1989 PLP 3864 (MLD)

Date of hearing: 14th December, 1988. This is a suit for declaration and injunction. The case of the plaintiff is that he is the owner of a piece of abandoned watercourse measuring 1.4 acre in the Mugha of his Survey Nos. 39/B and 40/A of Deh Barani Taluka Tando Adam which was granted to him by Barrage Mukhtiarkar and necessary qabuliat and other documents were executed in his favour. The possession of the land was also handed over to him. The plaintiff alleges that on 25-3-1987 the Health Department of Government of Surd has trespassed over that piece of land and has constructed upon it a Rural Health Centre under the Prime Minister's 5 points programme. The plaintiff filed a writ petition (C.P.No. 306/1987) before this Court but had to withdraw the same as it was contended that the land on which the Rural Health Centre was constructed Was piece of land other than the piece of land which is granted to the plaintiff. However, the plaintiff after ascertaining that it was his piece of land on which construction was made has filed this suit for declaration that the Rural Health Centre was constructed on the piece of land owned by him and that the same could not be done without acquiring the piece of land and without paying the compensation to the plaintiff. A prayer is also made for mesne profits. The suit was fixed for final disposal as the A.A: G. did not file any written statement. Affidavit was filed by the plaintiff as evidence in ex parte proof. On 28-3-1988 my learned brother Mr. Justice Nasir Aslam Zahid not being satisfied with the affidavit alone called upon the plaintiff to lead oral evidence. Perhaps this has been necessitated by the fact that the stand of Government in the writ petition was that the Rural Health Centre was situated on a piece of land other than the piece of land which has been granted to the plaintiff as alleged in the plaint. The State Counsel however, insisted on the disposal of this application first. The application under Order 7 rule 10 C.P.C. was dismissed by me on 7-9-1988. On 19-10-1988 it was ordered by the Court on the application of the plaintiff that Director Settlement Survey and Land Record Hyderabad be directed to ask one of his officers to inspect the said land and repot as to whether the disputed Rural Health Centre Barani is constructed on the piece of land measuring 1.4 acres of the abandoned Watercourse (Bhada) in the Mogah of Survey Nos. 39/B and 40/A Deh Barani which was granted to the plaintiff. Accordingly today Inspector Pandhi Khan of Revenue and City survey Hyderabad appeared and produced his report which shows that a small portion of land from the area of 1.4 acres of (Bhada) in the Mogah of his Survey Nos. 39/11 and 40/A is utilized in the construction of Rural Health Centre Barani. The parties have accepted the report of the Inspector, as correct and do not propose to file any objection to the same. Hence on the above evidence and the report of the Inspector, I declare that the defendant has encroached upon a small portion of 1.4 acres (Bhada) land granted to the plaintiff on the basis of Mogah of survey No. 30-B and 40-A. The plaintiff in consequence of this declaration of his right had declared before Court and gifted/dedicated to the Rural Health Centre Barani, the small portion of land which was utilized by the Rural Health Centre Baram. He, however, prayed that the name plate of plaintiff be fixed, at the Rural Health Centre mentioning this fact. Name plate of any other person claiming to be the donor of this land be removed. The plaintiffs prayer is granted with the consent of defendant's counsel. M.Y.H./A-608/K Order accordingly.