1918 PLP 177 (SCMR)

Khan Muhammad Younas Khan, Advocate Supreme Court instructed by Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner. Raja Abdul Razaq, Advocate‑on‑Record for Respondent. Date of hearing : 4th February 1978.. MUHAMMAD AKRAM J.‑This is a petition for special leave from an order dated 19th of April 1 9777, passed by a learned Judge of the Lahore High Court at Lahore in disposing of a Regular Second Appeal No. 867 of 1976, filed by the petitioner herein against the respondent. Briefly the relevant facts are these. On the 4th of June 1974 Mst. Khurshid Jahan Begum brought a suit against the petitioner herein for possession of the land measuring 2 kanals 7 marlas bearing Khasra No. 621/2,/1 situated in the estate of Amar Sidhu, Tehsil and District Lahore. It was alleged in the plaint that she was the owner of the land in suit in the illegal possession of the defendant who had raised an unauthorised construction on it. The defendant‑petitioner denied the allegations and resisted the suit: She, inter alia, raised an objection a to the value of the suit for the purpose of court‑fee and jurisdiction and also alleged that the suit of the plaintiff war time‑barred. Eventually, on the 30th of October 1975, the trial Court decreed the suit of the plaintiff‑respondent. But on the 22nd of March 1976, the Additional District Judge in appeal of the petitioner remanded the case to the trial Cart for fresh disposal after having framed the two additional issues related to the valuation of the suit for the purpose of court‑fee and jurisdiction and about limitation. After remand on the 31st of July 1976, the trial Court bond both these additional issues against the defendant and decreed thin strut of the plaintiff for possession of the land in dispute by demolition of the structure unauthorisedly raised on it by the defendant‑petitioner. The appeal of the petitioner against the judgment and decree was rejected by the Additional District Judge. Lahore an the 18th of October 1976. In these circumstances the petitioner then filed the Regular Second Appeal No. 867 of 1976 in the High Court which was disposed of by a learned Single Judge on the 19th of April 1977. He agreed with the Courts below in holding that the plaintiff'‑respondent was proved to be the owner of the land measuring 2 kanals 7 marlas comprised in Khasra No. 621/2/1 situated in the estate of Amar Sidhu, Tehsil surd District Lahore which was illegally then defendant‑petitioner herein who had raised unauthorised construction thereon. The defendant failed to prove that the suit of the plaintiff was barred by limitation. According to the Additional District Judge the defendant also failed to prove that the sail was mat properly valued for the purpose of court‑fee and jurisdiction. But on this issue, the learned Single Judge, in the absence of any satisfactory evidence on the record, in differing with the findings by the two lower Courts below, set aside their order and remanded the case to the trial Court with a direction that the valuation of the suit may be determined afresh in accordance with the law. This order was passed by the learned Single Judge on the 19th of April 1977, and the present petition for special leave is directed against it. We have heard the learned counsel for the parties in this petition. On the merits the three Courts have concurred in holding that the plaintiff respondent was proved to be the owner of the land in suit measuring 2 Kanals 7 marlas bearing Khasra No. 621/2/1 situated in the estate of Amar Sidhu Tehsil and District Lahore and the defendant‑petitioner was proved to have illegally encroached upon it by raising the unauthorised construction. In this connection the demarcation carried on the spot even before the institution of the suit fortified the plaintiff in her claim to the land. We, therefore see no good reason to interfere with the finding. In this connection however, before us the learned counsel for the petitioner was able to point out that by virtue of the first remand on dated 22nd of March 1976 by the Additional District Judge, the trial Court was required to decide the suit afresh on all the issues including the two additional issues. But after the remand on the 31st of July 1976, the learned Civil Judge did not fully comply with the remand order and had merely disposed of the two additional issues without dealing afresh with the issues already framed on the merits in the suit. There appears to be considerable force in this contention of the learned counsel. But then we find that on appeal on the lath of October 1976, the learned Additional District Judge has adequately dealt with all the issues including those framed on the merits and disposed of the entire case afresh in appeal. In the circumstances n fault can be found with the judgment and decree passed by the Additional District Judge in appeal on the 18th of October 1976. We find that after the disposal off' the regular second appeal by the learned Single Judge on the 19th of April 1977, the trial Court in pursuance to the remand order has already fixed the value of the suit or the purpose of the court‑fee and jurisdiction after notice to the parties and the plaintiff has already made up the deficiency in the court‑fee. Not there was urged before us by the learned counsel for the petitioner in this connection. For the foregoing reasons we see no force in this petition which is therefore, dismissed. Petition dismissed.