W.P No. 577-M of 2021 Assistant Commissioner Khwazakhela and others Vs Muhammad Rashad and another

Peshawar High Court · 2023

Suit for declaration under section 42 of the Specific Relief Act 1877 and the suit under section 13 of Khyber Pakhtunkhwa removal of encroachment of public property Act 1977, distinction. No doubt, the plaintiff/respondent No.1 approached to the civil Court through his suit wherein besides declaration, perpetual injunction, he has also prayed for cancellation of notice issued to him by petitioner No.1 for removal of alleged encroachments, as such, there were two distinct reliefs: one was to be dealt with u/s 11, 12 & 13 of the Act of 1977 for which the civil Court could not grant a decree for cancelation of notice under the provisions of the Act of 1977, as such, the petitioners to that extent has rightly submitted the application for return of plaint to the respondent No.1, however, his suit for rest of the reliefs such as grant of declaration that the disputed khasra number was the sole ownership of the father of the plaintiff/ respondent No.1 and he, being his legal heir, is exclusive owner with the prayer that entries in the revenue papers are incorrect against his rights requires rectification and perpetual injunction restraining the petitioners from altering the nature of the suit property and lastly for compensation of the damages caused to his construction, were not the domain of the Tribunal in view of principle of Farid and others’ case (supra). This Court was right in acceptance of Writ Petition No.2- M/2016 but the directions could only be given for return of plaint to the extent of notice challenged through suit by the respondent No.1 before the civil Court whereas for remaining reliefs, the civil Court had got ultimate jurisdiction u/s 9 of the C.P.C qua the relief u/s 42 of the Specific Relief Act, 1877, thus, it appears that the Single Bench of this Court in said writ petition was not properly assisted by the then petitioners for return of plaint in respect of all the reliefs in view of the dicta laid down by the apex Court in the cases of supra case

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