1988 PLP 1095 (MLD)

MUNIR A. SHEIKH, J.--This appeal is directed against the judgment and decree dated 17-9-1984 passed by the Senior Civil Judge, Kasur, on reference under sections 18 and 30 of the Land Acquisition Act, 1894.

2. The facts giving rise to this appeal in brief are that the-land measuring 63 kanals 14 marlas comprising khasras Nos.6140 to 6150, 6165 to 6167, 6177, 6168, 6170, 6171, 6189, 6190 and 6191 was acquired by the Provincial Government through notification No.SV(1)-70-G/58, dated 1'7-8-1959 issued under section 41(1) of the Punjab Town Improvement Act, 1922,, for development scheme prepared under sections 24/28(2). It was, however, admitted by both the learned counsel for the parties that notice prepared under section 30 of the said Act about the framing of the said scheme was published on 17 3-1958. The case of the appellant was that he was a tenant having rights of occupancy over the land comprising khasra Nos.6140 to 6150, 6165 to 6167 and 6177 measuring 48 kanals 11 marlas and over the remaining khasra Nos.6108, 6170, 6171, 6189, 6190 and 6191 measuring 15 kanals 3 marlas he was tenant-at-will whereas the ownership of the entire land was vested in the Provincial Government. The Land Acquisition Collector, Kasur, made an award on 4-11-1970 in which he found that the appellant was not entitled to any compensation in lieu of the land over which he had occupancy rights, for, it was a State land and he being occupancy tenant under section 6 of the Punjab Tenancy Act, no proprietary rights had been conferred on him. He also held that no compensation for the land over which the appellant was tenant-at-will was payable for the same reason, thus the claim of the appellant for grant of compensation was rejected by the Collector. The appellant did not accept the award and made an application under section 18 of the Land Acquisition Act, to the Collector requiring him that the matter be referred for determination of the disputes by the Court. Consequent thereupon a reference under sections 18 and 30 of the Land Acquisition Act, was made to the Senior Civil Judge, Kasur. This was contested by the respondents who filed replies separately. In reply filed by respondent No.1 it was stated that land comprising khasra Nos.6140, 6141 and 6165 was converted into plots which were given on rent by the appellants to Muhammad Shaft. Rehmat Ali and Salahi etc, who raised Katcha buildings thereon and the said tenants had been provided compensation for the said construction and alternative land for raising Jughian. It was also stated that the appellant did not have any building, therefore, he was not given alternative land. It was also asserted that the Land Acquisition Collector was right in not giving any compensation to the appellant as he was a tenant-at- will and the compensation for such land was rightly ordered to be given to the Provincial Government who was the owner of the land. About the assessment of market price of land at Rs.143.22 per marla by the Land Acquisition Collector it was stated that the same was wrongly assessed whereas the price should have been fixed at Rs.64.85 per marla and that the market price, of agricultural land shad never been Rs.300 per marla as claimed by the appellant. The learned trial Court, however, framed the following issues:- (1) Whether the petitioner is entitled to draw the compensation of the property described in the petition? OPP. (2) Whether the compensation awarded by the Land Acquisition Collector vide his order dated 4-I1-1970 :vas inadequate, if so, what should be the compensation for the acquired land? OPP. (3) Whether the petitioner is entitled to recover damages from the respondent No.1, if so, to what extent? OPP. (4) Whether the petitioner is entitled to charge interest to Rs.8%: per annum in addition to the compensation? OPP. (5) Whether the land was acquired compulsorily, if so, was the petitioner not entitled to 25% on the market value in consideration of the compulsory nature of acquisition in addition to the compensation awarded? OPP (6) Relief. Additional Issues: (1-A) What was the market value at the time of notification under section 4 of the Land Acquisition Act? O.Parties. (2-A) Was the petitioner entitled to compensation for structure on the acquired land? OPP, The appellant produced documentary as well as oral evidence. The documentary evidence of the appellant consists of certified copies of mutations of sales P.2 to P.14 and copy of Jamabandi EX.P.15. He also produced six witnesses P.W.1 to P.W.6 and examined himself as P.W.7. The respondent tendered only the documents in evidence from EX.D.1 to Ex.D.4 and except that he did not produce any other evidence. The learned trial Court by its impugned judgment dated 17-9 1984 passed a decree in favour of the appellant for an amount of Rs.1,23,748.62 as compensation to the appellant. Issue No.1 was partly answered in favour of the appellant and it was held by the trial Court that he was entitled to compensation of 7/8th share of the land measuring 43 kanals. Under issue No.2 and additional issue No.1-A a finding has been returned that the market price of the land was Rs.1,07,607.05 at the time of notification under section 4 of the Land Acquisition Act. Issue No.3 and additional issue No.2-A were answered against the appellant and he was found not to be entitled to any compensation on account of damages for loss of structure over the land in dispute. Issue No.4 was left undecided till the decision of the Supreme Court on similar point which was pending disposal in appeal. Under issue No.5 it was held that the appellant was entitled to 15% of the compulsory acquisition.

