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Petitioner: Sh. AFZAL AHMAD VS Respondent: IJAZ AHMAD AND 15 OTHERS
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title: Sh. AFZAL AHMAD vs IJAZ AHMAD AND 15 OTHERS Case No.: C. 0. No, 1-C of 1973 and Civil Miscellaneous No, 5554-C of 1976 Date of Judgment:1977-02-13 Reported As: PLD 1977 Lahore 606 Result: Suit decreed
JUDGMENT
JUDGMENT ' By means of my judgment and order dated 15.4-1974 in a Partition Suit bearing Civil Original No, 1- C/1973 titled Sh. Afzal Ahmed (plaintiff) v. Ijaz Ahmed and 4 others (defendants) (1), I passed a preliminary decree in terms of a compromise which is printed at pages 66-468 of the aforesaid report. The present judgment should be read in continuation thereof. The properties which were subject- matter of the suit and of which partition was prayed for were two, namely- (a) property described in para. 2 (a) and para. 6 of the plaint as urban property inclusive of building standing on land measuring 25 canals, 8 marlas and 27 sq. Ft. Situated in Gowalmandi, Lahore (hereinafter with reference to its location called as Gowaimandi property) ; and (b) property mentioned in para. 2 (b) of the plaint as agricultural land measuring 14 kanals, 13 marks, 211 sq. Ft. Situated in the revenue estate of village Mianmir, Lahore (hereinafter with reference to its location called as Mianmir property). 2. In pursuance of the aforesaid judgment and order, I appointed Mr. Mushtaq Hussain Munir, an ex- Judge of this Court, as a Commission, to assess the value of the properties and suggest ways and means for their (1) PLD 1975 Lah. 4e4 ' partition and disposal. I also appointed Mian Badruddin, retired Municipal Engineer of Lahore Corporation, to co-opt with the Commission. The Commission in paragraph 8 of his report dated 25- 6-1975 has reported as follows with regard to Gowalmandi property: "I visited the Gowalmandi property as far as I remember on 30th December 1974, in Company of Mr. Sajjad Ahmed Jan, Mr. Ijaz Ahmed, Mr. Afzal Ahmed and Mr. Alba] Ahmad alias Jamshed Haroon. On inspection, it was noticed by me, and also remarked by the parties, that the shops and other construction situated on the property were so congested that it would be impossible to easily
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demarcate them into five lots the parties present including the plaintiff stated that there was no need to partition this part of the property, which they would try to get sold through Court auction and share the price according to their shares or, in the alternative, leave the property as it is and divide its rent in accordance with the terms of the compromise. In order to satisfy myself that the position was such, I asked Mian Badar-ud-Din to prepare a plan indicating overlapping or portions. As a result he has prepared plan (Ezh. Y) which is self-explanatory. It shows that construction of plot No, 1 also falls in plot No, 2 and construction of plot No, 2 likewise falls in plot No, 3. Similar is the position with regard to plots Nos. 4 and 5. This continues in the remaining area as well. It means that it is difficult to get partition made in such a manner so as no part of a particular plot would fall in the share of the other. Under these circumstances, it is recommended that, as desired by the parties, the property in Gowalmandi may either be sold by open auction, if so required by the parties and after its reserve price as suggested by the parties has been determined, or in the alternative, the rent may be received collectively and apportioned according to the shares." ' Learned counsel for the contesting parties (who are defendant No, 1 Sh. Ijaz Ahmed and defendant No, 3 Mr. Sajjad Ahmed Jan), submitted that actually all the parties have already sold about 40 per cent. Of the Gowalmandi property jointly outside the Court after the report of the Commission and have also received their share of the proportionate price from each sale. These sales were made by all the parties jointly executing the relevant sale deeds. It was submitted that the sales so far made may be allowed to stand and all the parties may be allowed to sell the rest of the Gowalmandi property also in the same manner privately and share the sale proceeds according to their respective shares. If the parties desire to privately sell the property, I have no objection and from my point of view such a course will rather be for the interest and welfare of all concerned if they can maintain family unity, love and affection by mutually disposing of the property aforesaid and avoid unnecessary expenditure and cumbersome procedure through Court for that purpose. Consequently accepting the parties request as made at the Bar and holding the same to be in the interest and welfare of all concerned, I maintain the sales so far made and also authorise the parties concerned to dispose of the rest of the Gowalmandi property through joint private sales as they have already done by sale of 40 per cent. Of this property and share the sale proceeds in accordance with their respective shares. Order accordingly. It is to be clarified that this arrangement should be considered in supersession and modification of the ore contained in the original agreement/ orders on the subject. 