The relevant facts which gave rise to the present regular second appeal are that on 17-11-1966 Khanun, Ghulam Haider and Mst. Rabia, appellants herein, instituted a suit against Ghulam Muhammad respondent for the recovery of Rs.3,729. It was averred in the plaint that the respondent was the owner of 1/3 share in the land measuring 81 Kanals, 16 Marlas detailed in para No.l of the plaint, He sold the said share to the appellants through sale mutations and handed over the possession of the said land to them. Later on the WAPDA through Collector, Gujrat acquired the said land under the Land Acquisition Act. The respondent received compensation for the land which he had already sold to the appellants. He was asked to return the said amount of compensation i.e. Rs.3,729 to which he was not entitled but he refused to accede to the said request. The appellants, therefore, were constrained to institute the suit.
2. The respondent contested the suit and on the pleadings of the parties the following issues were framed:
(1) Whether the suit is maintainable in its present form? OPD.
(1-A) Whether the suit is within time?
(2) Whether the plaintiff was owner of the land in suit and he was entitled to receive compensation from the department concerned? OPP.
(3) Relief.
3. On 23-6-1969 the parties' learned counsel made a joint statement before the learned trial Court wherein the learned counsel for the respondent conceded that the appellants were entitled to receive compensation amount corresponding to land measuring 20 Kanals, 18-3/4 Marlas but he would contest the claim of the appellants with regard to the remaining portion of 6 Kanals, 6-1/4 Marlas. On the other hand, the learned counsel for the appellants gave up their claim in respect of the said area of 6 Kanals, 6-1/4 Marlas. Accordingly the learned trial Court vide judgment and decree dated 26-3-1970 decreed the suit in favour of the appellants to the extent of Rs.2,872.07.
Issues Nos. 1 and 1-A were decided against the respondent while issue No.2 was decided in the terms of the statement dated 23-6-1969. Feeling aggrieved the respondent lodged an appeal challenging the correctness of the findings of the learned trial Court on issues Nos. 1 and 1-A. The learned lower appellate Court vide its judgment dated 17-7-1970 accepted the appeal, set aside the judgment and decree passed by the learned trial Court and dismissed the suit. The appellants have now come up in this Court with the instant regular second appeal which I propose to dispose of by this judgment.
4. The respondent was served in person for 30-11-1992. An intimation for today was also sent to him through registered post card. He has failed to enter appearance and therefore, has been proceeded against ex parte.
5. I have heard the learned counsel for the appellants and have also gone through the record.
6. Findings of the learned trial Court on issue No. 1-A were not assailed before the learned lower appellate Court at the time of hearing of the appeal while the findings on issue No. 2 were confirmed. However, the learned lower appellate Court proceeded to dismiss the suit on the ground that the same was not maintainable in view of the provisions contained in section 18(1) of the Land Acquisition Act, 1894 which reads as follows: "Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested."
7. The learned lower Court was of the view that proper remedy for the appellants was to make an application to the Collector under section 18 ibid within the prescribed time for the recovery of compensation and that a civil suit in this regard was not competent and maintainable. The view taken by the learned lower appellate Court does not appear to be correct for in this case the appellants had not brought under challenge the award given by the Collector. The respondent had wrongly obtained compensation from the Collector to which he was not entitled. The appellants, who were admittedly entitled to receive Rs.2,872.07 as compensation for their land, had sued him for the recovery of the said amount and thus their claim was not hit by the provisions of section 18(1) ibid. Learned counsel for the appellants has submitted that the view of the learned lower appellate Court was not in accordance with the law contained in proviso 3 to subsection (2) of section 31 ibid which reads as follows: "Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto."
He contended that in view of the facts of the case which are admitted by the respondent, a civil suit for the recovery of compensation from the respondent was competent. In support of his assertions he referred to Bago v. Roshan Beg (AIR 1926 Lahore 321). It was laid down in the said case that where compensation had been awarded to .a wrong person contrary to the terms of the Collector's award a civil suit by the rightful claimant was not barred under proviso 3 to subsection
(2) of section 31. This view was reiterated in Syed Iftikhar Ahmad Shah v. Zia-ul-Haq and others (PLD 1967 Peshawar 151 (DB)). Relying on the aforesaid judgments it is, therefore, held that the learned lower appellate Court was not justified in holding that the suit was not maintainable under section 18(1) of the Land Acquisition Act, 1894. Consequently the findings of the said Court on issue No. 1 are set aside and it is held that the suit by the appellants was maintainable. As regards the findings of the learned lower appellate Court on issue No. 2 the respondent has not filed any appeal or cross- objection and therefore, they are confirmed in view of the joint statement of the parties' learned counsel dated 23-6-1969.
8. The upshot of the above discussion is that this appeal is accepted, judgment and decree dated 17-7-1970 whereby the learned lower appellate Court had accepted the respondent's appeal and dismissed the appellants' suit are set aside and the judgment and decree passed by the learned trial Court dated 26-3-1970 in favour of the appellants for the recovery of Rs.2,872,07 against the respondent are upheld. The parties, however, are left to bear their own costs.