3. Before we proceed further to consider the grounds for attacking the assessment and quantum of compensation we think it desirable to set out in tabular from just: how the total award was made up by the trial Court:- (i) 7/8 share of the market price of land over which the appellant was found to be having occupancy rights determined under issue No.2 and additional issue No.1-A. Rs.1,07,607.05 (ii) 15% of the said amount of compensation as compulsory acquisition of land determined under issue No.5. Rs.16,141.57 (iii) The claim for loss of construction subject-matter of issue No.3 and additional issue No.2-A. Disallowed. (iv) Claim of compound interest (q) Rs.8% per annum on the amount of compensation awarded, subject-matter of issue No.4. Disallowed. Total amount Rs.1,23,748.62

4. Learned counsel for the appellant challenged the findings of the trial Court on issues No.2 and additional issue No.1-A, issue No.3, additional issue at the relevant time No.2-A and i.e. the publication not notice of scheme eon 17-3-1958 under d section 36 of the Town improvement Act, was Rs.300 per marla and the assessment of compensation by the trial Court at the rate of Rs.143.22 per marla was based on misreading and non-reading of the evidence produced on the record and as such findings on issue No.2 and additional issue No.1-A were not correct. He maintained that while deciding these issues the learned trial Court merely rested its findings on "Ost Bai" Ex.D.4 proJuced by the respondent in evidence whereas the documentary evidence of the appellant from Ex.P.2 to Ex.P.14 has not been considered. He also complained that the appellant was also entitled to compensation in respect of the land which was in his possession as tenant-at-will.

