2010 S C M R 1408

[Supreme Court of Pakistan]

P r e s e n t : Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

GOVERNMENT OF N.-W.F.P. and others---Appellants

Versus

AKBAR SHAH and others---Respondents

Civil Appeal No.1383 of 2009, decided on 1st February, 2010.

(On appeal from the judgment dated 3-8-2006 passed by the Peshawar High Court, Peshawar, in C.R. No.
406 of 1999).

(a) Administration of justice---

----Duty of Courts to apply correct law---Failure of counsel to properly advise would not be a complete
excuse---Judge must wear all laws of country on sleeve of his rob.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

(b) Limitation Act (IX of 1908)---

----S. 3---Duty of Court to look into point of limitation without there being objection of any party in terms
of S. 3 of Limitation Act, 1908.

(c) Land Acquisition Act (I of 1894)---

---Ss. 11, 12-A, 18, 31 & 31(2)---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Limitation Act (IX of 1908),
S. 3---Land acquisition---Suit for declaration, permanent injunction and possession---Plaintiff's plea was
that Government had encroached upon suit land being in excess of acquired share of land---Defendant's
plea that plaintiff's entire land including suit land was acquired in year 1951 and compensation thereof,
announced vide Award dated 11-6-1966 had been received without protest, thus, suit filed by him in
year 1993 i.e. after 42 years was time barred---Suit decreed by Trial Court upheld by Appellate Court and
in revision by High Court---Validity---Trial Court had framed issu e r e g a r d i n g limitation on basis of
specific objection raised by defendant in written statement---Defendant has raised such objection in
appeal and then in revision, but Courts below had not rendered any finding thereon---Defendant had
taken possession of suit land in year 1951---Award showed that defendant had acquired entire plaintiff's
land including suit land---Documents exhibited by Trial Court showed that amount of compensation
received by plaintiff was exactly same, which Land Acquisition Collector had determined for entire land
including suit land---Award had become final in t e r m s of Ss. 11 and 12-A o f Land Acquisition Act,
1894---Plaintiff, after having received awarded compensation without protest had no lawful right even
to file reference under S. 18 read with Ss. 30 and 31(2) of Land Acquisition Act, 1894---Courts below
had decided suit without applying mind to such documentary evidence and provisions of Land
Acquisition Act, 1894---Findings of Courts below suffered from serious errors of law and fact, which
unless set aside would result in miscarriage of justice---Supreme Court dismissed suit in circumstances.

G.M. Sikdar's case PLD 1970 SC 158; Mollah Ejahar Ali's case PLD 1970 SC 173; Ghulam Muhammad's
case PLD 1967 SC 191 and Malik Muhammad Ishaque's case PLD 1997 SC 109 rel.

(d) Act of Court---

----Any act o f Court shall prejudice no man.

Kedar Nath's case AIR 1922 PC 269 fol.

(e) Administration of justice---

----Primary duty of Courts and other adjudicating forums would be to decide lis before them in
accordance with law---Courts/forums would not be relieved of such duty on account of fact or m e a n
of liti gati on o r of a l a w y e r .

(f) Constitution of Pakistan (1973)---

----Art. 185(3)---Concurrent findings of Courts below---Interference in such findings by Supreme Court---

Scope---Supreme Court generally would not interfere in such findings, if same being reasonable and not
arrived at by disregarding any provision of law or accepted principle concerning appreciation of
evidence.

Qaiser Rasheed, Additional Advocate-General, N.-W.F.P., Zahoor Ahmed Khalil, Secretary Forest, N.-
W.F.P. Najibullah, Deputy Collector, Mardan, and Aqil Khan, Sub-Divisional Forest Officer for
Appellants.

Abdul Kabir, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-record for
Respondents.

Date of hearing: 1st February, 2010.

JUDGMENT

CH. IJAZ AHMED, J.-The necessary facts out of which the present appeal arises are that
respondents/plaintiffs filed suit for declaration, permanent injunction and possession against the
appellants/defendants in the Court of Civil Judge Nowshera on 3-2-1993. Respondents/Plaintiffs
Nos.1, 12, 13 and 14 had since been died during the pendency of the litigation, therefore, their
legal heirs were brought on record. The contents of the plaint reveal that respondents/plaintiffs
are owners in possession of land in question in suit Khasra No.1584 to the extent of 55 kanals 12
marlas of land with which appellants/ defendants have got no concern whatsoever and possession
of appellants/defendants over their share of landed property is void, illegal, ineffective upon the
rights and wrong entries in Jamabandi are liable to be cancelled. The contents of the plaint
further reveal that the entire suit Khasra No.1584 measuring 83 kanals and 15 marlas was their
ownership in possession out of which 28 kanals and 3 marlas was acquired by the Government of
Kyber Pakhtoon Khaw for Canal Irrigation Department Mardan and on payment of compensation
of said land to respondents/ plaintiffs mutation No.3560 was also attested on 11-3-1985 to the
extent of said acquired share of land. However, appellants/defendants illegally encroached upon
the entire suit Khasra Nos.1584 about 4/5 years ago without having any title over the excess
share of land, therefore, the entries in Jamabandi in favour of appellants/defendants to the said
extent of land is also void, illegal ineffective upon the rights of respondents/ plaintiffs and liable
to be cancelled. Appellants/defendants had filed written statements controverting the allegations
levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the
following issues:--

1. Whether the plaintiffs have got a cause of action?

2. Whether the suit is not within time?

3. Whether the suit is bad for non joinder and is liable to be dismissed?

4. Whether the plaintiffs are estopped to bring the present suit?

5. Whether the Forest Department has taken 150 acres of land from the Irrigation
Department on lease and therefore, the plaintiffs have got no right in suit property?

