P L D 1983 Peshawar 147 (PLP)

FAZAL ELAHI KHAN, J.‑‑This Regular First Appeal is directed against the judgment and decree of the learned Additional District Judge, Hairpur dated 19‑7‑1975, whereby the objection petition of the appellants for the reclassification of their land and enhancement in compensation was partly accepted.

2. The relevant facts briefly stated are that land measuring 9,756 kanals 11 marlas out.of land measuring 15,451 kanals 13 marlas of the Revenue Estate of Momaya, Tehsil Haripur was acquired for public purpose at public expense for the construction of Tarbela Dam Reservoir Notification under section 4 of the Land Acquisition Act was published in the official Gazette on 2‑5‑1967. This included the land of ‑the appellants measuring 73 kanals 14 marlas bearing Khasrao"Nos. 594 and 595.

3. After the completion of all the legal formalities and publication of the relevant Notifications, objections were called for, if any, from the owners of the property so acquired.

4. On the basis of the evidence produced by the Acquisition Department as well as some of the owners, who appeared before him, the learned Acquisition Collector assessed the compensation to be awarded to the land owners vide his Award No. 40 dated 15‑2‑1973. The learned Collector assessed the compensation of the relevant type of land as under :‑ Rs. "(1) Chari Aabi Chahi ... ... 1,128.50 P. K. (2) Chari ... ... 553.28 P. K. (3) Rakkar ... ... 94.05 P. K. The learned Collector treated the land of the appellants as Rakkar type of land and awarded the compensation accordingly.

5. The present appellants, having not accepted the award, made an objection petition under section 18 of the Act for making a reference to the Acquisition Judge, for reclassification of their land and for the assessment ref the compensation on the enhanced rates.

6. On a reference being made and on the pleadings of the parties the learned Additional District Judge framed the following issues :‑ "(1) Whether Khasras Nos. 594 and 595 owned by the objectors have wrongly been classified and undervalued, if so, what is the correct classification of these Khasra numbers and fair compensation ? (2) Whether objectors failed to respond to the notices given to them under sections 9 and 10 of the Land Acquisition Act, if so, its effect ? (3) Relief."

7. In support of the objection petition Muhammad Banaras, Patwari Halqa was produced as O. W. 1, who placed on the file Exh. O. W. 1/1 the copy of Khasra girdawarl for the period 1969 to 1971, copies of Aks Shajra Kishtwar, and Ost Yaksala for the period 3‑5‑1966 to 2‑5‑1967, Exh. O. W. 1/2 and Exh. O. W./3 respectively. Muhammad Bashir, Girdawar Land Acquisi tion Collector produced the report of the Girdawar and Tehsildar, pertaining to the disputed Khasra numbers which they had made on the application submitted by the objectors which is Exh. O. W. 2/1. Muhammad Babar, Overseer O. W. 3 deposed with regard to the residential property. Haji Amir O. W. 4 and Muhammad Ishaque O. W. 5 supported the objection petition. The claim of the objectors before the Land Acquisition Judge was that the land in dispute is Chari Abi type of land and that they are entitled to the compensation assessed by the learned Acquisition Collector for Chad Abi type of land as assessed in the award.

8. On the evidence so recorded and the documents placed on the file the learned Acquisition Judge was of the opinion that the learned Collector has wrongly classified the land of the appellants as Rakkar type of land. However he did not accept the contention of the objectors that their land is Chai Abi type of land. On the evidence referred to above he held that the land of the objectors is Chari type of land as there was no evidence to show that the same was irrigated or had any other source of irrigation. In this view of the matter he 6assessed the compensation at the rate of Rs. 553.28 per kanal and held that the objectors are entitled at that rate for their acquired land.

9. However before the arguments could be addressed by the learned counsel for the appellants, Muhammad Rafique Awan the learned counsel for the respondents raised a preliminary objection to the maintainability of the present appeal on the ground that the memo. of appeal filed in the Court was and is deficiently stamped. The learned counsel referred to the relevant column of the memo of appeal as well as the prayer made therein the enhancement has been prayed for to the tune of Rs. 2,00,

000. The court‑fee fixed on the memo. of appeal is Rs. 2,213.75. It was further urgued that on 13‑7‑1976 when the appeal was presented in the office it was pointed out to the learned counsel for the appellant that the appeal was deficiently stamped. In spite of this fact having brought to the notice of the learned counsel he refused to make up the deficiency by resubmitting the appeal with a note that the court‑fee affixed is correct. Yet again on 3‑8‑1976 when the appeal was returned to the appellants that the deficiency in the court‑fee may be made good, no step was taken to the needful, rather the learned counsel insisted that he has correctly affixed the court‑fee leviable. The learned counsel, therefore, contends that this is a case of extreme negligence on the part of the appellants which calls for serious note entailing dismissal of the appeal as incompetent.

