P L D 2021 Balochistan 206
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
Syed NASEEM AGHA and 3 others ---Petitioners
Versus
SHUJA UD DIN KASI and others ---Respondents
Constitutional Petition No 1203 of 2020, decided on 8th March, 2021.
(a) Civil Procedure Code (V of 1908 )---
----S. 75 & O. XXVI, R. 1--- Suit for declaration, possession and permanent injunctions ---
Local Commission, appointment of ---Case at initial stage ---Dispute to the extent of only
possession as owners ---Authentic ity/genuineness of mutation entries ---District Court in
revisional jurisdiction set aside order of Trial Court for appointment of Commission---
Validity ---Neither issues were framed nor the parties had led any evidence ---At such initial
stage, the authentic ity/genuineness of the mutation entries of respondents could only be
determined/ established before the Civil Court through full -fledged inquiry/scrutiny, that too
after providing the full opportunity of hearing to both the parties before the Trial Court ---At
such initial stage the genuineness/ authenticity could not be determined through the appointment of the local commission---No bar on filing a second application for appointment of local commission--- Constitutional petition was dismissed accordingly.
(b) Civil Procedure Code (V of 1908) ---
----S.9 & O. XXVI, R.9 ---Jurisdiction ---Demarcation of suit property ---Scope ---Civil Court
could resolve the controversy by adopting any means, and there was no restriction imposed upon the exercise of powers under O. XXVI, R. 9 of C.P.C. to get the disputed land
demarcated as to whether the same would fall within the specific Khasra number with specific boundary limits/dimensions.
(c) Civil Procedure Code (V of 1908) ---
----S. 75 & O. XXVI, R. 1--- Local Commission, rep ort of ---Scope ---Report of Commission
was not exclusive and was always subject to the objection of the parties, and the Court was not bound to straightaway accept/reject the same, but the Court would evaluate the objection of the parties ---Even if the report was accepted, it would not amount to evidence, but would
only help the Court in reaching to a conclusion.
(d) Civil Procedure Code (V of 1908) ---
----Ss. 9, 75 & O. XXVI, Rr. 1 & 9---Jurisdiction--- Phrase 'local investigation'---Local
dispute of encroa chment ---Scope ---Term 'local investigation' indicated certain special
powers available to Civil Court to collect information, inquire into the matter, record
evidence, in order to formulate its opinion to get the issue resolved in its true perspective as without appointment of Local Commission the Court could not have a clear view and the just
decision could not be achieved especially when the matter related to a local dispute regarding encroachment which would otherwise require the probe on site and as suc h there was no
direct evidence regarding the identification/nature of the site.
Abdul Sattar Kakar for Petitioners.
Rizwan -ud-Din Kasi for Respondents Nos. 1 to 5.
Date of hearing: 23rd February, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .---In a suit filed by the respondents Nos. 1 to 5 against
the petitioners for declaration, possession and permanent injunction claimed the ownership of the suit property with the mutation/Inteqal No.727, new Khewat No. 206, new Khatooni No. 220 and new Khasra Nos. 468/ 465/ 463/460/458/456/452/409/306 measuring 3551 square
feet wherein the suit property is situated possession whereof is with the petitioners/ defendants before the respondent No.7, i.e. Senior Civil Judge -VI, Quetta ("trial court"), the
petitioners after f iling written statement filed an application under Order XXVI, Rule 1,
C.P.C. for the appointment of a local commissioner for ascertaining as to whether the petitioners are in possession as owners of their respective properties as compared to the entries mentioned in Tatima chalked out in favor of the respondents. The said application
was resisted by the respondents but was accepted by the trial court vide order dated 07.09.2020.
2. Being aggrieved, the respondents filed a revision petition under section 11 5, C.P.C.
before the learned District Judge Quetta, which was transmitted to the file of learned Additional District Judge -V, Quetta ("revisional court"), whereby after hearing the parties,
the petition filed by the respondents was accepted and while dismi ssing the application filed
by the petitioners before the trial court under Order XXVI, Rule 1, C.P.C. for the appointment of a local commissioner, the order dated 07.09.2020 passed by the trial court was set aside. Where- after the instant writ petition ha s been filed.
3. We have heard the arguments advanced by learned counsel for the petitioner, the
learned counsel for the respondents and have also gone through available record with their able assistance.
