' This civil revision is directed against the judgment and decree dated 23-12-1992, passed by the learned Additional District Judge, Gujranwala, accepting the appeal filed by Khadim Hussain- respondent herein plaintiff, against the judgment and decree of the learned Civil Judge dated 13-5-1982 whereby the suit for possession filed by respondent-plaintiff, was dismissed.
2. The dispute relates to the identity of the Property No,A-274, situated at Mohallah Lakar Mandi, Wazirabad. Suit for possession of Property No,A-274, allegedly bounded on the North by House No,A-269, in possession of defendants-petitioners purchased by Chiragh Din, towards South by Property No,277 owned by Muhammad Ramzan, towards East by Street Mir Dial and on West by Street Chachian, was filed by Khadim Hussain respondent-plaintiff, who stated to be owned by non-Muslim Evacuee namely Balwant Bir Singh, and the same was transferred to Mst. Noor Bibi, widow of Allah Ditta, by the Settlement Department, Gujranwala, through P.T.O. No,754797 and P.T.D.
Was issued in his name on 25-1-1964. This House No,A-274 was purchased by Khadim Hussain respondent-plaintiff through registered sale-deed, dated 20-5-1968. Petitioners-defendants are the successor-in-interest of Chiragh Din, who claimed to be owners of the Property No,A-269 which was purchased by the predecessors namely Chiragh Din from Darbari Lal, through registered sale- deed, dated 11-12-1942. Earlier between the parties an ejectment petition remained pending and in the rent proceeding it was claimed by the petitioners that the disputed Property No,A-274 which is in possession of the petitioners is not a house but the same is in the shape of Khola. Resultantly, the ejectment petition was dismissed by the learned Rent Controller and the appeal filed by the respondent was dismissed by the learned Additional District Judge, vide his order, dated 22-7-1977 (Exh.P.2). Since the matter pertains to the title of the property, therefore, the civil suit was filed by the respondent Khadim Hussain, in light of rule laid down by the Honourable Supreme Court in case of Rehmat Ullah reported as 1983 SCMR 1064.
3. From the divergent pleadings of the parties, the following issues Were framed by the learned trial Court:-- (1). Whether the suit is hit by section 11 of C.P.C.? OPD
(2) Whether the description of the suit property is ambiguous? If so, its effect? OPD
(3) Whether the suit property is evacuee and after the issuance of P.T.O. And P.T.D. This Court has no jurisdiction? OPD
(4) Whether notice under section 30 has not been given? If so, its effect? OPD
(5) Whether the plaintiff has no locus standi and cause of action to bring this suit? OPD
(6) Whether the Government of Pakistan is a necessary party? If so, its effect? OPD
(7) Whether the plaintiff is estopped by his conduct to bring this suit? OPD
(8) Whether the defendants are entitled to the special costs under section 35-A of C.P.C.? If so, to what extent? OPD
(9) Relief.
4. Both the parties produced the documentary evidence and examined themselves in support of their case. On Issue No,1, the learned Civil Judge, held that the suit is not hit by principle of res judicata, and therefore, the same was decided against the petitioners. On Issue No,2, the learned Civil Judge observed, that the description of the property is ambiguous, and therefore, decided the same in favour of the petitioners-defendants. It was held under Issue No,6, that the Government of Pakistan is a necessary party, because, the plaintiff-respondent has challenged the demarcation conducted by the Settlement Department. On Issue No,5, the Court observed, that suit for possession is not maintainable and the plaintiff has no locus standi to file the suit The learned Civil Judge vide his judgment and decree dated 13-5-1982, proceeded to dismiss the suit of the respondent-plaintiff. The respondents filed an appeal. Vide judgment, dated 7-4-1984, the case was remanded to the trial Court for giving a fresh finding on Issue No,2, after giving reasonable opportunity to both the parties to produce the evidence, so as to determine the description, location and area of the property in dispute. In post remand proceeding, the following additional issue was framed by the trial Court:-- "Whether the evacuee property belonged to Balwant Bir Singh? OPP"
5. Thereafter the learned Civil Judge proceeded to appoint Haji Muhammad Nawaz as Local Commissioner to submit his report with the reference: "As to how much the property is in possession of the defendant and also whether the defendants are in possession of the house which they purchased from Darbari Lal or in possession of some excessive share."
