This second appeal is directed against the judgment and decreed dated 18-11-1984 passed by the learned Addl. District Judge, Sargodha, accepting the appeal of the respondents against the judgment and decree dated 31-3-1981 passed by the learned 061 Judge 1st Class, Sargodha, decreeing the suit filed by Ch. Muhammad Ahsan predecessor-in-interest of the present appellants.
2. Ch. Muhammad Ahsan deceased the original plaintiff filed a suit for declaration that he was occupancy tenant of suit land measuring 124 kanals and 15 marlas and that the suit land was never acquired by the defendants under the law, therefore, the reference, for decision of arbitrator for working not its compensation and all connected proceedings in this regard culminating in the passing of the impugned award dated 30-5-1971 were illegal, without lawful authority, void and inoperative as against the rights of the plaintiff in the land. As a consequential relief a decree for recovery of lease money from the defendants at the rate of Rs.52 per killa from three years preceding the institution of the suit till its decision was also prayed for. The suit was contest- d and on the pleadings of the parties the learned trial Court framed the following issues:- (1)Whether the plaintiff has occupancy right in the suit land?
(2)Whether the suit land has been validly acquired by tile defendants, if so, when and what effect?
(3)Whether the reference of the matter in dispute to arbitrator, the arbitration proceedings and the award dated 30-5-1971 are illegal, void, ultra vires and inoperative as against the plaintiff?
(4)Whether this Court has no jurisdiction to try this suit?
(5)Whether this suit cannot proceed in its present form?
(6)Whether this suit has beck improperly valued for the purposes of court-- fee and jurisdiction?
(7)Whether the plaintiff has no locus standi and cause of action to bring the suit?
(8)Whether the suit is within limitation?
(9)Whether the plaintiff is competent to challenge the award in dispute?
(10) Whether the suit property has been improperly described in the plaint, if so its effect?
(11) Relief.
3. The learned trial Court under issue No.4 held that the jurisdiction of the Civil Court to try the suit was not barred. Issues Nos.1, 3 and 7 were answered in favour of the plaintiff and issue No.2 was answered against the defendants. All these issues were decided together. Under issue No.5 it was held that before the alleged acquisition the land stood requisitioned by the defendants, therefore, the plaintiff was entitled to lease money and they were not required to seek the relief of possession.
Issue No.6 was also decided in favour of the plaintiff and it was held that having established that there was no acquisition of land in accordance with law, he could seek declaration to this effect about these proceedings and ask for recovery of lease money as consequential relief and the suit was correctly valued for the purpose of court-fee and jurisdiction. Issues Nos. 8 and 10 were decided in favour of the plaintiff whereas issue No.9 was held to be redundant. The learned trial Court, therefore, passed decree in favour of the plaintiff through judgment dated 31-3-1981. The respondents filed an appeal against this judgment and decree of the learned trial Court which has been accepted through judgment dated 18-11-1984 passed by the learned Addl. District Judge, Sargodha which has been assailed in this appeal.
4. Learned counsel for the appellants submitted that the plaintiff in the suit challenged the very acquisition of the land and not the award due to insufficiency of compensation determined in the award, therefore, the learned lower appellate Court has illegally held that the remedy of the plaintiff was to file an appeal against the award under Section 19 of the Defence of Indian Act. The findings of the learned lower appellate Court that the Civil Court had no jurisdiction are also based on misconception of law. He also maintained that the findings of the learned lower appellate Court that the suit was barred by time arc also not legally sustainable.
5. I have examined the record with the assistance of the learned counsel for the parties. The respondents did not produce any document on the record to prove that before the acquisition of land any notice was served on the plaintiff. The land was acquired under the provisions of Requisitioned Land (Continuance of Powers) Ordinance No.XIX of 1946. Section 5 of this Act, empowered the Government to acquire such land which had already been requisitioned.
