' ARSHAD NOOR KHAN, J.---This second appeal has been directed against the judgment and decree, dated 25-9-2004 and 30-9-2004, respectively, passed by the learned IInd Additional District Judge Nawabshah in Civil Appeal No,5 of 2004 (The Executive Engineer and another v.
Muhammad Afzal), whereby the judgment and decree, dated 29-11-2002 and 4-12-2002, respectively, passed by the learned Ist Senior Civil Judge Nawabshah have been set aside.
2. The facts leading rise to the present appeal in brief, are that the appellant filed suit for compensation under Order VII, Rule 1, C.P.C., stating therein that he was an Army personnel and was allotted plot Nos.1, 2 and 3, out of land bearing Revenue Survey Nos. 153/4, 154/, 4, 164/2 and 165/1, situated in deh 86 Nusrat Sanghar Road, Nawabshah by the MFRO Hyderabad under Army Welfare Housing Scheme. The said plots were subsequently sold out by way of sale-deed by MERO to the appellant vide Sale-deeds Nos. 774, 775 and 776 on 17-3-1996. The Plot Nos. 1, 2 and 3 were sold out for a consideration of Rs,21,175 and Rs,13500, respectively, and were mutated in the record of rights in, the name of appellant. In the year, 1997 the respondent No,2 started raising construction of a park under Lab-e-Gajra Scheme annexed with plot Nos.1 and 2 of the appellant and also used the area of aforesaid plots without consent or permission of the appellant. The appellant, therefore, filed suit for compensation against the respondents. The respondents were served with the notice, who appeared before the learned trial Court and filed their written statement, admitting therein the construction of part. In the written statement the respondents have not specifically denied the use of area of the plots in possession of the appellant, in the construction of the aforesaid part, however, it is stated in the written statement that the said plots of the appellant were not covered, therefore, the respondents were not bound to pay any compensation to the appellant. The maintainability of the suit, inter alia, other pleas has also been raised in the written statement.
3. On the pleading of the parties, the learned trial Court framed the following issues:-- "(1) Whether the defendant No,2, has unlawfully, illegally and unauthorized occupied the area of the suit plots of the plaintiff for construction of park in the year, 1997?
(2) Whether the defendant No,2 is not bound to pay any compensation of area to plaintiff as he has not constructed the park on the land of irrigation Department?
(3) Whether the plaintiff is entitled for compensation of suit-land.
(4) What` should the decree be?
4. After framing the issues, the appellant led his evidence in support of his claim and filed true copies of the sale deeds along with other documents. The respondents did not lead any evidence to controvert the claim of the appellant. The learned trial Court after hearing of the learned counsel for the parties decreed the suit vide judgment and decree, dated 29-1-2002 and 4-12-2002, respectively.
5. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court the respondents. Preferred civil appeal before the learned District Judge Nawabshah, who entrusted the same to the learned Ind Additional District Judge Nawabshah, who after hearing of the learned counsel for the parties allowed the appeal and set aside the judgment and decree passed by the learned trial Court. Hence the present appeal.
6. I have heard Mr. Hassan Mehmood Baig, learned counsel for the appellant and Mr. Mumtaz Alam Leghari, learned Assistant A.G. Appearing on behalf of the respondents.
7. Mr. Hassan Mehmood Baig, learned counsel for the appellant vehemently contended that the appeal filed by the respondents before the appellate Court was hopelessly time-barred and the learned appellate Court has condoned the delay on insufficient ground, which resulted in miscarriage of justice. According to him, the learned appellate Court was not justified in condoning the delay on flimsy ground taken by the respondents that they being the government officials had to obtain permission from the Government for filing of the appeal and the government could not be given different treatment so as to condone the delay in filing the appeal. According to him, the judgment and decree passed by the learned trial Court was the result of considering the oral, as well as documentary evidence brought on record by the appellant and no cogent reasons have been assigned by the learned appellate Court for upsetting the findings recorded by the learned trial Court, as such, judgment and decree passed by the learned appellate Court could not be sustained.
8. Mr. Mumtaz Alam Leghari, learned Assistant A.G. Has vehemently contended that the judgment and decree passed by the trial Court were void and the learned appellate Court has rightly condoned the delay in filing the appeal on the ground that the judgment and decree passed by the trial Court were void, which could not be sustained and no illegality or infirmity has been pointed out by the learned counsel for the appellant so as to interfere in the judgment and decree passed by the appellate Court, as such the appeal merits no consideration and is liable to be dismissed.
9. I have considered the arguments advanced on behalf of both the parties and have gone through the material available before me. The claim of the appellant is that plot Nos. 1 and 2 have been consumed by the respondents while constructing park in the name of Lab-e-Gajra Scheme and the construction of the park as alleged by the appellant, has not been disputed by the respondents in their written statement. The respondents have also not disputed in their written statement about use of the land of the appellant in the aforesaid scheme, but have alleged that since the said plots of the appellant were not covered, therefore, they are not liable to pay any compensation to the appellant in respect of the said plots. In support of the said plea that the plots were not covered, therefore, the owner of the said property is not entitled for any compensation, the respondents have not pointed out any law to show that the property which is not covered could be used by them without permission and the owner of that property is not entitled for any compensation. The claim of the appellant has therefore, not been disputed by the respondents in their written statement. The documentary evidence produced by the appellant supports the version of the appellant regarding the value of the property in question, which evidence has been properly evaluated by the learned trial Court. The respondents in their written statement have not alleged that the property belongs to the appellant has been acquired under the provisions of Land Acquisition Act by way of issuance of Notification under sections 4, 6 and 17 of the Land Acquisition Act. The use of the land of the appellant for construction of the park is, therefore, established through the evidence brought on record. The Learned trial Court after appraisal of whole evidence available on record had rightly decreed the suit in favour of the appellant.
