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Regular Second Appeal No.195 of 1975, decided on 12th April, 1987.

---S.21(2) [added by Thal Development Act (Amendment) Ordinance (I of 1955)]--Entitlement to retain land--Appellant not seeking to retain land on basis of any formula other than one prescribed by S.21(2) of Thal Development Act, 1949--Courts below had not determined suit on merits--Case remanded to Trial Court for determining question whether appellants were entitled to retain land as claimed under subsection (2) of S.21 of said Act, as amended by Thal Development (Amendment) Act (XIX of 1955) after allowing reasonable opportunity to parties to lead evidence.

Malik Allah Wasaya for Appellants.

Sh. Abdul Majid for Respondent.

Dates of hearing: 14th March and 12th April, 1987.

By this judgment I propose to dispose of two Regular Second Appeals bearing R. S. A. No.195 of 1975 and R. S. A. No.196 of 1975 as the questions of fact and law involved in both these appeals are one and the same.

2. Makhan and others, the appellants in R.S.A. No.195 of 1975, filed a suit for issuance of a permanent injunction restraining the respondent authority from interfering in the possession of the land subject matter of the suit on the ground that the entire land being cultivated one, they were entitled to retain the suit land. It was asserted that the respondent authority acting illegally has allowed much less land in violation of the right of return available under the Thal Development Act.

3. Ghulam Muhammad and others and appellants in R.S.A.No.196 of 1975 filed the suit for the issuance of permanent injunction restraining the respondent authority from interfering with the land owned and possessed by them and defendant No.2. The land has been fully described in the plaint. It was asserted that out of 770 kanals the then E. A. C .O. vide his order dated 15-3-1966 held the appellants entitled to retain land measuring 738 kanals and this order was given effect to in the revenue record vide mutation No.10 of 3rd of October, 1966 and mutation No.74 of 23rd of June, 1967. It was asserted that thereafter notice dated 2-10-1967 issued saying that the appellants were only entitled to retain 364 kanals 7 marlas was illegal and nullity in law. The learned trial Court rejected the plaint in the suit of Makhan and others vide order dated 19-2-1974 observing that the Punjab Validating Ordinance XV of 1971 applied to the case and under the said Ordinance any land or right acquired, or liability or obligation incurred by the Thal Development Authority before the promulgation of the Thal Development (Amendment) Act 1955 is to be deemed to have been validly accrued or incurred as the case may be and as such the appellants were left with no cause of action. The learned trial Court in the aforesaid view of the matter did not feel the necessity of going into the other grievance of the appellants that the authority had wrongly estimated the appellants' uncultivated land. In the other suit the learned trial Court rejected the plaint vide order dated 28-2-1974 observing that under the provisions of section 2 of Punjab Ordinance XV of 1971 all claims for the return of land have been brought to an end and that after the issuance of this Ordinance the owners had no right to claim any such return of the land. It was also added that even otherwise the E.A.C.O. was not competent to pass an order of return of such land.

4. The appellants challenged the orders rejecting the plaints in both the suits by filing two separate appeals. These appeals were dismissed vide two separate judgments and decrees dated 13-3-1975 by Mr. Muhammad Hussain Kazi, Additional District Judge, Mianwali. The learned appellate Court was of the view that with the coming into force of the Thal Development (Validating) Ordinance 1971 all acts done under the Thal Development Act 1949 and invalidated under Ordinance XIX of 1955 were again validated with retrospective effect by the subsequent Ordinance of 1971 and as such any claim for readjustment on behalf of the owners had automatically become infructuous. He, therefore, confirmed the orders rejecting the plaints.

5. Both the learned counsel for the appellants in these two appeals argued that the question whether the act done or the acquisition of land made by the respondent authority stood validated or not was neither agitated before the learned Courts below nor the said question was required to be determined for adjudication of the controversy raised in the suits. It was argued that in these suits the appellants claimed the benefit of slab system as contained in subsection (2) of section 21 added to the Punjab Act XV of 1949 by the Amending Ordinance XIX of 1955 and as such the entitlement for adjustment of land should have been worked out accordingly. It was also the case of the appellants that the calculations made by the officers of the respondent authority were wrong and arbitrary. It was argued that the learned Courts below acted illegally in refusing to exercise jurisdiction vesting in them.

6. Sh. Abdul Majid, Advocate, learned counsel for the respondent authority frankly conceded that the question of validation of the act done or the acquisition of land made by the respondent authority need not be gone into in view of the position taken before this Court by the learned counsel for the appellants. The appellants obviously are not seeking to retain the land on the basis of any formula other than the one prescribed by section 21(2) of the Thal Development Act XV of 1949 as amended. The learned Courts below did not determine the suits on merits. In view of above remand of both the suits to the learned trial Court is necessary for going into the grievance of p the appellants and to determine the question whether the appellants are entitled to retain the land as claimed under the relevant clause of subsection (2) of section 21 of Act as amended. I may add here that the question of entitlement to retain the land as claimed will have to be decided after allowing reasonable opportunity to the parties to lead evidence.

7. For the reasons given above, as the impugned judgments and decrees of both the learned Courts below are not sustainable in law, both are hereby set aside and the suits are remanded to the learned Senior Civil Judge, Bhakkar, for decision afresh in accordance with law. The parties are, however, left to bear their own costs throughout.

M.Y.H./M-195/L Cases remanded.

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