1

JUDGMENT SHEET
PESHAWAR HIGH COURT ABBOTTABAD BENCH
JUDICIAL DEPARTMENT

C.R.No.286-A/2016.

JUDGMENT

Date of hearing 21.09.2017.

Appellant / petitioner (Saeed and others) by

Mr. Muhammad Ayaz Khan, Advocate.

Respondent (Abdullah) by Mr. Bashir Ahmed Chaudhry,

Advocate.

SYED ARSHAD ALI, J.- Respondent/plaintiff on

09.02.2011 filed an application before Collector,

Mansehra for demarcation of his property in the

disputed land. The said application was marked to the

concerned Teshildar, who appointed Gidawar Circle PW-

3, for demarcation of the suit property. The Girdawar

Circle submitted his report dated 12.03.2011, wherein

the present petitioners alongwith Jamil and others were

stated to have encroached upon the land of present

respondent in Khasra Nos.2192/1, 2190/1, 7743/1 and

2244/1. On the basis of said report respondent filed a

suit for possession of the suit land in the Court of

learned Senior Civil Judge, Mansehra.

 2

2. The petitioners filed their joint written

statement, wherein they have raised an objection and

stated that no notice was given to them in the

demarcation proceedings, hence, the entire

demarcation proceedings is illegal. The learned trial

Court allowed the parties to lead their respective

evidence. During proceedings before the learned trial

Court, respondent filed an application for appointment

of local commission to re-demarcate the suit property as

the present petitioners had an objection on the earlier

demarcation. The present petitioners did not object the

said application. The learned trial Court vide judgment

and decree dated 26.06.2015 decreed the suit of

respondent for possession of 02 kanals 14 marlas while

rest of the suit was dismissed. Appeal filed against

aforesaid judgment and decree was dismissed by

learned Appellate Court vide judgment and decree

dated 18.07.2016.

3. Arguments heard and record perused.

4. Perusal of record reveals that patwari halqa

appeared as PW-1 and produced the revenue record,

which shows that the parties are not co-owner in the

 3

suit property. Since during proceedings before learned

trial Court no commission was appointed by the learned

trial Court to re-demarcate the suit property, hence,

only evidence regarding the allegedly encroached by the

petitioners upon the property of respondent is the

demarcation report of Girdawar Circle, which was

exhibited as Ex:PW2/1. The said report is ambiguous and

vague regarding certain mandatory requirements of spot

inspection and establishment of Khasra. The commission

PW-3 even did not prepare the site plan/sketch of the

measurement/spot inspection. The report is completely

silent as to whether any effort has been made by the

PW-3 to first point out three permanent places from Aks

Shajra Kishtwar, which were made basic points for

measurement so as to reach the disputed khasra

number. Although PW-3 had reported to have

undertaken the measurement at the spot but how and

in what manner the said exercise was undertaken is not

reflected in his report. Whether he had followed the

rules of demarcation as provided in High Court Rules and

Orders also does not reflect from the said report. Indeed

under the rules of demarcation the revenue officer was

 4

legally bound to first trace some permanent

point/structure wherefrom he shall undertake the

measurement by establishing each Khasra number

intervening the disputed Khasra number and to reach

the disputed Khasra number keeping in view the

description and measurement of each arm of Khasra

numbers as provided in shara kishtwar. Thereafter to

counter take the said measurement from other

permanent places/points. This entire measurement

should be reflected in separately prepared sketch,

wherein the encroached property should be separately

marked enabling the Court to render definite opinion on

the encroachment, if any, made by the defendant.

Principles and procedure governing the demarcation of a

disputed property in cases of encroachment by the

contiguous owners has been laid down in High Court

Rules and Orders (Volume 1, Chapter 1, Part M (i)). The

same is reproduced below :-

“(i) Procedure in "Hadd-Shikni Cases"

1. Local Inquiry.-- In "Hadd-Shikni"
suits and other suits of boundary disputes of
land, falling within the jurisdiction of a Civil
Court, it is generally desirable that enquiry be
made on the spot. This can usually be done in
the following ways:-
(a) by suggesting that one party or the other
should apply to the Revenue Officer to fix the
 5

