مقامی کمیشن کی تعیناتی کا قانونی جواز اور عدالتی نظیریں
عدالتی مقدمات میں جائیداد کے تنازعات کے حل کے لیے مقامی کمیشن کی تعیناتی ایک اہم قانونی طریقہ ہے۔ لاہور ہائی کورٹ کے حالیہ فیصلے (W.P. No. 2039 of 2021) میں اس اصول پر روشنی ڈالی گئی ہے کہ کس طرح مقامی کمیشن کی تعیناتی انصاف کے بہتر نفاذ اور حقیقت کی درست تعیین کے لیے ناگزیر ہوسکتی ہے۔
پس منظر
اس مقدمے میں درخواست گزار نے 8 کنال زمین پر مستقل حکمِ امتناعی کے لیے دعویٰ دائر کیا۔ درخواست گزار کا مؤقف تھا کہ وہ "شملاٹ دہ" کے ایک مخصوص حصے پر قابض ہے اور مدعا علیہان کو قبضے میں مداخلت سے روکنے کے لیے حکمِ امتناعی کا طلبگار ہے۔
ابتدائی عدالتی کارروائی
سول جج نے مقدمے کے دوران مقامی کمیشن کی تعیناتی کی درخواست کو مسترد کر دیا، یہ قرار دیتے ہوئے کہ فریقین کو خود اپنے دعووں کے ثبوت پیش کرنے چاہئیں اور مقامی کمیشن کے تقرر سے مقدمہ طول پکڑے گا۔
عدالتی نظرثانی
مدعا علیہان نے اس فیصلے کے خلاف اپیل کی جسے ایڈیشنل ڈسٹرکٹ جج خوشاب نے منظور کر لیا۔ عدالت نے قرار دیا کہ زمین کے تنازعہ میں مقامی کمیشن کی تعیناتی ضروری ہے تاکہ موقع پر موجود حقائق اور جائیداد کے حالات کو بہتر طور پر سمجھا جا سکے۔
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قانونی اصول اور عدالتی نظیریں
لاہور ہائی کورٹ نے اپنے فیصلے میں متعدد عدالتی نظیروں اور اصولوں پر انحصار کیا، جن میں سے چند درج ذیل ہیں:
1. مقامی کمیشن کی تعیناتی کا مقصد
آرڈر XXVI، رول 9، سی پی سی کے تحت مقامی کمیشن کی تعیناتی کا مقصد یہ ہے کہ موقع کی صورتحال اور جائیداد کی نوعیت کا جائزہ لیا جائے تاکہ عدالتی کارروائی میں مدد فراہم کی جا سکے۔
سپریم کورٹ کے فیصلے (1976 SCMR 350) میں قرار دیا گیا کہ مقامی کمیشن کی رپورٹ کی بنیاد پر عدالتی رائے قائم کرنا عین عدالتی اختیار کے مطابق ہے۔
2. تاخیر کا اصول
عدالت نے اس نظریے کو مسترد کر دیا کہ تاخیر کی بنیاد پر مقامی کمیشن کی تعیناتی کو رد کیا جائے۔
PLD 2009 SC 16 کے مطابق، مقامی کمیشن کی تعیناتی میں تاخیر کو محض تکنیکی بنیاد پر مسترد کرنا انصاف کے تقاضوں کے منافی ہے۔
3. انصاف کے بہتر نفاذ کے لیے ضروری اقدام
CLC 447 (2015) میں عدالت نے قرار دیا کہ جب زمین کے مقام اور حدود کے تعین کا مسئلہ ہو تو مقامی کمیشن کی تعیناتی نہایت موزوں ہوتی ہے۔
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تجزیہ اور رائے
عدالت کے فیصلے سے واضح ہوتا ہے کہ جائیداد کے تنازعات میں مقامی کمیشن کی تعیناتی اس وقت ناگزیر ہو جاتی ہے جب زمین کے مقام، حدود اور قبضے کے تنازعہ کو صرف موقع کی جانچ پڑتال کے ذریعے ہی حل کیا جا سکے۔ عدالت کا یہ فیصلہ انصاف کے تقاضوں کو پورا کرنے اور حقائق کے درست تعین کے لیے ایک جامع رہنمائی فراہم کرتا ہے۔
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نتیجہ
یہ فیصلہ جائیداد کے تنازعات میں عدالتی عمل کے اصولوں کی بہترین وضاحت کرتا ہے اور اس بات کو مؤکد کرتا ہے کہ عدالت کو موقع کی جانچ پڑتال کے لیے مقامی کمیشن کی تعیناتی میں پس و پیش نہیں کرنی چاہیے۔ یہ عدالتی اصول اور نظیریں وکلاء اور جج حضرات کے لیے ایک راہنمائی فراہم کرتی ہیں کہ کس طرح حقائق کی درست تعیین کے لیے قانونی ذرائع استعمال کیے جائیں۔
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
W.P. No.2039 of 2021
Muhammad Nazir
v.
