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Petitioner: ABDUL SAMAD KHAN And Others VS Respondent: GOVERNMENT OF N. W.F.P And OTHER
Court Name: Peshawar High Court Judge(s): Sardar Muhammad Raza Khan, Shah Jehan Khan Yousafzai Title: ABDUL SAMAD KHAN And Others vs GOVERNMENT OF N. W.F.P And OTHER Case No.: Regular First Appeals Nos.68 and 69 of 1997 Date of Judgment:2001-03-13 Reported As: 2001 CLC 988 Result: Appeals dismissed
JUDGMENT
JUDGMENT SHAH JEHAN KHAN, J.--- Regular First Appeals Nos.68 and 69 of 1997, involving common question and against the same decree and judgment could be disposed of by this single judgment. 2. In R.F.As. Nos.68 of 1997 and 69 ,of 1997 the appellants have applied for placing certain documents on record through C.Ms. Nos.9 of 2000 and 10 of 2000. Attested copies of the documents are also annexed with. Subsequently the appellants moved C.Ms. Nos.358 of 2000 and 359 of 2000 with a prayer that C.Ms. Nos.9 of 2000 and 10 of 2000 be treated as applications for additional evidence. 3. The Government of N.-W.F.P. For the purpose of extension of Sheikh Maltoon Town, Mardan and construction of 200 beds hospital was in need of acquiring certain properties. The draft Notification under section 4 of the Land Acquisition Act, 1894 was sent by respondent No.3, which was issued by Land Acquisition Collector (respondent No.2) on 13-4-1989 vide No.383-87/HVC whereby lands bearing Khasras Nos.318 min, 331 min, 334 min, 336 min, 339 thin, 340 min, 341 min, 344 min, 345 min, 347 min, 349 thin, 309 min, 312, 314, 3-13, 315, 316, 317, 318, 310, 329, 332, 333, 341, 343 and 345 total treasuring 545 Kanals, 9 Marlas in Revenue Estate Roria Tehsil and District Mardan were notified for acquisition, which was subsequently, amended through a corrigendum Notification No.54-58/HVC, dated 3-2-1990 for Khasras Nos.303, 304, 305, 306 thin, 307, 308, 309, 310/1, 310/2, 510/311 to 322, 51-1/472/311 to 322 min; 472/311 to 322/3/5, 472/311 to 322/3/3, 472/311 to 322/3/4, 472/311 to 322/3/1, 323, 324 min, 325 min, 326/2, .327 min, 328- stun, 329 min, 330 stun, 331/1, 331/2, 332, 333, 335, 334, 336 thin, 338 to 341/2, 342 to 344 and 345/1, 342 to 344 and 345/2, 337, 338 to 341/1, 349 min, 484/350-351 min, 472/311 to .322/.3/6 and 478/347-348. Min total measuring 567 Kanals, 3 Marlas. The Commissioner Mardan Division issued Notification under section 5 vide
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No.5249-52/HVC, dated 9-10-1990 and the Collector issued notices under section 9'to the affectee landowners vide No. 1120/ACM; dated 4-7-1992. 4. For the land measuring 341 Kanals, 11 Marlas out of the total land under acquisition 567 Kanals, 3 Marlas the award No.67/3 was issued under section 11 based on negotiations and agreement between the affectee land owners and the acquiring -department on 7-7-1992 announced an award for land bearing Khasms Nos.303 min, 304, 305, 306 min, 307, 309 min, 310/ 1, 310/2, 511 /472/311 to 322 min, 510/472/311 to 322 min, 472/311 to 322/3/1, 472/311 to 322/3/4, 472/311 to 372/3/2, 472/311 to 322/3/3, 472/311 to 322/3/5, 472/311 to 322/3/6, 323 min; 326/2, 327 thin, 328 min, 329 min, 330 min, 331/1 min, 331/2 min, 332 stun, 333, 334, 335, 336 min, 338 to 341/1/2 min, 342, 344, 345/2/2 thin, 478/347-348 min, 349 thin and 484/350/351 min. No award could be announced in respect of land measuring 171 Kanals, 12 Marlas consisting of Khasras Nos.308, 309 stun, 323 min, 510/472/311 to 322 min, 511/472/311 to 322, 327 stun, 328 min, 329 min; 330 min, 332 min, 336 min, 478/347-348 thin and 464/350-351 min, as no agreement between the parties could be arrived at. The possession of this land measuring 171 Kanals, 12 Marlas was urgently required. To provide speedy health facility to the people and as the funds allocated for the project were going to lapse by the end of financial year, therefore, proceedings were initiated under section 17 of the Land Acquisition Act on 29-8- 