1997 PLP 1971 (CLC)

Exh.12 D.O. Letter from Divisional Engineer, Wireless Pipri Karachi to Assistant Director, Office of the Post Master General dated 5‑3‑1960. Exh.13 Letter from Divisional Engineer, Wireless to Director, Wireless E.M.G. Office dated 11‑3‑1960. Exh.14 Letter from Director‑General, Post and Telegraph to Chief Engineer and Pak. P.W.D. dated 24‑2‑1960. Exh.15 Completion report from Divisional Engineer, Wireless to General Manager, Southern Telecommunication Region dated 19‑6‑1970.

11. That on the basis of pleadings of the parties final issues were settled by this Court vide order dated 4‑3‑1990 passed by Mr. Justice Mukhtar Ahmad Junejo (as he then was) which read as under:‑‑ (1) Whether the plaintiffs are owners of the suit land? (2) Whether the defendant No. l is in unauthorised possession of the suit land'? (3) Whether the suit is time‑barred? (4) Whether the plaintiffs have been dispossessed from the suit land within a period of 12 years of filing of the suit? (5) Whether the suit is not maintainable? (6) Whether the suit is undervalued for purposes of court‑fees? (7) Whether the plaintiffs are entitled to profits? (8) What should the decree be?

12. The matter came up before me for arguments on various dates. Mr. Usman Ghani Rashid, learned counsel for the plaintiff argued the matter in detail. Mr. Dastgir Ghazi, learned counsel for the defendants Nos. l and 4 was finding some difficulty in represent oral arguments so filed written arguments. No arguments were, however, addressed by Mr. Ashiq Raza, Advocate for defendants Nos.2 and

3. Having gone through the pleadings and the evidence and considering arguments I have arrived at he following findings issuewise.

13. Issue No. 1.‑‑On this issue the plaintiff's stand is clear and unequivocal, having claimed ownership of the suit land. In support of their case. Apart from the oral statement of the plaintiff No.l which is also corroborated by their witness Haji Noor Muhammad. The plaintiffs have heavily relied upon the copy of Form VII i.e. record of rights. It is indeed correct as averred on behalf of tote defendant that entries in revenue record are not documents of title and the plaintiffs have not produced any sale‑deed or other document of title to the and in question. Nevertheless it is settled law that entries in record of rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in the absence of satisfactory evidence in rebuttal produced by the opposite‑party. Moreover, other documents i.e. purchase agreement and permission from the Deputy Commissioner can be treated as corroborative pieces of evidence in favour of the plaintiff's claim. A further corroboration is available in the form of receipt and even the survey report produced by defendants themselves (Exh.6/1) indicate ownership of the plaintiffs. In any case the defendants Nos. l and 4 never claimed ownership of the suit property with respect to themselves or for that matter with respect to any other person. Though it is alleged that the plaintiffs were not the owners it is neither clearly stated as to who was the owner nor has any evidence whatsoever been led on this question.

14. In this context I may also refer to a Division Bench judgment of the Lahore High Court in the case of Barkat Bibi v. West Pakistan Government, reported in 1984 CLC 2314. Though this judgment was not cited at the Bar by either of the parties, I shall be referring to it extensively as this pronouncement of law by two eminent Judges of the country, Abdul Shakoorul Salam and Muhammad Rafiq Tarar, JJ. (Both of whom subsequently adorned the Bench of the Honourable Supreme Court) has made my task immeasurably easier and provided guidance in respect of most of the issues involved. In this case too a notification under section 4 of the Land Acquisition Act was issued and possession of the land was obtained by the Government, some negotiations for compensation also took place with the appellant/owner. When a suit for possession and mesne profit was filed, the respondents questioned the title of the plaintiff/appellant, Salam, J. observed:‑‑

"The public functionaries took the possession for a landlord without any authority of law. It does not befit. A public authority to resist the claim of the appellant by specious argument by saying that the appellant had not proved her ownership even when the defendant/respondent neither claim ownership nor say that anybody else other than the appellant is the owner, or that anybody else is claiming ownership, or compensation for the land occupied by the defendant/respondents."

