' Instant civil revision is directed against the judgment and decree dated 29-11-1983 whereby. The learned District Judge Sargodha reversing the judgment and decree dated 25-6-1981 whereby the learned Civil Judge Sargodha dismissed the suit of the plaintiffs/respondents.
2. Briefly stated the facts are that plaintiffs/respondents filed a suit for declaration to the effect that they are owners in possession of the suit property and the defendant/petitioner is interfering in their possession and is bent upon to dispose of the same. Their contentions were controverted by the defendant/petitioner. During the pendency of the suit, both the parties made a statement in the Court and agreed to appoint a local Commissioner to verify the factum of 'possession over the suit property. They further agreed that if the defendant/petitioner was owner in possession of the suit property, suit of the plaintiffs/respondents be dismissed. In the wake of the said statement, the learned Civil Judge appointed Clerk of Court to be the Local Commissioner to inspect the site and submit his report. As .a result of inspection made by the Clerk of Court, it was found that the defendant/petitioner was in possession of the suit property. Accordingly, vide order dated 25-6- 1981, the learned trial Court dismissed the suit of the plaintiffs/respondents. The plaintiffs/respondents felt aggrieved of the said judgment and decree and filed an appeal which was heard and disposed of by the learned District Judge Sargodha who vide order dated 29-11- 1983 accepted the appeal, set aside the impugned judgment and decree dated 25-6-1981 and remanded the suit to the trial Court with a direction to decide the same after obtaining objections 'on the report of the Local Commissioner. The defendant/ petitioner has felt aggrieved of this order of remand dated 29-1-1983 and has filed the instant civil revision.
3. Arguments have been heard and record perused.
4. It is contended .By learned counsel for the defendant/petitioner that the appeal filed by the plaintiffs/respondents was hopelessly time-barred, as such the order dated 29-11-1983 has not been returned in accordance with law. While elaborating his contention, he has submitted that the suit was dismissed on 25-6-1981 whereas an application for obtaining copy of the said judgment and decree was filed on 15-7-1981. As per record, the said copy was ready for delivery on 25-8-1981.
However, the plaintiffs/respondents obtained the said copy on 13-10-1981. The appeal, it is contended, was however filed on 16-5-1982. He further submits that there was no explanation of this delay in filing the appeal, as such the Court of first appeal was not justified in treating that appeal as within time. He has further contended that the impugned order dated 29-11-1983 is also factually incorrect. He submits that the Local Commissioner was appointed as a result of joint statement of the parties and as such the report of that Local Commissioner will be deemed to be a report of referee, and the same was binding on the parties. He further submits even after the submission of the report, no objections were ever filed by the plaintiffs/respondents which fact also reveals that the plaintiffs/respondents were satisfied with the report of the Local Commissioner, as such the appellate Court was not justified in reversing the order of the trial Court. In support of his contention, he has relied upon Mushtaq-urRehman and 4 others v. Muhammad Akbar and 3 others (1981 CLC 364).
5. Conversely, contentions raised by learned counsel for the defendant/petitioner have been controverted and repudiated by learned counsel for the plaintiffs/respondents.
6. Admittedly, the plaintiffs/ respondents have filed a suit for declaration claiming themselves to be in possession of the suit property. Their contentions were controverted by the defendant/petitioner.
It is also fact that both the parties agreed to the appointment of the Local Commissioner to verify the factum of compromise and it was also agreed between the parties that if the plaintiffs/respondents were not found in possession of the suit property, the suit be dismissed and if the plaintiffs/respondents were found in possession of the suit property, the suit be decreed. In the wake of the said statement duly signed by learned counsel for the parties, the Clerk of Court was appointed as Local Commissioner, Admittedly, he returned his report to the effect that the plaintiffs/respondents were not found in possession of the suit property whereas the defendant/petitioner was occupying the suit property. In the light of the said report of the Local Commissioner, the trial Court dismissed the suit. The order of the trial Court was agitated before the first appellate Court who did not agree with the finding of the trial Court and remanded the suit holding that the trial Court should have decided the matter after obtaining objections on the report of the Local Commissioner. It is evident from the statement of learned counsel for the parties that it was categorically stated by them that if possession of the plaintiffs/respondents is not found on the spot, their suit be dismissed and vice versa. In the wake of the said categorical statement of the parties as to the manner in which the suit between them would be decided and which statement has been acted upon by the trial Court, there appears no illegality in the said order. As the parties had voluntarily agreed to be bound by the report of Local Commissioner, he was, in reality, a referee and not a Local Commissioner, as contemplated by Order XXVI of the Code of Civil Procedure and reliance is placed on Muhammad Akbar and another v. Muhammad Aslam and another (PLD 1970 SC 241) which has been relied upon in 1981 CLC 364 referred above, It is, thus, held that report of the Local Commissioner under these circumstances, amounts to report of a referee which does not call for any objection. This being the factual position, the first appellate Court was not justified in reversing the order dated 25-6-1981 of the trial Court whereby the suit of the plaintiffs/respondents was dismissed. Even otherwise it is evident from the contentions raised by learned counsel for the defendant/petitioner that the appeal tiled by the plaintiffs/respondents was hopelessly barred by limitation. Thus, even on this score the finding of the first appellate Court deserves reversal
7. The upshot of the above discussion is that the instant civil revision is accepted and the order of the first appellate Court is set aside and that of the trial Court dated 25-6-1981 is restored.