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First Appeal from Original Order No.l6 of 1986, decided on 2nd June, 1986.

---O.XLIII, R.1(u)--Punjab Pre-emption Act (I of 1913), S.8--Remand order--Sole point in dispute between parties throughout trial was whether suit property was situate within cantonment limits and immune from pre-emption claim--Statement of Patwari, on such pivotal issue was not only contradictory but was irreconcilable and could not have been safely relied upon--Reports of Local Commissioners were not of any material help to the decision of issue--Order of Additional District Judge remanding suit to Trial Court to re-decide issue with the help of a new Local Commissioner, held, was not open to any question.

---S.193--Punjab Pre-emption Act (I of 1913), S.15--Perjury--Patwari making contradictory statements, prima facie, irreconcilable with each other, held clearly perjured himself and earned a prosecution for giving false evidence--Trial Court directed to take notice of contradictory and irreconcilable statements of Patwari, when deciding suit and if finds expedient and in interest of justice, his prosecution may be ordered.

Iqbal Ahmad for Appellant.

This appeal by the plaintiffs is under Order XLIII, Rule 1(u). Civil Procedure Code, against the order of remand dated 28-11-1985 of learned Additional District Judge,. Rawalpindi. It arises from the facts given below.

Mushtaq Ahmad was owner of 35 Kanals 3 Marlas (hereinafter referred to as the suit property), situate at Mauza Sagra Brahma, Tehsil and District Rawalpindi, vide Sale Mutation 1445 sanctioned on 30-10-1972, suit property was sold to Manzoor Elahi for a sale price of Rs.5,000/-. Bahadur Khan, as co-sharer and tenant of the suit property pre-empted the sale and brought a suit against the vendee in the Court of Administrative Civil Judge, Rawalpindi. Suit was instituted on 16-10-1973. Defendants resisted the suit and pleaded that the suit property was situated within Cantonment limits and was not pre-emptible: that the suit was for partial pre-emption and merited dismissal. On merits, right to pre-empt was denied and as regards sale price it was alleged that the suit property was purchased for Rs.5,000/- and that the sale price was fixed in good faith and was actually paid to the vendor. On 15-1-1974, Court settled following issues for determination:

(1) Whether the suit land is situate within the Cantonment limits If so what effect O.P.P.

(2) Whether the suit is for partial pre-emption If so, what effect O.P.D.

(3) Whether the plaintiff has superior right of pre-emption O.P.P.

(4) Whether the cum of Rs.5,000/- has been fixed in good faith and actually paid O.P.P.

(5) If issue No.4 is not proved what is the market value of the suit land O.P.P.

(6) Relief.