15. In the written arguments, however, it has been contended that while the original owners were given permission to sell their 8 Annas share in the land the sale of the entire land in favour of the plaintiff was invalid. The argument obviously is misconceived. It fails to take note of the simple facts apparent on the record that original 8 Annas in the aforesaid land was held by Khuda Bux and Mst. Sarkhani son and daughter of Osman while the remaining 8 Annas was owned by Ramzan and Muhammad Hassan sons of Dost Muhammad. The Deputy Commissioner accorded permission to both these parties to sell their respective share to the plaintiff who entered into separate agreement for purchase of the land with both these parties. Again it has been contended that the sale it: favour of the plaintiff was void because no permission under M.L.R. 115 was obtained. Apart from the facts that no provision of M.L.R. 115 placing any embargo upon sale of land has been referred to, the arguments does not even take notice of the fact that M.L.R. 115 was promulgated only 1972 while the purchase by the plaintiff is said to have been made in 1964. A third plea with respect to this issue is that the power of attorney dated 31‑12‑1970 (Exh.6/2) did not enable the plaintiff No.l to purchase land on behalf of his brother i.e. plaintiffs Nos.2 to 4 and as such the purchase made was void. I am unable to appreciate the relevance of the said power of attorney executed in 1970 to a sale effected in 1964. The sale agreement dated 15‑7‑1964 (Exh.6/4) has been signed by all the four plaintiffs. One cannot help expressing regret. over the casual manner in which arguments are prepared and advanced before Courts on behalf of the Government/Government‑controlled agencies without bothering to carefully examine the facts and law in matters involving property worth millions of rupees. In view of the above I am satisfied that the plaintiffs have produced sufficient documents in support of their ownership of the suit property which has not been rebutted by the defendants. I would, therefore, decide this issue in favour of the plaintiff and held that they are owners of the suit land.

16. Issue No.2.‑‑This issue relates to legality of the possession of the suit land on the part of the defendants Nos. l and

4. The whole case of the defendant appears to be found upon the contention that the land was acquired for the public purposes. At the same time it has not been disputed that no compensation was ever paid to the plaintiff or any other person. It has never been claimed that the land always vested in the Federal or the Provincial Government nor has it been shown that the possession was taken with the permission of the real owner. In para.2 of the amended written statement it is contended that:‑‑-- "The answering defendant is in possession of certain land for Government purpose and correct area of such land cannot be determined unless and until the same is surveyed and demarcated by the authorities concerned were supposed to complete the formalities. " En para. 12‑A it is asserted that:‑‑ "The plaintiffs were not the owner of land in question in 1957 nor can they legally acquire any entitlement in or over the said land which has already been acquired for public purpose. "

17. In para. 8 of the plaint the plaintiffs have asserted that in Civil Petition No.913 of 1975 the defendants Nos. l to 4 had admitted that the plaintiffs' claim for compensation was under consideration and such position is indeed apparent from para. 7 of the parawise comments produced as Exh.6/11 by the plaintiffs. In para. 9 the plaintiffs claim that the defendant No.3 required the defendant No. l to deposit the tentative amount of compensation and a few meetings were also held in the office of defendant No.3 but thereafter, the representative of the defendant No. l disappeared. The defendant No. l made an evasive reply to the aforesaid para. 9 stating that the matter related to defendant No.3 but admitted that few meetings were attended by the representative of the defendant No.

1. In the written statement filed by the defendant No.3, however, the contents of para.9 of the plaint are admitted and it has been asserted that the Deputy Commissioner had requested the Telephone and Telegraph Department to deposit estimated cost with his office so that the land may‑ be acquired and payment be made to the claimant/land owner but no funds have been remitted.