4. The trial court accepted the application for app ointment of a local commissioner on
the ground that the dispute between the parties to the extent of only possession of the petitioners as owners of their respective properties, appointed Mr. Qurban Ali, Advocate as local commissioner to visit the site alo ng with the concerned Patwari with revenue record
and determine that who is in possession of the property falling under tatima chalked out in favour of the respondents, while the learned revisional court/Additional District Judge -V
Quetta set aside the ord er of trial court and the revision filed by the respondents/ plaintiffs
was accepted and the application for appointment of local commissioner filed by the
petitioners/defendants before the trial court was dismissed on the ground that the trial court commi tted an error while accepting the application for the appointment of a local
commissioner to find out the possession of the property as per Tatima chalked out in favour
of the respondents, which is not permissible under the law to collect information witho ut
recording evidence at the early stage of the suit.
5. It transpires from the record that while filing their written statement, the petitioners
also filed an application under Order XXVI, Rule 1, C.P.C. for the appointment of a local
commissioner before the trial court. Neither the trial court framed any issue s nor called any
evidence from the parties when it was the initial stage of the suit. The respondents claimed ownership and sought possession of the property through mutation Entry No. 427. On the other hand, the petitioners challenged the authenticity and genuineness of the said mutation
entries of the respondents. The matter has been adjudicated by the civil court, being court of preliminary jurisdiction in terms of section 9, C.P.C. The civil court may resolve the controversy by adopting any means, and t here is no restriction imposed upon the exercise of
powers under Order XXVI, Rule 9, C.P.C. to get the disputed land demarcated as to whether
the same falls within the specific Khasra number with specific boundary limits and
dimension.
6. Civil Courts have all kind of powers to resolve the issue of parties concerning the
demarcation. In order to understand the controversy, it is necessary to analyze powers of the Court in terms of section 75, C.P.C., which has been reproduced below:
"75. Power of Court to issue commission. Subject to such conditions and limitations as may be prescribed the Court may issue a commission -..
(a) to examine any person ;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition. "
And O rder XXVI, Rule 9, C.P.C. is also reproduced below:
"9. Commission to make local investigation.---In any 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 or any
mesne profits or damage or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: --
Provided that, where the [Provincial Government] has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
7. In view of the above provisions of law, the emphasis has been given on the terms
"Local I nvestigation" required for the purposes of lucidity in matter in dispute, the Court
may issue a commission to such persons as it thinks fit for the purposes of investigation.
Above referred terminology indicates certain special powers available to the Civi l Court
through which the Court can collect information, inquire into the matter, record evidence, in order to formulate its opinion to get the issue resolved in its true perspective as without
appointment of Local Commission the Court could not have a cle ar view and the just
decision cannot be achieved especially when the matter is related to a local dispute regarding
encroachment which otherwise requires the probe on site and as such there is no direct evidence regarding the identification and nature of t he site. The very purpose of Local
Commission in terms of section 75 read with Order XXVI, Rule 9, C.P.C. can only be the mandate as the Civil Courts have jurisdiction to adjudicate upon the suit of civil nature in terms of section 9, C.P.C.
8. It is corre ct that the parties are bound to produce evidence in respect to their cases,
and other options are rarely exercised, which includes the appointment of Commission. Normally the Commission is appointed to bring to the surface some facts which the parties have failed to disclose in the Court. Moreover, the report of Commission is not exclusive and
is always subject to the objection of the parties, and the Court is not bound to straightaway
accept or reject the same. They have ample opportunities to bring their view -points on the
record before the Court regarding their objections, if any. The Court would not straightaway
accept the said report but would evaluate the objection of the parties. Even if the report is accepted, it would not amount to evidence, but would only help the Court in reaching to a correct conclusion.
9. Under section 75 and Order XXVI, Rule 9 of C.P.C. if the trial Court feels difficulty
in deciding a case and reaches the conclusion that the judgment cannot be delivered without spot inspectio n, then the Court has jurisdiction to make spot inspection, but in the instant
case neither issues were framed nor the parties have led any evidence. At the very initial stage, the authenticity and genuineness of the mutation entries of the respondents can only be
determined and established before the civil court and which requires full -fledged inquiry and
scrutiny, that too after providing the full opportunity of hearing to both the parties before the trial court and at this stage the genuineness and authe nticity cannot be determined through
the appointment of the local commissioner.
10. After recording some evidence, particularly in respect of mutation entries, if the trial
court feels difficulty in deciding the case and reaching the conclusion that the judgment cannot be delivered without spot inspection, then the court has the jurisdiction of making a site inspection, and there is no bar on filing a second application under Order XXVI, Rule 1, C.P.C. for the appointment of a local commissioner.
In view of the above, since, in our humble opinion, no illegality or jurisdictional
defect has been committed by the revisional court, therefore, the petition is accordingly dismissed.
ZH/84/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.