2005 PLP 2910 (YLR)

SYED SAKHI HUSSAIN BUKHARI, J.

Reference under section 18 of the Land Acquisition Act, 1894, filed by the appellant, challenging the compensation awarded to him for his land, has been dismissed by the learned Senior Civil Judge, Lahore vide judgment dated 23-6-1996.

2. Briefly stated the facts of the case are that, the land measuring 10 Kanals and 124 sq. feet, situated at Allama Igbal Road, Lahore, was owned by the appellant, wherein, he established a school (Mian Iqbal Hussain High School). This school was acquired by the Education Department, Government of Punjab and a Notification under section 17(4) of the Land Acquisition Act, 1891 was issued on 3-8-1989, the award of the land by the Land Acquisition Collector, was made on 11-10-1989, whereby, the appellant was allowed compensation of the land @ Rs.50,000 per A Marla, whereas, the entire superstructure, raised thereupon, was assessed at Rs.2,73,

000. Dissatisfied with the above, the appellant filed reference under section 18 of the Land Acquisition Act, 1894, claiming compensation for the land at the rate of Rs.1,00,000 per Marla and for the superstructure Rs.35,00,000.

3. Reference was contested by the respondents and the following issues were framed:-- (1) Whether the reference is not maintainable under the law? OPR. (2) Whether the reference is pre-mature? OPR (3) Whether the reference cannot be looked into in view of preliminary Objections Nos.3 and 4 of the reply to reference? OPR (4) Whether the reference is barred by limitation ? OPR (5) What is the market value of the property acquired by the respondent No.3? OPA (6) Relief.

4. The parties were put to trial. The appellant examined himself as A.W.1 and produced Sajid Nizami, Property Dealer as A.W.-2 and Muhammad Ashraf, the Architect as A.W.-3. He also produced copy of Mutation No.1850 dated 31-5-1988 (Exh.P-2) through which, the appellant wanted to establish that the land measuring 1 Marla and 14 sq. ft. abutting to the same road i.e. Allama Iqbal Road, Lahore, was sold for Rs.1,60,000, similarly, Mutation No. 1942 dated 3-4-1989 (Exh.P-3) indicates sale of land measuring 3 Marlas and that its price is Rs. 1, 12,

500. After the trial, the learned Senior Civil Judge dismissed the reference of the appellant. Hence this appeal.

5. We have heard the learned counsel for the parties and perused the record.

6. Learned counsel for the appellant contends that the learned Court below has misread the evidence on the record, particularly, the documentary evidence. It is submitted that the land measuring 1 Marla and 14 sq. ft., was sold through Mutation No.1850 (Exh.P-2), whereas, the learned trial Court has misread and has stated, if such sale was for 6 Marlas and 36 sq. ft., whereas, same misreading has occurred with regard to other mutation (Exh.P-3) which was for the sale of 3 Marlas but the Court has misread it as being 9 Marlas and 5 sq. ft. thus, on account of this serious misreading of the documentary evidence, which was the most material piece of evidence, as it proved that the claim of the appellant was genuine and impugned judgment is liable to be set aside. Also that P.W.-2, who is the property dealer of the vicinity and the architect P.W.-3, have supported the version of the appellant and this evidence has gone unrebutted, therefore, the Court below should have allowed the claim of the appellant. In support of his contentions, as to what should be the criteria for the grant of compensation by the Court, the learned counsel for the appellant has relied upon the following judgment:-- (1) Shaukat Ali and 18 others v. Land Acquisition Collector, Rawalpindi and 13 others (1998 SCMR 395) (2) Abdul Samad Khan and others v. Project Director, Mardan Development Authority, Mardan (2001 CLC 33) (3) Malik Aman and others v. Land Acquisition Collector and others (PLD 1988 SC 32) (4) Pakistan Burmah Shell Ltd. v. Province of N.-W.F.P and 3 others (1993 SCMR 1700) (1993 SCMR 1186) (5) Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others (1992 SCMR 2342) (6) Land Acquisition Collector, Rawalpindi and others v. Dina and others (1999 SCMR 1615) (7) Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245) (8) Muhammad Saeed and 78 others v. Collector Acquisition Land Mansehra and 3 others (PLD 1996 Peshawar 22) (9) Land Acquisition Officer, Badin District v. Pir Altaf Hussain Shah and 2 others (1994 CLC 160).