6. Whether the defendant No.2 have planted trees in 150 acres of land; in case of decree he
is entitled for improvements?

7. Whether the plaintiffs are entitled to the decree of declaration as prayed for?
 8. Whether the plaintiffs are entitled to the decree of possession as prayed for in relief Bay
of the plaint?

9. Relief.

Trial Court after completing legal formalities such as recording of the evidence and hearing of the
parties decreed the suit vide judgment and decreed dated 21-3-1998. The appellants/defendants
being aggrieved filed an appeal in the Court of District Judge Nowshera on 3-6-1998. The learned
District Judge dismissed the appeal vide judgment and decree dated 11-5-1999.
Appellants/defendants being aggrieved filed Civil Revision No.406 of 1999 in the Peshawar High
Court, Peshawar. The learned High Court dismissed the revision petition vide impugned judgment
dated 3-8-2006. The appellants/defendants being aggrieved filed petition before this Court which
was fixed on 18-11-2009 and leave was granted in the following terms:--

"Leave to appeal is granted to examine whether the judgments impugned before this
Court suffer from miscarriage of evidence, inasmuch as, the record of Collector and Land
Acquisition Office, pertaining to acquisition of land in the year 1964, including Khasra
No.1584, Village Kheshki Bala, Tehsil Nowshera, District Peshawar, was not properly
looked into."

2. Learned counsel for the appellants has highlighted the facts in seriatim which are as under:--

(a) That acquisition proceedings were initiated by the Additional Deputy Commissioner
having powers of Acquisition Collector on the request of the appellant No.1 for Kheshki
Lift Irrigation Scheme, Tehsil Nowshera, District Peshawar.

(b) The land was acquired including the land in question in 1951 for all practical purposes
and it was the digging of the same canal which caused the prices to rise whereby formally
unculturable lands where now to be cultivated through irrigation as depicted from award
dated 11-6-1966 at page 71 of the paper book.
 (c) Two notifications under section 4 were issued under the Land Acquisition Act with
regard to the land in question. The Land Acquisition Collector finally announced the Award
on 11-6-1966.

(d) The Land Acquisition Collector awarded compensation amounting to Rs.1,134,543

which was paid by appellant No.1 acquiring department which was received by respective
land owners including the, respondents without any objection as is evident from the list
placed on record duly signed by land owners.

(e) The appellant No.1 had given the portion of acquired land including the land in question
to appellant No.2 for plantation on lease on 11-1-1986.

(f) The entire Khasra No.1584 had been acquired by appellant No.1 and the respondents
have received payment for 10-1/2 acres equal to 83 kanals and 15 marlas at the rate of
Rs.1,000 per acre.

(g) The amount received by the land owners was exactly for the land measuring 83 kanals 15
marlas as evident from the contents of the award.

3. The learned counsel for the appellants submits that all the Courts below have decided the case
against the appellants without adverting to the facts. brought on record on the ground that the
respondents/plaintiffs were duly aware and received the compensation amount with respect to
their land acquired but did not raise any objection since then till the filing of suit in the year 1993
that is after 42 years of the possession of the disputed land by appellant No.1. All the Courts
below had decided the case without adverting to the notifications issued by the Land Acquisition
Collector under sections 4, 6 and other notifications including the award under the provisions of
the Land Acquisition Act. The trial Court had decided issue No.2 with regard to the limitation
without application of mind as evident from finding rendered by the trial Court. The appellants
had taken a specific ground before the first Appellate Court with regard to issue No.2 in the
following terms:

"That while deciding issue of limitation the Court has relied merely on the oral claim of
the plaintiff, ignoring the facts."
First Appellate Court had erred in law not to render any finding on issue No.2 as is evident from
the judgment dated 11-5-1999. The appellants had taken specific ground No.B before the
Peshawar High Court but the learned High Court had also failed to advert to ground No.B as
evident from the impugned judgment. Similarly the appellants have taken specific ground on
merit that respondents had received the compensation without protest qua 83 kanals and 15
marlas at the rate of Rs.1,000 per acre and the same is exactly the value determined by the Land
Acquisition Collector qua the Banjar Zameen. All the Courts below have decided the case against
the appellants without application of mind and without reappraisal of the evidence on record.

4. The learned counsel for the respondents has supported the impugned judgment vehemently.
He further urges that all Courts below have given concurrent finding of facts against the
appellants and the learned counsel for the appellants had failed to point out any piece of
evidence which was misread or non-read by the Courts below.