3. Coming to the Mianmir property, it was decided in the previous judgment that it was to go to Mr. Sajjad Ahmed Jan exclusively who was, however, to pay a sum of money equivalent to the fractional share belonging to Sh. Ijaz Ahmed as representing his share therein by virtue of heir of his father/propositus Sh. Muhammad Sharif and also heir of his deceased brother Sh. Masood Ahmed. Prevailing market value of the fractional share of Sh. Ijaz Ahmed was to be determined by the local Commissioner subject to final adjudication by this Court. With regard to this property the Commission after taking lengthy evidence, oral and documentary, as was produced by the contesting parties, has reported (a) that the land is a potential building site ; (b) that the area of the land is 14 kanals, 13 marlas and 211 sq. Ft. ; (c) out of which 4 kanals 2 marlas 51 sq. Ft. Is under or is to be meant for municipal roads (d) and the net area available thereafter is only 10 kanals, 11 marlas ISO sq. Ft. ; (e) that the share of Sh. Ijaz Ahmed therein comes to 2 kanals, 12 marlas, 95 sq. Ft. (f) and the market value of the land is Rs, 17,000 per kanal ; and (g) and for his share of 2 kanals 12 marlas 95 sq. Ft. Sh. Ijaz Ahmed is entitled to receive a sum of Rs, 44,559 from Mr. Sajjad Ahmed Jan. ' Learned counsel for the parties have raised various points and objections with regard to the aforesaid report to which I will presently advert. Sh. Ijaz Ahmed also argued personally at length.
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4. Taking up the point at (a) above, no objection has been raised by any of the parties regarding the nature of the land and all were agreeable that it is a potential building site (and not an agricultural land), prevailing market value whereof with reference to compromise dated 4-4-1974 is to be assessed on that basis. As the parties accept the aforesaid nature, status and classification of land, therefore, the same is hereby maintained and the report and finding of the Commission is accepted in that respect. 5. As regards the point (b) of para. 3 above, it is a common ground that the land in dispute in the revenue record bears Khasra No, 2181 in hadbast of Mianmir and was purchased by Sh. Muhammad Sharif through a registered deed of sale, dated 13-9-1929 Exh. C. W. 8/9. In the sale deed the total area mentioned was 20 kanals though the separate area of each Khasra number which comprised this land was not shown which led to mentioning wrong total area. However, in the connected sale mutation bearing No, 1106 dated 12-7-1937 Exh. R. W. 2/2 the area is column No, 14 in possession of vendee was shown only as 15 kanals. Sh. Muhammad Sharif died somewhere in 1935 and in the relevant mutation of inheritance bearing No, 1110 dated 23-7-1937 Exh. R. W. 2/1 this area was shown as 13 kanals 3 marlas and 223 sq. Ft. Mr. Sajjad Ahmed Jan occupied this land in year 1961 or thereabout with the consent of everyone concerned as an exclusive hisedar. At that time as he bad an idea to build a residential house on this land, therefore, to be certain about its exact area he applied to the revenue authorities for its actual demarcation. Mr. Sajjad Ahmed Jan in his deposition before the Commission on 15-12-1974 stated that "my application and the proceedings that followed on it are contained in the attested copies which I file and which are exhibited as R. W. 2/3 and R. W. 2/4. The Patwari came to the spot. My brother-in-law, Mr. Abdul Azle (husband of my step-sister Mon Anna Khatoon), who was also a revenue officer, VISS also present at that time and had signed the proceedings on my behalf. The measurements were taken on the spot in my presence, boundary poles were fixed and the total area was then found to be 14 canals, 13 marlas and 211 sq. Ft. I moved for a correction mutation which was then duly attested on 7-12-1961. The correction pertained to the area of the land from 12 kanals, 10 marlas and 223 sq. Ft. To 14 kanals 13 marlas and 211 sq. Ft. (It is mutation No, 315 marked as Exh. D. W. 2/23). In Exh. D. W. 8/10 which is Khasra Imarti for the year 1961, the area shown is the same. The statement of Mr. Sajjad Ahmed Ian stands fully corroborated from the relevant record referred to above, which I have gone through with the learned counsel for the parties. The Commission in this respect in para. 9 of his report has stated that "I inspected this place after the evidence had been recorded, in order to satisfy myself and asked Mian Badruddin to prepare its plan giving its measurement on all sides. The plan, which he has prepared is marked as Exh. 