IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision Application No.S-46 of 2012

Applicants      : E.D.O. Roads Kashmore at Kandhkot & others, through

                              Mr. Abdul Hamid Bhurgri, Additional A.G. Sindh.                

Respondents : Abdul Hafeez Chachar & others, through

                          Mr. Ashique Illahi Sundrani Advocate.

Date of hearing      :  23-01-2023.

Date of decision    :  30-01-2023.

O R D E R

Adnan Iqbal Chaudhry, J.- This revision application by Government functionaries (Defendants) is directed against judgments/decrees dated 23.12.2010 and 29.02.2012 passed respectively by the Senior Civil Judge, Kashmore in F.C. Suit No. 11/2010, and by the Additional District Judge, Kashmore in Civil Appeal No. 04/2011, whereby the Government was held liable to compensate the Respondents 2 to 4 (Plaintiffs 2 to 4) for taking a part of their land for constructing a road, and a preliminary decree was passed to assess such compensation.

2.         F.C. Suit No.35/2009 (F.C. Suit No. 11/2010) was filed against Government functionaries against the construction of a road through the land of the Plaintiffs without taking proceedings under the Land Acquisition Act, 1894.  It was the case of the Plaintiffs 2 to 4 that the road under construction had affected 20 ghuntas of their private land in Survey No.s 52 and 53 of deh Haji Khan, Taluka Kashmore; and that Government officials had also conducted measurements at the private land of the Plaintiff No.1 in Survey No.s 863 and 883 showing their intent to construct the road on that part as well. It was thus prayed that such action be declared contrary to the Land Acquisition Act; that the Defendants be restrained from constructing the road without acquiring the land; that the Defendants be directed to remove the construction material from Survey No.s 52 and 53 and to level the same to its original position; and for damages of Rs.20,000/- for said tortious acts.

On the other hand, the written statement of the Defendants was that the road was being constructed to facilitate the villagers; that the Plaintiffs had never objected to such construction at the initial stage; that the road was being laid over a long-standing katcha path-way which was Government land, and therefore, there was no question of taking proceedings under the Land Acquisition Act.

3.         Given the stance of the Defendants that the road was being constructed on Government land, it was an accepted fact that the underlying land had not been acquired under the Land Acquisition Act. On the basis of evidence recorded, the Courts below concluded that the road in question had been constructed only over Survey No. 53 which was the private land of the Plaintiffs 2 to 4, and thus a preliminary decree was passed appointing the Land Acquisition Officer as commissioner to measure the land affected for assessing compensation at market value.

4.         Heard the learned counsel and perused the record.

5.         Earlier, the Plaintiff No.1 alone had filed F.C. Suit No. 30/2009 on the same cause of action. The plaint of that suit was rejected under Order VII Rule 11 CPC on the ground that though he may be owner of Survey No.s 863 and 883, he was not owner of Survey No.s 52 and 53 which were also subject matter of that suit. Thereafter, the Plaintiff No.1 was given a Power of Attorney by the owners of Survey No.s 52 and 53, viz. the Plaintiffs 2 to 4, and he filed a fresh suit on behalf of all Plaintiffs. In view of Order VII Rule 13 CPC, such fresh suit on the same cause of action was maintainable.

6.         Learned AAG Sindh had submitted that since the Government of Sindh had been sued through the DCO, District Government, Kashmore, that was not compliance with the mandatory provision of section 79 CPC, and thus the suit was not maintainable to begin with as held in Abdul Aziz v. Government of Balochistan (1999 SCMR 16). But the requirement of section 79 CPC is only that the Provincial Government should be sued as ‘the Province’, which was evidently met by suing “Province of Sindh, Revenue Department/DCO, District Government, Kashmore”.  The fact that the Province had been sued through the District Coordination Officer [DCO] had to do with the notice provisions of section 80 CPC and not with section 79. Section 80 CPC provides that in the case of a suit against the Provincial Government, notice is to be given to a Secretary to that Government  ‘or the Collector of the District’. Under section 28(2)(f) of the erstwhile Sindh Local Government Ordinance, 2001, the DCO had also been designated as ‘Collector‘ for the purposes of the CPC. Therefore, there was no defect in suing the Province, and the case of Abdul Aziz cited by learned AAG Sindh has no bearing. In any case, the Province was duly represented in the suit by the DDA who had adopted the written statement of the DDO Roads without taking the objection of sections 79 or 80 CPC.

7.         There is a concurrent finding of fact that the road in question had been constructed through Survey No. 53 which was the private land of the Plaintiffs 2 to 4 and not Government land. That finding is supported by the report of the Mukhtiarkar Revenue, Kashmore (Exhibit 29-A), who had been appointed commissioner by the Court. The Tapedar of the deh had also produced the revenue record to show that Survey No.53 was the private property of the Plaintiffs 2 to 4. He had also produced the map of Survey No. 53 as Exhibit 28C whereupon the trial court observed that it did not show any Government road. The deposition of the DDO Roads, Kashmore had also acknowledged that the road was constructed through Survey No. 53.  No evidence was produced by the Defendants to establish that the road was over Government land. Thus, even if a katcha path-way was previously existing, that did not mean it was over Government land. The learned AAG Sindh was not able to demonstrate any mis-reading or non-reading of the evidence.

8.         The only point required to be considered is whether the trial court could have passed a decree for compensating the Plaintiffs 2 to 4 for the market value of the land when they had not made a specific prayer in that regard, rather they had sought restoration of their land. From the record it is apparent that by the time the trial had concluded, the road was nearly complete, and thus the trial court was not inclined to grant the prayer for restoring the land for that would have entailed uprooting the road which was serving a public purpose. Consequently, after concluding that the Plaintiffs 2 to 4 had been deprived of their property without compensation, the learned trial court moulded the relief sought in the suit to grant compensation for the land.

9.         It has been held by the Supreme Court in Akhtar Sultana v. Muzaffar Khan Malik (PLD 2021 SC 715), and then in Muhammad Farooq v. Javed Khan (PLD 2022 SC 73) “that in appropriate cases, the courts can mould the relief within the scope of the provisions of Order VII, Rule 7 of the Code of Civil Procedure Code, 1908 ("C.P.C."), and are empowered to grant such relief as the justice may demand in the facts and circumstances of the case.” In the latter case, the Supreme Court had approved the moulding of relief by the court below to pass a preliminary decree for assessing market value of land for compensation instead of awarding possession even though no prayer for compensation had been made. In my view, the facts and circumstances of the case in hand had merited the moulding of relief.  Such discretion having been exercised judiciously, I see no reason for interfering. The revision application is therefore dismissed.

                                                                                                                        Judge

Qazi Tahir PA/*