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Petitioner: THE PROVINCE-OF WEST PAKISTAN VS Respondent: ALTAF HUSSAIN SHAH
P L D 1960 (W
P L D 1960 (W. P.) Karachi 958
Before Inamullah and Waheeduddin Ahmad, J
THE PROVINCE‑OF WEST PAKISTAN‑Appellant
versus
ALTAF HUSSAIN SHAH‑Respondent
First Appeal No. 5 of 1957, decided on 14th October, 1960.
Limitation Act (IX of 1908), Art. 39‑Application.
In order to apply Article 39 of Schedule I of Limitation Act 1908, in the first place, it is to be determined if the suit is for compensation for trespass upon immovable property. In the second place, in order to apply the period of limitation of 3 years it is to be determined as to what is the date of the trespass. The period of 3 years would run from the date of the trespass.
Waheed Faroogui for Appellant.
A. K. Chandnani for Respondent.
Dates of hearing : 13thsand 14th October 1960.
JUDGMENT
INAMULLAH, J.‑This is an appeal by the Provincial Govern ment of West Pakistan against the decree passed by the First Class Sub‑Judge, Hyderabad, for Rs. 19,520 as damages with interest at 5 per cent per annum against the appellant. The facts giving rise to the present appeal are these
" The plaintiff‑respondent Altaf Hussain Shah, hereinafter called the respondent, entered into a lease on the 11th December, 1950, with the Governor of Sind for the lease of certain forest land measuring about 339 acres for a period of 2 years at an annual rent of Rs. 19,100 commencing from Kharif 1951‑52. The respondent took a further lease of 170 acres from Govern ment. Both the leases were reduced in writing. They were executed on behalf of the Governor by the Chief Conservator of Forests. The respondent put the land leased out to him under cultivation some time in April, 1951. Suddenly and without any notice to the respondent the Public Works Department gave out that they wished to construct a road which would pass through the land cultivated by the respondent. The respondent moved the Forest Department to prevent the Public Works Department from interfering with the land under cultivation of the respondent. The Forest Department intervened and requested the Public Works Department not to damage the plaintiff's crop. The Public Works Department, however, did not respect the intervention of the Forest Depart ment with the result that they brought heavy machinery and destroyed the crop of the respondent. The standing crop that was affected by the act of the Public Works Department comprised an area of over 30 acres. The crop which was destroyed consisted of cotton. According to the respondent the produce of cotton pods per acre came to 20 maunds. He worked out the damages at Rs. 40 per maund. The res pondent stated that he suffered a loss of 488 maunds valued at Rs. 19,520".
2. On the complaint of the respondent the Chief Conservator of Forests had estimated the loss of the plaintiff at Rs. 14,040 and recommended to the Chief Engineer and Secretary to Government that the respondent should be paid Rs. 14,040. The Provincial Government however by their letter dated the 20th July, 1953, refused to acknowledge the claim of the respondent.
3. The respondent was obliged thereafter to give notice under section 80 of the Civil Procedure Code to the Secretary, Revenue Department, Government of Sind and the Collector of Hydera bad. After the expiry of the term of the notice the plaintiff filed the suit on 11th June, 1955. Though the appellant was served, he remained absent for some reason or the other and the matter proceeded ex parte against him.
4. Mr. Wahid Faruqui, the learned advocate for the appellant, mainly contended before us that the suit was time barred. He relied on Article 39 of the Limitation Act in support of his contention that the suit was time‑barred. It would be useful to reproduce Article 39 of the Limitation Act which runs as under
Description of suit.
Period of Limitation
Time from which period begins to run.
39. For compensation for trespass upon immovable property.
Three years
The date of the trespass.
In order to apply Article 39, in the first place, it is to be determined if the suit is for compensation for trespass upon immovable property. In the second place, in order to apply the period of limitation of three years it is to be determined as to what is" the date of the trespass. The period of three years would runt from the date of the trespass. We propose to consider these two questions separately.
5. A perusal of paras. 7 and 8 of the plaint would show that the case of the plaintiff‑respondent is one for compensation for trespass upon immovable property. It is stated in para. 7 of the plaint that inspite of the intervention of the Forest Department, the Public Works Department "without any notice whatsoever to the plaintiff moved their machinery and machines in the compartments and completely destroyed the standing crops of compartments C‑2 and C‑3 and damaged an area of 14 acres and 4 Ghuntas and also damaged an area of 6 Ghuntas in compartment No. 3 and also destroyed standing crop in an area of 16 acres and 8 Ghuntas in compartment No. 8."
On the basis of the damages stated in para. 7 of the plaint the respondent claimed in para. 8 of the plaint that he suffered a loss of 488 maunds of cotton pods valued at Rs. 19,520. It is clear from the statement in the plaint that the case of the plaintiff was for compensation for trespass upon immovable property.
6. The next question that requires consideration is the date of the trespass. The respondent has no doubt cleverly avoided to mention the date of trespass in the plaint except the bare statement of fact that the Public Works Department of the appellant destroyed the crop of the respondent. It would however appear from Exh.42, a letter from the Chief Conservator of Forests, Sind, to the Chief Engineer and Secretary to Government, Lower Sind Barrage, Karachi, dated the 12th June, 1952, that the trespass upon the land of the respondent was committed in October and November 1951. Another letter by the Chief Conservator of Forests, Sind to the Secretary to Government, . Lower Sind Barrage, Karachi dated the 21st April, 1953, Exh. 45, would also show that the trespass was committed in October and November, 3951. The respondent Altaf Hussain Shah in his statement before the Court stated as under
" I started cultivation from April 1951 to June 1951. I had cultivated cotton pods. I did not receive any notice from P. W. D., about construction of a road in Compartments 2, 3 and 8. I came to know on 16‑10‑1951 when machines and bulldozers came on the land and tried to dig the land to con struct the line channel." ..
The above statement of the respondent would show that the trespass took place some time in October, 1951. The admitted position. therefore appears to be that the trespass upon immovable property of the respondent took place some time in October or ac the latest in November, 1951. The period of limitation of three years therefore would begin to run from November, 1951 that is from 30th of November, 1951. The suit was filed on the 11th June, 1955, The suit, on the statement of facts that we have liven above, is beyond three years. Mr. Din Muhammad who had appeared for the respondent on the 13th of October 1960, conceded that Article 39 of the Limitation Act applied. As Mr. Din Muhammad had not concluded his argument on the 13th, Mr. Chananani appeared for Mr. Din Muhammad on the following day and contended that Article 1 16 of the Limitation Act applied and not Article 39 Article i 16 of the 1‑imitation Act runs as under
Description of suit.
Period of Limitation
Time from which period begins to run.
116. For compensation for breach of a contract in writing registered.
Six years
When the period of limita tion would begin to run against a suit brought on a similar contract not registered.
Even if it be conceded that the agreements were registered ones, the suit cannot be said by any stretch of imagination to be for compensation for a breach of contract. The suit is clearly for compensation on the basis of trespass upon immovable property and not for breach of any contract.
7. For the reasons given above, we would allow the appeal but would make no order as to costs in the circumstances of the present case.
K.B.A.
Appeal accepted.