' ABDUL SHAKURUL SALAM, J.-This is a Regular First Appeal against the judgment and decree of the learned Senior Civil Judge, Bahawalpur, dated 29th April, 1966 by which the plaintiff/appellant's suit for possession, mesne profits and compensation was dismissed. The appeal has come about in the following circumstances :- ' The appellant filed a suit that her father had purchased from Khuda Bakhsh through registered sale-deed, dated 14th November, 1936 land including Killa No, 6/Min-6 Kanals, 7/Min-6 Kanals, 13/Min-15 Marlas, 14/Min-Kanals 19 Marlas, 15-8 Kanals in Rectangle No, 107/6, and Killa No, 10 Alif-1 Kanal 16 Marlas, 11 Alif-2 Kanals in Rectangle No, 107/10, measuring 32 Kanals 17 Marlas, and from Mst. Mubarik Khatoon vide registered sale-deed, dated 20th December, 1936 land including Killa No, 16-3 K 16 M, 17-2 K-18 M in Rectangle No, 107/6 and Killa No, 11 Bay-11 Marlas, 19-Bey 4 M and 20-1 K-16 M in Rectangle No, 107/10, situated in village Ahmadpur Kahna, Ahmadpur East. On the demise of her father, his estate vested in the appellant. On 13th March, 1952, the Collector, Land Acquisition, Bahawalpur, issued a Notification under section 4 of the Land Acquisition Act but in July, 1952, the Canal Department, Ahmadpur East, without waiting for a notification under section 6 of the aforesaid Act, took possession of the land afore described in the suit. When the matter came to the notice of the Land Acquisition Authorities, Bahawalpur, that the Canal Department, Ahmadpur East, bad already taken possession for purchase of the land, it informed the Canal authorities that proceedings under section 6 of the Act were dropped and the Canal authorities may themselves settle the consideration amount privately with the owners. The appellant applied to the Canal authorities that it should either return the land or pay its price at the rate of Re. 1 per square foot with the mesne profits. The Canal Department in 1957 offered to pay a sum of Rs, 1,000 per acre which was not acceptable to the appellant. In October, 1958, a notice under section 80 of the C. P.
C, was served on the Canal authorities for the re-delivery of the land and mesne profits at the rate of Rs, 300 per Bigha for the last 8 years. It was added that if the Canal Department would not like to return the land, it may retain it at the rate of Re. 1 per square foot plus 15% for compulsory acquisition otherwise, suit would be filed. On the receipt of the aforesaid notice, the Executive Engineer, Land Department, Ahmadpur East called the appellant's general attorney and entered into an agreement that if the Department were to return the land within two months, instead of a sum of Rs, 25,200 as mesne profits, Rs, 10,000 will be paid and if the Department would not return the land, compensation for the land at the rate of Re. 1 per square foot plus the full compensation shall be paid within two months and in that event, 15% for the compulsory acquisition and 6% profit shall be waived. The notice as well as the agreement were sent to the higher authorities but were returned that mesne profits should be reduced which was done to the extent of Rs, 2,000. In January, 1962 a further notice was given that the land was being damaged by digging and compensation therefore to the extent of Rs, 5,000 shall be payable. When the appellant got no relief, she filed a suit. It was averred that cause of action had, finally, arisen in February, 1962 when the Chief Engineer did not come to the spot to return the land according to the agreement or to pay the compensation. It was prayed that the land be returned alongwith mesne profits of Rs, 18,963 plus Rs, 5,090 compensation for the digging. In case the Canal Department did not want to return the land, it should pay the compensation to the extent of Rs, 2,29,507/8 in addition to 15% for acquisition and 6% profits from the date of occupation of the land to the date of decree. The suit was filed against the Government of West Pakistan through the Deputy Commissioner, Bahawalpur, Chief Engineer, Canal Department (Irrigation), Bahawalpur Division, Bahawalpur and Collector Lands Acquisition, Bahawalpur. A written statement was filed on behalf of the Government of West Pakistan. The following issues were framed :-
(1) Whether the plaintiff is owner of 42 kanals 3 mar/as of land mentioned in the plaint ?
(2) Whether the defendants made any declaration under section 6 of the Land Acquisition Act to the effect that the land was needed for a public purpose and whether the said declaration was published in the official Gazette ?