limits under section [117(1) of the Punjab

Land Revenue Act 1967 (XVII of 1967]. Time
for such purpose should be granted under
Order XVII, Rule 3, of the Code of Civil
Procedure;
(b) by appointing a local commissioner, and
(c) by the Court itself making a local enquiry.
2. Enquiry by Revenue Officer.-- An
order of the Revenue Officer made under
section 101 of the Land Revenue Act is not
conclusive; but when his proceedings have
been held in the presence of, or after notice,
to the parties of the suit, and contain details
of enquiry and of the method adopted in
arriving at the result it would be a valuable
piece of evidence. It may be noted that an
Assistant Collector of the second grade can
deal with cases in regard to boundaries which
do not coincide with the limits of an estate.
3. Appointment of Commissioner.--
Similarly the report of the local commissioner
should contain full details so that the Court
may satisfactorily deal with the objections
made against it.
No person other than a Revenue Officer (or
retired Revenue Officer) not below the rank of
a Field Kanungo should usually be appointed
a local commissioner.
4. Instructions for the guidance of
commissioners.-- On the motion of the
Judges, the Financial commissioners have
issued the following detailed instructions for
the guidance of Revenue officials or Field
Kanungos appointed as Local Commissioners
in civil suits of this nature.
Financial Commissioner's Instructions
(i) If a boundary is in dispute, the Field Kanungo
should relay it from the village map prepared
at the last Settlement. If there is a map which
has been made on the square system he
should reconstruct the squares in which the
disputed land lies. He should mark on the
ground on the lines of the squares the places
where the map shows that the disputed
boundary intersected those lines, and then to
find the position of points which do not fall on
the lines of the squares. He should with his
 6

scale read on the map the position and

distance of those points from a line of a
square, and then with a chain and cross-staff
mark out the position and distance of those
points. Thus he can set out all the points and
boundaries which are shown in the map. But
if there is not a map on the square system
available, he should then find three points on
different sides of the place in dispute, as near
to it as he can, and, if possible, not more than
200 kadams apart, which are shown in the
map and which the parties admit to have been
undisturbed. He will chain from one to
another of these points and compare the result
with the distance given by the scale applied to
the map. If the distances, when thus
compared, agree in all cases, he can then
draw lines joining these three points in pencil
on the map and draw perpendiculars with the
scale from these lines to each of the points
which it is required to lay out on the ground.
He will then, lay them out with the cross-staff
as before and test the work by seeing whether
the distance from one of his marks to another
is the same as in the map. If there is only a
small dispute as to the boundary between two
fields the greater part of which is undisturbed
then such perpendiculars as may be required
to points on the boundaries of these fields as
shown in the field map can be set out from
their diagonals, as in the field book and in the
map, and curves made as shown in the map.
(ii) In the report to be submitted by him, the Field
Kanungo must explain in detail how he made
his measurements. He should submit a copy of
the relevant portion of the current Settlement
field map of the village showing the fields, if
any, with their dimensions (karu kan) of
which he took measurements, situated
between the points mentioned in instruction
No. (i) above and the boundary in dispute.
This is necessary to enable the Court to follow
the method adopted and to check the Field
Kanungo's proceedings.
(iii) If a question is raised as to the position of the
disputed boundary according to the field map
of the Settlement preceding the current
 7

Settlement, that also should be demarcated on

the ground, so far as this may be possible, and
also shown in the copy of the current field
map to be submitted under instruction No.
(ii).
(iv) On the same copy should be shown also, the
limits of existing actual possession.
(v) The areas of the fields abutting on the
boundary in dispute, as recorded at the time
of the last Settlement and those arrived at as a
result of the measurement on the spot should
be mentioned in the Field Kanungo's report
with an explanation of the cause or causes of
the increase or decrease, if any, discovered.
(vi) When taking his measurements the Field
Kanungo should explain to the parties what
he is doing and should enquire from them
whether they wish anything further to be done
to elucidate the matter in dispute. At the end,
he should record the statements of all the
parties to the effect that they have seen and
understood the measurements, that they have
no objection to make to this (or if they have
any objection he should record it together
with his own opinion) and that they do not
wish to have anything further done on the
spot. It constantly happens that when the
report comes before the Court, one or other
party impugns the correctness of the
measurements and asserts that one thing or
another was left undone. This raises
difficulties which the above procedure is
designed to prevent.
(vii) The above instructions should be followed by
Revenue Officers or Field Kanungos
whenever they are appointed by a Civil Court
as Commissioners in suits involving disputed
boundaries.”

Hence, the report of revenue officer Ex:PW2/1 is not

worth reliance as it does not disclose the real

controversy between the parties. As the aforesaid report

 8

of commission does not provide the true picture of

encroachment and there is no other evidence on the file

to decide the issue of encroachment, hence this Court is

left with no option but to set aside both impugned

judgments and decrees which are based on no

evidence/incorrect evidence. However, the matter

cannot be left unattended due to deficient demarcation

report. Indeed it is an established principle of law that

nobody should suffer for the negligence and act of

public servant. If the statutory functionary has failed to

perform his duties in accordance with law, the plaintiff

cannot be made to suffer for the said

omission/negligence. Particularly when the Court is also

equipped with the powers to appoint commission under

Order 26 and the Rule ibid for spot inspection.

5. For what has been discussed above, this

petition is accepted and the impugned judgments and

decrees of learned lower Courts are set aside and the

case is remanded to the learned trial Court for

appointing commission comprised of an expert revenue

officer not below rank of Girdawar for demarcation of

the disputed property and thereafter to decide the case

 9

strictly in accordance with law. It is an old case,

therefore, the learned trial Court is expected to decide

the same within a period of three months.

ANNOUNCED JUDGE
21.09.2017.

*Aftab P.S/* Justice Syed Arshad Ali.