P L D 2025 Peshawar 155 (PLP)

MUHAMMAD FAHEEM WALI, J.

This single judgment is directed to dispose of this and the connected RFA bearing No.54-A/2019, as both the appeals pertain to the same Award and similar facts are involved in both the appeals.

2. The Deputy Commissioner/Collector Land Acquisition, Mansehra acquired property through Award No. 294/DC dated 24.02.2017. Respondent Mst. Musarrat Shaheen filed objection under Sections 18/30 of the Land Acquisition Act in respect of property acquired from Khasra Nos. 267 and 268 of Mauza Arab Khunn, Tehsil and District Mansehra by contending that though in the column of ownership, the acquired property was jointly owned by her as well as respondents Nos. 3 to 34 of the main objection petition, but as a result of private partition, the acquired property came to the share of her father-in-law who in turn gifted the same to his son Abdul Ghafoor, husband of the objector and through mutation No. 478 dated 25.10.1977, Abdul Ghafoor alienated the same to her as dower. She further contended that pursuant to private partition between the parties, the objector as well as respondents were holding their respective possession and the acquired property was in exclusive possession of objector which was rented out to the Military Camp Batrassi, rent whereof was also exclusively being received by her. On the basis of such facts, she claimed herself entitled to the compensation of the acquired land in exclusion of respondents Nos. 3 to 34 of the objection petition. She also sought enhancement of quantum of compensation in prayer Bay of the objection petition.

3. The Objection petition was referred to the learned Referee Judge, by the Land Acquisition Collector. Learned Referee Judge summoned respondents. Respondents Nos. 6, 1/3, 4/3, 10, 11 and 17 conceded objections of the objector and supported her stance whereas rest of the respondents contested the objection petition. After recording pro and contra evidence, learned Referee Court accepted objection petition of the objector/respondent to the extent of apportionment only by holding; "In the light of above discussion, the objector has proved her contention on the basis of documentary as well as oral evidence for the purpose of reference under section

30. The objector failed to prove her reference under section 18 of the Act. So, this reference is responded affirmative under section 30 of the Land Acquisition Act, 1894 and responded negative under section 18 of the Act. Moharrir is directed to communicate the response of Referee Court to Collector regarding the reference. The objector is declared entitled to receive the compensation amount regarding Khasra Nos.267 and 268 Moza Arabkhan and the Baach prepared by the Collector on the basis of column of ownership is declared illegal. The Collector is directed to make payment of compensa-tion regarding Khasra Nos. 267 and 268 to the extent of acquired area of the objector on the basis of column of cultivation."

4. Feeling aggrieved of the said judgment of learned Referee Judge, the respondents in the main objection petition have filed instant appeal, while to the extent of refusal of prayer Bay i.e. reference under Section 18 of the Land Acquisition Act, 1894, the objector has filed connected R.F.A. bearing No. 54-A/2019.

5. Arguments heard and record perused.

6. Perusal of record reveals that the landed property remained under the occupation of Military Camp Batrasi as tenant while the objector/respondent was receiving its rent. The property was later on acquired through award No. 294/DC dated 24.02.2017 and the Baach for the purpose of payment of compensation of the acquired land was prepared, but in the names of owners appearing in the column of ownership of the acquired land. The objector/respondent thus filed objection petition under Section 30 of the Land Acquisition Act, 1894 by contending that the acquired property was though jointly owned, but as a result of private partition, the same was given to husband of objector namely Abdul Ghafoor and Abdul Ghafoor then alienated the same in her favour. It was further averred by the objector that she was in exclusive possession of the acquired property while rest of the co-owners are in possession of their other properties as a result of private partition and none amongst the parties had ever interfered in the possession of other co-owner. After the acquisition of the property, the petitioners herein, however, also claimed their rights in the acquired property and solicited payment of compensation according to Baach prepared as per column of ownership of the property.

7. During course of evidence, objector/respondent produced Patwari Halqa Mauza Attarshisha as PW-1 and Patwari Halqa Mauza Arabkhun as PW-2. Attorney of the objector/respondent appeared as PW-3. It was brought in evidence that the predecessor of the parties namely Qalander Khan had landed properties in three different Mauzas i.e. Mauza Attarshisha, Arabkhun and Gahator. Qalander Khan had five sons and the landed properties of all the three Mauzas were privately given to his five sons through private settlement in the year 1958. PW-3 deposed that as a result of private partition, Abdul Ghafoor was given 151 Kanals of land, Abdul Latif was given 272 Kanals, Mir Afzal was given 145 Kanal, Ghulam Sadiq was given 176 Kanals whereas Saeeduddin was given 190 Kanals landed property and after private partition, the owners were enjoying their respective Hissadari possession. In rebuttal, the petitioners herein produced attorney of respondents Nos. 22, 23 and 25 as DW-1, who also admitted the factum of private partition between the parties. Similarly, DW-2 also admitted private partition and respective possession of the parties as a result of private partition. As per Ex PW-2/2 i.e. Jamabandi for the year 1975-76, the property comprised in Khasra Nos. 267 and 268 was shown to be Hissadari possession of Abdul Ghafoor and on his behalf, was shown to be in possession of objector Mst. Musarrat Shaheen.