(3) If not, whether the plaintiff is not owner of the suit land. Whether the plaintiff is not entitled to recover possession of the suit land ?
(4) Whether the plaintiff is entitled to recover compensation at the rate of Rs, 300 per Bigha amounting to Rs, 18,962 ?
(5) Whether the plaintiff is entitled to recover an amount of Rs, 50,000 as compensation on account of the fact that the defendant had dug pits in the suit land ?
(6) Whether the plaintiff is entitled to recover any compensation for the period spent in the trial and upto the satisfaction of the decrees ?
(7) Whether the suit is barred by time ?
(8) Relief.
' The learned trial Court held on issue No, I that the appellant had failed to prove her ownership of the suit land. Therefore, the issue was decided against the appellant. On issue No, 2, it was held that no notification under section 6 of the Land Acquisition Act had been issued, therefore, the issue was decided against the defendant/respondents. On account of decision on issue No, 1, issue No, 3 about recovery of possession was decided against the appellant. As regards issue No, 4 about compensation, it was decided against the appellant, so also issue No,
5. In view of the decision on issue No, 1, issue No, 6 was also decided against the appellant. As regards issue No, 7 as to whether the suit was barred by time, it was decided against the defendant/respondent. The suit was finally dismissed vide the judgment and decree mentioned above.
' Hence this Regular First Appeal.
2. During the pendency of the appeal, the appellant has filed an application under Order XLI, rule 27 for additional evidence and it is stated on her behalf by her learned counsel that two original registered sale-deeds in favour of the father of the appellant to show the ownership of the appellant were attached with the plaint but those were not got exhibited by omission and so also the Jamabandi for the year 1958-59. The learned counsel submits that these documents may be read in the appeal. He has also submitted that the first two documents have been referred in the judgments inter partes which been exhibited as P.
2. Consequently, no prejudice is likely to be caused to the defendant/respondents. He has placed reliance on Nathe Khan v. Mst. Rehmat Bibi and others (1).
3. On merits the learned counsel for the appellant has contended that besides the original sale- deeds the judgment inter parses Exh. P. 1 wherein it is clearly mentioned that the land in dispute formed part of land purchased by the appellants father and vests in her, the averments made in the plaint about her ownership were not specifically denied in the written statement. Further, that it has never been the case of the defendants/respondents that the appellant was not the owner of the land in dispute. On the other hand the defendants/respondents have been negotiating with the appellant about the price and compensation about the land in dispute. It is also submitted that the attorney of the appellant, Noor Muhammad appeared as P. W. 5 and stated that the land in dispute vested in the appellant. Not only there is not rebuttal but the defendants/respondents, themselves produced a witness, an officer of their own, Mr. Abdul Qadir, S.D.O. D. W. 1, who clearly stated that "the land of the plaintiff is in possession of the defendant". The learned counsel' has also referred to an application, dated 30th December, 1960 filed by the appellant before the Executive Engineer, Ahmadpur East, containing the description of the suit land. This application was produced by the defendant/respondents themselves and is exhibited as D.
1. The learned counsel submits that the defendant/respondents having relied on this evidence and getting it exhibited are bound by it. The counsel submits that in view of all the circumstances of the case and evidence on record, it was not quite
(1) PLD 1961 (W. P.) B J 96 ' correct for the learned trial Court to hold that the plaintiff/appellant had failed to prove that she was the owner of the land in dispute. The learned counsel submits that this being so and the plaintiff/appellant being the owner of the land in dispute was entitled to its return and so also to recover mesne profits and compensation. In the plaint, the appellant had stated that if the defendants did not want to give up the land, then, they should pay the compensation at the rate of Re. 1 per square foot alongwith 15% thereof for compulsory acquisition and 6% profit. C. M. No, 2 of 1978 was filed on 15th March 1978 for permission to amend the plaint so as to withdraw this offer.
The learned counsel appearing for the appellant has submitted that this offer was made in the year 1964 when the appellant filed the suit and all these years defendant/ respondents have not accepted it, therefore, the plaintiff/appellant is not bound to it and prays to withdraw the same as she is not prepared to part with the land in dispute.
