Mst. AJAIB and others vs FAZAL DAD JANJUA
This petition for leave to appeal arises from a judgment and order of the Lahore High Court passed in civil revision, which set aside concurrent findings of the lower courts and remanded the matter for the appointment of a Survey Department expert as a Local Commissioner to determine whether the suit land was situate within Cantonment limits. The core legal question concerned the legality of the High Court's interference with concurrent findings of fact and the remand for expert local commission in a pre-emption suit. The Supreme Court held that the High Court's order was unexceptionable, ruling that the failure to properly determine the territorial limits through expert evidence constituted a material irregularity under Section 115 of the Code of Civil Procedure 1908, justifying interference and remand. The petition was accordingly dismissed.
- Whether concurrent findings of fact can be interfered with in civil revision on the ground of material irregularity?
- Can the High Court remand a case for the appointment of a Survey Department expert as a Local Commissioner to determine territorial jurisdiction?
- Does failure to appoint an expert local commissioner to resolve location disputes amount to a material irregularity under Section 115 of the Code of Civil Procedure 1908?
- Section 115, Code of Civil Procedure 1908
ORDER
' MIAN BURHANUDDIN KHAN, J.-- Leave is sought from the judgment and order of the Rawalpindi Bench of Lahore High Court, dated 28-9-1983 passed in Civil Revision No,751/D/1980.
2. The predecessor-in-interest of the petitioners pre-empted land measuring 17 Kanals 17 Marlas situate in village Dhama, Tehsil and District Rawalpindi, purchased by the respondent by a registered sale-deed dated 31-7-1975 for a sum of Rs,4,500. The respondent had taken the plea that the land was not pre-emptible as it was situate within the limits of Rawalpindi Cantonment. On 27-1-1977 the suit was decreed by the learned trial Court holding that the land was not situate within the Cantonment limits. Appeal of the respondent was dismissed vide judgment and order of the Additional District Judge, dated 15-4-1980. Revision was then filed in the High Court which was accepted vide the impugned judgment and the case was remanded for appointment of an expert of the Survey Department as a Local Commissioner authorising him to record evidence as well for resolving the matter in controversy and thereafter to proceed in accordance with law after receipt of the report.
3. Learned counsel contended that the parties, respondent included, had produced their evidence in compliance with the order of the learned trial Court, dated 29-10-1976. The respondent could not question the order, dated 29-10-1976 of the learned trial Court in subsequent proceedings and was estopped from doing so; and that it is well-settled that a concurrent finding of fact, however, erroneous or inexcusable, cannot be interfered even in the second appeal and the scope of revision is much more restricted.
4. The learned High Court Judge held that it was clearly a material irregularity within the purview of section 115, C.P.C. And referred to an unreported judgment of this Court in Malik Muhammad Ashraf v. Mst. Afredan Bi etc. C.P.L.A. No,22/R of 1983, decided on 29-1-1983 wherein under the similar circumstances the appointment of an expert of the Survey Department as a Local Commissioner by the High Court was upheld. Examining this proposition we find that this petition is without any legal force and the impugned order is unexceptionable. The petition is, accordingly, dismissed.