5. In order to appreciate the contention we have examined the entire documentary as well as oral evidence produced by the parties through which we have been taken by the learned counsel for the appellant. Ex.P.2 to Ex.P.12 are the certified copies of the mutations sanctioned on the basis of sales made through registered sale-deeds of different properties from time to time. It may be stated at the very outset that the sales in mutations Exs.P.2, P.3, P.4 and P.7 to P.12 relate to residential houses, therefore, they do not have any bearing upon the matter in controversy between the parties concerning assessment of market price of agricultural land. Ex.P.14 is a copy of sale-deed which is also regarding sale of a house in which even the area of the land over which it was constructed has not been given. Learned counsel for the appellant frankly conceded that this document does not advance the case of the appellant. Ex.P.13 is a sale-deed registered on 17-7-1957 regarding sale of house built upon an area of 5 marlas, therefore, this document also does not advance the case of the appellant. Ex.P.5 is a mutation No.1648 sanctioned on 15-3-1957 on the basis of registered sale-deed dated 22-2-1944 according to which land measuring 7 marlas 45 sq. ft. was sold for Rs.280 and calculated on the said basis the price per marla would come to Rs.40. Ex.P.6 is a mutation No.1649 which was sanctioned on 29-4-1957 on the basis of registered sale-deed dated 16-8-1955 through which an area measuring 7 marlas 45 sq.ft. was sold for Rs.560 and the average price of one marla according to this comes to Rs.80, Learned counsel for the appellant could not convince us as to how due to non-consideration of this documentary evidence the case of the appellant was prejudiced. Even if the market price of the land in dispute is calculated on the basis of mutations produced by the appellant regarding sale of other properties such as Exs.P.2, P.4, P.7, P.11 and P.12 the average price of per marla of the land would be much less than Rs.143.22 as determined by the trial Court. Faced with this situation learned counsel for the appellant then came out with the argument that all the mutations except Ex.P.2 and P.3 pertained to sales made much prior to crucial date of publication of notice on 17-3-1958 under section 36 of the Punjab Improvement Trust Act, therefore, they should not be taken into consideration as they are not relevant for basing the decision on the question of market price of the land on 17-3-1958. This argument has no substance, for, the appellant himself having produced these documents in evidence cannot turn around and say that they may be kept out of consideration and should not be used against him, The evidence produced by a party to a litigation can legally be used against that party. Learned counsel then vaguely argued that according to Exs.P.2 and P.3 which are mutations in respect of sales made on," 3.1-5-1957 and 28-11-1957 respectively it was established that market price of one marla of land was Rs.800. 33 and Rs.400 respectively and this evidence could not be ignored being evidence of the sales made at the time closer to the said crucial date. This argument has not impressed us. Mutations ExS.P.2 and P.3 when scrutinized, revealed that they pertain to sales of houses. Even otherwise there is no evidence brought on the record to establish that the property mutated through these mutations was situated near the land in dispute or that it was of the same quality or similarly situated. Apart from this the appellant has picked only these two sales of the relevant time which suited to his case. It cannot be claimed that on the basis of these two sales only the market price of the land should be determined. Apart from this there is no other evidence produced by the appellant about the price of land except his own statement when he appeared as P.W.7 in which he stated that the market price of the land was Rs.300 per marla. Since the appellant has been belied by his own documentary evidence and there is otherwise no evidence to corroborate, his this assertion, as such the said statement is of no help to the appellant. In these circumstances the learned trial Court rightly proceeded to determine the market price of the land on the basis of "Ost Panj Sala" produced by the respondent as Ex.D.4. Learned counsel for the appellant complained that though "Ost Panj Sala" has been prepared on the basis of 9 mutations of sales sanctioned in the year 1957, actually the said mutations are based on registered sale-deeds of the years 1944, 1945, 1947, 1951, 1948, 1949, 1951 and 1952 respectively. We are afraid the argument is misconceived inasmuch as there is no evidence on record to support this plea. The findings of the trial Court on issue No.2 and additional issue No.1-A determining the market price of the land at Rs.143.22 do not suffer from any illegality as such call for no interference which are, hereby affirmed.