Naara Khan, etc.
J U D G M E N T
Date of Hearing 10.3.2021
Petitioner by
Malik Talal Hussain, Advocate
Respondents by Rai Muhammad Riaz Bhatti, Advocate
Rasaal Hasan Syed, J. Petitioner in this
Constitutional petition seeks annulment of order dated
22.12.2020 of the learned Addl. District Judge, Khushab
whereby the revision petition of the respondents was allowed
by setting aside the order of the learned Trial Court.
2.
Facts germane to disposal of the instant petition are
that the petitioner instituted a suit for permanent injunction
against respondent Nos.1 to 3 claiming that he was in
exclusive possession of 8-kanals being part of shamlat deh.
The house of the petitioner with boundary walls and some
construction material existed on site and that the respondents
had no right to interfere in the possession of the petitioner or
to damage the trees till partition of the shamlat. The suit was
W.P. No.2039 of 2021
Page-2
contested by the respondents on legal as well as factual
premises. Issues were framed and evidence was recorded pro
and contra. At the stage of final arguments, an application for
appointment of local commission was filed for site inspection
and report which after contest was dismissed by the learned
Civil Judge vide order dated 21.10.2020. The respondents
challenged the order in revision petition which was allowed
by the learned Addl. District Judge, Khushab vide order
dated 22.12.2020. The instant petition assails the order of the
learned Revisional Court dated 22.12.2020.
3.
Learned counsel for the petitioner submitted that the
parties had produced their evidence and the case had ripened
for final arguments, there was no dispute qua description of
property or demarcation and, being so, the application for
appointment of local commission was rightly dismissed by
the learned Civil Judge and that the learned Addl. District
Judge illegally allowed the appointment of the commission
despite the fact that the subject-matter of the controversy
could not be left for the determination of the local
commission and needed to be decided by the court itself. On
the contrary, learned counsel for the respondent Nos.1 to 3
submitted that the impugned order was well-reasoned, no
error of law or jurisdiction was pointed out, the appointment
W.P. No.2039 of 2021
Page-3
of local commission in the peculiar circumstances of the case
was necessary for the assistance of the court for effective
adjudication of the real matter in controversy and that the
order being fair and equitable, Constitutional petition was not
legally maintainable.
4.