10. Faced with this difficulty the learned counsel for the appellants requested this Court to allow him to reduce his claim/prayer in the memo. of appeal to the amount for which the court‑fee has already been paid. Both the learned counsel for the parties referred to chain of authorities for and against in support of their respective point of view.

11. The first question requiring determination iii this appeal is whether in the circumstances of the case the appeal is to be considered incompetent and is to be dismissed in toto or the same can be heard and decided for the reduced claim, as prayed for by the learned counsel for the appellants.

12. In Mst. Walayat Khatoon v. Khalil Khan (PLD 1979 SC 821) in suit for specific performance, when time was granted to the plaintiff to make up the deficiency in the court‑fee and in spite of that the deficiency was not made good their Lordships observed "In spite of this the plaintiff failed to comply with the order within time for any valid reason". The petitioner thereafter filed a Regular First Appeal in the Lahore High Court and valued it for the purposes of jurisdiction at Rs. 64,607 and for the purposes of court‑fee Rs. 18,860 on. which court‑fee of Rs. 1,419 was paid. When objection was taken at the hearing of the appeal regarding deficiency of court‑fee paid by the appellant the explanation given by the learned counsel that the deficiency was due to the mistake of the clerk who pecked up the schedule to find out as to how much court‑fee is leviable, was not accepted and the appeal was dismissed and the extension of time was refused for valuable right bad accrued to the respondent. In the Supreme Court leave to appeal was refused and it was observed by their Lordships ("there is no reasonable explanation as to why the appeal was undervalued for the purposes of court‑fee when for the purposes of jurisdic tion it was valued at Rs. 64,607). This under valuation of the appeal for the purposes of court‑fee was not inadvertent but deliberate and the explanation given that the court‑fee was at the old rate was paid hardly fixed with this device". Consequently the petition was dismissed.

13. In Ahmed Bakhsh and others v. Khurshid Akbar Khan and others (P L D 1978 Lah. 838), wherein after the decree for pre‑emption passed in favour of the plaintiff on payment of Rs. 22,000 though the claim of the plaintiff was that Rs. 10,000 has been fixed and paid in good faith as a sale consideration, he appealed against the decree of the learned District Judge only in respect of reduction of the sale price. On an objection raised to the effect that the appellant should have paid the court‑fee on the value of the difference he had claimed in appeal and not at the value of the subject‑matter lie had fixed in the suit. The prayer for the extension of time to make up the deficiency in court‑fee having been refused the appeal was heard on merit and it was held that the amount on which the suit had been decreed was the price fixed and paid in good faith and dismissed the appeal. However as the order of deposit of the disputed amount was stayed by the appellate Court, while dismissing the appeal the learned District Judge directed the decree holder to deposit the balance amount before 4‑2‑1976. On an appeal to the High Court by the vendees it was urged that the memo of appeal being deficiently stamped was not a proper memorandum of appeal, the learned District Judge had no jurisdiction to entertain the appeal and pass the decree allowing further time to the petitioner to deposit the pre‑emption money. It was held as under :‑ "It is true that the plaint of memorandum of appeal cannot be treated as properly presented so long as proper court‑fee is not paid, and in the instant case, the appeal prima facie maybe deemed to have not been instituted until the deficiency was made up, but a question would arise whether there was no valid appeal at all before the learned Additional District Judge where he could decide the issues on merits and, pass order directing the pre‑emptor to deposit pre‑emption money by a date fixed by him. Since the pre‑emptor wanted to get the sale price reduced, he had a discretion to appeal either to the extent of the entire subject‑matter or a part of it. In the circumstances, it is not a case where the pre‑emptor's appeal before the learned Additional District Judge was altogether unstamped. He wanted the reduction of the sale price and for that he had made an appeal valuing at Rs. 6,398.45 and paid court‑fee of Rs. 427.12. It means that although the appeal of the pre‑emptor did not represent the entire amount, yet it was not invalid totally. He was, however, entitled to have his appeal heard' for the reduction of the pre‑emption money by the amount for which court‑fee had been paid." In Mehmood v. Muhammad Siddique (1979 C L C 539), a pre‑emption suit was filed with the deficient court‑fee. However the deficiency having been made good after a date fixed by the Court for making good the deficiency a decree for possession by pre‑emption having been challenged before the District Judge, resulted in dismissal of the suit by accepting the appeal holding that the plaintiff did not take any step during the period of limitation to get "Fard Khalis Munafa" and pay proper court‑fee at the time of the institution of the suit. On a further appeal to the High Court by the plaintiff and prayer made for the grant of partial decree his Lordship held : "If a decree for partial pre‑emption is passed in favour of the appellant, there will be a practical difficulty in executing the same. To obviate the possibility of passing unworkable judgment and decree it was not possible to grant partial relief to the appellant."