18. Even the witness appearing on behalf of the defendants deposed that the land in question was acquired in 1962. Subsequently, however, in 1985 the defendants were able to locate a notification of the Chief Commissioner issued in 1956 and, therefore, proceeded to allege that the acquisition was made in 1956. Be that as it may, the fact remains that the defendants' case being found upon acquisition of land, it has to be determined whether any part of the land was validly acquired by the defendants.

19. Mr. Usman Ghani Rashid learned counsel for the plaintiffs vehemently urged that only an area 2‑31 acres of land had been acquired by the Provincial Government by notification dated 24‑4‑1964 (Exh.9). A perusal of the aforesaid notification shows that it purports to amend the earlier notification dated 29‑9‑1956 issued by the Chief Commissioner of Karachi (not marked as exhibit). On the other hand Mr. Dastgir Ghazi, has argued, as contended in his written arguments, that the latter notification of Commissioner, Karachi (Exh.8) was void and inoperative as it was never served by the defendant No. l and as such the earlier notification must prevail.

20. Under section 4 of the Act whenever it appears the Provincial Government that the land is, likely to be needed for any public purpose a preliminary notification to that effect is required to be published in the official Gazette. Upon such notification Officers and the Staffs could enter upon the land set out boundary, conduct survey and take other measure enumerated in subsection (2). Thereafter, under section 5‑A (which was. added in 1923) objections to a notification under section 4 could be made within 30 days after the issue of such notification and the Collector is required to hear all objections and direct making any enquiry if he thought it fit to do so. Thereafter, he was required to submit a report to the Government together with his recommendation on the objection. Thereafter, under section 6, upon considering such report the Provincial Government could issue a declaration stating that the land was needed for a public purpose and such declaration was required to be published in the official Gazette. Upon such declaration having been issued the Collector had to be directed under section 7 to take order for acquisition of the land and under section 9 he is required to issue a public notice stating that the Government intended to take possession of the land and claims for compensation for all interests in the land may be made to him and all persons interested in the land should appear before him at a given place and time not being earlier than 15 days after the publication of the said notice under section

9. Personal notices are required to be served on all persons known to have an interest in the land including occupier of the land. Under section 10 the Collector can also direct any other person to communicate to him a statement containing the name of any other person who may have an interest in the land. Thereafter, under section 11 the Collector is required to hear the claims for compensation and make an award. Under section 16 only when the Collector has made an award under section 11 he may take possession of the land which shall thereupon vest absolutely in the Government free from all incumberances.

21. It is thus evident that a property is duly acquired only when all the elaborate requirements of the law have taken place and an award is made by the Collector. No evidence whatsoever has been placed before the Court indicating that the above requirements of law had been followed. On the other hand it is an admitted position that no award of compensation was made and no compensation was paid. At the same time it is also surprising how two notifications i.e. one under section 4 and the other under section 6 were simultaneously made by the Chief Commissioner on 29‑9‑1956 and published in the Gazette on the same date i.e. 5‑10‑1956. Obviously a declaration under section 6 could be made only after giving allowance for the 30 days' period for hearing of objections under section 5‑A. Indeed in case of urgency the requirement of section 5‑A could be dispensed with in view of the provisions of section 17(4). However, in the absence of a specific declaration as to such urgency enabling the exercise of exceptional power I have no option but to conclude that even the declaration purported to be made under section 6 published in the Gazette dated 5‑10‑1956 was ultra vires the power of the Chief Commissioner and of no legal effect p whatsoever. The subsequent notifications, accordingly, are also inconsequential. Even otherwise the requirements of sections 9 and 11 having admittedly not been followed there is no escape from the conclusion that the suit land has not been acquired by the defendant under the requirement of law and their possession must be held to be unauthorised. Issue No.2 is accordingly also decided in the affirmative.