7. Learned counsel for the respondents has argued that the appellant had never filed any objection during the proceedings of the award; besides the appellant when appeared as P.W.-1, has not tendered Exh.P-1 to Exh.P-3 in his affirmative evidence, rather without reserving the right of rebuttal the documents have been tendered in evidence through the statement of the counsel. It is further submitted that mutations (Exh.P-2 and Exh.P-3) cannot be taken as best evidence about the price, because the actual and the direct evidence was the sale-deeds, which have not been presented and the appellant is thus, of withholding the best evidence, therefore, the presumption under the provisions of Article 129(2) Qanun-e-Shahadat Order, 1984 should be drawn against him.

8. We have considered the submissions made by learned counsel for the parties with care. As mentioned above, the appellant was owner of suit-land and the same was acquired by the respondents for the school and awarded him compensation at the rate of Rs.50,000 per Marla. However, the case of appellant is that at the relevant time market value of the suit-land, was Rs.1,00,000 per Marla, therefore,-he should be allowed the same. The appellant examined A.W.-2 Sajid Nizami, who stated that he was a property dealer and suit-land was situated near his office and that at the relevant time market value of the same was Rs.1,00,000 per Marla. During cross-examination, he stated that at the time of award, Government had fixed the market C value in the locality @ Rs.50,000 per Marla. He further stated that Government fixed the prices after survey of the area but the same was below actual price, A.W.-3 Muhammad Ashraf, produced report (Exh.A.W.-3/1). The appellant also produced copies of Mutations Nos. 1850 (Exh.P-2) and 1942 (Exh.P-3) in support of his version. On the other hand, respondents examined R.W.-1, Ch. Muhammad Tariq Councillor, who stated that suit property was adjacent to his residence. He further stated the suit property was below road level and that in 1988 value of the same C was Rs.40,000 per Marla. R.W.-2, Nasir Mehmood, stated that in 1988, value of the suit property was Rs.35 to 38 thousand per Marla. These witnesses are residents of the same locality and had no enmity with the appellant. Their statements are convincing and confidence-inspiring. R.W.-3, Naseer Ahmad, and R.W.4, Shaukat Ali, produced documents (Exh.R-1 to EXh.R-4). It is clear from the material available otl record that at the relevant time market value of the suit property was not more than Rs.50,000 per Marla. As stateu above, A.W.-2 (Sajid Nizami) too admitted in cross-examination that Government had fixed the market value at the same rate. So, compensation awarded by the respondents is proper. The case of the appellant is that Mutations Nos. 1850 and 1942 (Exh.P-2 and Exh.P-3) show that some owners sold land in the same locality for a higher price, therefore, the appellant was not awarded adequate compensation. The perusal of said mutations shows that land measuring' 1 Marla, 14 sq. ft. and land measuring 3 Marlas was transferred by the owners but these documents do not indicate that whether land was being used for residential or commercial purpose. The appellant has 1r) not produced registered sale-deeds on the basis of which said mutations were sanctioned. So, it is not clear whether the properties transferred through said mutations were buildings or the same were in the shape of plots, hence, the same have no value. In these circumstances, we find that the appellant has failed to produce any worthwhile evidence in support of his claim. The cost of superstructure was assessed by XEN, Provincial Buildings Department. As such, compensation awarded by respondents is proper and finding of learned trial Court on Issue No.5 is affirmed. In the circumstances of the case, learned Senior Civil Judge has rightly dismissed the reference, brought by the appellant. There is no illegality or infirmity in the impugned judgment, therefore, there is no justification to set aside the same.

9. The upshot of the above discussion is that this appeal has no merit and the same is accordingly dismissed. No order as to costs. M.I./A-110/L Appeal dismissed.