Points raised by the learned counsel for the parties
have been duly considered in light of the material filed with
the instant petition. It is revealed therefrom that the suit of
the petitioner for permanent injunction was in respect of a
portion of shamlat deh, the petitioner claimed to be in
possession as co-sharer in the shamlat being proportionate to
his proprietary interest in the mauza. He challenged the claim
of the respondents, applied for injunctive relief against
interference therein. Parties produced evidence pro and
contra. At this stage, the respondent Nos.1 to 3 filed an
application for appointment of local commission to inspect
the suit property and to submit report about the “old
constructed and unconstructed roads at sight and boundaries
of the suit property” claiming that the same was necessary for
the just and fair decision of the case. The application was
declined by the learned Civil Judge vide order dated
21.10.2020 with the observation that the object behind the
application was to linger on the matter and that if the
W.P. No.2039 of 2021
Page-4
application is allowed, it will create complication and lead to
endless and multiple proceedings, which will not be
warranted by law. In revision, the learned Revisional Court
set aside the order observing that in a suit for permanent
injunction involving demarcation of land falling within the
village-land/shamlat deh the appointment of local
commission will be relevant in such situation and that while
considering the appointment of local commission,
foundational point would be as to whether the report of local
commission will be helpful to reach a just conclusion. Other
reasons that prevailed with the learned Addl. District Judge
were that during the evidence a question was put by the
respondents to the witnesses of the other side as to whether
they had any objection to the appointment of the local
commission, which offer was accepted. It was observed that
the parties had previously been in litigation over the land
subject-matter of suit and, in this backdrop, where the
witnesses of the petitioner also did not oppose the
appointment of local commission it will be appropriate to
appoint a local commission to assess the surroundings and
demarcation, if any, as well as the entitlement of the parties
over the suit property and that as a matter of opportunity, in a
suit for permanent injunction, it is always deemed necessary
W.P. No.2039 of 2021
Page-5
that the boundaries of land owned and possessed shall be
ascertained by production of relevant record as well as
appointment of local commission whose report would be
rendered after spot inspection and assessment which would
be helpful to the court in adjudication of the issue. With these
reasons the learned Addl. District Judge allowed the revision
petition subject to payment of Rs.10,000/- as costs for filing
the delayed application with the direction that the matter
being in relation to village-land/shamlat deh, a seasoned
Revenue Officer shall be appointed to prepare a spot report
and also obtain photographs of the suit property as well as
surrounding places of the connected properties in issue.
5.
It may be gleaned from the plaint that the petitioner
claimed that he was permanent resident of Khushab,
agricultural land of ancestors was in the mauza that evolved
upon him through inheritance and that the proprietary and
possessory rights vested in the petitioner and that the suit
land was part of shamlat deh comprising 8-kanals in which
the petitioner was shareholder since the time of his ancestors.
Further that the suit property comprised residential site, Ihata,
walls, boundaries, trees, etc. and that the respondents had no
concern with the same and that they were attempting to
forcibly and with mala fide, interfere in the possession and
W.P. No.2039 of 2021
Page-6
ownership of the petitioner. A decree for permanent
injunction was claimed with these circumstances. The stance
of the respondents, to the contrary, was that the petitioner had
no cause of action. The suit was barred by rule of estoppel.
The description of the properties was incorrect, khata number
and khatuni number were not disclosed, the land in dispute
was shamlat deh which had not been partitioned, the plaint
was liable to be rejected and that previously the petitioner
had filed a suit for declaration titled “Haji Muhammad Nazir
v. Naara Khan, etc.”, in which his application for injunction
was rejected on 06.12.2012 and appeal thereagainst was also
dismissed on 03.7.2013, whereafter an application for
amendment was moved which too was declined, the order
was challenged in revision and the revision was also
dismissed and that later on the petitioner withdrew the suit
with permission to file a fresh one subject to payment of
costs and that the petitioner had relinquished the claim of
declaration by filing a simple suit for permanent injunction
which was not maintainable and further that the petitioner
was neither owner in the deh nor had any share in the
shamlat. Instead the respondents were owners and
shareholders in the shamlat and in possession thereof and
that proper remedy for the petitioner was to seek partition
W.P. No.2039 of 2021
Page-7
which being not claimed suit for permanent injunction
simpliciter was not legally maintainable. The stance of the
petitioner was vehemently controverted by the respondents.
Parties lead their evidence. At a later stage, the respondents
sought appointment of local commission to submit a site
report which application was dismissed by the learned Civil
Judge, primarily for the reason that it was belated and that the
parties had to stand on their own legs and to prove their
respective stances through admissible evidence and that they
could not be permitted to procure evidence through pressure
of appointment of local commission and using the court
order.
6.
The learned Addl. District Judge to the contrary,
concluded that the application was dismissed on
technicalities despite the fact that the parties had to stand on
their own feet and produce their respective evidence pro and
contra in support of their suit for injunction but considering
the facts and circumstances of the instant case, appointment
of local commission was necessary for fair and just
adjudication of the controversy.
7.