'Z'. The area comes to 14 kanals 13 marlas 211 sq. Ft. The inspection was made in presence of Sh. Ghias Muhammad and Kh. Muhammad Tufail, Advocate for Mr. Sajjad Ahmed Jan who was also present, Mr. Hakam Qureshi, Advocate for defendants Nos. 1 and 4. Ijaz Ahmed (plaintiff) came a little late. However, the parties interested in this dispute, namely, Sajjad Ahmed Jan and Ijaz Ahmed were present and the spot was inspected in their presence". I have perused the plan Exh. 'Z' in Court. It contains measurement on all sides and shows the total area as 14 kanals, 13 marlas and 211 sq. Ft. Apart from the fact that there is no evidence to the contrary, coupled with this is the circumstance, that in 1961 much before the present litigation when Mr. Sajjad Ahmed Jan got the exact area demarcated obviously the intention was to be certain about the actual area on the spot and if possible to get it increased and not to part with any part of the same in favour of any person or to otherwise dwindle it to his own detriment. The demarcation proceedings were attended to by Mr. Abdul Aziz husband of Mst. Asma Khatoon (defendant No, 5 stepsister of Mr. Sajjad Ahmed Jan), which is a guarantee by itself about the correctness of the demarcation. The said measurement has remained operative without any demur from any quarters up-to-date. When confronted with the above, learned counsel for Sh. Ijaz Ahmed addressed no arguments on merits of this matter, but tried to raise certain technical points. Firstly, he submitted that the Commission did not make inspection of the spot in the presence of his client. The plea is not correct. It is clearly recited in the report that Sh. Ljaz Ahmed and his counsel
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were both present along with others. When confronted with this recital, learned counsel did not press the matter further. The second point argued was that as the Commission did not prepare or keep a note in writing of the spot-inspection, therefore, no value should be attached to the same. The contention has no merit. It is not a must that a note in writing should always be prepared or kept and each case depends upon its own facts and circumstances. Learned counsel could not support this submission by any text, law or precedent on the subject. In my opinion, keeping a mental note of spot- inspection in certain cases can as well serve the requisite purpose and no hard and fast rule can be laid down in this respect. In the instant case the Commission inspected the spot after the parties closed their evidence. The inspection was done in the presence of the parties and nothing has been brought to my notice to show that the area of the land was more. The third point argued was that in para. 1 (ii) of the compromise it was written that "the precise measurement. . Mill be made by local Commissioner". Learned eounsel argued that the measurement should have been done by Mr. Mushtaq Hussain Munk himself and not by Misn Badaruddin. The plea is not correct. The co-opted member of toe Commission, who was a technical, hand, could competently be asked to attend to such a technical matter. He, was in such matters a part of the Commission and the plan &h. 'Z' prepared by him, from that point of view, does not suffer from any infirmity. The last objection in this respect was that Mian Badaruddin made the measurement in the absence of Sh. Ijaz Ahmed. This objection also has no merit. The report of the Commission shows that inspection of the spot was done in the presence of the parties and Mian Badaruddin was asked to prepare its plan giving its measurement on all sides, which plan was prepared by him in the form of Exh. 'Z'. It is not the case of Sh. Ijaz Ahmed that the plot was not identified or specified by the parties before the Commission. In that view of the matter, this objection also has no substance. It has been not shown to me as to in what respect the areas was wrongly mentioned in correction mutation No, 315 dated 7-12-1961 Exh. D. W. 2/23 or in the plan Exh. 'Z'. At this place it may be mentioned that Sh. Afzal Ahmed, plaintiff, real brother of Sh. Ijaz Ahmed defendant, had himself mentioned in para. 2 (b) of the plaint that the area of this land was 14 kanals 13 marlas and 211 sq. Ft. Sh. Ijaz Ahmed in the corresponding para. Of his written statement did not plead or give any specific different area. It may be further noticed that after the receipt of the report of the Commission Sh. Ijaz Ahmed filed objections thereto on 11.5-1976 and an affidavit dated 11-10-1976. In none of these he raised any objection regarding non-maintenance of inspection note in writing and nor was it said that the measurement as shown in plan Exh. 'Z' by Mian Badaruddin was done in the absence of Sh. Ijaz Ahmed or that it was an incorrect measurement. As a matter of fact, in none of these two documents dated 11-5-1976 and 11-10-1976 any objection as to the actual area of Khasra No, 2181 was raised. As a result of this discussion, I maintain the report of the Commission and hold that the area of the land in dispute on the spot is 14 kanals. 