' Col. Mahboob Khan appellant is in possession of land measuring 4 Marlas. Abdul Rashid respondent No,1 filed a suit seeking possession of the said land on the ground that the said land is not a part of the property owned by the defendant who has encroached thereupon and therefore, is in illegal possession thereof. According to the plaintiff, land in dispute is a part of Khasra No,823 which is owned by the plaintiff. The suit was contested, a Local Commissioner was appointed who submitted a report. Evidence was recorded in the suit. Learned trial Court on the basis of evidence recorded in the suit held that issue No,1 is proved in favour of the plaintiff according to which finding, the defendant-appellant has encroached upon the land belonging to the plaintiff. Issue No,1 was decided against the defendant and it was held that the plaintiff is not estopped to file the suit. Issue No,3 was not pressed and therefore no finding was rendered thereon. On the basis of the findings on issues Nos.1 and 2, learned trial Court decreed the suit in favour of respondent No,1 vide judgment and decree dated 12-1-1972. Aggrieved of this judgment and decree, defendant, who is appellant before this Court filed regular first appeal which was dismissed by the learned Additional District Judge, Rawalpindi on 7-6-1972. Learned Additional District Judge also relied upon the report of the Local Commissioner as well as Jamabandi for the year 1956-57, which has not been produced as a part of evidence in the case and placing reliance on this Jamabandi as well as the report of the Local Commissioner, affirmed findings of fact rendered by the learned trial Court and dismissed the appeal. Aggrieved of this judgment and decree, defendant has filed this regular second appeal.
2. Mr. Muhammad Munir Peracha, Advocate has appeared on behalf of the appellant whereas Raja Muhammad Afzal, Advocate has appeared on behalf of respondent No,1. None has appeared on behalf of respondent No,2, who has been proceeded against ex parte. Learned counsel for the appellant has pointed out that report of the Local Commissioner which has been relied upon by the two Courts below is liable to be set aside and cannot be relied upon as a piece of evidence inasmuch as no measurement has been made by the Local Commissioner by fixing three permanent points as required by High Court Rules and Orders, therefore, the basic evidence regarding encroachment which consists of the statement of Local Commissioner being not available as a lawful piece of evidence, the suit could not have been decreed. Learned counsel has further contended that the learned First Appellate Court has taken into consideration Jamabandi for the year 1956-57, which is not a part of evidence in the case, and, therefore, the judgment rendered by the learned first Appellate Court which is based upon entries in the said Jamabandi which is not exhibited as a piece of evidence are nullity in the eyes of law and are hence liable to be set aside. Learned counsel counsel for the respondent on the other hand has argued that the report of the Local Commissioner was lawful and that the Courts below have rightly held that the defendant-appellant encroached upon the land which is owned by the plaintiff-respondent No,1 and, therefore, in this regular second appeal interference is not possible with the concurrent findings rendered by the two Courts 'below in the light of the law declared in case of Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38. Learned counsel however has conceded that the learned First Appellate Court did rely upon copy of Jamabandi for the year 1956-57 while affirming the findings of fact although the said document has not been produced in evidence and no opportunity has been given to the plaintiff to rebut the entries of the said document.
3. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. A perusal of the report of the Local Commissioner clearly shows that the Local Commissioner did not demarcate the property in question in accordance with the provisions of High Court Rules and Orders on the subject which require that measurement had to be taken from three points which are to be fixed by the Local Commissioner and in case the said procedure is not adopted, the demarcation report is of no evidentiary value as held in case of Sh.
Allah Ditta v. A.F. Ahmad & Co. and others PLD 1954 Lah.
608. In the report at page 614 (E), it has been held as under:-- "On the motion of the Judges of this Court the Financial Commissioner has issued detailed instructions for the guidance of revenue officials or field Qanungos who are appointed Local Commissioners in civil suits relating to Hadd Shikni. These instructions occur in Volume 1 of the Rules and Orders of the High Court, Chapter 1-M, and they require that where a boundary is in dispute the Field Qanungo should rely it from the village map prepared at the last settlement. If the square system is not available he should find three points on different sides of the place in dispute but as near to it as he can. which are shown in the map and which the parties admit to have men undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the,Inap."
Even otherwise, the learned First Appellate Court has taken into consideration an earlier report submitted by the Local Commissioner, who was a Naib Tehsildar, Kahuta, which has been set aside and a new Local Commissioner was appointed to submit a fresh report. Learned Additional District Judge had no lawful authority to take into consideration both the reports jointly and render findings of fact. Similarly, learned Additional District Judge relied upon copy of Jamabandi for the year 1956-57 for coming to the conclusion that the defendant has encroached upon the land in dispute which is owned by the plaintiff-respondent. This document being not a part of the evidence could not have been taken into consideration without making it as part of the record giving full opportunity to the other side to rebut the same and mentioning the reasons for admission of this document as additional evidence under the provisions of. Order 41, Rule 27, C.P.C. It appears that the learned Additional District Judge was not even conscious of the facts and the correct legal position that he cannot rely upon the report of the Local Commissioner which has been set aside and the document, which though on the file but is not a part of evidence. Consequently, the judgment in appeal rendered by the learned Appellate Court is based upon total misdirection of the correct factual and legal position. It appears that both the learned Courts below have misdirected themselves by relying upon the evidence which could not have been relied upon while deciding question of fact involved in the suit and hence have exercised jurisdiction illegally and with a material irregularity.
Resultantly, I accept this appeal, set aside the impugned judgment and decree rendered by the two Courts below. The suit is remanded to the learned Civil Judge who shall decide the same afresh and a Local Commissioner shall. be appointed by the lower Court for demarcating the land in dispute in accordance with the provisions of High Court Rules and Orders, as observed above.
The parties shall be given further opportunity to lead whatever evidence they like to produce in support of their respective contentions and the suit shall thereafter be decided afresh on the basis of evidence already recorded and which may be recorded during the post-remand proceedings.
The parties shall bear their own costs.