As noted supra, the dispute is with regard to a piece of
land which is part of shamlat deh and, as yet, has not been
partitioned. The petitioner claims that since the time of his
W.P. No.2039 of 2021
Page-8
forefathers, the property was in possession of his ancestors
and that the same devolved upon him through inheritance and
that he was in possession of the land inclusive of kotha jat,
etc., existing in a part of shamlat which was, according to the
petitioner, proportionate to the proprietary interest in the
mauza.
8.
Order XXVI, Rule 9, C.P.C. contains the mandate that
commission can be appointed to report after site inspection in
regard to possession, characteristics of land, area of shamlat,
possession of claimant as holder of proprietary interest in the
village and also as to the exact entitlement in the shamlat as
per proprietary interest in the village. No doubt it is for the
court to decide the substantive questions arising in the suit
but if keeping in view the nature of the dispute and ground
realities in mind, site inspection will be beneficial, then
procedure under Order XXVI, Rule 9, C.P.C. may be
adopted. Appointment of local commission is made only for
the purpose of elucidation and rendering assistance to the
court in correctly appreciating the controversy by having the
knowledge of the state of affairs at site. It is for this reason
that the court is empowered under Order XVIII, Rule 18,
C.P.C. to even make site inspection itself, if need be. Delay
W.P. No.2039 of 2021
Page-9
in filing application for appointment of local commission in
itself cannot be a sole reason to reject the same.
9.
In “Rehman Dad and another v. Major Raja Sajwal
Khan, etc.” (1976 SCMR 350) the objection that if an
application for local commission was allowed it will re-open
the case as after the report of local commission objections
will have to be filed and parties will be entitled to lead
evidence which fact shall cause delay in disposal of the case,
did not find favour with the Supreme Court of Pakistan as it
was observed that the ground given by the learned Civil
Judge for refusing appointment of local commission was
arbitrary and extraneous to the legal principles and that in
case of peculiar nature of the subject-matter, the report of the
local commission after objections, could facilitate the court
to formulate its opinion on the questions involved and, as
such, it would be judicious exercise of discretion if such
application was allowed. In “Province of Punjab through
Collector, Bahawalpur and others v. Sh. Hassan Ali and
others” (PLD 2009 SC 16) it was observed that in a suit in
which the court deems a local investigation to be required or
proper for the purpose of facilitating any matter in dispute or
for ascertaining market-value of the property, the court may
under Order XXVI, Rule 9, C.P.C. issue a commission to
W.P. No.2039 of 2021
Page-10
such person as it deems fit to carry out such investigation and
to make a report. In “Nasir-ud-Din and others v. Surreya
Begum and others” (1994 MLD 1937) it was observed that in
case of a dispute between the parties with regard to extent of
their respective portions transferred to them, the court after
perusing the evidence if finds that the question of
determination of the built up area as well as vacant land,
could not be fully resolved from evidence on record, the
court could appoint a local commission to carry out the
measurements on the spot with a view to determine the built
up area and vacant land transferred to the parties. In
“Zahooruddin v. Haji Hussain through his legal heirs and
others” (PLD 1991 Kar. 205) it was observed that where the
area and dimensions of the property were involved, necessary
inspection and report could be the best evidence in such
matters. In “Iltaf Hussain v. Zafar Iqbal and others” (2015
CLC 447) it was observed that appointment of a local
commission to carry out local investigation could be made if
the court deemed the same to be requisite or proper. It was
further observed that the appointment of local commission
was proper to decide the lis as without spot inspection exact
location of both parties could not be proved and that
dismissal of the application for appointment of local
W.P. No.2039 of 2021
Page-11
commission on the assumption of delay in concluding the
suit or recording the evidence of the parties could not be a
ground to reject the application for appointment of local
commission where investigation of the ground realities was
found to be necessary and that such discretion, if exercised,
could not be interfered with in Constitutional jurisdiction. In
“Muhammad Yousaf alias Bala v. Khuda Dad and 11 others”
(2004 MLD 1107) it was observed that where the
controversy between the parties was with regard to the
boundaries of land owned by them, the same could only be
resolved through demarcation and, therefore, the learned trial
court was right in adopting the procedure of appointing local
commission under Order XXVI, Rules 9 and 10, C.P.C. In
“Niaz Ahmad v. Fida Muhammad” (1987 CLC 659) it was
observed that if the dispute between the parties involved only
demarcation of area and evidence on record being
insufficient to adjudicate upon the controversy, proper course
for determination of the dispute would be to issue a
commission through a competent person to visit the site,
demarcate the area transferred to each party and that the court
could decide the case in light of the evidence on record and
the report after affording opportunity to raise objections.
