1980 PLP 904 (CLC)

Despite this, however, the learned reference Judge returned his findings on issue No. 2, viz. "Whether the objector did not respond to the notices given to her under sections 9 and 10 of the Act, if so, with what effect" as under :-.- "It is not proved by the respondents that notices were served on the objector in accordance with the provision of law and that she failed to respond to the notices sent to her. This issue is not proved which is decided against the respondents." In view of what has been ,stated a over the findings of the learned Court below on this issue prima ,facie seem to be misconceived and against the weight of evidence on record. Receipt of notices under sections 9 and 10 was admitted by the objector and the onus to prove that she had raised objections against the same lay on her and when her own witness namely Yaseen O. W. I himself admitted in his cross-examination that she gave no response to the said notices, then there was left for the res pondents no necessity of producing any evidence in this regard, Now be that as it may, appellant was not satisfied with the award in so far as the number and compensation for the trees was concerned and therefore, she made a written application to the Collector under section 48 of the Act that she had 475 fruit trees of Guava standing on the land but they were miscounted and the compensation awarded for the same was also deficient. She claimed compensation for 475 fruit bearing trees of Guava at the rate of Rs. 200 per tree, The application was referred to the Court for determination. Collector Acquisition and WAPDA were arrayed respondents. I obey contested the application and reiterated that the number of the trees standing on the land was only 96 and the compensation awarded by the Collector was adequate. The parties were put to trial on the following issues :- (1) Whether the total number of fruit bearing trees is 475 and have been undervalued, if so to what fair compensation objector is entitled for those trees. (2) Whether the objector did not respond to the notices given to her under sections 9 and 10 of the Act, if so with what effect ? (3) Relief. The findings of the Court as regards Issue No. 2 have already been discussed above. In support of her objections appellant produced 4 witnesses namely Yaseen (O. W. 1), Abdul Qayum, Patwari Halqa Nara (O. W. 2), Azad Khan, F arm Manager, Agriculture Department, Haripur (O. W. 3) and her attorney Mr, Fazlur Rehman (O. W. 4). In his examination- in-chief Yaseen (O. W. 1) stated that fruit bearing trees of the objector had been acquired and their number was entered as 96 Abdul Qayum (O. W. 2) said that he had no record to show that the number of the fruit bearing trees in K.hasra No. 118 was

475. Azad Khan (O. W. 3) produced Goshwara (Exh. O. W. 3/1) showing the fruit bearing age of Guava and Orange trees, their average yield, market rate and compensation per tree etc., etc. According to the Goshwara Guava anti Orange trees valued Rs. 120.50 and 302 each respectively. He conceded that the market rates given in the Goshwara were the rates for the previous year 1973. 1t would be useful to mention here that the notification under section 4 of the Act which would also constitute the date of expropria tion was issued in this case on 3-5-1967. The attorney of the appellant deposed that their fruit bearing trees had been acquired, there were 5 Orange and 115 Guava trees and the non-fruit bearing trees were 450 in number. Now this on the face of it seems to be in conflict with the case set up by the objector in her application. In there she claimed that there were 475 fruit bearing trees in her land making no mention what ever of any non-fruit bearing tree. In the Court, however, she for the first time, projected her case for non-fruit bearing trees and that, too for as many as 450 in number and reduced the number of fruit bearing trees from 475 to 115 of Guava and 5 of Orange and whereas in the objection petition she asked for compensation at the rate of Rs. 200 per tree, here in Court she claimed compensation for fruit bearing trees (she did not claim anything for the non-fruit bearing trees) on the basis of Goshwaoa (Rxh. O. W. 3/1) according to which compensation for Guava trees was worked out in the year 1973 at Rs. 120.50 each and for Orange Rs. 302 each. The learned reference Judge did not accept her claim that the fruit bearing trees were more than 96 as, according to him, the objector "had failed to prove that the number of trees was wrongly counted by the Collector". However on the question of valuation he held that it was wrong on the part of the Collector to rely upon estimates prepared by the Assessment Devision, WAPDA, and on acceptance of the formula on the basis of which compensation for the two types of trees was worked out by O. W. 3 held that the fair compensation for Guava and Orange trees in question should be the same. Accordingly objector was held entitled to compensation for Guava at the rate of Rs. 120.50 per tree and Orange at the rate of Rs. 302 per tree. Thus her reference was partially accepted. Learned counsel for the appellant has vehemently contended that Khasra No. 118 admittedly comprised an orchard and it was inconceiv able that an area of 10 kanals and 14 marlas (excluding the area covered by Khola) would have only 96 fruit bearing trees and even by modest estimates, assuming that there were only 2-1/5 fruit bearing trees in an area comprising one marls or 30 square yards, there should not be less that 475 trees standing there and this is what his client had also claimed. Thus the number of the trees had been wrongly assessed by the Collector. He added that there was no inconsistency to the evidence of the objector in this respect. In fact the evidence had been misread. It was then urged that in the matter of determining compensation, the valuation of the trees should have been worked out at the date of taking over possession of the land and drew my attention in this regard to the provisions of second consideration to subsection (1) of section 23 of the Act which reads :