6. Learned counsel for the appellant then argued that the appellant was also entitled to the grant of compensation to the extent of 1/4th of market price of that land which was in his possession as tenant-at-will. In support of this argument he has placed reliance on para.482 of the Land Administration & Management Manual. In order to examine this contention in its true perspective it will be useful to reproduce relevant portion of the said para. For ready reference:- .If an occupancy tenant belongs to the most favoured class, whose rent is limited to the land revenue and cesses plus a Malikana equal to one-eighth of the land revenue it might be argued that the tenant should receive seven-eighth of the compensation. But ;f he belongs to a class which may be required to pay a Malikana equal to three-fourth of the land revenue, his share of the compensation, as measured by the rent he pays, would be one-fourth From a bare reading of this portion of the said para, it is demonstratively clear that it is applicable to occupancy tenants only. There are different classes of occupancy tenants under the Punjab Tenancy Act. The occupancy tenants under section 5(a) arc regarded, the most favoured class whereas there are other classes of occupancy tenants who are required to pay Malikana equal to three-fourth of the land revenue and it was in respect of such classes of occupancy tenants to whom the compensation to the extent of one-fourth of the market price of the land was allowed. Learned counsel for the appellant has not been able to refer any provision of law according to which a tenant-at-will has been conferred any right to claim compensation for acquisition of such land. The occupancy rights have always been considered to be real property and rights in the land itself, which are saleable. On the other hand a tenant-at-will has never been treated to be having any right in the land itself. He can also not under the law sell his rights of tenancy-at-will, therefore, the law-maker in its wisdom did not make any provision for grant of compensation to such tenant in lieu of such land in the E event of its acquisition. Learned counsel for the appellant vainly argued that Para.482 should not be restricted in its application to occupancy tenants alone and a compensation under the said para. should also be allowed to tenant-at-will and it could be taken to have been impliedly permitted under the said para. We are afraid this view cannot be upheld without doing violance to the plain language employed in the said para. of the Manual. There is no warrant for importing the words "tenant-at-will" in the said para. in the same manner in which it is made relatable to occupancy tenants who are made eligible to the grant oft compensation. It was then argued that the intention under-lying the said para. was to grant compensation to all the tenants and not to occupancy tenants alone. The contention is only speculative. There is no such indication thereof in Para.482 itself. The intention is to be gathered from the words used. What is left unexpressed in words is to he taken as not intended. Thus the claim of the appellant that he was entitled to compensation for the land in his possession as tenant-at-will was rightly rejected which finding we also endorse. It is clear from the entries of Fx.D.1 which is a certified copy of Jamabandi for the year 1949-501 that Hameeday Khan deceased predecessor-in-interest of the appellant has been' recorded as occupancy tenant under section 5(a) of Punjab Tenancy Act, 1887, of khasras Nos.6141, 6142. 6143 and 6144. This document has been produced in evidence by the respondent. Ex.P.15 is a certified copy of Register Haqdaran for the year 1973-74 in which the appellant has been recorded as occupancy tenant of . land comprising Khasras- Nos.6140 to 6150, 6165 to 6167 and 6177 under section 1 5(a) as such he was rightly held to be entitled to 7/Rth share of the price of this land as compensation which finding of the trial Court has not even been assailed by the respondent.

7. Learned counsel then maintained that the appellant was entitled to an amount of Rs.2Q,000 claimed by him as damages for the loss of structure over the land in dispute. He questioned the correctness of the findings of the trial Court on issue No.3 and additional issue No.2-A. He pointed out that it was in the evidence of almost all the witnesses of the appellant that there were 11 houses constructed on the land in dispute which were rented out to various persons and the ''rejection by the trial Court of the said evidence merely because it was oral according to him is not justified by law. He also maintained that the finding of the trial Court that the old muddy structure outlived its life is based on conjectures and surmises. We have gone through the evidence produced by the appellant. Basa s/o Boota P.W.1 stated that there werio-10 or 11 houses of the appellant on the land the rent -of which was being received by the appellant. This witness was also a tenant in one of these houses. He has stated that he had been paying Rs.10 per month as rent- of the house in his possession to Hameeday Khan father of the appellant. Dillah s/o Salahi P.W.2 stated that there were 9/10 houses over the land in dispute which belonged -to the father of the appellant. He stated that he had been paying rent to the father of the appellant. In cross-examination by stated that the other tenants in those houses were Chiragh Din, timar, Bakka, Shaft and Khushi etc. who had been paying rent to the appellant. Fazal Din s/o Umar Din P.W.3-who also claimed to be tenant of Hameeday Khan deceased father of the appellant, stated that there were 11 houses over the land in dispute constructed by Hameeday Khan, which were demolished by Improvement Trust, Kasur, through police. In cross-examination he gave the details of the sizes of the rooms. Sher Muhammad s/o Chiragh Din P.W.5 also stated that there were 5/6 houses built upon the land by the appellant for residential purposes which were given on rent to Gujjars and other tenants. Siraj Din Patwari, Improvement Trust, Kasur, who was produced as P.W.6 also admitted that there were 9 rooms over the land in dispute occupied by the tenants of the appellant. Apart from that he also stated that there was one room for Dhobi and another room used as Dera. He also stated that there was "Air" having Pacca construction serving as irrigation channel for the rest of the land held by the appellant. Fateh Din appellant himself appeared as P.W.7 who also deposed about the existence of said construction over the land in dispute at the time of its acquisition. There is no evidence produced by the respondent in rebuttal, therefore, it can safely be concluded that the evidence of the appellant remained unchallenged and unrebutted in view of this evidence on the record the finding of the trial Court that the appellant was not entitled to any amount as damages, on account of loss of this superstructure merely on the ground that the evidence produced by the appellant was oral cannot legally be sustained. Unless law provides it as a mandatory requirement that a fact could only be proved by documentary evidence, the oral evidence to prove a fact is as good evidence as any other kind of evidence and could not be brushed aside merely because it was oral. Under the law in such matters a -judgment can very well be based on such oral evidence if it otherwise established on record the fact which is required to be proved. The finding that muddy superstructure had outlived its utility is also based on mere conjectures and surmises whereas no evidence to this effect was brought on the record by the respondent. From the evidence produced by the appellant as discussed above, which we have examined in detail, we are convinced that the appellant succeeded to establish that he suffered the loss of superstructure standing on the land and his claim of Rs.20,000 as damages in this respect is quite reasonable. It is, at therefore, held that he is entitled to the said amount. The finding on issue No.3 and additional issue No.2-A of the trial Court is hereby reversed and the said issues are answered in favour of the appellant.