13 marlas and 211 sq. Ft. 6. As regards the points at (c), (d) & (e) in para. 3 above, claim for deduction of area for roads is of three kinds, namely, (i) road on the southern side of the plot throughout from east and west measuring 465 ft in length and 60 ft. In width ; (ii) road on the western side ; (iii) general deductions for roads on the basis of the plot being a potential building site. (i) Re : Road on southern side.-Taking up the road on the southern side, which is to go through and through along a length of 465 from east to west, Mr. Sajjad Ahmed Jan (R. W. 1/defendant No, 3) deposed that "As I was intending to build a house, I had prior to the demarcation proceedings addressed a letter to the Town Planner, Lahore Improvement Trust, Lahore, of which I file a true copy Exh. R. W. 2/5. This was because I was informed that the Lahore Improvement Trust was proposing to make a road along side this land. I wanted to be sure about the exact alignment of the land so that I could construct my bungalow in accordance therewith. I received a reply from the Town Planner, which is Exh. D. W. 2 which stated that after examination of the position it was found that my land was affected by a 60 ft. Wide road, as shown in the plan which was attached with the letter which I produce and which is
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marked as Exh R. W. 2/6, and that in view of this, no objection certificate could not be granted for the construction of a bungalow a; the plot is split up by the road. The splitting up of the land is denoted in this plan in rod pencil as marked by the Lahore Improvement Trust. I wrote again to the Town Planner on this subject representing that this proposed road would completely destroy the utility of this land dissecting it into two corner triangles and that I would be unable to build any house on any part of the land. The true copy of this letter is Exh. R. W. 2/7. The reply I received was Exh. D. W. 1/A. The decision on my representation then was taken and it was stated that the 60 ft. Wide proposed road was to be constructed along side my land and that of the adjoining owners and each party was to share it on half and half basis i,e, to say I was to leave half of the land and so was the other party. The adjoining owners are the heirs of late K. B. Muhammad Zeman. Thereafter I got the p'an for my house duly sanctioned by the Corporation and I planned my house fully bearing in mind that I was to make my building line in accordance with the behest of tee Lahore Improvement Trust that I was to surrender 30 ft. Of my land throughout the the length of my land from east to west." ' It is in evidence from the statement of Illam Din (R. W. 1 defendant No, 3) that the length of the entire land from east to west is 4h5'. Same measurement was given in correction mutation No, 315 dates 7- 12-1961 Exh. R. W. 2/23 (page 121 of the Commission's file). The contributory width from this land being 30 ft so in this way lend measuring 3 kanals and 2 marlas will have to be left vacant for that road. Sh. Ijaz Ahmed pleaded complete ignorance on this subject an in his statement he deposed that : "I do not know whether there was a proposed road passing through the entire land left by our father. I also do not know whether due to the efforts of Judge Sahib, the proposed road was shifted from the land in dispute." ' In this State of affairs, I have no option but to accept the statement of Mr. Sajjad Ahmed Jan, especially when there was no counter version from the side of Mr. Ijaz Ahmed in his own deposition on oath before the Commission. The statement of Mr. Sajjad Ahmed Jan finds full corroboration from the documents mentioned and placed by him on record which have been gone through by me with the help of the learned counsel for the parties. However, during the course of arguments before the Commission, a plea was taken by the learned counsel for Sh. Ijaz Ahmed that actually the width of road on the southern side is only 40 feet with the resut that the land in dispute will contribute 20 feet width area whereas the other 20 feet width area shall have to be taken from the owners of adjacent lands opposite to the present land. Reliance was placed for this purpose on Appendix M'/ Exh. P/2 which is a proposal of the Town Planner, dated 30.4-1963 and is to be read with Trust Resolution No, 12 dated 25-5-1963 ; another Resolution dated 10-12-1974 Exh. P/3 ; Exh. P/1 which is blue map of Gulberg V Scheme (the present land, however, does not fall within that Sciatme) and Exh. C. W. 8/11 which is aks rnossavi " URDU TEXT". The document (M. P/2) and Resolution No, 12 show that the width of the road has ben, narrowed down only between plots Nos. 14 and 15 occurring in the Scheme and net in the land presently in dispute which, as already mentioned above is outside the Scheme. Resolution Exh. P/3 states that the road was to be built by the Lahore Improvement Trust and the Municipal Corporation and rather supports the factum of the necessity of a road at the spot. The blue map Exh. P/1 similarly also refers to the area from the eastern side upto an intervening plot No, 14 and not beyond that. The Commission attended to this matter and