22. Issues Nos.3 and 4.‑‑Both these issues relate to the question of limitation, the former. premised on mixed questions of law and fact and the latter upon a pure question of fact. It may be convenient to take up the latter issue first i.e. whether the plaintiffs have been dispossessed within a period of twelve years from the filing of the present suit. On this aspect of the case the plaintiffs have alleged that the defendant encroached upon the land in 1971. The only evidence in support of this contention is the plaintiff Nooruddin's oral testimony. On the other hand the defendants' witnesses asserted that the construction of the wireless station was commenced in 1957‑58 and completed in 1960. Documentary evidence also lends support to the defendants' version. The first notification under section 4 of the Land Acquisition Act, as mentioned earlier was issued on 5‑10‑1956. Documents produced as Exhs.10‑11, suggest that proceedings for building a wireless station were initiated in 1955. Exh.12 indicates that the Transmission Station had already been constructed in 1956 in view of the above I am not inclined to accept the plaintiff's version and am of the view that the defendant came into possession of the property before 1966 though without proper legal authority and acknowledging the owners right to compensation. The defendants have not pleaded that they dispossessed the plaintiff nor shown how they came into possession.

23. The matter, however, does not conclude here. To successfully plead the bar of limitation, the defendants were required to show that the plaintiffs were in possession and such dispossession occurred prior to 12 years of the filing of the suit. The plaintiffs' case is not founded upon their right to possession but upon title. The defendants, however, have flatly denied the factum of having dispossessed the plaintiff both in the written statement as well as in the written arguments. In the written arguments it has been reiterated that "the defendant is continuously in possession of the suit land and the plaintiffs never dispossessed because they were not in possession of the land. at any time during the period from 1956 to the date of these presents".

24. In view of such categorical position taken up by the defendants, no finding can be recorded on the question of dispossession. Even otherwise such finding may not be necessary as discussed hereinafter for determining the question of limitation.

25. Unfortunately, on the question of limitation, I have received legal assistance at the Bar. In his written arguments Mr. M.G. Dastgir did not refer to any specific provision which, in his opinion, was applicable in the circumstances. Mr. Usman Ghani Rashid, despite issues on the question of limitation having been framed, did not advert to this aspect either in his address not filed any written argument in rebuttal.

26. Nevertheless, in order to determine which provision of law would be attracted for deciding the question of limitation, it may be pertinent to reproduce Articles 142 and 144 of the First Schedule to the Limitation Act, which read as under:‑‑ '

142. For possession of (Twelve years) The date of the immovable property when dispossession of the plaintiff while in discontinuance. possession of the property, has been dispossessed or has discontinued the possession.

144. For possession of immov‑ (Twelve years) When the possession able property or any of the defendant interest therein not hereby becomes adverse to otherwise specially the plaintiff. provided for.

27. It may be observed that dispossession of the plaintiff is a condition precedent for the application of Article

142. Irrespective of the sketechy evidence on record, if the plaintiffs' version is to be believed, the suit is within F time. If the defendants' position is to be accepted, Article 142 could not apply as the basic precondition for its application i.e. dispossession of the plaintiff cannot be assumed to have accrued. I am fortified in this view by a judgment of Patna High Court in the case of Kanchan Teli v. Mogo Mahton (AIR 1934 Patna 593), wherein Wort, J. held:‑‑

"If the defendant admitted that he had dispossessed the plaintiff, then quite clearly Article 142 would apply; but if, as in this case, he asserted that the plaintiff had never been in possession, that he (defendant) had been there and had been prescribing against him (plaintiff) it seems to me abundantly clear that the case does not come under any of the authorities holding on the facts of particular cases that Article 142 applied. It is a case which is otherwise provided for by the Limitation Act and, therefore, Article 144 applies."

