P L D 1993 Supreme Court 197 (PLP)

M. Sardar Khan, A.‑G., N.‑W.F.P. and Nur Ahmed Khan, Advocate on‑Record for Appellants. Fida Muhammad Khan, Advocate Supreme Court and Syed Safdar Hussain, Advocate‑on‑Record for Respondents. Date of hearing: 10th December, 1992 I JUDGMENT WALI MUHAMMAD KHAN, J.‑‑These direct appeals have been filed against the judgments of the Peshawar High Court dated 13‑5‑1990, whereby, on the acceptance of the appeals bearing No.R.FA.‑83/78 and R.F.A.‑41/78 respectively, filed by Aurangzeb and others, respondents herein, the compensation determined by the Referee Judge vide his orders dated 6‑5‑1978 and 5‑1‑1978 respectively, was enhanced. The facts of the cases are that the land of the respondents comprising of various Khasra numbers in Village Thapla was acquired for the reservoir of Tarbela Dam vide Xward No.29 dated 26‑10‑1970. The respondents, feeling aggrieved from the award, filed objection petition challenging the assessment of compensation which was referred to the Referee Judge by the Collector who registered the same vide No.172/4 of 1971. After recording of evidence of the parties, the learned Additional District Judge, Hazara, vide his order dated 26‑2‑1974., enhanced the compensation worked out in the award. The appeal filed against it was withdrawn in the year 1976 and the decision of the Referee Judge attained finality; The respondents filed other Objection Petitions Nos.118/4 and 315/4 of 1977, praying for the change of classification of land and consequential increase in the compensation. The appellants hotly contested these objection petitions on legal and factual grounds. After recording such evidence which the parties ‑ wished to adduce the learned Additional District Judge , vide his judgment and decree dated 6‑5‑1978 and 5‑1‑1978 respectively, changed the classification of some of the acquired land and enhanced the compensation fixed therefor but not according to the assessment made in the earlier decision of the Referee Judge dated 26‑2‑1974. The respondents filed R.F.As. Nos.83/78 and 41/78 which were disposed of through a consolidated judgment dated 13‑5‑1990, accepting both the appeals and enhanced the compensation to bring at par with the valuation worked out in the earlier judgment dated 26‑2‑1974. Hence the instant direct appeals. We have heard Mr. M. Sardar Khan, Advocate‑General N.‑W.F.P. for the appellants, Mr. Fida Muhammad Khan, Advocate for the respondents; and have perused the record of the case. The learned counsel for the appellants vehemently argued that the respondents' earlier objections to the award had already been accepted vide, judgment dated 26‑2‑1974 and the compensation enhanced exorbitantly; that taking undue advantage of the enhanced compensation the respondents manoeuvered to file other objections with regard to classification of land and managed their reference to the Court which was registered in 1977 much after the earlier judgment of the Referee Judge; that the respondents, if aggrieved from the classification, could and ought to have raised the same in the first objection petition and the omission thereof from the earlier objection petition debarred the entertainment and filing of the subsequent objection petitions under Order 2, Rule 2, C.P.C. and that they were also barred under section 11, C.P.C. on the principle of constructive res judicata. The learned counsel for the respondents, on the other hand, submitted that the earlier reference was restricted only to the compensation assessed for the acquired land, whereas the subsequent references now in dispute in the instant appeals pertained to the classification of the suit land and the consequential enhancement of compensation therefor. According to him, since the matter in issue in both the references were not identical the provision'of section 11, C.P.C. or the principles of constructive res judicata were not attracted. Admittedly, the first reference No.172/4 was sent to the Referee Judge by the Acquisition Collector vide No.1134 dated 8‑12‑1970 but the other. references Nos. 118/4 and 315/4 were received by the. Referee Judge on 24‑7‑1977 and 3‑5‑1977 respectively and they do not bear the number under which they were despatched to the Referee Judge. However; according to the deposition of Abdullah Jan Afridi, Land Acquisition Collector, CW‑1, they were despatched on 21‑5‑1977 and 6‑4‑1978. Under cross‑examination, he opined that the objection petitions were not genuine because according to the routine office procedure they were not entered in the receipt register. Be that as it may, the Referee Judge took cognizance of the subsequent references and gave his decision after recording necessary evidence produced before him by the parties and, on the appraisal of the evidence, changed the classification and minor increase in the value of land but not to the extent determined in the earlier objection petition for similar type of land as per change of classification by the Court. . The moot question for determination as strenuously argued by the learned counsel for the appellants is whether in the presence of the earlier reference against the same award by the appellants, other references could be filed by the same aggrieved person against the same respondents under the law. Section 53 of the Land Acquisition Act, upon which the learned High Court has also placed explicit reliance provides that the provisions of the Civil Procedure Code shall apply to all proceedings before the Court deciding the objection petition, Obviously, section 11, c. PC ~. and Order 11, Rule 2 were applicable to the proceedings before the Court while deafing with the references in hand viz., 118/4 and 315/4 of 1977. The former is* to the effect that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue been subsequently raised, and has been heard and finally decided by such Court. Under Order II, Rule 2, C.P.C. the plaintiff is required to include his entire claim and omission of any claim or relief from the earlier suit debars the filing of the fresh suit on the same cause of action. Under the general principle of res judicata too, the litigants are expected to include the whole claim and relief to which they are entitled in one suit in order to avoid multiplicity of proceedings. The arguments of the learned counsel for the appellants that after the enhancement of rates in the earlier reference the respondents manoeuvred the references of subsequent objection petitions has great force. Anyhow, without going into that