6. Report was submitted by the Local Commissioner but the same was set aside on the objection by the parties. Thereafter, Ch. Muhammad Hussain Chatha, Advocate, was appointed as a Local Commissioner vide order dated 10-2-1985, who submitted his report dated 28-10-1985 (Exh.P.17).
The petitioner-defendants filed objections on the report dated 28-10-1985, submitted by Ch. Muhammad Hussain Chatha, Advocate, and the following issue was framed:- "Whether the report of the Local Commissioner is liable to be set aside in view of the objections filed by the defendant? OPD"
7. Ch. Muhammad Hussain Chatha, Advocate, the Local Commissioner, appeared as D.W.1 and Meraj Din one of the defendants got his statement recorded as D.W.2. The learned Civil Judge vide his judgment dated 19-7-1988 while discussing the issue in respect of the report of Local Commissioner observed, that the same could not be accepted as with regard to the measurement and the area of the disputed property as admittedly the portion shown as green in the site plan, was a Khola and as per demarcation of Settlement Department, its area was 13'.4" x 74". While discussing Issue No,2, it was held that description of the property has not been correctly described and till such a time it was properly given, no relief of possession could be granted to the plaintiff.
Cross-objections were filed against the finding dated 19-7-1988. Both cross-objections and appeal filed by the respondent-plaintiff was disposed of by the learned Additional District Judge on 23-12- 1992. The learned Additional District Judge, observed that, "the finding of the learned Civil Judge, showing this property to be owned by two different owners, being not based on record, are hereby set aside. Resultantly, the report of the Local Commissioner (Exh.P.7) is upheld in its entirety, as such. The plaintiff is entitled to be the owner of portion shown in yellow and green ink. There thus no ambiguity about the description of the property. The issue is accordingly decided in favour of the plaintiff."
8. The learned Additional District Judge on the basis of the report of the Local Commissioner (Exh.P.17), proceeded to set aside the judgment and decree dated 3-5-1982. Consequently, the suit filed by the respondent-plaintiff was decreed. Hence, this revision petition.
9. The learned counsel for the petitioners contends that the learned Appellate Court has set aside' the well-reasoned judgment of the Civil Court without any sound and cogent reasons and proceeded to grant decree without appreciating the evidence on the record. Further contends that the demarcation carried out by the Settlement Department (Exh.D.5), (Exh.D.9) and (Exh.D.10), were not open to challenge before the Civil Court as the demarcation was the sole functioning of the Settlement Department. According to the learned counsel, the suit filed by the plaintiff Khadim Hussain was based on title under section 8 of the Specific Relief Act which was not clear, therefore, the suit for possession without seeking declaration was not maintainable. Reliance has been placed on the case reported in 2002 SCMR 338. Further contends that the suit was barred by limitation as the orders passed dated 19-12-1980 (Exh.D.5) and 8-4-1971 have been challenged by way of civil suit. Adds that the Court could have not delegated the authority to decide the issue of title to the Local Commissioner. Reliance has been placed on the case reported as PLD 1976 Lah.
109 and PLD 1978 Lah.
31. Further contends' that report of the Local Commissioner (Exh.P.17) has been illegally recited to observe that green and yellow portion of the property mentioned by the Local Commissioner vide his report and plan (Exh.P.17) was owned by Balwant Bir Singh which was purchased by Mst. Noor Bibi in auction and that the property shown in red colour, was owned by Darbari Lal, which was transferred in favour of Chiragh Din vide registered sale-deed (Exh.P.4).
10. Conversely, the learned counsel for the respondent contends that the report of the demarcation proceeding was illegally conducted by the Settlement Department. The Rehabilitation and Compensation Act, 1958 was repealed on 30-6-1974 by the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975). The First Appellate Court in its order, dated 22-4-1977 held that it is case of dispute of title, therefore, in view of Rehmat Ullah's case reported in 1983 SCMR 1064 (supra) the matter was to be decided by the Civil Court. He argued that the Civil Court had the jurisdiction to adjudicate the matter and to demarcate the property as the Settlement Authorities became functus officio after issuance of P.T.D. Further contends that no declaration was sought under section 42 regarding the disputed Property No,A-269 owned by the respondent-plaintiff, therefore, the suit for possession was maintainable. Further contends that the report of the Local Commissioner (Exh.D.17), has been correctly relied by the learned Additional District Judge, as the same was in accordance with the sale-deed (Exh.P.4) through which the petitioners have purchased the Property No,A-269 and rightly decreed the suit in favour of the respondent-plaintiff which needs no interference by this Court.