14. After going through all these authorities referred to above and some others cited at the bar which need no discussion, we are of the view that distinction is to be drawn in cases where the Court could grant effective and executable decree without any difficulty and cases in which no workable effective and partial relief can be granted. We get support of this view from cases cited above. Mst. Walayat Khatoon v. Khalil Khan and Mehmood v. A Muhammad Siddique are the cases for the specific performance of an agreement to sell and of possession by pre‑emption of land in question. In both these cases no effective executable decree could have been passed without difficulty. However courts have in other cases where there was no such impediment in their way allowed the appeal to proceed partially to the extent of the prayer for which court‑fee had been levied at the relevant time.

15. The close comparison of the situation like the present one and the one arising at the abatement of the suit or appeal, courts have always drawn distinc tion where the suit or appeal were held to abate in toto and in cases in which it was held that the same abates partially. In fact same principle could apply in arriving at a decision whether the appeal is to be held incompetent for deficiency in court‑fee in toto or it can be heard and disposed of for the part of the claim fur which court‑fee is levied. Thos‑, categories of cases in Wall and others v. Manak Ali and others (PLD 1965 SC 651), where their Lordships have enumerated for holding that the suit is to be abated in toto. Their Lordships have further observed as under :‑ "The second observation to be made is that the order of dismissal of suit or appeal against the living defendants or respondents (we would avoid use of the expression "total abatement") will be justified only if it becomes impossible to proceed with the suit or appeal on account of its abatement as against the deceased party. Law favours adjudica tion on merits for a failure to so adjudicate means a refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuperable practical obstacle preventing it."

16. In this view of the matter and for the ends of justice specially when the appellants have already paid court‑fee to the tune of Rs. 2,213.75 we allow the appellants to reduce their prayer for the enhancement to the amount for which court‑fee is already paid. He is further allowed to withdraw and abandon his claim for the excess amount for which no court‑fee was paid in. time.

17. Having decided the maintainability of the appeal, the appeal on merits becomes very simple.

18. The learned Additional District Judge having held that the classi fication of the land by the learned Collector was wrong, which he rightly held and which finding has not been challenged by the respondents, the next question will be the rate at which the appellants were entitled to the compensa tion of their land.

19. The learned counsel for the appellants referred to the decision by the Additional District Judge arising out of the same award namely Maulvi Muhammad Ishaq and others v. WAPDA decided on 17‑6‑1975 (Objection Petition No. 19/4 of 1975), wherein the compensation for Chari type of land has been awarded at Rs. 1,789.86 per kanal. However from the perusal of the objection petition as well as the statement of Amir Khan, recorded by the learned Additional District Judge, he claimed that the land is Chari and Chahi type of land for which they are entitled to be paid compensation at the rate fixed for such type by the learned Collector in his award. The amount of compensation fixed for Chari Chahi type of land in the award is Rs. 1,128.50 per kanalas referred to above. The argument of the learned counsel, that the appellants be held entitled to the amount which has been awarded in the case of Ishaq referred to above for Chari type of land, has not convinced us. The appellants of their own having claimed Rs. 1,128.50 pe kanal as the compensation for their land are estopped to go out of their own pleadings and statement given in the Court. The appellants' claim has full been satisfied at Rs. 1,128.50 per kanal as shown in the award as th compensation for their lands.

20. In this view of the matter this appeal is allowed and the appellants are declared to be entitled to the compensation for their acquired lands at the rate of Rs. 1,128.50 per kanal. No order as to costs. M. Y. H.Appeal allowed.