It transpires from the original record that defendant submitted, an application for appointment of a Local Commissioner to find whether the suit property was situated within Cantonment limits. Plaintiff did not oppose this request. On 3-6-197-5 Mr. Muhammad Aslam, Magistrate 1st Class. Rawalpindi was appointed as Local Commissioner to submit report. Before report could be submitted by him, he was transferred to Gujjar Khan. His appointment, therefore, was recalled and instead, Mr. Khurshid-ul-Islam, Advocate was appointed as Local Commissioner, Suit was adjourned for a number of dates to await the return of Local Commissioner's report. Eventually Local Commissioner's report was received in Court. In the report it was observed: "From inspection of the site and evidence produced by the parties. It is difficult to ascertain the exact extent of the suit land situated in the Cantonment Board." Aggrieved party filed objections. On 26-7-1977, trial Court appointed Overseer, Cantonment Board as Local Commissioner to find and report whether the suit property was situated within the limits of Wah Cantonment and postponed the suit to 13-9-1977 for Local Commissioner to submit his report. Instead of the Overseer, inquiry was made by Muhammad Mukhtar, Survey Draftsman and it was reported by him that out of 87 Kls. 14 Mls. an area of 25 Kls 18 Mls lay within the Wah Cantonment limits. Report is dated 10-7-1977. Both the parties objected to the report and submitted objections. However, learned Judge of the trial Court postponed his consideration on the report till after the evidence of the parties. At this stage, it may be noticed that the original parties to the suit in course of the hearing of the suit, had passed away leaving behind their heirs to continue the proceedings in the pre-emption suit. Plaintiff's evidence was recorded on 15-7-1974 while that of defendants concluded on 28-5-1978. On the plaintiff's side, Fazal Khan, one of the heirs of Bahadur Khan appeared and relied on sale Mutation Ext. P.1, Fard Jamabandi 1963-64 Ext.P.2, Khasra Girdawari Ext. P.3 also. In defence, Faiz Talib, Halqa Patwari, Ghulam Qadir, Clerk, Cantonment Board Wah, Muhammad Mukhtar, Survey Draftsman and Mahboob Elani, Special Attorney of the defendant appeared and recorded their statements. Reliance was also placed on copies of Jamabandi Ext. D.1, Ext. D.2 and Aks Shajra Ext. D.3. Record shows that Faiz Talib, Patwari, who had already appeared for the defendants also appeared for plaintiffs in rebuttal evidence. As D.W.1, it was deposed by him that Khasra Nos. 634, 635 were within Cantonment limits, but when he appeared for the plaintiffs in rebuttal he contradicted his earlier, statement and deposed that Khasra Nos.634, 635 were beyond Cantonment limits. On the basis of the oral as well as documentary evidence, Mian Nasir Hussain, learned Civil Judge. Rawalpindi, on 3-7-1974, found for the pre-emptor and decreed the suit in his favour on payment of Rs.5,000/-. The vendees preferred an appeal to the District Court. It was heard by Mr.Munir Ahmad Mughal, learned Additional District Judge, Rawalpindi. Vide decision dated 11-1-1981, appeal was allowed and the suit was remanded to the trial Court to decide it afresh in accordance with law. Learned Appellate Judge in remand order observed: "Most strange aspect on the lower Court record is that Faiz Talib, Patwari, appeared as D.W.1 and then as PW and while appearing on behalf of the defendant, he stated that Khasra Nos.634, 635 were within the Cantonment limits of Wah Cantt and while appearing on behalf of the plaintiff in rebuttal, he stated that these numbers were not in Cantonment limits. The learned Civil Judge has either not read the evidence on the record or if he has read it, he should have taken notice of the conduct of the witness and brought the law into action against such a witness for making false statement so boldly in a Court of law. The next important fact on the record is that the learned Civil Judge appointed a certain person as Local Commissioner, but some other person submitted the report and the learned Civil Judge did not take note of it, nor cared to appoint a fresh Local Commissioner. Lastly, Government Notifications are to be considered as correct and such function should not be left to the parties to produce those Notifications. Similarly, their non-production is no excuse for a Court of law to give judgment against such Notifications". In post-remand proceedings, Sh. Khalil Ahmad, Advocate was appointed Local Commissioner. He went to the spot, enquired into the matter and submitted his report stating that major portion of the suit property was within Cantonment limits and about 2 Marlas from Khasra Nos.634, 635 were beyond Cantonment limits. His report is dated 12-11-1981. Plaintiffs preferred objections to the report of Local Commissioner. Without formal inquiry into the objections, learned Civil Judge vide his order, dated 16-3-1982 dismissed the objections. Plaintiffs assailed aforesaid order in revision before learned, Additional District Judge, Rawalpindi. Revision petition was dismissed on 10-1-1984 by Hafiz Khalil Ahmad, learned Additional District Judge, Rawalpindi. The revisional Court, to quote, observed: "I have heard the learned counsel for the petitioner. Order XXVI, Rules 9 and 10 is the reply to the argument of the learned counsel. The Local Commissioner has been appointed for only local investigation. He has submitted the report and the evidence before the learned Civil Judge. The report of the commission is nothing but the evidence in the suit and it is not the conclusive finding of the matter in issue. It is the learned Civil Judge who has himself to give the finding about the real controversy between the parties and if he is dissatisfied with the proceeding of the Local Commissioner, he can order the further inquiry. For the foregoing reasons I am convinced that the order of the learned Civil Judge is neither perverse nor foolish. The learned Civil Judge has exercised the jurisdiction legally and properly. So the order under revision does not call for any interference". Reading of the record shows that, in remand, plaintiffs applied for permission to examine the Local Commissioner. Mirza Rafi-uz-Zaman, learned Civil Judge vide his order, dated 18-9-1984 dismissed the petition. After plaintiff's attempt for examination of the local Commissioner had not fructified, they submitted another application for permission to produce some evidence in rebuttal. This time they succeeded and the learned Civil Judge vide his order, dated 30-9-1984 acceded to the request and granted them permission to produce rebuttal and availing of this opportunity, Muhammad Iqbal, Survey Draftsman was produced as P.W.2 and in his statement copies of Notifications and plan showing limits of Wah Cantonment were formally tendered in evidence. On examination of all this evidence including report of Sh. Khalil Ahmad, Advocate, trial Court was of the view that the suit property was situated beyond Cantonment limits and that the plaintiffs were possessed of a better right and decreed their suit on 3-12-1984. Defendants preferred appeal. It was heard by Hafiz Khalil Ahmad, learned Additional District Judge, Rawalpindi who, on hearing the parties and examination of the record did not agree with the conclusion of the Court reached on issue No.1 as to whether the suit land was situated within the Cantonment limits and remanded the suit to the trial Court to re-decide the issue with the help of a new Local Commissioner. Decision of the learne6 appellate Judge is dated 28-11-1985. It is this order of remand which is under challenge, at the instance of the plaintiffs.