8. We have given our anxious consideration to the claim of the appellant regarding compound interest at the rate of Rs.8% per annum on the amount of compensation awarded to him. Section 28 of the Land Acquisition Act, 1894, provides that compound interest at the rat;. of Rs.8% per annum may be awarded by the Court on the amount of compensation in excess of the amount determined by the Collector from the date on which the possession of the lard was taken to the date of payment of such excess amount into Court. It is true that it is discretionary with the Court to award such compound interest but refusal to exercise this discretion according to well-established principles of law is to be made judicially and not arbitrarily. The land of the appellant was acquired in the year 1959. The Land Acquisition Collector, on account of misreading of revenue record and misconception of law did not award any compensation, to the appellant even with regard to the land over which he was occupancy tenant due to which the appellant was wrongfully deprived of his legitimate right of 7/8th share of the market price of such land as compensation. The learned trial Court found him entitled to an amount of Rs.1,23,748.62 which as admitted by learned counsel for appellant as yet has not been paid to him even after the lapse of such a long time. It was admitted by the learned counsel for the respondent that the appellant was even not given any plot under the scheme in lieu of land acquired from the appellant. The appellant was also not given any compensation on account of damages in respect of superstructure which claim was being resisted by the respondent without any legal justification. Keeping in view all these attending circumstances we are pursuaded to hold that it is eminently a fit case for exercise of discretion in favour of the appellant for grant of compound interest as provided in section 28 of the Land Acquisition Act. The finding of the trial Court on issue No.4, therefore, is set aside. The said issue is also decided in favour of the appellant who is hereby held to be entitled to compound interest at the rate of Rs.8% per annum from the date when the Collector took over possession of the' land upto the date of deposit of amount of compensation in the Court.

9. There is nothing on the record as to the exact date on which the Collector took over the possession of land. Learned counsel for the respondent undertook to intimate the Court about the said date after obtaining instructions and examining the official record. We granted him time for this purpose. however, learned counsel and departmental representative when subsequently appeared expressed their inability to say anything about the exact date when the Collector took over the possession of the land as according to them it was not clear from the record: In these circumstances we are left with no option bt1t to determine this point on the basis of whatever material has been brought on the record. Ex.D.2 is the notification dated 17-8-1959 by which the Governor of West Pakistan sanctioned the development scheme for which the land was acquired. The appellant in his statement when appeared as P.W.7 deposed that the possession of the land was taken over in 1959. From this material it can safely be presumed that possession of the land was also taken by the Collector simultaneously with the issuance of notification sanctioning the scheme on 1 17-8-1959 and we hold accordingly.

10. In the result this appeal is partly accepted and the appellant is hereby granted decree in the sum of Rs.1,07,607.05 plus Rs.20,000 plus 15% as compensation for compulsory acquisition totalling Rs.1,46,748.62: He shall also be paid compound interest at the said amount at the rate of Rs.8% per annum from 17-8-1959 upto the date of deposit of the said amount in the Court. The parties are left to bear their own costs. AA./F-59/L Appeal partly accepted.