"23.-(I) Secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof." His argument was that in this case the value of the trees has been assessed prematurely. He added that the Court ought to have taken judicial notice of the rising prices, and placed reliance on the judgment of the Lahore High Court in case Muhammad Ashraf v. Nadar Khan (1) as regards demand of the attorney of the appellant that she should be paid compensation for the fruit bearing trees on the basis of Goshwara (Exh. O. W. 3/1), the learned counsel submitted that notwithstanding his "request", the reference Court should have exercised its own judgment and his 'willingness' would not be binding on the objector. He cited the case of M. Samiullah v. Collector of Ali Garh (2) in support of his contention and urged that the appellant should be paid compensation at the rate of Rs. 200 per tree as decided by his Lordship late Mr. Justice Shah Zaman Babar on July 4, 1972 in R. F. A. 47 of 1972 titled Muhammad Farid Khan v. Collector and others. I have given my anxious consideration to the contentions raised before me. It may be true that by modest estimates certain area may be having 475 trees or more but then the Courts of law are not to decide cases on assumptions but on the basis of evidence produced by the parties before them. The objector in this case had failed to prove, by any cogent evidence, that there were more than 96 fruit bearing trees on the land comprising Khasra No.

118. There is no denying the fact that the onus to prove this lay on her and if she had failed to discharge this onus then no Court, in disregard of the evidence, can grant her anything, on alien considerations. There exists no provision in the Land Acquisition Act nor any was brought to my notice which would empower all Court, dealing with a reference filed under section 18 of the Act, to enhance compensation awarded to a party irrespective of the fact that the party had led no evidence in that regard or the evidence was such as could not be relied upon. Similarly the judgment in the case Muhammad Ashraf v. Nadar Khan would be of no avail to the objector. That was a case under the Punjab Pre-emption Act and the question involved con cerned the real consideration which passed between the vendor and the vendee. The plaintiff-pre-emptor alleged thank was only Rs. 600 and the sum of Rs. 6,000, had been falsely shown in the Mutation Register to discourage the right of pre-emption. Both the Courts below had held that the compensation actually paid by the vendee was Rs. 5,800 and this finding was based on the statement of the vendee which they thought had not been effectively rebutted. The learned counsel for the appellant in the High Court contended that in doing so the Court below had ignored the 5 years statement prepared by the Patwari according to which the average price of the land in the locality was Rs. 682 per kanal. This statement showed 19 sales taking place in a span of 5 years and the learned Judge in the High Court, in view of the fact that the land in dispute was "Chahi" in nature and was located near the village Abadi, rightly held that the price in the 5 years statement did not accurately reflect the value of the land in dispute and in that context it was observed by the learned Judge that "I can take judicial notice of the fact that of late, prices of land have been appreciating at a very fast space". It will be seen that there was evidence in that case to show that the land was "Chahi" and was located near the village abadi, thus obviously its price would be comparatively higher than that of the land situated at a distance from the village locality and of a different nature. In the case in hand, how ever, no such evidence has been brought forth which could persuade me to take judicial notice of other factors as well. Again it is not a question of an agreement between parties as to the basis of valuation which was held to be not binding on them in the report of the Privy Council cited by the learned counsel. Here the appellant had herself prayed that she was entitled to and should be given compensation according to the Goshwara produced by a witness of her own and in this she was duly obliged by the learned reference Judge. In the circum stances there does not arise any question of failure on the part of the reference Court to perform any of its statutory obligations. The Privy Council case proceeds on entirely different facts and is clearly distinguishable. The judgment of the Peshawar High Court in R. F. A. No. 47 of 1972 can also be of no help to the appellant proceeding, as it does, on its own facts. In view of these circumstances, I find no merit in this appeal and the same is hereby dismissed. The parties are, however, left to bear their own costs. Appeal dismissed.