2011 M L D 1632
[Lahore]
Before Abdus Sattar Asghar, J
ABDUL KHALIQ and 3 others---Petitioners
Versus
ADDITIONAL DISTRICT JUDGE, MINCHINABAD and 4 others ---Respondents
Writ Petition No.1763 of 2011, decided on 19th May, 2011.
(a) Civil Procedure Code (V of 1908)---
----O. XXVI, Rr. 9 & 10---Appointment of Local Commission to make local investigations---
Scope---Court either suo motu or at request of a party could appoint Commission, if deemed the
same necessary for deciding matter in dispute---Report of Commission and evidence taken by
him would form part of record in case---Any party, if so desired, with permission of court could
examine Commissioner touching matter referred to him or finding mention in his report.
(b) Specific Relief Act (I of 1877)---
----S. 8---Civil Procedure Code (V of 1908), O. XXVI, Rr. 9 & 10---Constitution of Pakistan,
Art. 199---Constitutional petition---Suit for possession of land---Appointment of
Tehsildar as Local Commission for demarcation/Hadbarari of suit land to ascertain actual Khata
Number and Khasra Number in which same was situated---Report of Tehsildar that demarcation
of suit land for being situated in populated area was not possible---Rejection of report of
Tehsildar by Trial Court without inviting objections of parties---Order of Trial Court directing
Deputy Collector to appoint a senior Revenue Officer for such purpose---Revision petition filed
against such order dismissed by Additional District Judge---Validity---Trial Court could appoint
Commission either suo motu or at request of any party---Trial Court had passed impugned order
in presence of counsel for parties---Deputy Collector had submitted report of demarcation and
Trial Court had invited objections of parties thereon---Order XXVI, R. 10, C.P.C., provided
sufficient safeguards to rights of both parties in order to utilize or otherwise such report
as a piece of evidence---Defendant had faded to point out infringement of any of his rights---
Courts below had passed impugned orders in lawful exercise of jurisdiction---High Court
dismissed constitutional petition in circumstances.
Abdul Majeed Bhatti for Petitioners.
Ahmad Mansoor Chishti and Muhammad Khalid Shahid Buttar for Respondents Nos.3 to 5.
ORDER
ABDUS SATTAR ASGHAR, J.---Ahmad Mansoor Chishti and Mr. Muhammad Khalid Shahid
Buttar, Advocates have filed their powers of attorney and accepted service on behalf of
respondents Nos. 3 to 5.
2. Abdul Khaliq and others, petitioners, have invoked the extraordinary jurisdiction of this court
under Article 199 of the Constitution by challenging the order dated 15-11-2010 passed by
learned Civil Judge 1st Class, Minchanabad and order dated 14-12-2010, passed by learned
Additional District Judge, Minchanabad, District Bahawalnagar, on the grounds that the same are
illegal and without lawful authority.
3. Brief facts leading to the filing of this writ petition are that Muhammad Saleem and others
(respondents Nos.3 to 5 in this petition) lodged a suit for possession against Abdul Khalid and
others (petitioners in this petition) on the basis of ownership with regard to property comprising
Khata No.83, Killa. Nos.4 and 5, and Khata Nos.91 and 365, situated in Mouza Minchanabad.
The suit was resisted by the defendants with the contention that the disputed property is owned
by the defendants vide registered sale-deeds dated 24-6-1984 and 18-2-2009. Considering it a
case of demarcation/Hadbarari, during the pendency of the suit, plaintiffs lodged an application
for appointment of the local commission in order to ascertain the actual Khata and Killa numbers
in which the suit property is situated. Application was resisted by the defendants. However,
learned Civil Judge allowed the application and appointed the Assistant Collector/Tehsildar,
Minchinabad, as local commissioner to determine the khata and khasra number in which the
disputed property is situated. In response thereof the local commission submitted the report that
the disputed property is situated in the populated area of Minchanabad City therefore its
demarcation as per Revenue Record is not possible. The learned Civil Judge being dissatisfied
with the report of the local commission directed the Deputy Collector/DDO®, Minchanabad to
appoint some senior revenue officer for demarcation/Hadbarari; to ascertain the actual Khata
Number and Khasra Number of the disputed property vide order dated 15-11-2010.
4. Being aggrieved of the said order of the learned Civil Judge, defendants (present petitioners)
lodged a Civil Revision before the learned Additional District Judge, Minchanabad, on the
ground that the impugned order is against the law and facts and without lawful authority for the
reasons that the report of the Assistant Collector, Minchanabad has been rejected by the learned
Civil Judge and the DDO® Minchanabad has been appointed as local commission without
obtaining the objections of the parties. The learned Additional District Judge in his order dated
14-12-2010 observed that in fact no report was submitted by the local commission, i.e. Assistant
Collector/Tehsildar Minchanabad regarding the demarcation, therefore, the learned Civil Judge
has rightly passed the impugned order for appointment of some competent revenue officer to do
the job. Considering it a case having no irregularity or illegality, the learned Additional District
Judge declined to interfere in the order of the Civil Judge. Both the orders are assailed through
this writ petition.
5. I have heard the learned counsel for the parties and perused the record.
6. Order XXVI Rule 9 of the Code of Civil Procedure authorizes a Court to appoint commissions
to make local investigations on the request of a party and even suo motu if the Court deems it
appropriate for the purpose of elucidating any matter in dispute. Rule 10 of the Order XXVI ibid
lays down procedure of the commissioner so appointed for the local investigations. It also
declares that the report of the commissioner and the evidence taken by him shall form part of the
record in, the suit and 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 with the
permission of the court.
7. The plea raised by the petitioners that the impugned order dated 15-11-2010 passed by the
learned Civil Judge Ist Class, Minchanabad is against the law and facts and without lawful
authority has no force for the reason that the learned Civil Judge has got the authority to appoint
the local commission suo motu or on the application of any of the parties to the suit as provided
in Rule 9 of Order XXVI of the Civil Procedure Code. Simultaneously, Rule 10 of Order XXVI
ibid provides sufficient safeguards to the rights of the parties in order to utilize or otherwise any
such report of the local commission as a piece of evidence, if so desired.
8. Perusal of the record reveals that the order dated 15-11-2010, whereby the DDO®/Deputy
Collector, Minchanabad was directed to appoint some senior official for demarcation/Hadbarari
of the disputed property was passed in presence of the counsel for the parties, therefore, it cannot
be said that the appointment of the local commission was made without notice to the parties.
Record further reveals that the Deputy Collector/DDO® has submitted report of demarcation in
the court on 28-2-2011 when the case was adjourned while inviting objections, if any, upon the
report of the local commission from the parties. Therefore, the learned counsel for the petitioners
has not been able to point out infringement of any right. In the above state of affairs learned
Additional District Judge vide impugned order dated 14-12-2010 has rightly declined to exercise
his revisional jurisdiction to interfere with the order of the Civil Judge for appointment of the
local commission.
9. As a sequel to the above discussion and reasons, I am of the considered view that the
impugned order dated 15-11-2010 passed by the learned Civil Judge Ist Class and the order dated
14-12-2010 passed by the learned Additional District Judge, Minchanabad do not suffer from any
illegality. Both the orders are passed in accordance with law in exercise of lawful authority and
do not call for any interference by this Court in exercise of writ jurisdiction. This writ petition,
therefore, is dismissed.
S.A.K./1-179/L Petition dismissed.
