' In this Constitutional petition by the petitioners, who are defendants Nos. 1 to 7 in a suit for declaration and permanent injunction pending in the Court of Ch. Muhammad Aslam, Civil Judge Ist Class, Lahore, a challenge has been made to judgment dated 5-12-1990 passed by a learned Additional District Judge, Lahore, dismissing petitioners' revision petition under section 115, C.P.C.
Upholding the order of the learned Civil Judge dated 9-9-1989 whereby a local commissioner was appointed to undertake inspection of Property No,S-57-R35 Temple Road, Lahore and to carry out demarcation at the spot to determine the built up area and the open space lying in front of the portions transferred to the predecessor-in-interest of the plaintiffs, respondents Nos. 1 to 8 herein, as well as the present petitioners.
' The facts are that the plaintiffs, respondents Nos.1 to 8 herein, filed a suit on 3-5-1984 against the present petitioners claiming a decree for declaration that they are the transferees of Property No,S- 57-R-35 to the extent of their possession and the possession of the tenants and further that the defendants are transferees of only vacant land of the said property, immediately in front of the built up area transferred to them by the Settlement Department. They also sought a direction to the defendants to remove a wall allegedly erected by them, barring the plaintiffs; right of passage to Temple Road, Lahore which had been allowed them by the Deputy Settlement Commissioner and confirmed by the Supreme Court of Pakistan. Subsequently, predecessor of respondents Nos. 9 and 9A and respondent No,10 were impleaded as defendants Nos.8 and 9 and on the demise of defendant No,8 the present respondents Nos. 9 and 9A were brought on the record as defendants Nos.9 and 9A. It appears that prior to the framing of the issues the present petitioners had sought the rejection of the plaint under Order VII, Rule 11, C.P.C. But remained unsuccessful vide orders dated 25-10-1984 and 12-1-1985, passed on two separate applications filed by them in that behalf.
' Only the present petitioners resisted the suit. On 12-1-1985, as many as 20 issues were struck by the then trial Court. Issues Nos.8, 14, 15, 16 and 17 reads as under: "8. Whether this Court has no jurisdiction to entertain and try this suit? OPD.
14. Whether the plaintiffs have rite of passage to the Temple Road and amenities of access to the Temple Road, which they have been enjoying since 37 years, and it was allowed by D.S.C., dated 8- 1-1977? OPP.
15. Whether the defendants Nos. 1 to 7 have encroached the property of plaintiffs and built a wall thereon? OPP.
16. What is the extent of the property transferred to them? OPP.
17. Whether D.S.0 vide his dated 8-1-1977 has prepared site plan? OPP."
' Before leading any evidence, the plaintiff-respondents filed an application dated 26-10-1985 under Order XXVI, Rule 9, C.P.C. For appointment of a Local Commissioner to carry out measurements, on the spot of the built up area and vacant sites transferred to the parties by the Deputy Settlement Commissioner, Lahore vide order, dated 8-1-1977. The application was resisted by the petitioners and the then learned trial Court deferred its decision with the observation that stage for such appointment had not reached and will be considered after the parties have adduced their respective evidence, vide order, dated 17-6-1986.
' The affirmative evidence of the plaintiffs was completed on 11-7-1988 and the petitioner- defendants concluded their evidence on 14-3-1989. On 28-5-1989, the plaintiff-respondents filed an application seeking the appointment of a Local Commissioner with a direction to carry out demarcation at the spot to determine the built up area of the parties as also the open space lying in front of the portions transferred to both sides. The application was opposed and contested by the present petitioners and defendants Nos. 8 and 9 did not oppose the same. After hearing the parties and perusing the evidence brought on the record, the learned trial Court, vide order dated 9-9-1989, allowed the application and appointed Ch. Muhammad Ilyas Akhtar, Consolidation Officer, Lahore Cantt. As "Local Commissioner with the job of visiting the spot and after local investigation to carry out demarcation at the post to determine the built up area and the open space lying in front of the portions transferred to the predecessor-in-interest of the plaintiffs and the defendants Nos. 1 to 7".
' Feeling aggrieved of the order, dated 9-9-1989, the petitioners filed a revision petition under section 115, C.P.C. And a learned Additional District Judge, Lahore dismissed the same vide order, dated 5-12-1990. Hence this petition.
' It is argued by the learned counsel for the petitioners that the order of the trial Court dated 9-9- 1989 was passed without considering that by the said date respondents Nos.1 to 8 plaintiffs had produced whatever evidence they wanted to and they could not be permitted to adduce additional evidence on Issues Nos. 15, 16 and 17. The plea raised on behalf of the petitioners 'loses sight of the fact that their earlier application for appointment of a Local Commissioner was disposed of by the then trial Court on 17-6-1986 with the observations that such request could be considered after recording evidence in the case and determining the questions requiring clarification through the appointment of a Local Commissioner. It is not denied that the extent of property transferred to the parties by the Settlement Department as also the preparation or otherwise of a site-plan by Deputy Settlement Commissioner on 8-1-1977, are the questions reflected in issues Nos. 16 and 17 and the learned trial Court had perused the evidence of the parties and found that the question of determination of the built-up as well as vacant land, transferred to the parties by Deputy Settlement Commissioner vide his order, dated 8-1-1977"... Is not fully explained from the evidence on record---even the site-plan annexed with order, dated 8- 1-1977 passed by D.S.C. Does not contain the detail of the area transferred to the parties.
Measurements have not been mentioned in that plan". The appointment of a Local Commissioner to carry out the measurements on the spot with a view to determine the built-up area and the open space lying in front of the portions transferred to the predecessor-in interest of the plaintiffs and the defendants Nos.1 to 7, has not been shown to be suffering from any jurisdictional error.
There is no force in the contention that the appointment of Local Commissioner in this case is tantamount to permitting the respondents-plaintiffs to adduce additional-evidence in the case, either. I find that the learned trial Judge has exercised, his discretionary powers in the matter of appointment of Local Commissioner under Rule 9 of Order XXVI, C.P.C. By advancing cogent reasons for the same and the revisional forum correctly upheld the order of the learned trial Judge with the observation that it is neither arbitrary nor fanciful.
' The learned counsel for the petitioners also argued that the appointment of Local Commissioner by the trial Court, in the instant case, is tantamount to abdicating its jurisdiction to resolve the controversy between the parties in favour of the Local Commissioner. I am afraid, even, this contention is devoid of any merit. A perusal of the judgment dated 5-12-1990 of the learned Additional District Judge, Lahore shows that such contention was repelled by him with the observations that the parties could object to the report of Local Commission and the question of jurisdiction "...Can also be determined by the learned trial Court." It is not the case of the petitioners that any 'decision' has been rendered by the trial Court, in relation to the matters on which report has been called by it from the Local Commissioner, without considering the evidence on the record. In fact, no such occasion has arisen, so far. No other point was argued.
' For all that has gone before, this petition is found to be without any merit and is accordingly dismissed. There shall be no order as to costs.