4. The learned counsel who appears for respondent No, 2 has submitted that he does not accept the offer and the question of purchase by the defendants/respondents does not arise. As regards the application for additional evidence, the learned counsel for the respondent has vehemently opposed the same and submitted that Nathe Khan v. Mst. Rehmat Bibi and others relied upon by the learned counsel for the appellant is distinguishable because in that case it was the opposite party than the one who had produced the document which was not exhibited and that had been allowed to refer to the document. But in the present case, it is the appellant who had filed the documents i. e. The two registered sale-deeds and the appellant cannot refer to the same, the documents being not exhibited.
5. Learned counsel for the respondent has vehemently contended that additional evidence cannot be allowed because no party can be permitted to fill in lacuna at the appellate stage. He has referred to Parsotim v. Lal Mohar (1), Muhammad Akbar Khan v. Motal(2), Fazal Hussain v. Ilahi Jan (3), Fateh Muhammad v. Ghulam Sarwar4) and Muhammad Ikhlas v. Muhammad Ismail (5).
Although it is admitted by the learned counsel for the respondent that the land in dispute does not vest in the respondent nor has it paid any compensation therefore to anybody, nor, anybody else than the appellant had ever come forward to claim the compensation, yet, the learned counsel submits the appellant is not entitled to decree for the reason that she had failed to prove that the appellant was the owner of the land in dispute. As regards D-1 produced by the defendant/respondents, the learned counsel has submitted that when it was being produced by the defendants, the learned counsel for the appellant had objected to its admissibility. Therefore the appellant cannot take advantage of the document. It is also submitted that since the document is an application of the appellant, any admission made in it cannot be used by the appellant vide section 21 of the Evidence Act. He has also submitted that the appellant herself did not appear in the witness-box and appearance on her behalf of her general attorney is not sufficient. He has placed reliance on Shah Nawaz v. Nawab Khan (6).
(I) AIR 1931 P C 143 (2) AIR 1948 P C 36
(3) PLD 1974 Lab. 606 (4) PLD 1961 B J 62
(5) PLD 1963 SC 466 (6) PLD 1976 SC 767 ' He has also submitted that if the documentary evidence is withheld by a party, oral evidence to the same effect is of no value. He has referred to Sardar Gurbaksh v. Gurdial Singh (1), Pillai Dongal) and Saeed Sehgal v. Khurshid Hassan (3). The purpose of reference is that documentary evidence regarding the ownership of the appellant having been withheld, oral evidence to the same effect cannot be relied upon. As regards his own witness D. W. 1, the learned counsel has submitted that the witness had not deposed about the suit land when he said that "the land of the plaintiff is in possession of the defendant", and that he had referred to other land of the appellant for which compensation had been paid as mentioned in Exh. P.
2. As regards judgment inter partes Exh. P. 2, the learned counsel for the respondent has submitted that this is of no avail to the appellant for the reason that it was against private defendants who had obtained compensation which the appellant claimed to be entitled to and the Government was not a necessary party and further did not specifically deal with the suit land and reference to the ownership of the appellant to the suit land as well as of no consequence. As regards issue No, 2 about non-issuance of the notification under section 6 of the Land Acquisition Act, the learned counsel concedes that that has been rightly decided by the learned trial Court. As regards issue No, 3 decided against the appellant for the recovery of possession read with issue No, 7 as to whether suit was within limitation which has been decided in favour of the appellant, the learned counsel has submitted that it is open to the respondent to contest the decision on the latter issue that the suit was within limitation because a respondent is entitled to support a decree on a point which had been decided against it, even if no cross-objection has been filed. He has placed reliance on Henry Stanley Ramsden v. S. M. Fazail & Co. (4), Muhammad Tufail v. Barkat Ali (5) and Khairati v. Aleemuddin (6). The learned counsel submits that the suit is clearly time-barred. He has submitted that the claim of the appellant is for possession, mesne profits and compensation for Rs, 5,000. As regards possession, the learned counsel submits that Article 142 of the Limitation Act lays down a period of 12 years from the date of dispossession while the party was in possession. Learned counsel submits that the appellant has not proved that the appellant was in possession when dispossessed. The fact the onus about limitation was on the defendants, the learned counsel submits, is of no effect at this stage because the appellant had to prove her own possession in the year 1952 when it is claimed that she was dispossessed. Learned counsel has referred to Behari Lai v. Narain Das (7), Official Receiver v.
