1996 PLP 1858 (SCMR)

AJMAL MIAN, J.

This is a direct appeal against the judgment dated 15-9-1992 of the Peshawar High Court passed in R.F.A. No. 34 of 1988 filed by the respondents against the judgment/decree dated 5-5-1988 of the learned Senior Civil Judge, Dir at Timergara, dismissing the respondents' suit, allowing the same by setting aside the above judgment/decree of the trial Court and decreeing the suit as under:- "

7. In the light of what has been observed above, we would accept this appeal, set aside the impugned judgment and decree of the learned trial Judge and grant a decree to the appellant in the following terms:-- (i) Plaintiff-appellant is held entitled to the land which is found to be beyond 22 feet wideness from Balambat Chowk up to Timergara College all along its length provided he is able to prove his title to the said area in its entirety. (ii) The learned trial Judge is, therefore, directed to find out the wideness of the road beyond 22 feet from Balambat Chowk up to College through a local Commissioner who should perferably be a retired Engineer. (iii) The learned trial Judge shall also find out the price of the disputed land at prevalent market rate of the year 1976 alongwith 15 % charges and interest at the rate of 6% per annum from the date of taking over the possession of the land in dispute from the year 1976 to the year 1983 and at 8 % per annum from the year 1984 till final payment of the amount."

2. The brief facts are that respondent No.1 filed a suit for possession of his land measuring about 3 Jaribs which, according to respondent No.1, the appellants used unauthorisedly for widening the road from Balambat Chowk up to Timergara College. In the alternative, the amount of compensation was claimed. The above suit was resisted by the appellants, inasmuch as a written statement was filed, in which inter alia it was denied that any portion of respondent No. 1's land was used for widening of the road. It was pleaded that the road which was metalled by the appellants in fact existed prior to the merger of Dir State in the erstwhile West Pakistan. The learned Senior Civil Judge, on the basis of pleadings of the parties, framed the following six issues:-- "(1) Whether the plaintiff is entitled to the possession of the suit land as the defendants have illegally and without paying compensation have annexed it with the road mentioned in the plaint? O.P.P. (2) Whether in the alternative plaintiff is entitled to compensation of Rs.20,000, or whatever is fixed by the Court alongwith interest? O. P. P. (3) Whether the suit is within time? O.P.D. (4) Whether the suit is bad in its present form? O.P.D. (5) Whether the suit is bad for misjoinder and non joinder of the parties? O. P. D. (6) Relief." After recording evidence and hearing the parties, the learned Senior Civil Judge returned his findings of Issues Nos. l and 2 in the negative; whereas he answered Issues Nos.3 and 4 in the affirmative. As regards Issue No.5, his finding was that the suit was bad for non joinder of necessary parties. He, accordingly, dismissed the suit under Issue No.6 through his aforesaid judgment/decree. The respondents filed above R.F.A. in the High Court, which was allowed in the above terms. Thereupon, the appellant filed the present appeal.

3. In support of the above appeal, Mr. Shazad Akbar, learned A.S.C. appearing for the appellants, has vehemently contended that the learned Judges of the Division Bench were not justified in reversing the judgment and decree of the trial Court dismissing the respondent No.1's suit. To reinforce the above submission, he has taken us through the contents of the plaint to demonstrate that even the full description of the suit land was not given by respondent No.1 in the body of the plaint. On the other hand, Mr. M. Zahoor Qureshi, learned A.O.R. appearing for the respondents, has contended that the learned Judges of the Division Bench, on the basis of the evidence available on record, have held that the width 'of the road was 22 feet and that in case respondent No. 1 would be able to prove his title to the land used for widening the above road beyond 22 feet, he would be paid compensation in terms of the judgment of the High Court.

4. At this juncture it may be pertinent to point out that Rule 3 of Order VII, C.P.C. provides that "Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be .identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers".

5. It may be stated that the present suit was filed in September, 1980, when the area where the suit land is situated was already surveyed. A perusal of the contents of the plaint indicates that respondent No.1 failed to comply with the above provisions of the C.P.C. Additionally, in order to arrive at a correct conclusion on the question, as to whether any portion of respondent No.1's land was used in widening of the road, it was incumbent upon respondent No.1 to have proved the factum that how much land he had owned, out of which how much land was taken for the purpose of widening of the road. The learned Judges of the Division Bench have proceeded on the assumption that any land used for widening of the road beyond 22 feet was not the property of Dir State. On the above assumption it has been held that if respondent No. 1 would be able to prove his title to the land used for widening of the above road beyond 22 feet, he would be entitled to compensation. Furthermore,, respondent No.1 in his suit had claimed a sum of Rs.20,000; whereas, the learned Judge of the Division Bench had decreed the suit as if the land was acquired under the Land Acquisition Act.

6. In our view, it will be just and proper to remand the case to the learned trial Court. We, therefore, allow the above appeal, but set aside both the judgments of the two Courts below and remand the case to the learned trial Court with the direction to allow respondent No. 1 to file an amended plaint as to include full description of the suit land in terms of Rule 3, Order VII, C.P.C. referred to hereinabove and to allow the appellants to file an amended written statement. After that, the learned trial Court may recast the Issues which should include the following three Issues:-- (i) What is the total area of the land owned by respondent No.1 abutting the road in question? (ii) Whether any portion of respondent No. I's land is used by the appellants for widening of the road in question? and (ii) What should be the relief? The learned trial Court shall dispose of the above suit within six months from the date of receipt of copy of this judgment. The appeal stands disposed of in the above terms, with no order as to costs. A.A./G-519/S Case remanded