MUHAMMAD ALAM, J.--- Petitioners/defendants have assailed judgment/decree dated 16-04-2015 of the District Judge Gilgit and judgment/decree dated 1442-2013 of the Civil Judge First Class No,1 Gilgit. So, the findings of the two courts below are concurrent. I have noted that the trial court has passed impugned decree dated 14-12-2013 in Civil Suit No,162-A/2002, while the learned District Judge has confirmed the same through impugned order dated 16-04-2015, in Civil Suit No,07/2014, although the words "Civil First Appeal" are found written in the heading of the impugned order.
2. Respondent/plaintiff filed suit, wherein, he pleaded that his lands measuring 7 marlas came in construction of a link road in Amphary Gilgit. Petitioners/defendantspassed award No,SO(R)-1/786-88/98 dated 20-06-1998 (Exh.P/3) and paid compensation of 3 marlas lands of the respondent, instead of paying compensation of 7 marlas lands. Respondent received the so assessed compensation of Rs,58,650/- without getting endorsed any protest etc. Learned trial court completed all trial proceedings of the suit and passed the impugned judgment/decree. The learned District Court dismissed the appeal of the petitioners. Hence, this revision petition was filed.
3. I have thoughtfully considered the arguments advanced by the learned counsel for parties. The learned Additional Advocate General argued that the suit of the respondent is not competent as is hit by limitation. Learned Additional Advocate General further explained his argument of limitation contending that respondent received the compensation amount without protest and remained silent from 20-06-1998 till institution of the suit. Respondent could resort to the proceedings of the Referee Court through a reference, if he felt aggrieved from the award, but respondent did not approach the Referee Court as his claim of suit amount was time barred before the Referee Court.
In the opinion of learned Additional Advocate General, the suit in hand is incompetent as respondent had the only remedy of resorting to referee proceedings in accordance with different parts of Land Acquisition Act. In support of his contention, learned Additional Advocate General relied on case law reported in:-
2. PLD 1982 Peshawar 69 On the other hand, learned counsel for respondent argued that the suit is competent and claim of respondent is within time. In support of his contention, the learned counsel for respondent relied on case law reported in 1984 CLC Lahore 2314.
4. The case in hand has few very important aspects worth discussion. I am taking up the question of limitation first. In this connection, the record available on file, read with averments in the plaint and statement of the respondent, it is very clear that respondent received the compensation amounts of 3 marlas land without any protest. Respondent remained silent for about four years, since he received the amounts of compensation without any protest and then filed the suit. So, the question for determination as to limitation is of two fold, the first is that whether respondent had to resort to reference proceedings, if so, the effects of not doing so? The second is whether the question is of measurement of the land acquired or the question is of title of respondent to the suit land? I am of the confirmed opinion that the measurement of lands that petitioners acquired is a question to be determined by the Referee Court, therefore, respondent could and must have approached the said forum. It is very clear that through the suit, respondent could be awarded compensation of lands of 4 marlas, therefore, the suit or claim of the respondent is for compensation amount and limitation for the same is less than the period provided for a suit for declaration etc. It is also very important to note that the question for determination is not the title of respondent to the lands that were acquired for construction of the subject road but the question for determination is whether lands measuring 7 marlas were acquired or only 3 marlas, for construction of the subject road? So, the question is of measurement and not of title. As has already been remarked that respondent filed the suit just to avoid the blunt of limitation, provided for getting the reference proceedings initiated. So, in our opinion, the suit is not only incompetent but is time barred also.
5. Let us turn to the evidence of respondent in proof of the issues which are OPP. Respondent has produced and relied on the statements of two PWs, namely, Mr. Shafiullah (a retired ASO) and Mr. Mohammad Raza, patwari of DC office, besides the documentary evidence. Both the said PWs are basically stating about reports that they prepared. I am citing the cross-examination part of the statements of the said two PWs, wherein, PW-1, Mr. Shafiullah, has clearly stated that the land acquiring department, i,e,, the PWD, did not request for any report, that the said PW prepared.
Likewise, PW-2 has stated that he prepared the report in the light of documents obtained from respondent. These parts of the statements of the said two PWs clearly show that they have prepared the reports in absence of petitioners aid in the light of material or documents provided by the respondent. So, it is astonishing that how and why learned trial court relied on this kind of evidence? In my opinion, this kind of evidence is no evidence as the same practically defeats the different provisions of special law, i,e,, the Land Acquisition Act. Learned counsel for respondent failed to show that this kind of evidence comes under any provision of Qanun-e-Shahadat Order.
So, in my opinion, respondent had the only remedy of challenging the subject measurement before the Referee Court and nowhere else. The case law cited by the counsel for respondent has no relevancy with the circumstances of the case in hand.
6. In the sequel of above discussion I hold that the suit is incompetent and time barred, therefore, merited dismissal. Learned two courts below have badly failed to read the evidence of parties properly and to appreciate the maintainability of suit, therefore, the concurrent findings of the two courts below is result of misreading of evidence as well as ill-appreciation of relevant laws, therefore, merited reversal. I allow this petition, set aside both the judgments/decrees of the two courts below. Petition is allowed. This file is consigned to record.