2015 PLP 1392 (CLC)

MUHAMMAD DAUD KHAN, J.

Through this appeal under section 54 of the Land Acquisition Act, 1894, appellants have challenged the judgment and decree dated 25-6-2009, passed by the Land Acquisition Judge/Additional District Judge-II, Charsadda, whereby Reference Petition of appellants was dismissed.

2. An area of land measuring 356 kanals situated in Mauza Dehri Shah, Bara Tehsil and District Charsadda was acquired by the Government for a public purpose under the provisions of the Land Acquisition Act, 1894. Notification under section 4 was issued on 25-7-2011 followed by corrigendum dated 1-8-2003 and 21-1-2004. This land was held jointly by various landowners, whose names appeared in the revenue records. Some of the landowners had been in actual possession of land whereas the other co-owners were not in possession. The only question with which we are concerned in the present appeal is regarding the mode of payment of this compensation to the various landowners. The Collector in his award dated 1-3-2006 on this point stated thus: "The land owners shall be entitled for their shares on Qabza Hissadari Milkiat as entered in the register "HAQDARAN ZAMIN" on the basis of possession according to appropriate share in the ownership column of each owner of Mauza Dehri Shah Bara Tehsil and Distt. Charsadda. Acquittance Rolls shall be prepared in quadruplicate by revenue Staff of Tehsil, Charsadda."

3. A reference was then made under sections 18/30/31 of the Land Acquisition Act by the Collector to the learned Additional District Judge/Referee Court, Charsadda at the instance of appellants. The learned Referee Court, however, vide impugned judgment approved the above apportionment made by the Collector in his Award and dismissed the Reference Petition of appellants.

4. Learned counsel for the appellants submitted that the learned Referee Court has erred in upholding the decision of the Collector regarding the mode of payment of the compensation amount. He urged that the method adopted by the Collector for the distribution of the compensation on the basis of possession was incorrect. In support of this contention, he relied on the earlier Awards No.95 dated 4-1-2011 and No.11 dated 25-7-1998, whereby lands in certain other Mauzas for the same public purpose were acquired and the affected persons were held entitled for compensation on the basis of their ownership and due shares/hissadari possession. 4.(sic) As against that learned counsel for the respondents stated that the learned Referee Judge has rightly dismissed the objection petition of the appellants, as they were not in actual possession of the acquired land and thus not entitled to their shares in the compensation amount.

5. In the present case, there is no dispute about the shares of the various co-owners as per revenue record, which has been acquired by the Government. It is also undisputed that there has been no partition amongst the co-sharers. Some of the co-owner/respondents were, however, in possession of the land at the time of acquisition. The short question for decision is that when this land is acquired by the Government, then should the compensation amount be distributed amongst the various co-owners in accordance with their shares in the joint land or on the basis of their actual possessions on the date of the acquisition? 5.(sic) We have no manner of doubt that the compensation amount has to be awarded in accordance with the title of each landholder in the joint land acquired, irrespective of the fact whether they were in actual possession of more or less area on the date of acquisition. If one were to accept the contention of the learned counsel for respondents, it would lead to very absurd results. Suppose, a co-sharer is absent from the village and is not in possession of any area of the land on the date of acquisition, then he would not be entitled to any amount of compensation, if the same was to be awarded on the basis of possession and not title. It is beyond doubt that one co-sharer in possession of a joint land holds the same on behalf of all the co-sharers. His possession for howsoever a long period cannot make him an exclusive owner of the land held by him, unless he sets up a hostile title by some overt act to the knowledge of the other co-sharers and the latter do not take any action within limitation from that date. His possession over joint land is always considered to be permissive till partition takes place, when he would be entitled to the area in proportion to his actual share in the joint land. So far as the question of improvements made in the land i.e. crops and trees etc. is concerned, the compensation amount for that has already been paid to the respondent/co-owners as per statement of Patwari Halqa.

6. The provisions of section 23 of the Land Acquisition Act deal with the matters which are to be considered while determining the amount of compensation. There is nothing in that section which in any way supports the contention of the learned counsel for the respondents. The apex Court in the case of Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others (2007 SCMR 1884) has held that:

"When property was joint and not partitioned, then fact of such exclusive possession of vendee could not be believed. Every co-owner/co-sharer would be considered to be in possession of each inch of unpartitioned land according to his share." The general principles governing the rights of the co-owners in the common land are no longer in dispute. Where land is held in common by several persons, one co-sharer is entitled in law to cultivate any portion of the joint land but the exclusive possession of the said co-owner does not amount to ouster of the other co-owners, unless he is in possession of the same as a result of rights already determined in a partition suit. In this case the land in question has been compulsorily acquired by the Government, leaving no chance for the other co-owners to seek the remedy of partition except to become interested persons in the compensation within the meaning of S.3(b) of the Land Acquisition Act.

7. In view of what is stated above, the apportionment method adopted by the Collector in the Award in question and the decision of the Referee Court to uphold the same is not sustainable. Accordingly, this appeal is accepted, the impugned judgment and decree dated 25-6-2009 of the trial Court is set aside and the Reference Petition of the appellants is accepted with no order as to costs. The appellants would be entitled to receive compensation amount according to their hissadari possession as per entries in the revenue record in the columns of ownership/ cultivation. MM/211/P Appeal accepted.