deputed the Local Commissioner for demarcating the land in dispute in accordance with the rules on the subject for discovering, whether the defendants' possession existed on any part of Khasra No,305 owned by the plaintiff alongwith defendants Nos. 6 to 28.
10. In view of the foregoing reasons, second appeal is allowed, impugned judgments and decrees passed in the lower Courts are set aside and the suit is remanded to the trial Court to appoint a Local Commissioner, preferably a Revenue Officer experienced in field work, to carry out fresh demarcation of the land in dispute for finding out whether the portions of land in dispute in possession of defendants Nos. 1 to 5 were part of Khasra No,305 and decide the matter afresh accordingly. The expenses of the Commission shall be shared by the parties equally. Except for the limited extent indicated above, findings on other issues are not disturbed and those shall remain intact for the lower Courts. Costs of litigation in this Court shall be borne by the parties.
11. ' Records to be returned to the trial Court to enable it to proceed with the trial of the suit in accordance with the direction contained in the judgment of this Court.