P L D 1984 PESHAWAR 9 (PLP)

INAYAT ELAHI KHAN, J.‑This Regular First Appeal, under section 54 of the Land Acquisition Act, 1894, by the Land Acquisition Collector and others, is directed against the decision of the learned reference Court (Additional District Judge‑1, Hazara at Haripur) dated 19‑11‑1977 whereby the objection petition of the respondents under section 18 of the Land Acquisition Act against Award No. 4‑A, dated. 5‑8‑1975 was accepted and the amount of compensation of the built‑up property was enhanced.

2. A preliminary objection is raised by the learned counsel for the‑res pondents that the appeal has not been filed within the prescribed period of limitation. It is contended that the judgment of the trial Court was announced on 19‑11‑1977 and the application for the certified copies of the judgment and decree‑sheet was submitted by the appellant on 10‑12‑1977. The requisite copies were prepared on 31‑8‑197k and the appeal was filed on 30‑11‑1978. Therefore, the appeal was barred by 12 days. But from the copies of the judgment and decree it appears that the copies were prepared on 30‑9‑1978 and not on 31‑8‑1978, as alleged by the learned counsel for the respondents. No doubt it looks that earlier the date was written as 31‑8‑1978, but under the initial of the official of the copying department the date was changed to 30‑9‑1978 and, therefore, the learned counsel contends that the actual date of the preparation of the copies would be taken as 31‑8‑1978. However, it may be observed that there is nothing on the record to show that the afore said date was changed by the copying department at the instance or with the connivance of the appellant. The possibility that earlier the date was incor rectly written by the official concerned which was subsequently corrected .cannot be ruled out. There is nothing on the file to draw an adverse inference against the appellant in this regard. The learned counsel for the respondents does not dispute that if the date of the preparation of the copies is considered as 30‑9‑1978 then the appeal filed on 30‑11‑1978 was within time. It is next contended that the memorandum of appeal filed in this Court on 30‑11‑1978 was returned to the appellant for completion and resub mission on or before 20‑12‑1978. Accordingly the memorandum of appeal was resubmitted on 16‑12‑1978 but the grounds of appeal are dated 12‑12‑1978. Therefore, it is contended that the grounds of appeal earlier submitted were changed and new grounds of appeal dated 12‑12‑1978, were sub mitted on 16‑12‑1978 and in this view of the matter the appeal shall be deemed to have been filed on 16‑12‑1978 and not on 30‑11‑1978. The learned counsel for the appellants, however, urged that due to clerical mistake the date on the grounds of appeal was shown as 12‑12‑1978 whereas in fact the memorandum of appeal was filed on 30‑11‑1978, which was returned and resubmitted on 16‑12‑1978. A reference to the opening sheet attached with memorandum of appeal would show that the appeal was filed in this Court on 30‑11‑1978, which was returned on the same day for completion. On 16‑12‑1978, the appeal was resubmitted after due compliance. The aforesaid dates bear the signature of the official of the Court and there is no reason to bold that the appeal was not initially filed on 30‑I 1‑1978. In these circumstances the con tention of the learned counsel for the appellants that the date on the grounds of appeal typed as 12‑12‑1978 was due to inadvertence/clerical mistake appears to be plausable and there is nothing on the file to disprove the assertion made by the learned counsel for the appellants. Therefore, taking this view of the matter, the preliminary objections raised by the learned counsel for the res pondents being without any substance are overruled.

2. The objection petition of the respondents, under section 18 of the Land Acquisition Act, related to their property consisting of 23 houses and 2 wells situate in village Jagul which was acquired on the basis of Award No. 4‑A, dated 5‑8‑1975 for the construction of Tarbela Dam. The compensa tion fixed by the Collector Land Acquisition was considered inadequate and therefore, enhancement as detailed in the objection petition, was claimed. The case was contested by the Chairman, WAPDA.

3. In support of their claim the objectors examined Rahimuddin, Over seer, as OW‑1 who placed 25 estimates on the record (Exh. OW‑1/1 to Exh. OW 1/25) which were based on Composite Schedule of rates of r966‑

67. On the other hand one Muhammad Ashraf, Overseer T. D. R. O., Ghazi, was examined on behalf of the acquiring department who also produced estimates of the property (Exh. RW‑2/1 to Exh. RW‑2/22), which were also stated to be based on the Composite Schedule of rates of 1966‑67.