Mr. Iqbal Ahmad, Advocate assisted by Sh. Muhammad Ismail, Advocate addressed the Court, criticised the remand order and submitted that there was adequate material available on file for final adjudication of the appeal and it was not a proper and legitimate exercise of appellate jurisdiction on the part of the Court to have ordered remand. It was vehemently argued that the suit property was situated at a place which could not be described or taken as "Cantonment" within the meanings given to it in Section 3 of the Cantonment Act, 1924. Sole point in dispute between the parties throughout the trial has been whether the suit property was situate within the Cantonment limits and was immune from pre-emption claim, under Section 8 of the Punjab Pre-emption Act 1913. On this pivotal issue statement of Faiz Talib Patwari was not only contradictory but was irreconcilable and could not have been safely relied upon. Neither the report submitted by Mr. Khurshid-ul-Islam nor the one by Muhammad Mukhtar was of any material help to the decision of the issue. As regards report of Sh. Khalil Ahmad, Advocate, suffice it to say that it too did not fulfil the necessary requirements of Law, and, in my opinion, did not provide a satisfactory basis for decision of this pivotal issue. For correct and satisfactory decision of the issue, it was necessary to appoint another Local Commissioner to find as to whether the suit property was situate within or without Cantonment limits. This, to my mind, was absolutely necessary for doing complete justice between the parties. I, therefore, find myself in complete agreement with the view of circumstances and law taken by the learned Additional District Judge and would uphold his decision. The remand order, therefore, was not open to any question. Viewed thus, I see no force in this appeal, which is dismissed summarily. It may be observed in passing that in appointment of the Local Commissioner the learned trial Court may prefer a practising Advocate with experience on the Revenue side and in its absence may look for assistance to a Revenue Officer in service or retired. I may also observe that in contradictory statements, prima facie, irreconcilable with each other, Faiz Talib Patwari has clearly perjured himself, has earned a prosecution for giving false evidence and the Court when deciding the suit may take notice of the aforesaid statements and if it finds expedient, and in the interests of justice, his prosecutions may be ordered.

M.A.K./M-322/L Remand order upheld.

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