Govindaraju (8), Abdul Hamid Khan v. Inayat Khan (9) and Ram Murti v. Puran Singh (10). It is next submitted that the offer made by the defendant/respondents to pay compensation at the rate of Rs, 1,000 per acre is not to stand in way of the defendant-respondents. As regards relief for mesne profits, learned counsel has submitted that Article 8 of the Limitation Act applied which provided one year from the date when
(I) AIR 1927 P C 230 (3) PLD 1964 SC 598 (5) PLD 1967 Kar. 151 (7) AIR 1935 Lab. 475 (9) PLD 1958 Lah. 99 (2) AIR 1942 Rang. 52 (4) PLD 1964 Kar. 290 (6) PLD 1973 SC 295 (8) AIR 1940 Mad. 798 t10) AIR 1936 Pb. (Rev.) 393 ' acquisition was not completed or from refusal to complete the acquisition. The suit having not been filed within one year, it was barred by time. On issue No, 4, the learned counsel for the respondent has submitted that the compensation claimed at the rate of Rs, 300 per Bigha for mesne profits is not supported by any evidence. The only evidence led is that P. W. 4 who had stated that the annual income from the suit land was Rs, 300 to Rs, 400 per Bigha but he had said so on the ground that he had taken land on lease near the suit land on the same rate. The learned counsel submits that the witness having not produced the document of lease in his own favour, his evidence is of no effect. Learned counsel submits that since the witness had taken the land four years back and only one agreement covered the whole period, therefore, the lease being for more than one year, the document required compulsory registration under section 17(d) of the Registration Act and vide section 107 of the Transfer of Property Act oral evidence cannot be relied upon. As regards this issue as well as No, 5 compensation of Rs, 5,000 for filing up the pits dug on the land in dispute, the learned counsel has submitted that the civil Courts have no jurisdiction in the matter because of section 14 read with section 77(2) of the Tenancy Act which provides that a person who occupies land without consent of the landlord is liable to pay rent and for this only the Revenue Courts have the jurisdiction and not civil Courts. He has referred to PLD 1950 Rev. (Pb.)
1050. The learned counsel has also referred to Article 2 of the Limitation Act providing for a period of 90 days to contend that since the defendant-respondents did not continue with the acquisition proceedings under section 6 of the Land Acquisition Act, therefore, the appellant could bring the suit within 90 days. This having not been done, the suit was barred by time. Learned counsel has concluded by saying that documentary evidence having been withheld, the oral evidence cannot be relied upon. Therefore, the appellant has failed to prove her ownership on the land in dispute.
Hence, her suit was rightly dismissed. Further, that the suit for possession and compensation for mesne profits and filling is barred by time.
6. In reply, the learned counsel for the appellant has referred to paras. 12 to 15 and 21 of the plaint and the reply thereto to contend that it was not case of the defendant/respondents that the land in dispute did not vest in the appellant. On the other hand, the defendant/respondents have been negotiating for settlement of the dispute and negotiation failed only in 1962 and from this date the suit was within limitation as well. Learned counsel has submitted that the appellant claimed compensation for mesne profits to the land occupied by the defendant/respondents from 1952 to 1964 but the claim for compensation can only be made for 3 years prior to the institution of the suit which was 29th May, 1964 therefore, the appellant claims compensation from 1st June, 1961 to the date of the institution of this suit i. e. 29th May, 1964 and upto the time of the decree which may be taken at this stage upto 31st March, 1968 at the rate of Rs, 3,000 per Bigha. This is being done, the learned counsel submits, to avoid a remand or direction for determining the mesne profits from three years earlier than the date of the institution of the suit to the final decree because the litigation has been going on for a long time and if the matter is remanded for this purpose, the appellant shall still remain without being paid the compensation though in the inquiry the appellant could urge that Rs, 300 per Bigba for the compensation was claimed in 1964 and that that must increase with the passage of the time every year till the date of decree but the claim for this excess is being given up for conclusion of the prolonged litigation.
