1984 PLP 914 (MLD)

Mushtaq Ahmad Khan for Respondent. Dates of hearing: 28th January, 1st and 5th February, 1984. This regular second appeal under section 100, C.P.C. arose out of a suit for possession of the house situated in Shakar Garh Town on the ground that the plaintiff-respondent being the allottee of the house vide permit No. 3/61, dated 4-1-1961 was entitled to the restoration of possession and the appellant /defendant had taken forcible possession of the same without any right or authority. The value of the suit for the purposes of court-fee and jurisdiction was stated to be Rs.500 and court-fee of Rs.37.50 was affixed on the plaint. The appellant resisted the suit by raising various objections and the learned trial Court framed the necessary issues arising out of the pleadings of the parties. The position which emerges from the evidence produced by the respondent plaintiff himself is that the house was allotted in his name by A.R.C. on 4-1-1961. Reports of Tehsildar Exh.P.5, dated 24-6-1968, Exh.P.6, dated 8-7-1968 and the order of the Deputy Settlement Commissioner (Lands) Exh.P.4, dated 1-8-1968 on the record show that et some stage the plaintiff-respondent parted with possession under some private arrangement. The Deputy Settlement Commissioner in his order, dated 1-8-1968 Exh.P.4 further observed that the plaintiff-respondent may move the police or a Court of law if person in possession refuses to vacate the house. On the other hand the appellant-defendant appearing as D.W.3 stated that he had submitted relevant Form for transfer of the house in question under Scheme No.VII framed under Displaced Persons (Compensation & Rehabilitation) Act 1958. The parties also led evidence on the question of possession. The learned trial Court, however, vide judgment, dated 2-5-1974 decreed the suit subject to the condition of payment of balance court-fee amounting to Rs.712.50 on or before 13-5-1974 failing which the plaint was to stand rejected with costs. The deficiency in the court-fee was admittedly not made good with the result that the plaint stood rejected. The plaintiff, however, filed an appeal on 25-5-1974 but by that time the time for payment of deficient court-fee had expired. The learned trial Court had fixed and determined the value of the suit for the purposes of court-fee at Rs.10,

000. Despite this, the respondent-plaintiff affixed court-fee of Rs.54 only on the memo. of appeal filed by him and the same was accepted by the learned Additional District Judge, Sialkot vide judgment and decree, dated 4-12-1975. The learned appellate Court dealt with the question of court-fee only and without considering or discussing the findings recorded on other issues by the trial Court accepted the appeal and decreed the suit subject to the condition of supplying the deficient court-fee on or before 3-1-1976. This decree was then challenged by the appellant-defendant by filing the present second appeal. An application under Order XLI, rule 27, C.P.C. was also filed seeking permission to produce order of the Settlement Authority transferring the house in dispute to the appellant vide order, dated 18-3-1975. Copy of Roznamcha Waqiati was also appended alongwith this application.

2. Learned counsel for the appellant has argued that the suit as filed was incompetent as the property was part and parcel of the compensation pool and was exempt from the process in view of the provisions contained in section 7 of the Displaced Persons (Compensation Rehabilitation) Act, 1958; the appellate Court could not have decreed the suit without hearing the parties with respect to the findings recorded on other issues; that the suit was filed through an attorney who had no authority to institute the suit by virtue of the power-of-attorney relied upon and filed with the suit; that the first appeal filed by the respondent as was deficiently stamped was no appeal in the eye of law and such an incompetent appeal could not be accepted.

3. Learned counsel for the respondent has argued that these objections were not raised before the learned lower appellate Court and as such the same cannot be allowed to be raised in second appeal and that the house in question is situated in Shakar Garh Town to which admittedly Scheme No. VII applies and as such a person who was in possession on the date mentioned in the said scheme is entitled to the transfer of the house under the said scheme.

4. I have considered the submissions of the learned counsel for the parties and have also gone through the evidence on record. There is substance in the submissions of the learned counsel for the appellant that the learned first appellate Court should have afforded an opportunity to the appellant who was respondent before the first appellate Court to canvass against the findings recorded by the learned trial Court on other issues before decreeing the suit. It will be seen that the plaint stood rejected on account of non-payment of proper court-fee and as such the appellant-defendant could not have filed the appeal himself against the said decree. Again the question of deficiency of the court-fee affixed in appeal should have been gone into by the learned appellate Court in addition to the question of maintainability of the suit as filed. The appellant in the application for additional evidence contended that the house in dispute stands transferred to him under Settlement Scheme No. VII. The document evidencing transfer was produced for the first time in this Court, though in his own statement the appellant had asserted that he had filed the form under the scheme claiming transfer of the house. In my view the acceptance of this document in evidence is necessary for just decision of the suit but at the same time the respondent has to be given an opportunity to lead evidence in rebuttal if any. All this exercise can appropriately be done by the first appellate Court in view of the fact that the question of court-fee in appeal needs also to be gone into.

5. At this stage notice may be taken of another plea of the learned counsel for the respondent. He submitted that in case the first appeal filed by the respondent is remitted for decision afresh then the possession over the house in dispute of the petitioner may not be disturbed. The respondent, it is admitted, got possession in execution of the decree impugned in this second appeal. Learned counsel, however, agrees that the matter of delivery of possession will have to be regulated in accordance with the judgment ultimately passed in the first appeal in case remand is ordered by this Court. This suggestion being reasonable has been accepted by the learned counsel for the appellant.

6. For the reasons given above, the appeal is accepted and the judgment and decree, dated 4-12-1975 of the learned Additional District Judge Sialkot is hereby set aside. The appeal filed by the respondent shall be deemed to be pending and shall be disposed of in accordance with law within three months from the date of receipt of record. The parties will be given opportunity to lead evidence on the question of transfer of the house in dispute by Settlement Department.

7. The parties shall appear on 18-2-1984 before the learned District Judge, Sialkot. The record of the case shall be-forwarded immediately to the Court of District Judge, Sialkot. There will be no order as to costs. H . B . T . Appeal accepted.