SHAH JEHAN KHAN AKHUNDZADA, J.---Through the instant revision petition, the plaintiff/petitioner has challenged the judgment and decree dated 8-7-2009 passed by the learned Additional District Judge-I, D.I. Khan, whereby he while disposing of the appeal against the judgment and decree dated 28-1-2008 of the learned Civil Judge-III, D.I. Khan, set aside the judgment and decree of the learned Civil Judge mentioned above and ordered the return of the plaint to the plaintiff/petitioner under Order VII, Rule 10, C.P.C. For its presentation before the proper forum.
2. Facts of the case leading to the filing of the instant petition are that Muhammad Afzal son of Sarfaraz, plaintiff/petitioner, filed a suit against the Government of N.-W.F.P. Through Collector D.I.
Khan and five others for a declaration to the effect that the defendants/respondents without his consent and proper procedure under the provisions of Land Acquisition Act have wrongly and illegally built the Primary School (Male) situated in Jewaya Sahi, Tehsil and District D.I.Khan bearing Khasra No, 377, which is thus liable to be demolished and its superstructure be removed from the spot.
4(sic.) The defendants contested the suit by filing written statement and the divergent pleadings of the parties gave rise to the framing of as many as eleven issues including the relief. On evaluating the evidence brought on record and considering the arguments of the learned counsel addressed at the bar, the learned trial Judge dismissed the suit of the plaintiff/petitioner, but his appeal thereagainst was disposed of by the learned Additional District Judge-I D.I. Khan in the terms that the trial Court had no jurisdiction to entertain the matter in hand and thus while setting aside its judgment and decree, returned the plaint to the plaintiff/petitioner under Order VII Rule 10, C.P.C. For presentation before the proper forum, vide judgment and decree dated 8-7-2009. Feeling aggrieved, the petitioner has now impugned the same through the revision petition in hand.
3. Learned counsel for the petitioner submitted that both the impugned judgments and decrees of both the courts below are against law, facts, hence not tenable under the law. He contended that the learned appellate court while disposing of the appeal has wrongly returned the plaint to the petitioner under Order VII, Rule 10, C.P.C. For want of jurisdiction because the suit property was not a public property having not been acquired under the proper procedure and provisions of the Land Acquisition Act, nor the N.-W.F.P. Removal of Encroachment Act has any relevancy to it. He argued that the learned appellate court was legally required to have decided the appeal on merits instead of technicalities and thus it had failed to exercise jurisdiction so vested in it under the law. The learned counsel thus argued that the learned appellate court has erred in law by holding that the suit property was a public property and stated at the bar that the case be remanded to the appellate court for decision afresh on merits in the light of report of the local Commissioner.
4. The learned Deputy Advocate-General appearing on behalf of the respondents could not controvert the proposition of the learned counsel for the petitioner and candidly admitted his arguments.
5. After considering the arguments of the learned counsel for the parties, perusal of the record reveals that since the property in question was not acquired by the respondents under the provisions of the Land Acquisition Act, therefore, it was not a public property and thus the civil courts has got the jurisdiction to entertain and adjudicate upon the controversy in hand.
6. For the reasons stated above, this revision petition is accepted, the impugned judgment and decree of the learned Additional District Judge-I D.I. Khan dated 8-7-2009 is set aside and the case is remanded to him for decision afresh on merits and strictly in accordance with law.