Tuesday, 19 November 2013

PLJ 2013 Peshawar 177
Present: Shah Jehan Khan Akhunzada, J.
Mst. MEHR AFZOON--Petitioner
versus
Mst. KHATOON etc.--Respondents
C.R. No. 442 of 2011, decided on 18.3.2013.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Partitioned of property--Appointment of local commissioner--Object was raised on report--Report was confirmed--Trial Court without recording statement of local commission, straightaway confirmed report of local commission--Validity--It was bounded duty of trial Court that before disposing of objection petition raised by petitioner on report of local commission, to record same evidence of objectors and also record the statement of local commission--Trial Court had not given any opportunity to cross-examine local commission by the parties--Case was remanded to trial Court for appointment of fresh local commissioner.            [P. 179] A
Mr. Shahbaz Khan, Advocate for Petitioner.
Mr. Barkatullah Khan, Advocate for Respondents.
Date of hearing: 18.3.2013.
Judgment
This revision petition has been directed against the judgment and order dated 7.1.2011 passed by the learned Addl. District Judge-VI, Peshawar whereby she while accepting the appeal filed by the Respondents No. 2 to 7, set aside the judgment and order dated 29.5.2010 passed by Civil Judge-XXIV, Peshawar and remanded the case back to the trial Court with the direction to depute a fresh local commission.
2.  Short and essential facts leading to the disposal of the instant revision petition are that on the application of the petitioner the revenue Court partitioned the property among the petitioner and Respondent No. 1 and Mutation No. 464 in this regard was attested which was challenged by Respondents No. 2 to 7 in a civil Court. During the pendency of the suit, two applications were filed, one by Respondents No. 2 to 8 to withdrawn their claim against Respondent No. 1 and the other by the petitioner for rejection of the plaint which were accepted by the trial Court and the plaint was rejected vide judgment and order dated 26.9.2008 against which an appeal was preferred before the learned Addl. District Judge-XI, Peshawar who vide his judgment and decree dated 8.4.2009 accepted the same, set aside the judgment and decree dated 26.9.2008 and remanded the case to the trial Court with the direction to proceed with the same and decide it in accordance with law on its own merit. The present petitioner filed revision petition bearing No. 385/2009 before this Court and vide judgment and decree dated 20.7.2009 this Court has disposed of the revision petition in the following manner:--
"To resolve the dispute once for all between the parties who are brothers and sisters being descendant of Anwar Khan, the learned trial Judge is directed to appoint a commissioner, who is well servant with the revenue matters and get the share of the petitioner partitioned at the spot within shortest possible time preferably within three months on receipt of record. It is mentioned that once before while disposing of W.P. No. 385/2007 vide order dated 12.3.2008, almost similar directions were given by this Court to the trial Court but it appears that these were not attended to in letter and spirit This time it is expected that it shall be given heed to settle down the controversy between the parties, at the earliest.
3.  After the remand of the case, the learned trial Court in compliance of the aforesaid orders of this Court, appointed Tehsildar as local commissioner with the direction to visit the spot and effect partition between the parties who submitted his report which was objected to by the Plaintiffs/Respondents No. 2 to 7 and after hearing the learned counsel for the parties the learned Civil Judge-XXIV, Peshawar vide order dated 29.5.2010 confirmed the report of commissioner and the file was consigned to the Record Room. The petitioner preferred revision petition against the aforesaid order which was accepted by the learned Addl. District Judge-VI, Peshawar vide judgment and order dated 7.1.2011, the judgment and order dated 29.5.2010 of the trial Court was set aside and the case was remanded back to the trial Court with the direction to depute a fresh local commission. Hence, the instant revision petition.
4.  I have heard the learned counsel for the parties and have gone through the available record of the case.
5.  Perusal of the record would show that after submission of the report of the local commission, the same was objected to by the petitioner but the trial Court has not considered the objections and without recording the statement of local commission, straight away confirmed the report of local commission. It was a bounded duty of the trial Court that before disposing of the objection petition raised by the petitioner on the report of local commission, to record some evidence of the objectors and also record the statement of the local commission. The trial Court has not given any opportunity to cross-examine the local commission by the parties. Therefore, the learned appellate Court has rightly remanded the case back to the trial Court for appointment of fresh local commission and I find no illegality or irregularity in the impugned judgment and order of the learned appellate Court.
6.  Resultantly, this revision petition being devoid of any merit is hereby dismissed.
(R.A.)  Petition dismissed

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