LAHORE MUNICIPAL CORPORATION Versus ABDUL HAMID
MUHAMMAD ASADULLAH, J.‑‑ This appeal was heard ex parte and was disposed of by us vide judgment dated 9‑2‑1987. The respondents filed C.M. No.1329‑C of 1988, for rehearing of the appeal mostly on the ground that respondents Nos.1 and 2 were insane and could not be proceeded against ex parte. This petition was accepted by our order dated 27‑4‑1988 and the appeal has been reheard.
2. The respondents filed a suit for recovery of Rs.1,19,070 as damages, mesne profits or compensation for use and occupation of the land in dispute measuring 66 kanals and 3 marlas at the rate of Rs.50 per kanal per mensem for a period of 3 years from 1‑1‑1962 to 31‑12‑1964 as also for the future up to the date of decision of the case. The case of the respondents was that they had purchased the land in dispute from various owners through various sale‑deeds and found that the land in dispute was being used by the appellant for dumping night soil, rubbish and garbage etc., but when they asked the appellant to pity compensation to them for its use and occupation they did not pay anything to them. As such they claimed the mesne profit/compensation at tire above mentioned rate for the said period as also for future till the decision of the case. The case was contested by the appellant alleging that the suit was not maintainable in its present form, that a civil Court has no jurisdiction to try the suit; that the respondent; were not owners of the suit land; and that the compensation claimed was excessive. They alleged that the previous owners had leased out the land in dispute to them at the rate of Rs.50 per acre per year for dumping of rubbish etc. and the respondents were not entitled to claim compensation at more than this rate. Following issues were framed:‑
(1) Whether the plaintiffs' suit in the present form is not maintainable? OD.
(2) Whether the civil Court has no jurisdiction to try the present suit? OD.
(3) Whether the plaintiffs are the owners of the suit land? OD.
(4) If issue No.3 is proved what amount of compensation, if any, are the plaintiffs entitled to receive from the defendant? OP.
(5) Relief.
All the issues were decided in favour of the respondents by the learned Civil Judge Ist Class, Lahore and as a consequence the suit was decreed for Rs.4,92 815 with costs. This included future compensation from 1‑1‑1965 to 30‑5‑1974 (the date of decree): This first appeal has been filed by the appellant on the same grounds and allegations as were taken before the learned trial Court.
An additional ground has been taken that the learned trial Court wrongly closed the evidence or the appellant under Order XVII, Rule 3, C.P.C. Record has been perused and the arguments have been heard.
3. The learned counsel for the parties have confined their arguments only to issue No.4. The objection relating to the closing of the evidence of the appellants under Order XVII, Rule 3, C.P.C. has not been pressed.
4. The learned counsel for the appellant has argued that the land in dispute measuring 66 kanals and 3 marlas had been leased to the appellant by the previous owners at Rs.50 per acre per year and the respondents are not entitled to recover any rent or compensation for use and occupation of land in excess of the said rate. Although it is in evidence that the previous owners had leased out the land to the appellant for dumping of rubbish etc. yet there is no evidence on record to show that it had been so leased at Rs.50 per acre per mensem. The learned counsel for the respondents have, however, argued that there is no proof of such lease and, therefore, the respondents are entitled to get compensation or mesne profits as defined in subsection (12) of section 2 of the C.P.C. They contend that it is a tortuous liability of the appellant to pay a fair and adequate compensation to the respondents because the land was used by them as a trespasser and not as a licensee or as a lessee. Therefore, the crucial point to be determined is as to what was the status of the appellant in regard to the occupation of land i.e. it is to be seen as to whether their possession was lawful or illegal. In this respect a reference to para 2. of the plaint is useful. The respondents stated therein that the appellant "has been dumping night soil, rubbish and garbage since some years on this land. The plaintiffs were not aware of this fact at the time of the purchase". This, in fact, is an admission that the appellant was in possession of the land in dispute and was using it for dumping of rubbish etc. since before its purchase by the respondents. Similarly, in para.6 of the plaint they added that "the defendant was called upon several times to pay the amount as rent or damages, or compensation for use and occupation of land". Quoting letter dated 3‑8‑1962 of the appellant they added in the same para. of the plaint that "it was admitted by the defendant that the rent had been paid to the previous owners and that rent will be paid to the plaintiffs on furnishing proof of title by the plaintiffs". This would show that the case of the respondents themselves was that the appellant was a lessee of the previous owners, but they did not come to know of this fact before purchasing the property in dispute. In the written statement in para. 1 thereof the appellant stated that they had taken on lease some land from different persons for dumping night soil and the land in dispute was a part of the land which had been taken on lease by them. They added therein that the respondents were asked to satisfy the appellant about their ownership and they will be prepared to pay the rent. In the corresponding para. of their replication, the respondents did not categorically deny the factum of lease and instead stated that they were not aware whether any land was taken by the appellant on lease from different persons for dumping of night soil. They added in the same paragraph that "it was, however, never disclosed by the vendors that the land had been given on lease to the corporation or that there was any subsisting relationship of landlord and tenant between the vendors and the municipal corporation". The averment of the respondents in para.2 of the plaint, as stated above that they were not aware of the fact that the municipal corporation was dumping night soil etc. in the land in dispute for some years, read with the said averments contained in the written statement and replication clearly shows that the appellant was not a trespasser on the land in dispute and their possession was never illegal either initially or after the purchase of the same by the respondents. The respondents themselves produced letter dated 3‑8‑1962, 1 Exh.P.20, which has also been referred to in para. 6 of the plaint and letter dated 17‑12‑1959, Exh.P.13, which also shows that the appellant was never a trespasser even according to the respondents and was not in illegal possession of the land in dispute. Similarly, in their written arguments filed before the learned trial Court the respondents relied on the said letter dated 3‑8‑1962, Exh.P.20, and admitted that the appellant was ready to pay the rent on furnishing proof of title. Accordingly, the possession of the appellant over the land in dispute was neither as a trespasser nor in any way illegal but was as a lessee .
5. As already mentioned above there is no evidence on record to prove the rate of rent that was payable by the appellant. The respondents have brought nothing on record to establish as to what benefit in terms of money was derived by the appellant or what profit, if any, was made by the appellant. It is in this context that fair compensation for use and occupation of the land in dispute has to be assessed. The provisions contained in the Requisitioning of Immovable. Property Act, 1956, are not applicable to the present case as the property in dispute was never requisitioned. However, the formula for assessment compensation given therein is very useful and in the absence of any evidence to the contrary we have to use the said formula. According to the formula given therein a compensation from 8 to 10% per annum of the initial cost of a property is a fair compensation. We are inclined to follow the said formula. Whole of the land in dispute was purchased by the respondents for Rs.42,458. This is their total investment on the land in dispute. Compensation at 9% thereof comes to Rs.47,446.71 for the period from 1‑1‑1962 to 3‑5‑1974, the period in dispute, and compensation at 10% comes to Rs.52,718.75. In between the same the round figure would come to Rs.50,000. Therefore, we determine the fair and adequate compensation at Rs.50,000 from the period from 1‑1‑1962 to 30‑5‑1974.
6. The appeal is partly accepted. The impugned decree is modified and instead of decree for Rs.4,92,815 a decree for recovery of Rs.50,000 is passed in favour of the respondents and against the appellant. The appellant shall also bear costs throughout calculated on the said decretal amount.
7. If the respondents have realised the decretal amount in excess of Rs.50,000 and the said costs, the said excess amount shall be recovered from the respondents and paid to the appellant by the learned trial Court through execution proceedings.
M.Y.H./A‑354/L Appeal partly allowed.