7. We have been taken through the entire record by the learned counsel for the parties. There are some aspects of the case which may be pointed out in the first instance. First is that the land in dispute is not claimed by the defendant/respondents as their own. It is admitted that it has not been acquired by the defendant/respondents. Further, that nobody else than the appellant has ever come forward to claim the land or its possession of the compensation therefor from the defendant/ respondents. The defendants have not paid any compensation to anybody else either.
Secondly, the respondent took possession of the land in July, 1952 in pursuance of a notification, dated 13th March, 1952 under section 4 of the Land Acquisition Act but no further action was taken under the Land Acquisition Act, nor notification under section 6 of the Act was ever issued.
Therefore, the land was never acquired by the respondents. Thirdly, the respondents offered to pay the compensation, although the land had not been acquired by it, at one stage and have also been negotiating for settlement of the compensation for the mesne profits as its purchase from the appellant. In these circumstances, it does not lie in the mouth of the defendant/respondents to say that the appellant is not the owner of the land in dispute. The learned trial Court was clearly in error in holding that the appellant had failed to prove her ownership over the land in dispute. .Besides, not only in a decision of competent Court inter-partes Exh. P. 2 the land in dispute was described alongwith the other land of the appellant to be vesting in the latter, but also the document produced by the respondents Exh. D/1 gave the description of the land in suit as vesting in the appellant. Then, the two registered sale-deeds attached with the plaint though not exhibited can be looked into as held in the Khan v. Mst Rehmat Bibi and others. Moreover, there is the evidence of P.W. 5 Noor Muhammad, attorney of the appellant, that the appellant was the owner of the land in dispute. No rebuttal was offered. On the other hand, there is the evidence of D. W. 1 Abdul Qadir Sub-Divisional Officer, Canal, Ahmadpur East Sub-Division, Ahmadpur East to the effect that "the land of the plaintiff is in possession of the defendant". The learned counsel for the respondent contended that this sentence referred to another piece of land of the appellant. It is not quite correct because the sentence is followed by "we acquired some land adjacent to the land of the plaintiff and with regard to that land award has been given at the rate of Rs, 1,000 per acre, That land and the suit land are situated within the same block and are of the same quality and were acquired at the same time. They received the compensation but the plaintiff refused to obtain compensation". This makes it quite clear that the defendant/respondents' own witness D. W. 1 had clearly admitted that- the plaintiff/appellant was the owner of the land in dispute and that the defendant/respondents had offered the compensation but the appellant had refused to take. The offer of the cornsensation on the basis that the land had been acquired was rejected by the appellant and rightly so because the land had never been acquired as is admittedly the case of the respondents that for the suit land notification under section 6 of the Land Acquisition Act had never been issued. The entire evidence on the record looked together leaves no doubt that the appellant is the owner of the land in dispute and the learned trial Court clearly fell in error to hold that the appellant had failed to prove her ownership. This being so, the next question hotly contested by the learned counsel for the respondent is as to whether the appellant is entitled to decree because of bar of limitation. Besides that this issue was decided against the defendant/respondents and the latter has filed no cross-objection, it may also be noticed that the limitation is being pleaded on the ground that the appellant had failed to prove that the appellant was in possession when dispossession took place. The possession was taken in July, 1952. The suit was filed at the end of May, 1964. Apparently, it would be within limitation but the contention of the learned counsel for the respondent is that the appellant should have proved that the appellant was, when dispossessed in July, 1952 in possession. The contention of the learned counsel for the petitioner is misconceived in so far as that the ownership and the possession of the appellant had been accepted by defendant/respondents when after dispossession, she was being either offered sale price at the rate of Rs, 1,000 per acre, or, negotiations were set afoot for settlement of the dispute. It is too late in the day for the respondent to turn round and say that the appellant was not in possession when she was dispossessed. Similarly, the claim for mesne profits, and, for filing in of the land in question which had been dug by the defendant/respondents the same is not barred because negotiations were being carried on by the defendant/respondents for the settlement of the dispute and the negotiations only failed in 1964. It has also to be kept in view that appellant is a lady and an ordinary citizen of the