W.P. No.2039 of 2021
Page-12
10. Considering the consistent rule in the precedents noted
supra it is manifest that in instances where the dispute
pertains to description of property, the parties are in issue
with respect to their entitlement, the property subject-matter
of dispute is shamlat deh and the claim of possession and
proportionate entitlement is seriously in issue, identification
of respective areas and entitlement of the parties being
essential, local investigation could be made through the
commission to secure the exact picture of the site and to
verify the ground realities and state of affairs on the spot. It is
true that the decision as to entitlement of the parties or the
proprietary interest will be the exclusive jurisdiction of the
court, while the objective of local investigation shall be to
obtain the picture of the site and property to understand and
appreciate the controversy raised in evidence and through the
pleadings.
11. Under Order XXVI, Rule 9 and 10, C.P.C. the report
of the local commission as also the evidence collected by the
local commission, form part of the evidence while the
ultimate decision rests with the court. It is always deemed
just, fair and necessary for effective adjudication of dispute
in regard to description and boundaries of property claimed
by the respective parties that a site report be secured. The
W.P. No.2039 of 2021
Page-13
learned Civil Judge mainly dismissed the application on the
assumption that it was delayed and, if allowed, will result in
further proceedings by inviting objections, concluding
evidence and such course will lead to endless litigation. In
adopting this approach it was little appreciated that this could
not be the sole ground to dismiss the application without
considering the other attending factors and that the court was
required to consider whether in the specific facts and
circumstances of the case and the nature of the dispute, site
report shall be helpful for proper adjudication of the case
and, if so, then of course, the appointment of local
commission shall be just and fair. The learned Addl. District
Judge, rightly observed that the suit was for permanent
injunction and no respective property claim by the parties as
share in shamlat deh. The rights and possession of the
petitioner qua the property and also the description of the
property as well as the plan attached, were disputed by the
respondents, the petitioner filed a suit for declaration wherein
application for injunction was dismissed and stay was later
on withdrawn with permission to file a fresh one and, in these
circumstances, it was essential that the issue be resolved for
all times to come by taking all possible measures to reach the
truth of the matter and to determine the controversy in a just
W.P. No.2039 of 2021
Page-14
and fair manner to the satisfaction of both the parties and for
the delayed filing of the application, the learned Addl.
District Judge rightly imposed costs of Rs.10,000/- upon the
respondents. The order of the learned Addl. District Judge
directing the appointment of some seasoned revenue officer
as local commission in the matter to prepare a spot inspection
appears to be a fair, just and reasonable approach. In “Jalal
Khan and 10 others v. Khandoo Malik and 24 others” (2003
SCMR 1351) to which the learned counsel for the petitioner
made reference, had distinguishable facts. In the said case,
the suit was finally dismissed, appeal filed by the other side
was also dismissed but in the revision the case was remanded
to the learned Appellate Court and, in post-remand
proceedings, at the appellate stage, an application for
appointment of local commission was made which was
declined by the court with the observation that sufficient
evidence existed on the record for decision of the appeal and,
as such, appointment of commission was not deemed
necessary which order was not interfered with and Leave was
refused. In the instant case, the learned Addl. District Judge,
took into consideration all the material facts, nature of the
dispute in the suit and recorded cogent reasons for which to
appoint the local commission for site inspection which was
W.P. No.2039 of 2021
Page-15
deemed necessary. The order, as such, does not suffer from
any error of law or jurisdiction nor calls for any interference.
12. For the reasons supra, there is no substance in the
instant Constitutional petition which is, accordingly,
dismissed.
(Rasaal Hasan Syed)
Judge
Approved for Reporting
Judge
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