1987 PLP 438 (SCMR)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 11‑‑Land Acquisition Act (I of 1894), S. 30‑‑Res judicata, principle of‑‑Contention that on appellant's objection‑petition Acquisition Judge in his judgment had allowed compensation for improvement and since no appeal had been filed against that judgment, same became final and respondent's appeal was hit by principle of res judicata was not sustainable‑‑Judgment of Acquisition Judge having been struck down by High Court through impugned judgment and same not remaining in field, question, therefore, that respondents appeal before High Court was hit by principle of res judicata, held, would not arise. Qazi Abdur Rashid, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant. Bashir Ahmad Ansari, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 to

11. Date of hearing: 8th December, 1986. ALI HUSSAIN QAZILBASH, J.‑‑ This appeal arises from the judgment and order of a Division Bench of the Peshawar High Court, Circuit Bench at Abbottabad, dated 11‑3‑1979, whereby the regular first appeal of Subedar Major Safdar Zaman Khan and others was accepted and judgment and decree of the trial Court, dated 29‑11‑1976 was set aside.

2. Land measuring 112 Kanals out of 135 Kanals 18 Marlas comprising Khasras Nos. 1131 and 1132 situate in village Phaldhar. Tehsil Haripur, District Abbottabad, was acquired for the Tarbela Dam Project through Award No. 11, dated 14‑12‑1973. This land was recorded as Shamilat Deh and was assessed in the names of the various persons who were entitled to receive its compensation. The respondents also included the persons who constituted a committee to receive the compensation amount in respect of Shamilat Deh on behalf of the proprietary body of the village. This was resented by Muhammad Shah appellant who claimed to be in possession of 30 Kanals of land out of Khasra No. 1132 and 82 Kanals out of Khasra No.1131. He filed an objection petition under section 30 of the Land Acquisition Act alleging therein that he was the Sole person who was in possession of the above‑mentioned property for quite a long time and had effected considerable improvements with the result that this portion had been assessed by the Collector as Chahi Aabi and, therefore, he was entitled to the compensation of the land in question. The objection petition was resisted by the respondents, as a result of which as many as nine issues were struck. The learned trial Court after recording the necessary evidence vide its judgment dated 29‑11‑1976 came to the conclusion that the objector was in possession of the land in dispute which originally was Shamilat Deh and he had certainly improved it from Banjar Qadeem to Chahi Aabi and thus entitled to claim its improvements. This finding was challenged by the respondents through the regular first appeal which was accepted and finding of the learned trial Court was set aside and it was ordered that the compensation, both for land and its capability, shall go to the shareholders in the Shamilat.

3. Leave was granted to consider whether on asking of one co‑sharer, namely, the appellant, if it is accepted that he alone made the improvements in the Shamilat land which was in his possession beyond his share and that too before the notification under section 4 of the Land Acquisition Act, he alone was entitled to receive compensation for improvements over the land.

4. We have heard the learned counsel for the parties and have gone through the record. The learned counsel for the appellant vehemently contended that he had remained in possession of the suit land which was Banjar Qadeem and that it was he who made improvement on it with the result that it became Chahi Aabi and, therefore, he alone was entitled to its compensation. We are afraid that this contention would not prevail at all because there is no evidence brought forth on the record by the appellant that he did improve upon the land as a result of which its nature from Banjar Qadeem to Chahi Aabi was changed. We have gone through the statement of Muhammad Shah appellant who appeared as his own witness as O. W.2 at the trial and he admitted that he did not sink any well in the area in his possession and the land became Chahi when it came under the command of Government tube‑well. He further deposed that he had leveled the land with the aid of a bulldozer and a tractor but then admitted that he did not own a bulldozer and a tractor; and that the bulldozer and the tractor were taken by him on hire but he did not produce any receipt regarding the hire of bulldozer and tractor. He also admitted that he did not build any house on the suit property. In view of the statement of the appellant it can hardly be said that he did effect any improvement upon the land. Had he put in any extra effort and made investment in the improvement of land then of course he would have been entitled to its compensation. Mere leveling of the land, cleaning of bushes and herbs does not come under the purview of improvement. Thus, the appellant has failed to establish that he made any improvement in the said land and the learned appellate Court was justified in turning down his prayer. 5.The learned counsel for the appellant then invited our attention to the judgment of the Acquisition Judge, Haripur, in Objection Petition No.92/4 of 1974, where the learned Judge vide his judgment dated 9‑8‑1978 had allowed compensation for improvement to the appellant and submitted that this judgment was delivered during the pendency of the respondents' appeal before the High Court and since no appeal had been filed against the judgment dated 9‑8‑1978 in Objection Petition No. 92/4 of 1974. it became final and the respondents' appeal was hit by the principle of res-judicata. This proposition, however, is not correct. True that objection Petition No.92/4 of 1974, decided on 9‑8‑1978, pertained to the same award, i.e., Award No. 11, it included Khasras Nos. 1131 and 1132 of village Phaldhar and the parties were almost the same but compensation for improvement in that Objection Petition had been allowed on the strength of the judgment, dated 29‑11‑1976 which has been struck down by the High Court through the impugned judgment. Since the judgment, dated 29‑11‑1976 did not remain in the field, the question, therefore, that the respondents' appeal before the High Court was hit by the principle of res judicata did not arise. 6.This appeal fails and is dismissed with cost. S.Q./4394/S Appeal dismissed.