P L D 2003 Supreme Court (AJ&K) 1 (PLP)

‑‑‑‑S. 42‑‑‑Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLIII, Rr.4 & 5‑‑‑Appellate jurisdiction of Supreme Court‑‑‑High Court neither had set aside the decree which was passed in favour of respondents nor had dismissed the suit filed by the appellant, but had just set aside the judgment of the Trial Court whereas appeal was tiled against the decree of the Court of competent jurisdiction in civil matters‑‑‑Such an accidental slip appeared to be the result of human error, which could be rectified in exercise of the powers available to Supreme Court under

0. XLIII, Rr. 4 & 5 of Azad Jammu and Kashmir Supreme Court Rules, 1978 and in view of the peculiar facts of case, it would not be inequitable to do so. Abdul Rashid Abbasi, Advocate for Appellant. Khawaja Muhammad Nasim, Advocate for Respondents Nos. 1 to

3. Raja Ibrar Hussain, Advocate‑General for Respondents Nos.4 and

5. Date of hearing: 9th December, 2002. KHAWAJA MUHAMMAD SAEED, J.‑‑‑This appeal is directed against the judgment of the High Court passed on 23‑11‑2001, whereby while allowing the appeal of respondents Nos. 1, 2 and 5, the judgment and decree of District Judge, granting decree of an amount of Rs.12,10,770 were set aside.

2. Relevant facts, briefly stated, are that the appellant brought a suit in the Court of District Judge, Muzaffarabad on 29‑10‑1995 against the respondents for the decree of an amount of Rs.12,10,770 as compensation of Khalsa land bearing Khasra Nos. 1312 measuring 1 Kanal, 6 Marlas and 1313 measuring 3 Kanals, 12 Marlas; total measuring 4 Kanals, 18 Marlas alongwith trees which. according to him. were planted by him but were damaged by the respondents while constructing Leswa Bypass Road without acquiring the said land. The averments of the plaint were denied by the respondents through their written statement filed by them on 18‑5‑1996. The respondents despite service of notices failed to appear before the Court, as such were proceeded ex parte. The learned District Judge recorded the ex parte evidence and allowed a decree of the aforesaid amount vide his judgment and decree, dated 16‑3‑1998. Respondents Nos. 1, 2 and 5 filed an appeal on 13‑6‑1998 before the High Court against the said judgment and decree passed by the District Judge, Muzaffarabad. Their appeal was accepted by the learned Judge of the High Court vide judgment and decree, dated 23‑11‑2001. Hence, this appeal.

3. Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, argued that it is an admitted fact between the parties that the suit land was in the continuous possession of his client, who treating himself as owner of the same planted different kinds of trees which were damaged alongwith the land by the respondents while constructing Leswa Bypass Road. The value of the trees planted in the suit land was assessed by the officials of the Sericulture Department on the directions of the Minister Industries and Works as Rs.6,72,

750. The Commanding Officer of F.W.O. also certified the damage caused to the trees planted in the suit land. He further argued that his client claimed the compensation for the land as Rs.38,020 and for mental torture and other damages Rs.5,00,000 which was proved by him through cogent evidence. The learned counsel further submitted that the learned District Judge in the light of these circumstances had rightly allowed the decree in favour of his client which was erroneously reversed by the learned Judge in the High Court. He relied upon the statement of the appellant. Ghulam Mustafa. Patwari, Syed Fida Hussain Kazmi. Reader. Office of S.D.M., Authmaqam and Zafar lqbal Kant, Assistant Director, Sericulture Department.

4. While opposing the arguments of the learned counsel for the appellant, Khawaja Muhammad Nasim the learned counsel for respondents Nos. 1, 2 and 3, argued that admittedly the land in dispute was a Khalsa land and the trees were planted in the said land by the Forest Department and the lower staff of the Forest Department looked after these planted trees which shows that the land in dispute and the trees were in the possession and control of the Forest Department. He further argued that this Khalsa land was never sanctioned in favour of the appellant, therefore, he was not competent to claim any compensation of the said land. In the same way he was not justified in law to claim the damage caused to the trees planted by the Forest Department in the suit land. The learned counsel strenuously argued that in the circumstances of this case no mental torture was caused to the appellant, therefore, he was not justified to claim the compensation even for the mental torture.

5. Raja Ibrar Hussain, the learned Advocate‑General, owned the arguments of Khawaja Muhammad Nasim, Advocate, the learned counsel for respondents Nos. 1, 2 and 3.

