This civil revision assails judgments and decrees, dated 18-5-2002 and 19-7-2003 passed by the Civil Judge and Additional District Judge, Khushab, respectively, dismissing suit as well as appeal of the petitioner.
2. " A short factual background of the case is that the petitioner filed a suit for declaration asserting his ownership and possession over Khasra No, 2633 where over he has raised certain constructions, fully described by him in his plaint. The petitioner complained in his plaint that respondents have no right, title or interest in the land but they intend to demolish it, claiming ownership over the part shown in the site plan attached with the plaint as. The petitioner claimed that his father purchased Khasra No, 2633 from one Muhammad Aslam through a registered sale-deed, dated 28-2-1976 and thereafter raised some construction, there over. He asserts that there is a Tharra in his property but respondents who have their land bearing Khasra No, 289 towards north of the street, are bent upon to demolish his property, without demarcation.
3. The respondents being defendants in the suit controverted the allegations in the plaint and claimed encroachment by the petitioner over the public thoroughfare bearing Khasra Nos. 2634 and 2688, abutting his house and asserted that the petitioner has narrowed the public thoroughfare by his encroachment, thus, he is not entitled to relief claimed. Controversial pleadings of the parties, necessitated the framing of issues and recording of evidence. Trial Court after doing the needful, on the basis of his appraisal of evidence, dismissed the suit of the petitioner vide its judgments and decrees, dated 18-5-2002.
4. The petitioner aggrieved of the decision of the learned trial Judge, filed an appeal before the Additional District Judge, Khushab, but remained unsuccessful as his appeal was dismissed on 19- 7-2003. He has now come up in revisional jurisdiction of this Court, for setting aside judgments and decrees of both the Courts below.
5. Learned counsel for the petitioner submits that both the Courts below have ignored their jurisdiction to have both the properties of the parties which are adjacent to each other, demarcated from some revenue expert and thus, have not resolved the controversy between them. He further submits that there was the only dispute between the parties with regard to demarcation of their respective properties and this point was specifically taken in the plaint but in spite of it, Courts below have not, erroneously adverted to it. He further elaborates his arguments by saying that ownership of the petitioner over Khasra No,2633 was not denied by the respondents which was undeniably purchased by his father on 28-2-1976, from its owner and in this situation, petitioner could not have been non-suited. Conversely, the learned counsel for the respondents refuting the arguments of the petitioner, supported the judgments of two Courts below and urged that there are concurrent findings of facts by the Courts below which cannot be disturbed in revisional jurisdiction of this Court. They also contend that the petitioner, as a matter of fact, has encroached upon a public thoroughfare owned by respondent No, 2 and thus, his suit could not have been decreed.
6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Main contest of the respondents in the suit by the petitioner, was that latter has encroached upon the public thoroughfare, without denying his ownership over Khasra No, 2633 which is claimed to be in his possession. Matter of encroachment was asserted and denied by the parties, though was not put to issue yet stood covered by Issue No, 1 framed by the trial Court. From the entire contest, in pleadings, as well as, evidence of the parties, appears to be regarding demarcation of their respective lands which are admittedly adjacent to each other. There is absolutely no evidence on the file except vague assertions of the witnesses, regarding encroachment by the petitioner. Be that as it may, I find that both the Courts below have not adverted to their jurisdiction to have the properties demarcated and to set the controversy, between the parties to rest, for all times to come. Provisions of Order XXVI, rule 9, C.P.C. escaped from their notice where-under it is envisaged that wherever Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report thereon, as the Court directs. This power/jurisdiction vests in Court, should have without move by any of the parties, been exercised, suo mom. To my mind, this was the only solution for doing complete justice between the parties because if the petitioner has really encroached upon the land of the respondents, mere disposal of his suit would not serve the purpose and would amount to giving a dagger in the hands of the respondents, to do whatever they wish by violation of law.
The Courts cannot sit as a silent spectator and must use their authority to resolve disputes between the parties, equitably. Appointment of some local commissioner for demarcation at the site, is in the interest of both the parties, but this course has erroneously not been adhered by both the Courts below and thus, their judgments and decrees suffer from material illegality and irregularity, as such, are not sustainable at law. I, accordingly, accept the instant revision petition and set aside both the judgments and decrees impugned and remit back the case to the trial Court with a direction to have some revenue expert, Local Commission appointed for demarcation of both the properties of the parties and after undergoing the exercise of disposal of objections, if any, filed by any of the parties, to the report of Local Commissioner, in accordance with law, will decide the suit, afresh on the basis of evidence already available on the file and the demarcation report, so obtained by it. In result of this remand, suit of the petitioner will be deemed to be pending before the trial Court and shall be decided, as directed above. The parties are .directed to appear