State. The public functionaries took the possession of her land without any authority of law in them. It does not befit a public authority to resist the claim of the appellant by specious arguments by saying that the appellant had not proved her ownership, even when the defendant/respondents neither claim ownership, nor, say that anybody else than the appellant is the owner, or, that anybody else is claiming ownership, or, compensation for the land occupied by the defendant/ respondents. Nor, it is open to a public authority to enter into negotiation for settlement of dispute with a citizen for a number of years and after failure thereof when the private citizen asks for relief through Court to turn round and say that the claim is barred by time. The limitation would not start unless a cause of action has arisen to a party and in the case in hand the cause of action arose to the appellant in February, 1964, when the respondent finally refused to settle the dispute. From this date, the suit is clearly within limitation having been filed in the end of May, 1964. The Contention raised by the learned counsel for the respondent that the civil Court did not have the jurisdiction but only Revenue Court in view of the provisions of the Tenancy Act referred to by him, it need only to be said that this objection was never raised by the defendant/respondents, nor any issue was struck in that behalf. Moreover,' the contention is bereft of force because the defendant/respondents had taken possession of the land in pursuance of notification under section 4 of the Land Acquisition Act and matters of dispute arising under this Act could not be dealt with by Revenue Court. Only the civil Court was competent to deal with all the matters of dispute between the parties. From the entire evidence on record as discussed above, we are quite clear and certain that the land in dispute vested in the appellant and it being neither claimed by the respondents as their own or having eve acquired it, the respondents being in possession are bound to restore possession to the rightful owner. The respondent had no right whatsoever to keep the land in dispute in its possession. It has no title whatsoever. This being so, the appellant is clearly entitled to a decree for possession and her suit is accordingly decreed. The land was occupied by the respondent in July, 1952. Claim for mesne profits can be mad for 3 years prior to the institution of the suit. This is what the learned counsel for the appellant submits. He has submitted that the appellant is entitled to mesne profits from 1st June, 1961 at the rate of Rs, 300 per Bigha. He has submitted that it is this rate of Rs, 300 per Bigha, on the basis of which compensation for mesne profits were calculated and agreed to by the respondents at one stage as mentioned in para. 14 of the plaint. The rate was not denied in the written statement. Ghulam Sarwar P. W. 1 has been getting the rent at the rate of Rs, 300 per Bigha from WAPDA. His land is 1 1/4 miles from town Ahmadpur East. Allah Wasaya P. W. 4 has taken on lease land for Rs, 300 to Rs, 400 per Bigha. The land he has taken on lease is near the land in dispute and the land in dispute is situated at the distance of 1/2 mile from the town. It is quite obvious that during the course of years, the rate of rent would have increased manifold. The appellant would be entitled to the mesne profits according to the current rates. In order to avoid continuous litigation, the learned counsel for the appellant has submitted that he would claim mesne profits from 1st June, 1961 to the date of decree at the rate of Rs, 300 per Bigha. No evidence in rebuttal has been led by the defendant/respondents. The evidence on the record is sufficient to hold that the rate of rent in early 1960 was Rs, 300 per Bigha.
It would have obviously increased during the course of time. This being so, although the appellant would be entitled to mesne profits at the aforesaid rate gradually increasing with the passage of years but since it is claimed by the learned counsel for the appellant that she would be satisfied if a decree is passed at the rate of Rs, 300 per Bigha as mesne profits, it seems unnecessary to keep her deprived of the compensation claimed and direct enquiry about the mesne profits which can only be more than what is being claimed. In this view of the matter, the compensation for mesne profits at the rate of Rs, 300 per Bigha from 1st June, 1961 till 31st March, 1978 which comes to Rs, 53,125 and claimed by the learned counsel for the appellant, is decreed accordingly. For the filling of the land dug by the defendant/respondents, a sum of Rs, 5,000 was claimed. It would have been enough amount to fill in the pits in the year 1964. More would be needed to do the filling now. But since the learned counsel for the appellant claims the said amount, a decree for Rs, 5,000 on this score is allowed in favour of the appellant. The appellant shall also be entitled to interest at the rate of 6% per annum from the date of institution of the suit to the realization of the aforesaid amounts.
The judgment and the decree of the learned trial Court are set aside and the suit of the appellant is decreed as aforesaid. The appellant shall have her costs throughout.