MUZAFAR-UL-MULK KHAN alias KAKI KHAN Versus JAMSHID ZADA
HAIDER ALI KHAN, J.--- This civil revision under section 115, C.P.C. is directed against the judgment and decree dated 17.6.2014 of the learned Additional District Judge/Izafi Zilla Qazi- II, Swat, whereby appeal of the petitioner against the judgment and decree dated 30.5.2013 of the learned Civil Judge/Illaqa Qazi-III, Swat, has been dismissed.
2. Brief facts of the case are that the respondents-plaintiffs filed a suit for declaration and perpetual injunction against the petitioner to the effect that they are owners in possession of the suit property comprising Khasra Nos.532, 533, 535, 540, 541, while the petitioner owns adjacent property in Khasra No. 537, that the petitioner-defendants be restrained to divert the natural flow of rivulet/stream towards the property of respondents-plaintiffs. The petitioners-defendants were summoned who submitted their respective written statements. Issues were framed by the learned trial Court out of divergent pleadings of the parties. It is worth mentioning that during pendency of suit the trial Court appointed Syed Tahir Shah Advocate as local commissioner with direction to inspect the spot along with concerned Patwari Halqa and to determine (1) Whether defendants have started construction in Khasra No.537 and (2) Whether the alleged construction cause damage to the property of plaintiffs. Accordingly, the local commissioner submitted his report on 26.3.2012 After recording pro and contra evidence, suit was decreed by the trial Court vide judgment and decree dated 30.5.2013. The petitioner assailed the aforesaid judgment in appeal before the appellate Court which too was dismissed vide impugned judgment and decree dated 17.6.2014. Hence, the instant civil revision.
3. Learned counsel for the petitioner contended that judgments and decrees of both the Courts below are contrary to facts and the available record; that both the Courts below have not appreciated the evidence in its true perspective; that both the Courts below have failed to interpret the law on the subject; that the trial Court has not decided issues Nos.5 and 6 in accordance with law; the commission's report is not supported by documentary evidence; that the local commission has not been examined by the trial Court; that the Courts below have dealt with the matter in a mechanical way; that the impugned findings are based on misreading and non-reading of the evidence, therefore, same are liable to be set aside.
4. On the contrary, learned counsel for the respondents-plaintiffs defended the impugned findings and submitted that the same are based on sound reasons, therefore, need no interference in revisional jurisdiction by this Court.
5. Arguments heard and record perused.
6. Perusal of the record would show that firstly respondents-plaintiffs, namely (1) Jamsher Zada (2) Shah Jehan (3) Bakht Sher Zada (4) Said Ghafar (5) Dolat Hayat (6) Mian Badshah (7) Abdul Matin and (8) Imran-ul-Haq, in their joint statement relied on the statement of Bakht Sher Ali PW-1 (respondent/plaintiff No.4), annexed with the plaint at the time of filing the suit as it was the requirement under Shariah Nizam-e-Adl Regulation, 2009. The said plaintiff-respondent was dead at that time and this fact was not brought into knowledge of the learned trial Court. As the abovementioned eight plaintiffs/respondents did not appear in support of their case and relied upon the statement of respondent/plaintiff No.4, who was already dead and could not be examined in. the Court, therefore, the petitioner-defendant was grossly deprived of his right to cross-examine the said witness. Secondly, it is also note worthy that Abdul Matin, PW-2, in his cross-examination, admitted that the defendant No.1 constructed the spur/dyke/watta with the approval and consultation of the plaintiffs, hence they were estopped to bring the present suit. He also deposed to the factum of death of PW-1 Bakht Sher Ali prior to adopting his statement before the trial Court.
7. Thirdly, Syed Tahir Shah Advocate was appointed as local commissioner with direction to inspect the spot and to ascertain whether the defendant-petitioner had started construction in Khasra No.537 and the alleged construction caused damage to the property of plaintiffs-respondents. Though the said local commissioner submitted his report on 26.3.2012, but neither the objections were sought from the parties on the report of local commissioner, nor has he been examined as CW nor the report was exhibited despite the fact that the respondent- defendants had filed an application wherein they objected to the findings of the commissioner but the said application was not allowed. Fourthly, the learned lower Courts have placed reliance on 'Shart Wajib-ul-Arz', which was not exhibited during the trial, nor the Patwari of the concerned Halqa was produced in support of the same nor the same 'Shart Wajib-ul-Arz' was tendered in evidence in accordance with law and finds mention in the report of local commissioner only, therefore, said report and 'Shart Wajib-ul-Arz' could not be relied upon as legally admissible evidence to resolve the controversy between the parties. Reliance can be placed on case law reported as 2004 CLC 1229 [Peshawar] 'Government of N.-W.F.P. v. Hussain Khan and others', wherein it has been held that:
"----O. XXVI, R. 9---Appointment of Commission to make local investigation---Report of Commission, nature and binding force of---Local Commissioner under O. XXVI, R.9, C.P.C. was to be appointed by the Court for the purpose of making local investigation and then giving his findings on points referred to him in his report---Report of Local Commissioner could not be termed as "findings" but only proceedings of an inquiry for information and assistance of the Court---Court alone was empowered to give its findings on each and every issue---Report of Local Commissioner was not binding on Court and on parties---Such report was evidence, but same must be tendered as evidence before it became evidence in a suit---Report of Local Commissioner, statements recorded by him and other material collected by him though would form part of the record of the suit, but same could not be called as 'evidence in the suit' unless same was tendered "in evidence" as prescribed law".
8. In view of the above discussion, the impugned findings of fact in the face of glaring misunderstanding and misapplication of law cannot withstand the test of judicial scrutiny prescribed under section 115, Civil Procedure Code. Hence, this petition is accepted, impugned judgments and decrees of both the Courts below are set aside and consequently the suit filed by the plaintiffs-respondents stands dismissed with no order as to cost.
ZC/133/P Revision allowed.