28. Coming to Article 144 it may be seen that limitation starts running from the date when possession of the defendant becomes hostile to the plaintiffs. In the above matter, however, it is established that the defendants never asserted title to the land in question even on the basis of the Land Acquisition Act, prior to the filing of the suit. It is established on record that till June, 1997 the defendants were attending meetings for determination of compensation payable G to the plaintiffs/owner. Even the last notice dated 8‑12‑1977 sent by the plaintiffs was passed on to another officer in the circumstances Article 144 too could not be held applicable.

29. Evidently till the filing of the suit the defendants never claimed any right or interest in the land in question or set up title hostile to the plaintiffs. Even in the original written statement filed in 1980 they did not attempt to justify their possession but only disputed the plaintiffs' right to obtain compensation and contended that question of payment of compensation could only arise after proceedings under the Land Acquisition Act, relating to demarcation of property etc. Their claim to possession was never hostile to or inconsistent with the rights of the real owner and it has been established on the basis of evidence including evidence adduced by the defendant that‑the plaintiffs were the real owners. Only when they were able to lay their hands on the Notification published in 1956 they started claiming that the land had been acquired. This contention has been found to be untenable on facts and law. The possession of the defendants does not appear to be better than that of a tresspasser and I am inclined to think that such trespass amounts to a continuing wrong in terms of section 23 of the Limitation Act. Moreover, admittedly negotiations for payment of compensation were being carried out till June, 1977. As such the suit filed in April, 1978 cannot be held to be barred by limitation. In this context I may refer once again to the observations made in Barkat Bibi's case, cited above, to the following effect:‑

"Nor, it is open to a public authority to enter into negotiation for settlement of dispute with a citizen for a number of years and after failure thereof when the private citizen asks for relief through Court to turn round and say that the claim is barred by time. The limitation would not start unless a case of action has arisen to a party and in the case in hand the cause of action arose to the appellant in February, 1984 when the respondent finally refused to settle the dispute. From this date the suit is clearly within limitation having been filed in the end of May, 1984." In view of the above I am clearly of the opinion that the suit is not barred by limitation. .

30. With respect to Issue No .5 no other objection as to the maintainability of the suit has been taken and I do not see any other requirement of law which would render the suit not maintainable.

31. Issue No.6, has not been pressed in the written arguments and with respect to Issue No.7 it has only been contended that the plaintiffs have not shown title to the suit land and are, therefore, not entitled to any mesne profit. In view of my findings at Issue No.1, however, this objection cannot be sustained. On the factual aspect the plaintiffs' witness Noor Muhammad has stated that the income from land in the area is about two to three thousand rupees per acre. This evidence has gone unrebutted. Nevertheless in view of the bar of limitation the plaintiffs are only entitled to claim mesne profit for a period of three years preceding the filing of the suit.

32. Coming to the question of relief I would hold that in view of my findings above, the plaintiffs are entitled to a decree for possession of the land against defendant No.4, who are the successor‑in‑interest of the defendant No. l by operation of law. They are further entitled to mesne profit at the rate of Rs.28,000 per year for a period commencing from 28‑4‑1975 i.e. three years before the filing of the suit till the date of decree. The proceedings initiated for possession of the suit land by virtue of the Notification published on 5‑10‑1956, however, shall become to an end in the absence of a subsequent Notification under section 5 (as amended by Act XXVII of 1974) and the requirements of section 6 (1‑A) enacted vide Ordinance 23 of 1984. As such the plaintiff is not entitled to any compensation on that score. I may, nevertheless, add that the defendants would be free to initiate fresh acquisition proceedings in case they considered it to be so in the public interest. 33 In view of the forgoing, the suit is decreed in the above terms with costs. Before parting with this judgment, however, I must express my anguish over the apathy of public officials dealing with rights of citizens as well as the interest of public‑at‑large involving property worth to millions of rupees. It is a matter of some regret that proper legal advice was not sought or acted upon for the purpose of acquiring the land in public interest and instead of resolving the matter even after the filing of the suit, possession which was ex facie unlawful, was sought to be defended on specious grounds. A.A./N‑42/K Suit decreed