MUHAMMAD SULEMAN Versus ABDUL RASHID

This second appeal assails the judgment and decree passed by the learned District Judge, Sialkot, on 30th May 1962 reversing the judgment and decree of the trial Court.

2. Brief facts of the case are that the suit was filed by Malik Anar Din on 3rd October 1955 for possession of 6 marlas of land, bearing Khata No. 164/218 and Khasra No. 185, pertaining to the Jamabandi for the year 1950-51, situate in the revenue estate of Mauza Pura Neka, Tehsil and District Sialkot. The suit was resisted by Muhammad Suleman and Muhammad Hussain. After framing issues and recording evidence the trial Court decreed the suit. The matter went up in appeal before the Senior Civil Judge who remanded the case on 10th October 1957 with certain directions. The learned trial Judge again on 26th September 1961 dismissed the plaintiffs' suit. By the impugned judgment the learned District Judge accepted the appeal and decreed the suit for possession relying on the report of the local Commissioner,

3. Learned counsel for the appellants has vehemently argued that the report of the local Commissioner was inadmissible in evidence on account of the provisions of Order XXVI, rule 10, sub-rule (1) of the C. P. C. and the instructions contained in High Court Rules and Orders, Volume I, Chapter 1-M. No case-law was cited by the parties. I have dug out myself the following authorities : Bindabun Chunder Sirkar Chowdhry and others v. Nobin Chunder Biswas and others (1972) 17 Suth W R 282 and Haji Mumtajuddin v. Debendra Nath weal and others A I R 1959 Cal.

78. The local Commissioner has not complied with the law mentioned above. It was imperative for him to have recorded evidence of the parties, consulted the revenue record, and should have mentioned such actions in his report, only then his report could be relied upon. The viola tion of the procedure makes the evidence wholly inadmissible. The learned District Judge has reversed the judgment of the trial Judge entirely basing his finding on inadmissible evidence. The appeal has to be accepted in the circumstances.

4. For the reasons discussed above the judgment and decree of the learned lower appellate Court is set aside. The case is remanded to the trial Court who will appoint a fresh local Commissioner, if the parties so desire. The local Commissioner will then proceed to the spot and prepare his report in accordance with the law discussed above. In view of the complicated question of law involved, the parties will bear their own costs.

S. A. H. Appeal allowed