11. Admittedly the respondent-plaintiff purchased the Property No,A-274 situated at Mohallah Lakar Mandi, Wazirabad measuring 13'.4" x 74". This property was the evacuee property which was demarcated by the Settlement Commissioner vide his order dated 10-12-1970. The property purchased by the petitioner which was not evacuee property of the petitioner by the Settlement Department. The property of the respondent was demarcated by the Deputy Settlement Commissioner vide order, dated 19-12-1970 (Exh.D.9). The appeal filed against the order dated 10- 12-1970 of the Deputy Settlement Commissioner was dismissed on 8-4-1971 (Exh.D.5) by the Additional Settlement Commissioner.
12. There are two demarcations on the record. One conducted by the Deputy Settlement Commissioner, on 19-12-1970 (Exh.D.9) against which Muhammad Siddique, filed an appeal which was dismissed by the learned Additional Settlement Commissioner vide his order dated 8-7-1971 (Exh.D.5). The other demarcation on the order of the Civil Court was conducted by the Local Commissioner Ch. Muhammad Hussain Chatha, Advocate (Exh.P.17). The question for determination before this Court was which out of two demarcations under the law could have been relied for the decision of this case. In case reported as Muhammad Bashir v. Mst. Nasiran and another 1987 SCMR 999, wherein the Honourable Supreme Court, has ruled that:-- "Normally the authority who transfers a property to a person is the proper authority to identify what property it is transferring to him. The Civil Courts, moreover, can only ascertain and declare the rights conferred in the property to the contestants under the P.T.Ds. But cannot they embark upon the task of first identifying the property in regard to which the rights of the contestants are to be declared. Thus, unless it is certain as to what property has actually been transferred to a party, the Civil Court will not be in position to proceed with the task of adjudicating upon the further question with regard to the extent and limits of the rights acquired by a party when it is not certain as to what property has been transferred to him."
13. The document on the basis of which the respondent-plaintiff Khadim Hussain could have obtained the decree in his favour, were the P.T.D. (Exh.P.6). The Property No,A-274 has been transfered in favour of Mst. Noor Bibi on the basis of auction. The boundaries have not been mentioned in the P.T.D. (Exh.P.6). However, a reference of P.T.O. No,754797 has been made in the P.T.D. This reference of the P.T.D. And P.T.O. Has been further carried in the sale-deed No,386 dated 20-5-1968 (Exh.P.7) in favour of Khadim Hussain on behalf of Muhammad Siddique. The, boundaries of the house have been given in Exh.P.7. It is best known to Khadim Hussain-respondent that how he was able to incorporate the boundaries in the sale-deed (Exh.P.7). The measurement of property which was owned by Muhammad Siddique purchased by Khadim Hussain has not been mentioned. The Deputy Settlement Commissioner, vide his order dated 19-12-1970 (Exh.D.9) has concluded that: "The net result of my above discussion is that Property No,A-274 owned by evacuee owner Ranghbir Singh is Khola measuring by 13'.4" x 74" marked as 'A' in the sketch Exh.P. And the same was purchased by Mst. Noor Bibi in whose wake Muhammad Siddique got himself in. The property occupied by Chiragh Din which he purchased from Darbari Lal in 1942 has been proved his owned property in the light of the sale-deed and Aks Shajra etc. ' In the nutshell Muhammad Siddique purchased Property No,A-274 owned by Ranghbir Singh Evacuee and the same is Khola measuring 13'.4" x 74" which is demarcated accordingly."
14. The appeal was filed against the order dated 10-12-1970 of the Deputy Settlement Commissioner and the learned Additional Settlement Commissioner vide his order, dated 8-4-1971 (Exh.D.5) dismissed the appeal by observing that:-- "I have seen the sketch of the property and gone through the evidence on record. The impugned order is more than detailed one. It has examined all aspects of the case and the Deputy Settlement Commissioner himself inspected the spot and thereafter came to the conclusion recorded by him in the impugned order. The appellant has not been able to point out by misstatement of facts which is not supported from the record and thus he has failed to make out a case for any interference. The appeal fails and is dismissed."
