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Civil Revision No. 1812‑D of 1980, decided on 14th October, 1986.

‑‑‑0. XXVI, R. 9‑‑Local Commissioner, appointment of‑‑ Requirements‑ Duty of Court‑‑Where dispute between parties involved only demarcation of areas transferred to them, evidence on record being insufficient to adjudicte upon such dispute, proper course for determination of controversy, held, would be to issue a Commission to a competent person to visit site and demarcate the areas transferred to parties‑‑Court would appraise evidence on record and decide matter afresh in the light of Local Commissioner's report after affording parties opportunity to raise objections thereto, if any.

‑‑‑‑S 115 & 0. XXVI, R. 9‑‑Revisional jurisdiction, exercise of‑ Requirement‑‑Where Courts below, decided matter of demarcation of areas on insufficient evidence on record, High Court in exercise of revisiona1 jurisdiction while remanding case back to Trial Court directed issue no, of commission for demarcation of property and decision of case afresh in light of Local Commissioner's report in accordance with law and procedure.

Mushtaq Ahmad Khan for Petitioner.

Mian Nusrat Ullah for Respondent.

Date of hearing: 14th October, 1986.

This revision petition is directed against the judgment and decree of the Additional District Judge, Sheikhupura, dated 15‑5‑1980 whereby the appeal filed by the petitioner from the judgment and decree passed by the Senior Civil Judge, Sheikhupura on 11th of February, 1979 dismissing his suit was dismissed.

2. The claim of the petitioner is that three plots with a total area measuring 24 Marlas and five Sarsais comprising Killa No. 5/2 of Square No. 146 situate at Mohallah Jaswant Nagar, Sheikhupura which was an evacuee property was transferred to him in an open auction by the Settlement Department in the year 1974. After demarcation of the plots, possession thereof was delivered to him. After carrying out repairs to the three rooms built on the plots and constructing a boundary wall, he let out the property. Subsequently, the respondent started asserting that the property stood transferred to him by the Land Settlement Department and demanding rent from the tenant of the petitioner. The petitioner, therefore, instituted a suit for perpetual injunction restraining the respondent from interfering with his title to the property and from seeking ejectment of his tenants therefrom.

3. The respondent contested the suit controverting the claim of the petitioner. According to him, the property in dispute comprised Killa No. 5/1 of Square No. 146 and it had been transferred to him in lieu of urban units in the year 1965. He alleged that he was in possession of the property. He raised preliminary objections to the effect that since the petitioner was not in possession of the property, the suit in the present form was not maintainable, that the plaint of the suit was sufficiently stamped, that the petitioner had no locus standi to file the suit and that the claim of the petitioner to the property was mala fide and he had no cause of action.

4 On the basis of the pleadings, the following issues were framed:‑

(i) Whether the suit is not maintainable O.P.D.

(ii) Whether the suit is based on mala fide and is liable to be dismissed 0 . P . P

(iii) Whether the plaintiff has no cause of action O.P.D

(iv) Whether the plaintiff has no locus standi to file this suit O.P.D

(v) Whether the suit is insufficiently stamped O.P.D.

(vi) Whether the plaintiff is owner in possession of the property O. P. P.

(vii) Whether the plaintiff is entitled to the issuance of the injunction prayed for in the plaint O. P. D .

(viii) Relief.

5. The parties adduced oral as well as documentary evidence for and against the issues. The trial Court after appraising the evidence found against the petitioner all the issues except issue No. 5 which was decided against the respondent. Consequently, the suit of the petitioner was dismissed. Feeling aggrieved, the petitioner preferred an appeal but that too was dismissed by the Additional District Judge, Sheikhupura vide his judgment dated 15th of May, 1980.

6. The learned lower Appellate Court has not discussed the evidence of the parties in its impugned judgment. The only circumstance which prevailed with it in dismissing the appeal of the petitioner was that he had failed to produce a site plan and other evidence to identify the property transferred to him. The thirty‑three documents brought on record by the petitioner included site plans of the plots transferred to him. These plans had been prepared by the settlement officials. However, these plans by themselves do not help in resolving the controversy between the parties.

7. Learned counsel for the petitioner has stated in his arguments that the petitioner does not lay any claim to the property comprising Killa No. 5/1 Square No. 146 transferred to the respondent. Similarly, learned counsel for the respondent has stated in his arguments that the respondent does not assert any title to the property comprising Killa No. 5/2 of Square No. 146. Therefore, the dispute between the parties involves only demarcation of the areas transferred to them. The evidence on record is insufficient to adjudicate upon this dispute. The proper course for determination of this controversy is to issue a commission to a competent person to visit the site and demarcate the areas transferred to the parties and appraise the evidence on record and decide the issue afresh in the light of the Local Commissioner after affording the parties an opportunity to raise objections thereto, if any.

8. In order to determine the factual controversy between the parties, therefore, it appears appropriate as agreed to by learned counsel for the parties to remand the suit to the trial Court. Accordingly, this appeal is accepted and setting aside the impugned judgment and decree the suit is remanded to the trial Court. The learned trial Court shall issue a commission to a competent person to visit the site and separately demarcate the areas transferred to the parties. On receipt of the report of the Local Commissioner, the parties will be given an opportunity to raise objections thereto, if any. The Local Commissioner shall be called as a witness to prove his report. The parties shall be entitled to lead further evidence in support of their objections, if any to the report The trial Court shall re‑appraise the evidence in juxtaposition with the report of the Local Commissioner and decide the suit afresh in accordance with law and procedure.

9. Learned counsel for the petitioner has further stated that in view of the finding of the trial Court on issue No. 1, the petitioner may like to move an application for amendment of the plaint so as to sue for possession as well. The grievance of the learned counsel for the respondent is that the respondent moved an application in the lower Appellate Court for production of additional evidence but no order was passed thereon. The petitioner and the respondent may, if so, advised, apply to the trial Court for amendment of the plaint and production of additional evidence respectively and the trial Court shall pass appropriate orders thereon in accordance with law.

11 B.T./718/L Order accordingly

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