According to this section such a land could be acquired through publication in the official Gazette a notice to the effect that the Government had decided to acquire such land in exercise of powers under -this section. Subsection (2) of Section 5 reads as under:- "When a notice as aforesaid is published in the official Gazette, the requisitioned land shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the appropriate Government free from all encumbrances and the period of requisition of such land shall end."
It is an admitted fact that the land in dispute had already been requisitioned. According to the provisions of Section 5, the acquisition could only take place through publication of notice in the official Gazette and once such a notice was published in the official Gazette the land from the beginning of the day on which the notice was so published was to vest absolutely in the appropriate Government free from all encumbrances and the period of requisition of such land was then to end.
6. The case of the petitioner was that the land was never acquired in, accordance with law, therefore, all the subsequent proceedings including reference to the arbitrator and the award made by him on the assumption that it was acquired land were illegal and of no legal effect and the land continued to be a requisitioned land and had never lost that status. Learned counsel for the respondents could not satisfy me that there is any evidence to prove that any notice was published in the official Gazette on the publication of which only the, land was to vest in the Government absolutely and it had to cease to be; requisitioned land. This being so, even if there was reference to arbitrator and' award made by him it would not have any legal effect on the legal position that, under Section 5(2) as noticed above, the property could not vest in the: Government and could not cease to have status of requisitioned property till publication of notice in the official Gazette. The findings of the learned lower, appellate Court that the appellants' remedy was to file appeal against the award in these circumstances is based on misconception of the true legal position as also' the case of the appellants. It was not a case where award was being challenged; merely on the ground that the compensation awarded was not adequate. The; jurisdiction of the Civil Court was not barred because as a matter of fact the case! Of the appellants as discussed above was that the property remained al requisitioned property and the rights of the appellants as such were not affected as there was no .Valid acquisition. Since the land never stood acquired permanently and vested in the Government, therefore, the period of requisition, did not end and it continued to be requisitioned land. In this view of the matter the act of the respondents regarding appointment of arbitrator and pronouncement of award by him on 30-5-1971 was an act of treating the property; as acquired property which gave cause of grievance to the plaintiffs. It was therefore, on 30-5-1971 on which date they could ultimately feel aggrieved and! Plead that the cause of action had arisen to them on the said &I c. That being so, the suit filed by the plaintiffs on 29-7-1971 was well within time. The rule is firmly established that i!' doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful. Reference may be made to judgment reported as EA. Evans v. Muhammad Ashraf PLD 1964 SC 536. Similar view has also, been expressed in judgment reported as Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. PLD 1965 (WP) Lah.82. And held that where a power is given to do a certain thing in a certain way the thing must be done in that way and other methods of performance are necessarily forbidden. Since the respondents failed to establish publication of notice as required under Section of the said Ordinance, therefore, it was rightly held by the learned trial Court that there was no acquisition of land and the same never vested in the Government and had never lost its status as requisitioned land and as such the rights of the plaintiff were not affected.
7. Learned counsel for the respondents attempted to argue that since it is to be presumed that all official acts are correctly and properly performed, therefore, a presumption should be raised that the property was permanently acquired and vested in the Government and period of requisition came to an end.
8. I am afraid the argument has no force. Once a dispute was raised and it was specifically pleaded that there was no permanent acquisition of land and an issue was framed, it was imperative for the respondent to have, established on the record the compliance of provisions of Section 5 of the Requis4ioned Land /Continuance of Powers) Ordinance XIX of 1946 i.e. Publication of notice in the official Gazette on the happening of which only the property was to west in the Government absolutely and the period of requisition was to end. This provision of law is mandatory and no evidence having been produced on the record in this respect, this question could not be decided in favour of the respondent merely on, the presumption of regularity attached to the official acts.
9. For the foregoing reasons the appeal is accepted, the judgment and decree dared 18-11-1984 passed by the learned lower appellate Court is set aside and that of the learned trial Court restored. The parties are, however, left to bear their own costs.
M.Y.H./M-1211/L