15. It is clear from the demarcation report of the Deputy Settlement Commissioner dated 19-12-1970 (Exh.D.9) that respondent-predecessor Mst. Noor Bibi was transferred on 13'.4" x 74". If this measurement is put to the site plan prepared by the Local Commissioner Muhammad Hussain Chatha, Advocate (Exh.P.17) and the site plan Exh.P.1 produced by the petitioner, the measurement on the Western side comes to 62 +10 =72x13.3". The total measurement of both the properties on the Western side is given as 94 feet by the Local Commissioner in the site plan, in which the property has been shown as red on the Western side is 94 feet. In this view of the matter, the remaining property on Western side transferred to the predecessor namely Mst. Noor Bibi comes to 73 feet.
The Local Commissioner was under the influence of, the registered sale-deed executed by Darbari Lal in favour of the father of the petitioner. On the South side the house of Hanonat Bir Singh has been mentioned, therefore, an inference has been drawn that the land shown as yellow in the site plan prepared by Local Commissioner, was the property transferred to the respondent. The report of the Local Commissioner could have not been believed because the Local Commissioner in the last para. Noted that second and third storey of the Property No,A-269 belonged to the defendant while 1st floor of the Property No,A-274 owned by the plaintiff-respondent. There is force in the contention of the learned counsel for the petitioner that different floors of the same property cannot carry different descriptive numbers. The learned Additional District Judge illegally relied on the report of the Local Commissioner instead of deciding the appeal ,himself on the basis of evidence on the record. The report of Deputy Settlement Commissioner (Exh.D.9), which was carried on the order of the Settlement Commissioner, on the application of Muhammad Siddique predecessor-in-interest of respondent, has become final as the appeal against the same order was rejected by the Additional Settlement Commissioner. The First Appellate Court has lawful authority to delegate its function to the Local Commissioner to decide the case.
16. Before I advert to the question whether the Local Commission& could have been appointed by the learned Additional District Judge to visit the site, to submit his report and evidentiary value of the same. It may be useful to read the provision of Order 26, roles 9 and 10: "9. Commissions to make local investigations.--- In any such suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits, the Court may issue commission to such person as it thinks fit directing him to make such investigation and to report therein to the Court.
10. Procedure of Commissioner.--- (1) The Commissioner , after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report writing signed by him to the Court.
Report and depositions to be evidence in suit.
(2) The report of the Commissioner and the evidence taken by him (but not the evidence without .The report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the matter in which he has made the investigation.
Commissioner may be examined in person.
(3) Where the Court is . For any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."
17. It has been held in the case of Muhammad Rashid and 3 others v. Saeed Ahmad reported in 1995 SCMR 1069, that the Court is empowered to appoint Local Commissioner to measure the area and dimention of the property.
18. on the touchstone of the case of Muhammad Bashir 1987 SCMR 999 (supra), it can be safely said a rule that the Settlement Authorities had the jurisdiction to demarcate the property, before the promulgation of Displaced Persons (Repeal) Act (XIV of 1975). Since the matter was past and closed, therefore, the respondent Khadim Hussain opted to test his fortune to get the property which he purchased from Muhammad Siddique by filing a civil suit in which the learned First Appellate Court appointed the Local Commissioner. The Court itself has not examined the document and relied on the report of the learned Local Commissioner. No doubt the Local Commissioner could have been appointed and had power to visit the site and made the measurement but the Civil Court could have not delegated its power to decide the question of title.
The Civil Court ipso facto relied on the report of the Local Commissioner which is not warranted under the law. The report of the Local Commissioner is a piece of evidence. While interpreting the provisions of section 75 and Order XXVI, rule 12, C.P.C. In case of Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 (D.B.), it has been observed that the Court cannot delegate its judicial 'function to the Local Commissioner and held that: "Delegation of powers to Local Commissioner. Not permissible so as to decide material issues Commissioner's report. Not a finding but only proceedings of an inquiry for information of Court.
Court alone empowered to give its own finding on each and every issue. Commissioner's report.
Only an evidence and not a decision."
'For what has been discussed above, this civil revision is accepted. It is concluded from all the documents stated above, the respondent was the owner of the land (Khola) shown as green in the report of Local Commissioner, measuring 13'.4" x 74". The judgment and decree dated 23-12-1992 passed by the learned Additional District Judge is set aside. The judgment and decree dated 13-5- 1982 of the Civil Judge, Wazirabad, is restored, with costs.