6. We have considered the respective arguments of the learned counsel for the parties and carefully perused the entire record of the case. The appellant filed a suit for the recovery of Rs.12,10,770 in which he pleaded that he was in possession of Khalsa land measuring 4 Kanals, 18 Marlas comprising survey numbers 1312 and 1313. According to him he planted different kinds of trees in the suit land which were damaged by the respondents while constructing Leswa Bypass Road. In the wisdom of the learned counsel for the appellant without acquiring the land in dispute, the respondents were not justified in law to construct Leswa Bypass Road in the suit land or to cause damage to the standing trees thereon. He, therefore, also demanded the compensation for mental torture caused to him by the respondents. He claimed that he moved an application before the Minister for Industries and Works Department for the determination of loss caused to his trees through the officials of the Sericulture Department. The Minister passed a favourable order on this application. Thereafter, the officials of the Sericulture Department determined the compensation amount of damages trees as Rs.6,72,

750. The Commanding Officer of F.W.O. also gave a certificate in this regard. According to him as Khalsa land was in his possession, therefore; the respondents without acquiring the same through the process of law. were not justified to construct the road through the land in dispute. He, therefore, claimed the compensation of the land as Rs.38,020 and for other damages and mental torture Rs.5,00,000 total Rs.12.10,

770. In his statement the appellant admitted that the land was Khalsa, which was not sanctioned in his name and that the trees were planted by the Forest Department which were looked after by the lower staff of the said department. Zafar Iqbal Kant, Assistant Director of Sericulture Department, stated in his evidence that he was directed by the Assistant Commissioner Authmaqam to determine the compensation of the trees which were damaged by the construction of Leswa Bypass Road in the suit land. According to him he went on the spot and‑ noticed the damage of certain trees. He stated that these trees were planted by the Forest Department and were also looked after by the said department. He assessed the damage of these trees as Rs.6,72,

750. Syed Fida Hussain Kazmi, the Reader of the Office of S.D.M. Authmaqam, in his statement stated that a file for the compensation was received in the Office of S.D.M. from the Office of Tehsildar, Authmaqam which was sent to the Deputy Commissioner, Muzaffarabad for further necessary orders. In the light of this evidence it is an admitted position of fact that Khalsa land was never sanctioned in favour of the appellant, therefore, he was not justified in law to claim any compensation for the land in dispute. :n the same way the trees upon the suit land were planted by the Forest Department and these trees were looked after by the officials of the Forest Department. In view of this factual position, the appellant cannot claim the compensation of the 'trees which were damaged in the suit land. As he has no concern with the trees or the land in dispute, therefore, the question of any mental torture does not arise. He cannot claim any compensation for the mental torture: The learned District Judge in the light of this evidence was not justified in law to allow the decree in favour of the appellant. The official respondents no doubt were careless in pursuing the case before the District Judge, as despite notices they failed to appear before the Court to defend the interest of their departments and Government, however, merely on account of this negligence on the part of the Government officials it was not sufficient for the trial Court to allow the decree on the basis of ex parte evidence which was not supporting the case of the appellant. A judgment must contain a concise statement of the case, the points needing determination in the light of the pleaded facts of the parties and the decision of the Court alongwith the reasons which favour such decision. In the present case unfortunately the learned District Judge in his capacity as trial Court failed to discuss the evidence produced by the appellant in its true perspective, therefore, the judgment, as rightly pointed out by the learned Judge in the High Court. was not a legal judgment in the eye of law. In the same way as rightly pointed out by the learned counsel for the appellant that the learned Judge in the High Court has neither set aside the decree which was passed in favour of respondents nor has dismissed the suit filed by the appellant. He has just set aside the judgment of the trial Court whereas admittedly the appeal is filed against the decree of the Court of competent C jurisdiction in civil matters. This accidental slip appears to be result of human error, which can be rectified in exercise of the powers available to this Court under Order XLIII, rules 4 and 5 of the Supreme Court Rules, In view of the peculiar facts of this case it would not be inequitable to do so. In view of the above, this appeal having no merit is dismissed. Consequently the suit filed by the appellant before the District Judge, Muzaffarabad on 29‑10‑1995, is dismissed and the decree passed by District Judge on 16‑3‑1998, is set aside. H.B.T./344/SC(AJ&K) Appeal dismissed.