10. The appeal filed by the respondents before the appellate Court was admittedly time barred and the respondents along with the appeal filed application under section 5 of the Limitation Act, praying therein for condonation of the delay in filing of the appeal. The decree was passed by the learned trial Court on 4-12-2002 and the application for true copies was filed by the respondents on 13-1-2003, which shows that the respondents had already consumed the time for filing of the appeal and the application for true copies itself was delayed by 9 days. Still the cost was deposited after further delay of 2 days on 15-1-2003 and the copies were prepared and delivered on the very same day of depositing the cost on 15-1-2003, which shows that by that time the respondents had already consumed 11 days beyond the period of limitation. The appeal before the appellate Court was filed on 21-1-2003, i,e,, after about 6 days of the receipt of true copies, as such the appeal was barred by 17 days. The respondents who were conscious about the fact that the appeal has become time barred, have filed application for condonation of delay. The reason assigned in the affidavit filed in support of application under section 5 of the Limitation Act, is that the respondents had to obtain sanction from the government for filing of the appeal. Para. 2 of the affidavit in which the reasons for condonation of the delay have been assigned is reproduced herein below for the sake of convenience:-- "That after the passing of the impugned Decree in the above matter, we have approached the Govt. For the filing of the appeal, as a decree has been passed of huge amount, and we have to obtain proper sanction etc. For filing the appeal, hence it took some time for proper sanction etc. And the time has been consumed in official correspondence, and delay has accrued in the filing of the appeal."
11. The respondents had, therefore, taken the plea of sanction to be obtained from government for filing of the appeal but the date on which they moved to the government for obtaining sanction to file the appeal, has not been specified in the affidavit, nor the letter by which the respondents have sought permission from the government to file the appeal has been brought on record in support of the said plea, nor even the alleged permission accorded by the government has been produced before the lower Court or before this Court, by the respondents so as to A assess the vigilance of the respondents in filing of the appeal before the learned appellate Court. The appeal before the learned appellate Court was, therefore, hopelessly time barred and it is settled principle of law that after expiry of the limitation period, a valuable right stands accrued in favour of opposite party, which could not be snatched or brushed aside leniently. The party guilty of limitation is under obligation to explain each day's delay in filing the appeal and in case, each day's delay has not been explained satisfactorily the delay could not be condoned. In the affidavit filed in support of application under section 5 of Limitation Act, as discussed above, not a single day's delay has been explained by the respondents, as such inordinate delay in filing the appeal before the appellate Court remained unexplained. In my humble opinion after expiry of limitation period valuable right accrued in favour of the appellant on the day when the appeal of the respondents becomes time barred. The learned Additional A.G. Appearing for the respondents vehemently contended that the time was consumed in obtaining the sanction from the government but the said plea also could not be considered reasonably to condone the delay for the simple reason that the government could not be given different or special treatment than the ordinary litigant and the government is also required to explain the delay reasonably so as to condone the delay, if any, in filing of the appeal.
12. Mr. Hassan Mehmood Baig, learned counsel for the appellant has also relied upon the case of Government of N.-W.F.P. Through Chief Secretary and 3 others v. Abdul Malik reported in 1994 SCMR 933, wherein it has been observed by the honourable Apex Court that the government could not be given different treatment than the ordinary litigant .The reason assigned by the respondents for condonation of delay in filing of the appeal before the learned appellate Court, therefore, were not sufficient or reasonable to condone- the delay of about 17 days in filing the appeal.
13. The learned appellate Court has observed that the order passed by the learned trial Court was a void order, therefore, the limitation does not come in the way of the respondents. The learned appellate Court has completely failed to point out as to how the judgment and decree passed by the learned trial Court was void, ab initio. The appellate Court has observed that the appellant had to get the benefit of provisions of Land Acquisition Act for compensation, but the fact remains that no proceedings under the provisions of Land Acquisition Act were initiated or observed by the respondents in order to acquire the land of the appellant and since the proceedings under the provisions of Land Acquisition Act were not taken, nor any notification under sections 4 and 6 of the Land Acquisition Act were admittedly published in the official gazette, therefore, in my humble opinion the appellant was not required to move under section 18 of the Land Acquisition Act. The use of the land of the appellant has not been disputed by the respondents, nor has been disproved in the lengthy cross-examination conducted on the appellant and his witnesses by the Deputy District Attorney, therefore, the claim of the appellant remained unshaken and unrequited. The respondents had not led any evidence before the learned trial Court to inflict any minor or major dent in the case of the appellant.
14. The judgment and decree, passed by the appellate Court, therefore, suffers from material illegality and could not be sustained. The appeal is, therefore, allowed. The judgment and decree passed by the learned appellate Court is hereby set aside and the judgment and decree passed by learned trial Court is hereby restored. In the peculiar circumstances of the case, the parties will bear their own costs.