' CH. SHAHID SAEED, J.---The instant Regular Second Appeal is directed against the concurrent judgments and decrees dated 20-7-2000 and 16-2-2005 passed by the courts below, by way of which, suit for recovery of Rs,4,50,000 as damages filed by the respondents/plaintiffs was decreed and appeal against thereof preferred by the appellant/defendant, was dismissed.
2. Briefly, the facts as leading to the instant Regular Second Appeal are that the plaintiffs (Mst. Amt- ul-Hameed and others) filed a suit for recovery of Rs,4,50,000 against the defendant (Town Committee Depalpur), alleging therein that the plaintiffs had constructed a house over land measuring 1-Kanal situated at Basirpur road dear Chungi Depalpur, District Okara. The construction plan of said house was duly approved and subsequently an amended plan was also prepared by the defendant on 8-4-1970. On 2-1-1988 in the absence of plaintiffs, Chief Officer of the Department (defendant) without issuing notice to the plaintiffs, forcibly broken the locks of house and demolished a portion of house and misappropriated the household articles/material valuing of Rs,2,00,000. It was further alleged that on 3-1-1988 the plaintiffs moved an application to the Deputy Commissioner, Okara who found the defendant responsible for this illegal act vide his report dated 11-2-1988 and recommended for taking strict action against the defendant. The plaintiffs demanded Rs,4,50,000 as damages from the defendant but of no avail. Hence, the present suit was filed.
3, The suit was contested by the defendant vehemently by filing written statement wherein a number of preliminary objections were raised. From the factual controversy appearing out of the pleadings of the parties, learned trial court led to frame as many as seven issues including the relief. In order to prove their respective contentions, oral as well as documentary evidence was produced by both the parties. Vide judgment and decree dated 20-7-2000 passed by the learned trial court suit was decreed in favour of plaintiffs to the extent of Rs,3,58,000. Feeling aggrieved by the said judgment/decree, the defendant preferred an appeal before the learned appellate court, which was dismissed vide judgment/decree dated 16-2-2005. Hence, the instant Regular Second Appeal.
4. Learned counsel for the appellant contended that the impugned judgments and decrees passed by the learned courts below are illegal, against law and facts on record, suffer from misreading and non-reading of evidence available on the record. Learned courts below laid much stress on the fact that no notice was served to the respondents/plaintiffs prior to demolition, whereas from the pleadings and evidence of plaintiffs it is quite clear that plaintiffs were very much in the knowledge of demarcation proceedings, thus, appellant/ defendant cannot be held responsible for payment of alleged loss suffered to the plaintiffs. Earlier the plaintiffs filed a suit for permanent injunction (Exh.D-3) on 7-3-1988 which facts rendered in the instant suit and the present suit is barred under the provisions of Order Ii Rule 2 of C.P.C., but both the courts below failed to determine the material issue of law and passed the impugned judgments/decrees which are liable to be set aside and suit filed by the respondents/plaintiffs was liable to be dismissed. It has been further contended that learned appellate court has not taken note of the fact that learned trial court failed to frame proper issue arising out of pleadings of the parties which vitiates the trial of case. Further stated that both the courts below have based their findings on the inquiry report prepared by the Deputy Commissioner, Okara.. The courts below illegally relied upon contradictory evidence produced by the respondents/plaintiffs while they themselves have not appeared in the witness box which strengthened the strong presumption against them. The removal of encroachment does not give rise to the filing of present suit by the plaintiffs as functionaries of appellant/defendant have acted in the official capacity which cannot be termed to be mala fide on their part. At the end learned counsel for the appellant prayed for setting aside the impugned judgments/ decrees passed by the courts below.
5. On the other hand, learned counsel for respondents/plaintiffs vehemently opposed the contentions raised by the learned counsel for the appellant and argued that the impugned judgments/ decrees passed by the learned courts below are based on cogent reasons. There are concurrent findings on the facts on record as the evidence led in the. Suit by the respondents/plaintiffs was appreciated by both the courts below as the same was corroborated by the P. Ws. Thus, the instant regular second appeal is liable to be dismissed. Learned counsel for the respondents also relied upon "Ahmad Sharif Qazi and 6 others v. Salim Ullah Faridi and 9 others PLD 2006 SC 777.
6. I have heard the arguments of learned counsel for the parties and perused the record minutely.
7. From the bare perusal of record it reveals that earlier the respondents/ plaintiffs filed a suit for permanent injunction against the appellant/defendant with regard to the same property in which they admitted that the bricks and other material was lying at site which should have not been removed by the functionaries of the appellant-and no relief for recovery of damages was claimed.
The respondents/plaintiffs by filing the present suit were under obligation to put the whole story of earlier suit for permanent injunction as the said suit was rejected under Order VII Rule 11, of C.P.C.
Wherein the same facts were narrated in the plaint. No further appeal was filed by the respondents/plaintiffs and the order passed by learned Civil Judge 1st Class, Depalpur had got finality. The perusal of documentary evidence produced by the appellant/defendant it is also evident that alleged loss claimed by the plaintiffs is exaggerated one and they were not entitled to the same as in the earlier suit, plaintiffs claimed loss to the extent of Rs,2,00,000 and subsequently they should have been debarred to claim any exaggerated amount from the appellant. In this context, this court is of the view that suit for recovery of damages filed by the respondents/plaintiffs was hit by section 11 of C.P.C. Provided that the trial court while considering the averments of plaint should have to see either the suit was prima facie maintainable or not and for that matter the point of res judicata can also be gone into. Learned courts below have not given a definite opinion as they were not supposed to do so that the suit was barred by res judicata otherwise they could have dismissed the suit itself. In these circumstances,' there is considerable force in the objection that the present suit was barred by Order II Rule 2 of C.P.C. Reference in this connection may be made to the judgments reported as "1987 SCM R 527,. 1987 CLC 2545 Lahore and 1990 CLC 1532 Lahore"
8. The contents of plaint reveal that on 1-Kanal land construction was made by the respondents/plaintiffs but no construction plan has been submitted in documentary evidence that, how much area was covered with buildings and this fact has also not been uttered by the witnesses of plaintiffs. It is also evident from the record that plan was never sanctioned by the competent authority. The statements of P.Ws. Itself explain that only mentioning of serial number of plan for sanction is there but in this regard nothing is available on record. Learned counsel for the respondents/plaintiffs also admitted the fact that no construction plan was submitted. It is also pertinent to mention here that how much damage was suffered by the plaintiffs and in this regard no break up/description was given by them neither in the plaint nor in evidence. All the evidence is based on presumptions, as plantation (different type of fruit trees) has been shown in 1-Kanal land which is stated to have been existing buildings therein. All these things give the impression of being false, fabricated and concocted story on the part of the plaintiffs as it is impossible that if there was building at the site, how the different type of fruit trees were existing therein. Thus, the findings of courts below on question of facts and law suffer from non-appraisal of evidence led in the suit by both the parties. Learned counsel for the appellant succeeded to point out the illegalities and material irregularities to have been committed. By the courts below while passing the impugned judgments and decrees which call for interference by this Court.
9. In the light of what has been discussed above, instant regular second appeal is allowed and the impugned Concurrent judgments/decrees dated 20-7-2000 and 16-2-2005 passed by the courts below are set aside. Resultantly suit for recovery of Rs,4,50,000 as damages filed by the respondents/plaintiffs shall stand dismissed with no order as to costs,