8. The entire record thus sufficiently proves that the acquired property was in possession of the objector/respondent as a result of private partition between the parties. The acquiring department, however, prepared the Baach on the basis of column of ownership of the revenue record. It is also pertinent to mention here that prior to acquisition of the property, none from the co-owners have ever questioned the revenue record, wherein the acquired property was shown in exclusive possession of the objector/respondent. In the case of "Allah Dad and 3 others v. Dhuman Khan and 10 others" (2005 SCMR 564), it was held by the august Supreme Court of Pakistan that the family settlement is aimed to settle the existing or future disputes of property and any such bona fide transaction would be binding on the family members. Relevant findings of the apex Court are reproduced as under; "It is to be seen that the object behind the family settlement is always to settle existing or future dispute of the property amongst the members of family and to create goodwill and avoid future disputes between the successors-in-interest. The bona fide transaction of family settlement would be binding on the parties and if the settlement by conduct of parties, is capable of receiving constant recognition for a long time, the right to assert under the agreement must not be subsequently allowed to be impeached and Courts may not reject the family settlement on technical grounds."

9. The family settlement in the instant case, stands proved through oral as well as documentary evidence. The record shows that the objector/respondent has been receiving rent of the acquired property from the army and has pursued several applications for enhancement of rent of the property, to the exclusion of other co-owners. The petitioners herein have failed to establish that the objector/respondent had been receiving rents on their behalf. Moreover, during life time of their predecessor Qalander Khan or even after his death, none from the co-owners have ever questioned the family settlement, as a result whereof, the specific portion of properties in three different Mauzas were given to five sons by Qalander Khan. The private partition was effected back in the year 1958 and till the acquisition of the property, none from the parties have ever objected to the same. There is no cavil to the fact that the respondent was enjoying uninterrupted possession on the property acquired form the suit Khasra numbers, though her name appeared in the column of cultivation as in her Hissadari possession, but such an entry cannot be disregarded and considered to be subservient to the column of ownership. According to the dicta laid down by the superior Courts, any transfer made by the owner in the column of cultivation, has got the presumption of transfer made in the column of ownership, subject to the restriction of ultimate adjustment towards entitlement at the time of final partition. In the case of "Muhammad Sharif and 3 others v. Ghulam Hussain and another" (1995 SCMR 514), the apex Court held that; "Abdul Ghani defendant No. 2 was admittedly recorded as co-sharer in Khata No. 25 of the Jamabandi 1964- 65 measuring 51 Kanals 3 Marlas and was in possession as such over Khasra Nos.311 and 312 measuring 7 Kanals 8 Marlas which he sold vide registered sale deed dated 4-1-1966 in favour of Ghulam Hussain defendant/respondent-1 for a sum of Rs.5,250 out of which an amount of Rs. 3, 000 was received by him and left Rs. 2,250 with the vendee for payment to the mortgagees for redemption of the suit land. The share of Abdul Ghani in the Khata exceeded the area sold by him and therefore, in view of the principle laid down in the judgment of this Court in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 Supreme Court (Pak.) 9), he was within his right to transfer the specific Khasra numbers in his possession to the transferee, who, in his turn, was entitled to retain possession till partition of the entire joint property. Respondent No. 1, no doubt, in his written statement claimed exclusive ownership through private partition between the cosharers but that plea has not been accepted by all the Courts below. The learned trial Court as well as the first appellate Court failed to consider the legal aspect enunciated in the above-quoted judgment of this Court and passed the declaratory decree. The High Court, however, by upsetting the same held the transfree to be stepping into the shoes of his transferor Abdul Ghani to the extent of his ownership rights in the entire joint property, no more and no less. The rights of the plaintiffs qua their ownership rights in the entire joint property are not affected through the judgment of the High Court." Similarly, in the case of "Muhammad Sarwar v. Zulfiqar and others" (1998 SCMR 592), the apex Court, resolved; "The only point that survived for determination before us, therefore, is as to whether the sale out of a particular Khasra number finding its way in the column of cultivation confers a status of co-sharership on vendee. It does not require much discussion on the point because this Court in the precedent case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9) has already held that the vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property nor more and no less. If the vendor is in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchases by him, provided that the area in question does not exeed the share which the transferor owns in the whole property. It was further held that alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers." The private partition between the owners was effected back in the year 1958. Till the acquisition of the property, none has objected to the possession of respondent, as a result of said private partition. Moreover, the objection to the partition mutation could only be raised by the sons and daughters of Qalander Khan. The respondent, whose name appears in the column of cultivation of the suit Khasra numbers, has got a preferential right over the remaining co-owners as held by this Court in the case of "Mst. Zakia Begum v. Nadir Khan and 40 others" (2011 YLR Peshawar 1397), wherein it was held that; "The entries of a joint owner in possession of certain Khasra numbers in the column of cultivation have got all the legal sanctity and also preference over the other co-owners as the said owner is in possession of the specific khasra number in the joint Khata. Besides the entries in the column of ownership, such an owner is also recorded as owner in possession "Hissadar Malik Qabiz" in the column of cultivation. Such entries in the column of cultivation are to be respected and the person acquiring ownership rights in specific khasra numbers of joint khasra with entries in his name in the column of cultivation is joint owner to all intents and purposes. Vendee of such a joint owner will step into the shoes of his vendor and will have all the rights in the property which his vendor had at the time of partition of said joint khata wherein such property is situated, vendee of such property has got every right to protect possession of his specific khasra numbers given to him at the time of sale."

