1985 PLP 2605 (CLC)

FAZAL ELAHI KHAN, J.--Shandad and two others aggrieved by the judgment and decree of the learned Acquisition Judge dated 24-5-1980, whereby part of their claim made in the objection petition against Award No. 31, dated 3-12-1971 in respect of their acquired landed property was rejected have come in appeal to this Court. The Land Acquisition Collector and two others also feeling aggrieved by the same judgment and decree on partial acceptance of the objection petition of the aforementioned land owners have also come in appeal. These two appeals bearing R.F.A. No. 50 of 1981 (Muhammad Zaman and 2 others v. Government of N.-W.F.P and 2 others) and R.Y.A. No. 70 of 1980 (Land Acquisition Collector and 2 others v. Shah Dad), are, therefore, disposed of by this single judgment.

2. For the acquisition of land situated in village Dheri, Tehsil Haripur, including the land of the objector-appellants Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as the Act) was published in the official Gazette on 3-5-1967. The land in question was required for the construction of Tarbela/Dam Project (reservoir), for public purpose at public expense. 3.???????? After hearing the affectees especially with regard to the classification of their land and its valuation the learned Land Acquisition Collector vide his Award No. 31,dated 3-12-1971 fixed valuation for the different types of the acquired land. 4.???????? Shah Dad, Muhammad Zaman and Chan Muhammad land owners having not accepted the award made an objection petition before the Land Acquisition Collector to the valuation and classification of their land. Prayer was made to refer the objection petition to the Land Acquisition Judge for determination of fair compensation and for re-classification of their land as 'Bagh Abi' and 'Grera Abi' instead of Ghair Mumkin 'Sindh' classified in the award and assessed as such. Compensation was also claimed for the fruit bearing trees which allegedly existed in part of the suit land at the time of its acquisition but has not been accounted for in the award. This objection petition was referred to the Land Acquisition Judge, where it was registered as Reference Case No. 109/4, for the determination of the question raised in the objection petition. It was further prayed that the compensation of the land in question be paid to the person in Hissadari possession of the Shamilat land at the relevant time. The Land Acquisition Collector and others resisted the objection petition in their written statement. The learned Acquisition Judge for giving his decision in the matter and in view of the pleadings of the parties framed the following issues:- (1) Whether the land under rule has been wrongly classified and undervalued by the Collector, if so, what is the correct classifica?tion and fair compensation? (2) Whether the trees of the objectors have been undervalued, if so, to what fair compensation the objectors are entitled? (3) Whether the objection petition has not been referred to this Court by a competent Collector? (4) Whether the objection petition is within time? (5) Whether the objectors have received the compensation without protest, if so, its effect? (6) Whether the objectors have failed to respond to notice under sections 9 and 10 L.A. Act, if so, its effect????? (7) Whether the objectors have cause of action? (8). Relief. In support of their case the objectors produced Mian Badruddin EADA who placed on the file Goshwara Exh. P.W. 1/1 showing the valuation of different types of fruit bearing trees. Irshad Khan Patwari was examined as P.W. 2 who produced the revenue record before the Court and placed on file from it copies of Khasra Girdawari Exh. O.W. 2/1 and Exh. O.W. 2/2 of the disputed Khasra numbers which pertained to the relevant period. He also produced 'Goshwara' of mutations of sales attested during the period from 2-5-1960 to 3-5-1967 and from it worked out different averages of different types of land. These are Exh. O.W. 2/4 and Ex. O.W. 2/5 on the file. He also produced 'Parta Bandobasti' copy Exh. O.W. 1/5. Muhammad 'Liman one of the objectors appeared as his own witness and reiterated their claim made in the objection petition. Taus Khan was produced by the objectors to land support to their case referred to above. On behalf of the Land Acquisition Collector his reader Muhammad Yaqoob appeared and produced oa u Exh. the acquisitioHne file and placed on the file copy Naqsha deposed that the land involved in the objection petition was 'Shamilat Deh' the compensation amount of which worked out by the Collector has been paid to the Committee appointed for the purpose. He further deposed that the land in dispute was 'Ghair Mumkin Sindh' and assessed as such, in accordance with the entries in the revenue record. 5.???????? After considering the evidence produced before him the learned Acquisition Judge basing reliance on the entries in the Khasra Girdawari referred to above re-classified the following four Khasras numbers mentioned below, to which the objectors confined their claim, as under:- Khasra???????????????????????????????????? classification???????????????? Re- classification by the Number??????????? Area???????????????? Awarded.???????????????????? Acquisition Judge. ??????????????????????? Kls-M 2514??????????????? 219-9?????????????? Ghair Mumkin? Gandam Grera Abi = 130??? K Sindh??????????????????????????? Sindh???.... ?=?? 89??? K????????????? 2531 ?????????????? 222-4?????????????? "?????????????????????????????????? GandamGrera Abi = 100???? K ??????????????????????????????????????????????????????????????????????????????????? Sindh?????.=? 122?? K? 2521 ?????????????? 176-12 ??????????? "?????????????????????????????????? Gandam Grera Abi = 150??? K ??????????????????????????????????????????????????????????????????????????????????? Sindh???????? =??? 26??? K 2522??????????????? 63-19?? ?????????? "?????????????????????????????????? Gandam Grera Abi =??? 50??? K ??????????????????????????????????? The valuation of different types of land was, however, fixed in accordance with the judgment of this Court Sher Ahmad Khan and 4 others v. Land Acquisition Collector and 2 others P L D 1978 Pesh.