5. The learned counsel for the appellants, in rebuttal, submits that after announcement of award
by the Land Acquisition Collector, suit was not maintainable in view of the provisions of the Land
Acquisition Act, 1894.

6. We have given our anxious consideration to the contentions of the learned counsel of the
parties and perused the record. It is settled principle of law that it is the duty and obligation of
the Courts to apply correct law on the well known maxim that judge must wear all the laws of the
country on the sleeve of his rob and failure of the counsel to properly advise is not a complete
excuse in the matter as law laid down by this Court in Muhammad Sarwar's case PLD 1969 SC 278.
It is the obligation of the Court to look into the point of limitation without there being objection
of any party in terms of section 3 of the Limitation Act, 1908. In the case in hand specific
objection was taken by the appellants in their written statements. Issue No.2 was framed by the
trial Court. The trial Court had decided Issue No.2 without adverting to the aforesaid facts in its
totality. But unfortunately, the first Appellate Court and the High Court did not render any finding
on Issue No.2 in spite of the fact that specific grounds were taken by the appellants in the memo.
of grounds of appeal before First Appellate Court and memo. of revision before the High Court. It
is an admitted fact that possession of the land was taken by appellant No.1 for the purpose of
said scheme in 1951 and it was utilized for the said purpose under the said scheme as is evident 1
from the contents of the award, mentioned hereinabove. The suit was filed in year 1993. The
possession was taken in the year 1951. The award was announced in the year 1966. The land in
question was leased out by appellant No.1 to appellants No.2 and 3, therefore, suit was time
barred as is evident from the above facts even without recording of evidence. The suit was highly
time barred because it was so obvious that the possession was taken in 1251 and suit was filed in
1993, therefore, all the Courts below had decreed the suit without adverting to section 3 of the
Limitation Act, 1908. Even otherwise it is not believable that respondents/plaintiffs could not
know acquiring possession of land in question by appellant No.1. We have also re-examined the
material on record. The award was announced by the Land Acquisition Collector after completing all
the legal formalities and determined the amount of land measuring 83 kanals and 12 marlas. The
contents of the award clearly depict that entire Khasra No.1584 has been acquired by appellant No.1
and respondents/plaintiffs have received payment for 10 and 1/2 acres equal to 83 kanals and 15
marlas at the rate of Rs.1,000 per acre amounting to Rs.1,134,543. We have come to the same
conclusion with the assistance of the learned counsel of the parties after reappraisal of the evidence on
record. The aforesaid amount was exactly the same which was determined by the Land Acquisition
Collector through its award measuring 83 kanals and 12 marlas. This fact was not scrutinized by all the
Courts below in its true perspective in spite of the fact that said amount was received by the
respondents/plaintiffs; list was on the record and also evident from the documents exhibited by the
trial Court which are at pages 141 to 222 of the present paper book. Even otherwise we have
examined the original record. The documents were properly exhibited by the trial Court. The said
document was totally misread or non-read by all the Courts below. It is also settled principle of law
that any act of Court shall prejudice no man. The said principle has been laid by the Privacy Council in
Kedar Nath's case AIR 1922 PC 269. The relevant observation is as follows:

"One of the first and highest duties of all Courts is to take care that the act of the Court does
not cause injury to any of the suitors and when the expression `the act of the Court', is used, it
does not mean merely the act of the primary Court, or of any Intermediate Court of Appeal,
but the act of the Court as a whole from the lowest Court which entertains jurisdiction over
the matter up to the highest Court which- finally disposes of the case."

It is primarily the duty of the Court and other adjudicating forums to decide the lis before them in
accordance with law. The Courts and other forums are not relieved of this duty on account of fact or
mean of litigation or of a lawyer. All the Courts below had decided the case without application of
mind and without any logical reasons and in violation of the dictum laid down by this Court in various
pronouncements. See G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC
173. It is established on the record that the respondents/plaintiffs had received compensation as
determined by Land Acquisition Collector through the Award without any protest.
Respondents/plaintiffs had no lawful right even to file reference under section 18 of the Land
Acquisition Act read with sections 30 and 31 (2) of the Land Acquisition Act as law laid down by this
Court in Ghulam Muhammad's case PLD 1967 SC 191. The award had become final in terms of sections
11 and 12A of the Land Acquisition Act, 1894. All the provisions of the Land Acquisition Act were not
considered by all the Courts below. We are conscious that this Court generally does not interfere in
the concurrent conclusions arrived at by the Courts below when it is satisfied that the findings of the
Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law
or any accepted principle concerning the appreciation of evidence while exercising power under
Article 185(3) of the Constitution. In the case in hand, however, it is difficult to avoid the impression
that the conclusions reached by the High Court and Courts below suffer from serious errors of law and
fact, which unless set right are likely to result in miscarriage of justice. We have already referred to
misreading or non-reading of the record and mandatory provisions of law as already mentioned
above. See Malik Muhammad Ishaque's case PLD 1977 SC 109.

7. In view of what has been discussed above the appeal is allowed with no order as to costs.

S.A.K./G-3/SC Appeal accepted.