Purpose:
To seek the remedy against the dismissal of application for appointment of local commission through civil
revision U/S 115 CPC.
Civil revision U/S 115 CPC
IN THE COURT OF
LEARNED DISTRICT JUDGE, RAWALPINDI
In the matter of:
(name,
parentage, and address of the petitioner/s) …Petitioner
Versus
(name,
parentage, and address of the respondent/s) …Respondents
CIVIL
REVISION U/S 115 CPC AGAINST THE IMPUGNED ORDER DATED 07.03.2021, PASSED BY THE
COURT OF LEARNED CIVIL JUDGE RAWALPINDI, WHEREBY THE LEARNED CIVIL JUDGE
DISMISSED THE APPLICATION OF PETITIONER U/O 26 RULE 9 READ WITH SECTION 75 CPC
FOR APPOINTMENT OF LOCAL COMMISSION
Respectfully
Sheweth:-
That
the petitioner is the lawful owner of land measuring 1-K and 2-M
bearing Khasra No. 1000, Khewat No. 126, Khatooni No. 141 situated in the Revenue Estate of Bhatta under the limits of Cantonment Board Rawalpindi.
Bounded as East: House, West: Public Street, North: Public Street, South: House
of defendant No. 1
It
is further submitted that the petitioner purchased the suit land from one xyzzy
and xyzzy through registered Sale deed No. 1930, dated 30.03.2016, Sale Deed No.
1998, dated 01.04.2016, sale deed No. 2145, dated 07.04.2016, respectively and
thereafter the petitioner went abroad and while taking the advantage of the absence
of the petitioner, the respondents took over the possession of lands owned by
the petitioner because the house of the respondent is adjacent constructed on 9
marlas with same khasra No. 1000.
On 21.04.2016, respondents No. 2 & 3 with legal consultation filed a
suit for declaration and permanent injunction against the petitioner and others, and respondents No. 2 & 3 along with suit also moved an application for
appointment of local commission which application was also accepted by the
learned trial court and Mr. Iftikhar Khan Advocate appointed as local
commission regarding possession of suit property and in absence of the
petitioner local commission submitted his report on 10.05.2016 who confirmed
the version of the petitioner that the suit property is adjacent with the house
of respondents who are using the suit land as the lawn. It is further submitted
that the petitioner also filed a suit for possession along with a permanent and
mandatory injunction in May 2016 which is also pending adjudication before the
same court both suits were consolidated and now the learned trial court
conducted the proceedings of both the suits.
Prior to the institution of the suit, the petitioner moved an application before
the assistant commissioner, Rawalpindi for demarcation of his land, who
appointed the circle revenue officer /naib Tehsildar who conducted the
demarcation proceeding and who confirmed the stance of the petitioner that the
respondents encroached the land of the petitioner vide report dated 28.04.2016.
That
the respondents challenged the report dated 28.04.2016 before the assistant
commissioner and their appeal was dismissed, they further challenged before the
additional commissioner, who accepted the revision dated 14.05.2018 simply on
the ground that the suit land situated in Abadi Dhe and the revenue officer U/S
3 of land revenue act has no jurisdiction to demarcate the land.
That
the petitioner raised the objection on the report of local commission appointed by
the predecessor of this Hon’ble court and also moved an application for
appointment of the fresh local commissioner as revenue officer dated 07.01.2019 and
the said application has been dismissed by the learned trial court vide order dated
07.03.2021, hence this civil revision U/S 115 CPC inter
alia on following:-
G R O U N D S: -
That
the impugned order dated 07.03.2021 is against the law and facts of the case.
That
the order dated 07.03.2021 is based on misreading and nonreading of facts
available on the file and also committed material illegality and irregularities
which even otherwise not sustainable under the law.
That
the impugned order dated 07.03.2021 is totally based on assumptions and
presumptions.
That
the learned trial court also ignored the important aspect of the case in which
the Hon’ble High Court categorically stated that where the suit land is
situated within the limits of municipal corporation then to resolve the
controversy, the learned trial court has ample power for demarcation of land through some senior revenue experts in
accordance with the law, which dictum is also ignored by the learned trial court
while passing the impugned order which is liable to be set aside on this score
alone.
That
the first local commission appointed by the learned the trial court on first date
of hearing in above said suit titled, who conducted the demarcation proceedings
ex-parte and as per law and high court rule at the time of spot inspection, it
is necessary for both the parties to present at the spot but the learned trial
court also ignored this important aspect of the case while dismissing the
application of the petitioner for appointment of senior revenue officer as
local commission, hence the order dated 07.03.2021 is liable to be set aside on
this score alone.
That
the impugned order is based on surmises and conjectures, which is even
otherwise not sustainable in the eye of law.
That
the learned trial court has not exercised the jurisdiction, which is so vest to
it.
That
the learned trial court exercised the jurisdiction, which is not vest to it.
That
the impugned order is grave miscarriage of justice, which is not sustainable in
the eye of law and liable to be set aside.
That
the valuable rights of the petitioner are involved in the matter and if the
impugned order dated 07.03.2021 remained in the field, then the petitioner shall
suffer an irreparable loss, hence the impugned order is liable to be set aside.
PRAYER
In view of the above
circumstances, it is, most respectfully prayed that while accepting the instant
revision petition, the impugned order dated 07.03.2021 may kindly be set aside
and a senior revenue officer may kindly be appointed for spot inspection, who
submit his report before recording of pro and contra evidence for the best interest
of justice.
Any
other relief which this Hon’ble court deems just and proper may also be
awarded.
Petitioner Through Counsel
Certificate:
-
Certified as per instructions furnished by the
petitioner this is the first Civil Revision on the subject ever moved before
this Hon’ble Court.
…Counsel
Note:
To attach an
affidavit in support of civil
revision U/S 115 CPC.
To attach an
application for suspension /stay of proceeding pending before the learned trial
court (if necessary).
Revision petition
must be filed within specific time period otherwise to attach an application
for condonation of delay.
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