138. The claim of the objector regarding fruit bearing trees was not accepted. 6.???????? The learned counsel for the objector in support of the judgment of the learned Acquisition Judge as far as related to re-classification of the aforementioned Khasra numbers mainly relied on the entries made in the Khasra Girdawari for the year 1965-66. It was argued that considerable portion of the acquired land improved upon and converted into Chahi but the evidence produced by the objectors has been misread and not considered in its true perspective. It was further argued that the objectors are entitled to the compensation of the aforementioned Khasra numbers as Chahi type of land rather than Grera Abi held by the Acquisition Judge. The learned Advocate appearing for the Land Acquisition Collector, however, was aggrieved of the re-classification of major portion of the aforesaid 4 Khasra numbers and vehemently argued that the entries in the Khasra Girdawari are forged and manipulated one brought in the record after the issuance of the Notification under section 4 of the Land Acquisition Act. The entries showing the objectors to be in Hissadari possession of the disputed Khasra numbers were also challenged. In that case too the learned Acquisition Judge has placed reliance on the aforementioned forged entries. The judgment and order of the learned Acquisition Judge was, therefore, challenged to be based on no evidence and liable to be set aside. 7.???????? For the determination of the controversy raised before us it would be beneficial to refer to the revenue record which existed prior to the relevant Notification and the manner in which the change was brought about. Exh. P.W. 1/1 is the copy of 'Naqsha Alif' which has been placed on the file showing the disputed Khasra numbers as Shamilat Deh and in possession of the owners. Its classification is given to be 'chair Mumkin Sindh', This document was prepared during the acquisition proceeding on the spot verification after the issuance of Notification under section 4 of the Act. In the Jamabandi prior to the notification the same entries existed. Change in the Khasra Girdawari is shown for the first time in Kharif 1965 and Rabi 1966 which is being relied upon by the objectors and is the basis of the impugned judgment and decree. This change in the Khasra Girdawari is, however, highly doubtful and unreliable on the face of the record as there appears to be overwriting in diagonals drawn in column No. 7 of the register of Khasra Girdawari in front of the disputed Khasra numbers. Although no presumption of truth is attached to the entries in Khasra Girdawari yet it being admissible in evidence under section 35 of the Evidence Act, before any weight to be attached to it, it must be established by a party who places reliance on it that the entries were made by a person in the discharge of official duty in accordance with law, even then it is for the Court, in the given circumstances, what value is to be attached to such entries. It is very unfortunate that the learned Acquisition Judge did not apply his mind to the change and the manner in which it was brought about. It may be mentioned that under Chapter 9(3)(ix) of the Land Record Manual which deals with the entries in column No. 7 of the periodical record provides:- When no change in the cultivating occupancy has occurred in the Kharif the Patwari should make a stoke of the pen across the oblong space provided for changes in the Khasra from the right hand top corner to the left hand bottom corner, and another diagonal from the left hand top to the right hand bottom corner, if no change has occurred in the Rabi." In the instant case in Kharif 1965 and Rabi 1966 there was no change in the occupancy and cultivation columns of the aforementioned Khasra numbers, therefore, the Patwari has drawn two diagonals in column No. 7 of the register (copy Exh. P.W. 1/1 and Exh. P.W. 1/2), however over these two croselines the objectors names are inserted showing them in cultivating and Hissadari possession of the land. Though this insertion and manipulation is apparent from the copy placed on the file, the learned Judge did not take notice of it and made these entries the basis for re-classification of the land. It may further be pointed out that the entire land covered by the aforementioned Khasra numbers was under the river bed till Rabi 1965. It does not stand to reason how all of a sudden objectors reclaimed a large portion of it brought it under the plough in a short period in Kharif 1965.

8. In his judgment the learned Acquisition Judge made reference to the observation made by the Acquisition Collector on page 5 of his award regarding the change in the classification of land, however, he ignored the ultimate finding given by the learned Acquisition Collector in his award where he specifically referred to the spot verification carried out by the Naib-Tehsildar Acquisition and by the Collector Acquisition himself in pursuance of objections raised by some of the land owners. After the spot verification a report was submitted to the Deputy Commissioner for correction of change in the classification of land in accordance with the spot verification. The Deputy Commissioner on the acceptance of the recommendation ordered the necessary correction in the classification of the land detail of which is given on page 8 of the award under the caption 'classification of land'.

9. The learned counsel appearing on behalf of the objector when faced with the situation was unable to convince us that the change in the classification of land was supported by any other reliable evidence. No other point was urged before us. For the reasons stated above we have no hesitation in holding that the learned Acquisition Judge has committed illegality by basing reliance on the illegal and manipulated entries made in the Khasra Girdawari while ordering re-classification of the land and holding the objectors in Hissadari possession of it. We, therefore, accept Regular First Appeal No. 70 of 1981 (Land Acquisition Collector v. Shah Dad Khan and others) set aside the judgment and decree of the learned Acquisition Judge and hold that the Land Acquisition Collector has correctly classified the land of the objectors while making the award. Consequently Regular First Appeal No. 50 of 1981 (Muhammad Zaman Khan and others v. Land Acquisition Collector) stands dismissed. There shall be no order as to costs in both these appeals. M.Y.H.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.