10. Similarly, while referring to the book authored by Mr. Justice Monir, former Chief Justice of Pakistan, (Principles and Digest of the Law of Evidence, Vol. II, Pakistan Edition) at page 1296, honourable Lahore High Court, in the case of "Muhammad Munawar Bajwa v. Mst. Zubera Shaheen and another" reported as 2004 CLC 441, quoted that; "Family arrangements are arrangements between the members of a family for the preservation of its piece of property. The principles upon which such arrangements are enforced in England are stated in the case of Williams v. Williams. Such arrangements are constantly entered into in this country, and where they have been acted upon and acquiesced, the Court will not look so much to the adequacy of the consideration as to the motives and conduct of the parties. In a settlement of a doubtful right truth may be on either side, but the essential effect of the settlement is that further trouble or investigation is put to an end and a settlement is concluded to restore harmony. The consideration for such a settlement is the mutual promise made, or forbearance shown, by one party to the other. In the absence of fraud or undue influence, it is not, therefore, open to either party to resile from it afterwards and the settlement is binding not only on the parties but on their sons and descendants. A family settlement is binding, even though a limited owner is a party to it. Where parties settle a family dispute amicably, take a share of the property, enter into possession, and subsequently sell or mortgage the items allotted to them, they are estopped from questioning the settlement".

11. In the instant case too, the parties have admitted their inter se private settlement as a result of which, each of the joint owner was delivered possession of specific portion of the landed property. The landed property was thereafter taken into possession by the owners and was being utilized with exclusion of other co-owners. Thus the petitioners herein were estopped to question said settlement at belated stage when the property was acquired. In the case of "Irshad alia Abdul Rahim and 2 others v. Ashiq Hussain" (PLD 2007 Karachi 421), it was held; "It is not unusual in our society that properties held in common at times are privately partitioned between the co-sharers without taking recourse to any legal forum, be it revenue or civil Court. The private arrangement or partition so arrived at between the co-sharers is honoured by them and acted upon for years together. Individual holding of a particular co-sharer is respected and recognized by the other co-sharers as his exclusive share in the joint properties. Such private arrangement or partition, if acted upon by the co-owners, has to be recognized as lawful partition. In such eventuality the co-sharers who have recognized the private arrangement or partition and have also acted thereon for years together cannot then turn around and question the same by seeking fresh partition before any revenue or other appropriate judicial forum on the ground that no formal partition form a Court of law has been obtained. The private arrangement and partition deserves the same sanctity which a lawful contract deserves and should not be interfered with in any legal proceedings unless the private arrangement or partition is otherwise not legally permissible. Where a co-sharer of such private arrangement or partition of joint properties had disposed of his individual share to a third person, then such disposition is also to be given legal validity. Certainly any one or all of the other co-sharer may choose to exercise right of preemption if available in law but it does not mean that the co-sharers can question the right of a co-sharer to deal with his specifically assigned share in any manner he likes. Any disposition of a share in a joint property, which was assigned to a co-sharer under a private arrangement or partition cannot be questioned for want of formal decree of partition of a competent Court of law. "

12. The conjoint effect of the above referred case laws as well as discussion made thereupon, would be that the once the property was privately partitioned and as a result of said private partition, all the co-owners were assigned specific portions of properties. Such private partition was further strengthened through mutation and after getting their specific portion of holding, the parties remained in constant possession to the exclusion of other co-owners. The private partition was a bona fide transaction and none from the co-owners, ever questioned its validity. As a result of such private partition, objector was given property comprised in Khasras Nos. 267 and 268, which was later on acquired. The petitioners herein were excluded from questioning said private settlement and the learned Referee Court has rightly held that the objector was entitled to receive amount of compensation of land by answering reference under Section 30 of the Act, in positive.

13. So far as enhancement of amount of compensation under Section 18 of the Land Acquisition Act, 1894, is concerned, neither the same was seriously claimed in the objection petition nor any documentary or oral evidence, could be brought on record, which could lead to hold that the amount of compensation assessed by the Land Acquisition Collector was not adequate one. Learned counsel for the objector, when asked to refer any evidence which could suggest that the value of the acquired land was different from one, which was assessed by the Land Acquisition Collector, he conceded that no such evidence could be brought on record by the objector and submitted that the objector would not press her claim for enhancement of amount of compensation.

14. In view of what has been discussed above, this Regular First Appeal bearing No. 39-A/2019, stands dismissed whereas connected Regular First Appeal bearing No. 54-A/2019, stands disposed of, being not pressed. MH/25/P Order accordingly.