reached to the same conclusion in para. 11 of its report has been independently found by me. Learned counsel for Sh. Ijaz Ahmed referred to Exb. C. W. 8/12 (URDU TEXT) for the years 1957-58 to indicate that in Khasra No, 2179 there is a road of the area mentioned therein. He also referred to Exh. C. W. 8/10 "URDU TEXT" for the year 1961-62 showing road in Kbasra No, 2180. His argument was that as certain area of these Khasra numbers was shown as a road, therefore, in the face of the same, there was no justification for any road in any part of the present Khasra No, 2181. I am not to determine the antecedents of Khasra Nos. 2179 and 2180 which are not subject of adjudication before me and nor are owners thereof parties in this case. I am to confine this discussion to the present Khasra No, 2181 with regard to which I find ample material to hold that road is to pass through it and area for that purpose shall have to be slashed out. I see no justification to differ from
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the report of the Commission in that respect and hold that an area of 3 kanals and 2 marlas will be sliced away for the road under construction. Re : road on western side (ii) As regards the road on the western side, the report of the Commission on the subject as contained in para. 12 is as follows "By letter (Exb. D. W. 2) the Town Planner sent site plan to Mr. Sajjad Ahmed Jan which is Exh. R. W. 2/6. The letter informs Mr. Sajjad Ahmed Jan that he cannot build the bungalow because 60' wide road passes through his land. An examination of this plan would reveal that Mr. Sajjad Ahmed Jan shall have to surrender at least 20' wide area on the western side of his house when the Improvement Trust takes over the property and constructs 60' wide road in front. This is made further clear by plan (Exh. D. W. 1/A). This is further made clear by plan (Exh. P/1) produced by Mr. Ljaz Ahmed that Improvement Trust authorities intend to construct 60' wide road in front of the bungalow of Mr. Sajjad Ahmed Jan on the west. Thus, out of the entire area of the bungalow, another 1 kanal 51 sq. Ft. Shall be slashed. The deductions on both sides shall leave an area of 10 kanals 11 marlas 160 sq. Ft." ' The report of the Commission stands supported from plan Exh. D. W. 1/A and Exh. P/1 which clearly show existence of road on the western side. Plan Exh. 'Z' also indicates that road. According to the scales shown in those maps it is clear that the area to be sliced away from this side for road is 1 kanal 51 sq. Ft. I hold accordingly. Re : General deduction for road (s) (iii) As regards the general deductions, the Commission dealt with the matter in para. 13 of its report in the following words: "Before parting with this aspect of the case, I would like to mention that basing his argument on the case of Sh. Manzoor Hussain v. Mahan Improvement Trust, Multan (PLD 1972 Lab. 225), where the Hon'ble Judges have said that an allowance should be made for making of plots and constructions of roads of the land ranging between 3a % to 40% of the gross area of the land involved Sh. Ghias Muhammad suggested that the share of Mr. Ljaz Ahmed should be determined after slashing at least 33% from the total area. I have perused the judgment. The learned Judges were themselves of the view that each case depends upon its own facts. When I am making deduction of two roads, a further deduction appears to me to be uncalled for. However, if I were to slash at least 30% area from the entire property then the share of Mr. Ijaz Ahmed including late Sh. Masud Ahmed's share shall come to 2 kanals and 10 marlas, 213 sq. Ft." ' Sh. Ghias Muhammad, Advocate, in his written arguments dated 29-1.1977 has not claimed any general deductions for road (s), though verbally he submitted that if alteration in market value is to be made then he would press this claim also. As my judgment later on will show I have not altered the market value, therefore, I need not go into this matter and uphold the report of the Commission in this particular respect. (iv) Summing up the area under road comes to 3 kanals, 2 marks 0 sq. Ft. (for road on the southern side) and 1 kanal 51 sq, ft. For road on the western side totalling 4 kanals 2 marlas and 51 sq. Ft. This will have to be deducted from the total area of the land, namely, 14 kanals 13 marlas 211 sq. Ft., with the result that the net area, market value whereof is to be determined, is 10 kanals, 11 marlas and 160 sq. Ft. I am not determining the market value of the area under roads, because, for the purpose of the plot as a potential building site, deducti ns for roads have to be made. Since that area is not to be owned or taken over by Mr. Sajjad Ahmed Jan, therefore, he is obviously not required to pay fractional share of its price to Sh. Ijaz Ahmed. The proper order that can be passed in these circumstaces on this precise matter is that when the municipal authorities pay compensation for building roads on that area then Sh.…
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