4. The learned reference Court disbelieved the estimates produced by Muhammad Ashraf, Overseer, T. D. R. O., on the ground that he was the maker of the only estimate of house No. 91 while the other Overseers who had prepared the remaining estimates were not examined. It was also found that the amount mentioned in the estimates produced by the acquiring depart ment was exactly the same as awarded by the Collector in the award in ques tion. However, the estimates produced on behalf of the objectors by Rahim uddin, a private Overseer, were relied upon. Though it was observed that the estimates of the private Overseer were too high despite of the fact that both the parties had based their estimate on the same Composite Schedule of rates. Therefore, it was considered proper by the learned reference Court to allow a deduction regarding different items ranging from 10 % to 50 %.

5. Regarding the valuation of the site underneath the built up property, one yearly average of mixed transactions (Exh. OW‑2/L), prepared by the Patwari Halqa, was relied upon and accordingly the compensation was fixed at Rs. 2,512 per kanal. The learned counsel for the appellants did not dispute the correctness of the valuation fixed for the site underneath the structure by learned reference Court. However, it is vehemently urged that in the absence of any other evidence the learned reference court was not justified in placing reliance on the estimates prepared by the private Overseer, for the estimates prepared by him were highly exaggerated and unreliable. It is contended that in a number of cases decided by this Court the estimates prepared by a private Overseer have not been relied upon. Reference is made to the follow ing cases :‑‑‑ (1) R. F. A. No. 64/80, decided on 15‑5‑1983. (2) R. F. A. No. 60/69, decided on 13‑12‑1982. (3) R. F. A. No. 77/79, decided on 4‑3‑1982. From the perusal of the record it also appears that, excepting Rahimuddin Overseer, the objectors had failed to lead any other evidence in support of their claim in respect of the built‑up property. Rahimuddin Overseer (O.W. 1) admitted in cross‑examination that :‑ "I have not served notice upon the respondent. The estimates are not checked by superior officer. I have allowed depreciation. I. had pre pared rough notes on the spot which are not in my custody at present. I had not recorded the statement of anyone. I do not maintain any diary regarding measurements. I cannot tell as to which villages are adjacent to village Jagil. I had charged fee from the objectors. I was engaged by Malik Rab Nawaz Objector. Nearly all the objectors were present on the spot. Khasra number in which various Caves are situated are shown in the estimates". It is also clear that keeping in view the great discrepancy in the valuation made by the Acquisition Collector and the private Overseer, the learned refe rence Court allowed deduction ranging from 10 % to 50 % in the estimates prepared by the private Overseer, thereby reducing the value to some extent. This fact goes a long way to show that the learned reference Court was not fully inclined to believe the estimates of the private Overseer produced by the objectors. The evidence of the private Overseer in similar circumstances and on similar grounds was not relied upon in another case decided by this Court in (Land Acquisition Collector v. Abdul Ghani R. F. A. No. 94/78, decided on 17‑6‑1980. Yet in another case recently decided on 24‑7‑1983 by this Court in (Land Acquisition Collector v. Sanobar and others R. F. A. No. 139/79, the estimates prepared by a private Overseer were also discarded. It is obvious that the burden was on the objec tors to have produced some convincing evidence in the trial Court in support of their claim for higher value of the built‑up property. In the Land Acquisi tion Collector, Rawalpindi v. Lt.‑Gen. Wajid Ali Khan Barki (P L D 1960 (W. P.) Lah. 469) it was observed that :‑ " and it needs hardly be said that the evidence produced in Court to prove the market value must conform to the standard laid down by the Evidence Act. Section 3 of the Evidence Act says that a fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. When a reference under sec tion 18 of the Land Acquisition Act comes to Court and the owner claims more compensation than that allowed by the Collector he has to establish that the award given by the Collector does not fix the market value correctly." In this view of the matter we do not feel convinced by the evidence of the private Overseer and find no other evidence, in support of the objection petition, to show that the valuation made by the Land Acquisition Collector was incorrect.

6. Resultantly, this appeal partly succeeds. The judgment and decree of the trial Court regarding the compensation allowed for the built‑up property (house and wells) is set aside and the value fixed by the Collector is res tored. However, the remaining part of the decree of the trial Court is main tained. Parties to bear their own costs. M. Z. M. Appeal partly accepted.