Four suits of identical nature for possession were instituted by the petitioners that the respondents/defendants had encroached upon Khasra No, 1798 which was owned by them. The suits were contested by the respective defendants/respondents and were dismissed by the trial Court on 7-10-1992. Appeals instituted there against by the petitioners have been dismissed by the learned Additional District Judge, Lahore on 18-5-1995. This petition and C.R. No.1263 of 1995, C.R.
No.1264 of 1995 and C.R. No.1265 of 1995 have arisen against the above mentioned judgments.
2. The learned counsel for the parties have been heard and material on record has been perused with their assistance.
3. The case set up by the petitioners/ plaintiffs in their plaint particularly in paragraphs Nos. 1, 2, 3 and 4 and of the respondents /defendants in their written statements would bring out the real controversy:-- The controversy thus, spelt out from the pleadings of the parties, was indeed as to the correct and real identification and demarcation. The petitioners/plaintiffs had relied upon a demarcation report dated 22-2-1983 which was ruled out from consideration by the trial Court that the same had not been exhibited in accor4ance with law and was of no value, whereas in appeal, the Appellate Court initially remanded the matter to the trial Court where against revision petitions filed by the respondents/defendants (C.R. No.3312 of 1994) to C.R. No.3315 of 1994) were disposed of on 19-3-1995 on the basis of consensus between the parties, that the demarcation report will be exhibited and read as part of evidence. The matter was entrusted to the Appellate Court with the direction to decide the appeals afresh. However, while deciding the appeals, the Appellate Court did not give any weight to the demarcation dated 22-2-1983 taking the view that the same was not carried out in accordance with rule 67-A of the Rules framed under Land Revenue Act, 1967 and that such a report could not be relied upon by the petitioners/plaintiffs. It is, thus, evident that the real controversy as to whether the defendants/respondents had encroached upon the property owned by the petitioners/ plaintiffs, has remained unresolved and is still shrouded by mystery.
There is a specific procedure laid down in the High Court Rules and Orders (Volume 1) to be followed in such-like cases. From the pleadings of the parties salient portions whereof have been reproduced above, it is not difficult to infer that rules 1, 2 and 3 of Chapter 1-M of the High Court Rules and Orders (Volume 1) was attracted to such a situation which reads as under:-- "I. Local inquiry.---In ' Hadd-Shikni' suits and other suits of boundary disputes of land, falling within the jurisdiction of a Civil Court, it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:-- (a)by suggesting that one party or the other should apply to the Revenue Officer to fix the limits under section 117(1) of the Punjab Land Revenue Act, 1967 (XVII of 1967). Time for such purpose should be granted under Order XVII, rule 3 of the Code of Civil Procedure; (b)by appointing a local commissioner, and (c)by the Court itself making a local enquiry.
2. Enquiry by Revenue Officer.-An order of the Revenue Officer made under section 101 of the Land Revenue Act is not conclusive; but when his proceedings have been held in the presence of, or after notice, to the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result it would be a valuable piece of evidence. It may be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate.
3. Appointment of Commissioner.---Similarly the report of the Local Commissioner should contain full details so that the Court may satisfactorily deal with the objections made against it.
No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a Local Commissioner. "
Rule 4 lays down the instructions for the guidance of the Local Commissioner. This procedure was not adhered to or followed by the trial Court. It appears that such a course was not suggested to the Court by either of the parties yet the Court was obliged to apply/follow the correct procedure.
In Nooruddin and 11 others v. Abdul Wahid (2000 SCM R 91) it was observed that "A case, therefore, seemed to have emerged where, traveling beyond the parameters of burden of proof, the original or the Appellate Bench, or both of them, should have embarked upon an inquiry of their own to determine the actual extent of the plaintiffs land and the easementry attachments, if any, belonging to either or both of the parties. This therefore, was a fit case for appointment of a licensed architect or engineer to visit the site and demarcate the plaintiffs' property, together with appurtenances, if any, with the necessary aid and assistance of the city survey staff ". Similar approach had been adopted by this Court in Anwar Club and another v. Muhammad Sarwar (PLD 1992 Lahore 63).
Therefore, for the determination of the extent of the property and claim of the petitioners/plaintiffs, the procedure laid down in the High Court Rules and Orders had to be adhered to by the Court.
That would have enabled the Court to resolve the controversy between the parties. Non- compliance and non-adherence of such a course and procedure has resulted in illegality and material irregularity by the Courts below. The concurrent judgments rendered by the Courts below thus, do not stand in the way of this Court for curing such illegality by setting aside their judgments.
The view taken by the Court below on the question of limitation, Issue No.5 is erroneous, inasmuch as plea of adverse possession taken by the respondents/ defendants was found against them. It was a suit for possession instituted in the year 1986 the cause of action for which was spelt out in para. 4 of the plaint, it was well within time. Findings on Issue No.5 being contrary to law and the facts and circumstances of the case, are not sustainable.
As a consequence, the judgments rendered by the two Courts below are set aside. The suits filed by the petitioners/ plaintiffs shall be deemed pending which shall be decided afresh by following the procedure laid down in the High Court Rules and Orders indicated above and the law. No order as to costs. Parties to cause their appearance before the Senior Civil Judge, Lahore on 25-2-2003 for further proceedings.
PLAINT WRITTEN STATEMENT "(1) That plaintiffs Nos. 1 and 2 and deceased Hameera Khanum are the owners of Khasra No.1798, Village Sanda Kalan, Tehsil Lahore. Mst.
Hameera Khanum died on 14-1-1984 and as such her legal heirs have been arrayed as plaintiffs 3 to5.(1) Para. 1 of the plaint is denied.
(2) That area to the extent of 3 Marlas 153 Feet out of Khasra No- 1798 shown at No.5 Mark-B in the map prepared with the Nashan Dehli report dated 22-2-1983 is in un-- authorised possession of defendant and he has raised unauthorized construction thereon.(2) Para. 2 of the plaint is incorrect hence denied. The answering defendant does not accept the annexed plan and denies any un--authorised posses--sion. Nishan Dehi, if any, conducted behind the back of the defendant is of no avail to the plaintiffs.
(3) That plaintiffs have several times informed the defendant that plaintiffs are owners of the suit land and showed him the documents of ownership and that he has illegally occupied the suit land and raised construction thereon but he has refused to hand over the possession of the vacant suit land. A registered notice dated 29-3-1986 was also given.(3) That para. 3 of the plaint is a rank lie, hence vehe--mently denied in toto. The land measuring 1 Kanal, 18 Marlas and 150 sft. Was originally transferred to one Abdul Haq vide P.T.D.
Dated 9-3-1968. The said Abdul Haque had raised some con- -struction details of which find mention in the sale deed executed by him in favour of Muhammad Ashiq etc. The answering defendant purchased a plot measuring 3-1/2 Marlas vide sale deed dated 31-7-1975 from Muhammad Ashiq etc. After purchasing the plot, the answering defendant raised permanent construction thereon by spending huge amount. The plaintiffs have not raised any objections whatsoever during this entire period. No notice was ever served upon the defendant.
(4) That cause of action arose in favour of plaintiffs and against defendant in January, 1983,whenthe defendant illegally occupied the suit land and raised construction thereon.(4) That para. 4 of the plaint is incorrect, hence denied. The plaintiffs have no cause of action, if the plaintiffs had any title, in the property in occupation of defendant, the plaintiffs title became extinguish-- able. The suit is clever and fraudulent device to harass and embarrass the defendant to grab some money from the answering defendant. " revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.