1990 PLP 1377 (CLC)

This revision application filed under section 115, C.P.C. is directed against the judgment and decree dated 28‑11‑1982, passed by learned District Judge, Shikarpur, whereby he set aside the judgment and decree dated 31‑3‑1982, passed by Senior Civil Judge, Shikarpur, decreeing the suit filed by applicants against the respondents for rendition of accounts.

2. The applicants were the owners of agricultural land comprising S. Nos, 86, 87 and 88, Deh New Lali, Taluka Shikarpur. The respondents acquired 3 acres out of this land under the provisions of Land Acquisition Act, 1894, and were paid compensation amounting to Rs. 5,578.10, which was received under protest. It is the case of applicants that compensation was in respect of agricultural land only and the compensation for standing crops and trees was to be paid in due course of time after making assessment and evaluating their price. The refusal of the respondents to make compensation in respect of crops and trees led the parties into this litigation.

3. The respondents while admitting about certain references made to Mukhtarkar Shikarpur and Forest Department about the assessment of damage pleaded that the suit was not maintainable.

4. The trial Court framed as many as eight issues including that of maintainbility of suit and on the assessment of evidence, both oral as well as documentary, decided all of them against the respondents. The respondents went in appeal before learned District Judge, Shikarpur, who reversed the findings of learned Senior Civil Judge, Shikarpur, holding that the suit was not maintainable for the following reasons. (i) That the suit was barred under section 18 of the Land Acquisition Act, 1894. (ii) That the suit for rendition of accounts was not competent, as there was no relationship existing between the parties to require the respondents to tender accounts. (iii) That the suit was bad for non‑joinder of necessary parties. It is in these circumstances that the present revision application has been filed. 5. 1 have heard Mr. Lal Muhammad, learned counsel for applicants and Mr. Abdul Rehman Balouch, learned counsel for respondents.

6. Admittedly the land in question was acquired by Land Acquisition Officer, LSR II WAPDA, Sukkur, in the year 1974 and the copy of award is on record of this Court. I cannot do better than quote the relevant extracts of this award in extenso: "The Khatedars claim rate of Rs.6,000 per acre on the ground that the land is about 2‑3 miles away from Shikarpur Town and is adjacent to main road leading from Shikarpur to Kandhkot. The rate claimed by the Khatedar is excessive and cannot be accepted. The average rate of land supplied by the Sub‑Registrar Shikarpur is Rs. 668 per acre. This rate is also not satisfactory, in view of the fact that the prices of the land have increased considerably in the recent past. I have seen the lands of this deh. S.No. 87 is garden area and there is Tubewell in S.No.86. Besides the land is close to the road leading to Shikarpur to Kandhkot Road. I, therefore, fix rate of Rs.1,800 per acre for S.Nos. 86 and 87 and Rs. 1,600 per acre for S. No.

88. They are also allowed emergency charges of Rs. 15% and interest @ Rs.6% for one year. As regards payment of compensation money, the father of the boys states that he has transferred the above S. Nos. in the names of his sons for education purpose. He has separated joint account for them in United Bank Shikarpur vide Account No.C‑

744. The cheques may be issued in the names of his sons including minor son Abdul Hanan and sent to the United Bank for credit in the account subject to the condition that the share of minor son will not be withdrawn till he reaches maturity."

7. The land as defined in section 3 (a) of the Land Acquisition Act, 1894, includes benefits to arise out of land, and things attached to the earth or permanently fastened to any thing attached to the earth. Therefore, the standing crops and trees arising out of `land' fall within the mischief of section 3 (a) of the said Act. A person dissatisfied with the award made and filed by the Collector has got a right to apply for a reference under section 18 of the Land Acquisition Act, g 1894. The applicants who are obviously dissatisfied with the amount of compensation had a remedy under section 18 of the Land Acquisition Act, 1894, which they failed to avail. The non‑receipt of notice under section 9 of the Land Acquisition Act, 1894, is no bar for making a claim. The award, the extracts of which are reproduced above, makes it clear that Haji Ghous Bux, father of applicants was associated with these proceedings and the compensation was received without any protest.

8. The Land Acquisition Act, 1894, is a complete Code itself. It has created a special jurisdiction and provides a special remedy to the persons aggrieved. This jurisdiction is exclusive and cannot be exercised by ordinary Civil Courts. No waiver or consent by the parties can confer such jurisdiction upon civil Courts. In determining the jurisdiction we must see the pith and the substance of the relief and not its form.

9. Mr. Lal Muhammad, learned counsel for applicants has assailed the above finding of the learned District Judge mainly on the ground that there was no such issue. He has in particular invited my attention to the provisions of Order VIII; rule 2, C.P.C. which lay down that the defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. Reliance is placed upon cases reported as Ghulam Mustafa v. Haji Mian Muhammad and another (P L D 1969 Peshawar 241) Mst. Khairrunnisa and 6 others v. Malik Muhammad Ishaque and 2 others (P L D 1972 SC 25); and Municipal Committee of Shahdadpur v. Jumo Khan and another (P L D 1972 Karachi 507). The facts of all these cases are, however, distinguishable. The provisions of section 18 of the Land Acquisition Act, 1894, were pressed into service before the trial Court as well as before the Appellate Court. No prejudice appears to have been caused to applicants and they were not taken by surprise. The Court is bound to take notice of any ground of illegality or want of jurisdiction appearing on facts stated in the pleadings or disclosed otherwise. The legal issue about the maintainability of suit, therefore, also covered this aspect of the case.

10. The finding of the learned District Judge about the incompetency of suit for rendition of accounts is also not open to exception. Obviously there was no relationship existing between the parties to require the respondents to render accounts. The case reported as Nazir Muhammad Khan and 2 others v. Muhammad Ashraf Khan and 3 others (P L D 1975 Karachi 598) is relevant on this point.

11. Certain admissions made by the respondents have been made as basis by learned counsel for applicants for seeking relief in the manner as prayed for. The answer to this contention is provided by A.S. Faruqui J, in Kassimali Alibhoy v. Shaikh Abdul Sattar, reported in P L D 1966 Karachi 75, who was pleased to observe: "Therefore, when factual admission is accompanied with a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified."

12. The question relating to non joinder of parties need not detain me long. No suit can be defeated for misjoinder and non‑joinder of parties. The provisions) of Order I, rule 9, C.P.C. are self‑explanatory.

13. For the reasons given above the revision application fails and is hereby dismissed, but in the circumstances of this case, I would leave the parties to bear l their own costs. AA./A‑818/K Revision dismissed.