1992 and possession of the land was taken over. The award bearing No:70/3 subsequently was announced on 28-10-1992 after due process, whereby .The rate of compensation for the front portion measuring 25 Kanals, 4 Marlas was fixed Rs.110,000 per Kanal while for the rest 146 Kanals, 8 Marlas it was fixed Rs.90,000 per Kanal. The compensation for the built, up area in front portion was assessed through a team of engineering staff of the Mardan Development Authority and C&W .Department. The affectee land owners were also granted 15 per cent. Compulsory acquisition charges with six per cent. Interest. 5. There was a title dispute between the appellants and private respondents herein in. Respect of Khasra No.308. The Collector Land Acquisition respondent No.1 trade a Suo Motu Reference bearing No.21/4 of 1993 on 6-1-1993 to the Senior Civil Judge as. Referee Court under section 31 of the Land Acquisition Act, 1894 which was subsequently amended on 28-2-1993. It was highlighted in the reference that Abdul Samad Khan etc. Appellants herein had claimed through application dated 13-9-1992 that they .Are owners of Khasra No.308 through gift Mutation No.146 attested on 27-6- 1968 which was not given effect in the subsequent Jamabandis but later on a Fardi Badar bearing. No. 11, dated 13-10-1987 was entered and attested. Since the question of title was raised by the appellants against the contesting private respondents in respect of half of the land measuring 81 Kanals, 15 Marlas in ~Khasra No.308 the compensation regarding the said Khasra No. Could not be disbursed and the same was deposited in Court for apportionment after determination of title. The total compensation fixed in the award was deposited , in the Referee Court of Senior Civil Judge, Mardan. 6. After procuring the attendance of parties and submission of their respective claim the Referee Court framed the following issues arising from the pleadings of the parties:-- (1) Whether the suit-land has been acquired by the Collector for the extension of Sheikh Maltoon Town. (2) Whether the question of apportionment of compensation is involved in the present case? (3)- Whether half of Khasra No.308 measuring 81 Kanals; 17-1/2 . Marlas has been gifted in favour-of respondents Nos.32 to 42 by Muhammad Sharif Khan, their predecessor-in-interest vide Mutation No. 146 attested on 27-4-1966? (4) Whether the acquired land half portion of Khasra No.308 measuring 81 Kanals, 17-1/2 Marlas has been sold by Muhammad Sharif Khan in favour of A.I Haider etc. Predecessor-in-interest of respondent Ahmad Khan etc. Through registered sale-deed, dated 12-11-1968?
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(5) Whether the respondents Nos.7, 9, 28 and 29 are co-sharers in the suit-land and as such they are entitled to receive the compensation? (6) Whether the respondents are entitled to receive the compensation as awarded by the L.A.C. Mardan if so to what extent and how much? (7) Relief. Both the parties adduced their evidence as they wished to produce. In the conclusion the Referee Court passed the impugned decree and judgment, to the effect that Ahmad Khan etc. Private respondents were held entitled to receive their respective shares of the compensation alongwith other legal charges, while the appellants were found not entitled for compensation. Feeling aggrieved the appellants have filed the instant two Regular First Appeals seeking a prayer to set aside the decree and judgment of the Referee Court and for a declaration that appellants are entitled to receive compensation of the acquired land measuring 81 Kanals, 17-1/2 Marlas in the disputed Khasra No.308. The enhancement of compensation to Rs.50,000 per Marla alongwith compulsory. Acquisition charges and interest admissible under the law is also prayed for in separate R.F.A. No.69 of 1997. 7. We heard the learned counsel for the. Parties and perused the record. In both the R.F.As. Nos.68 of 1997 and 69 of 1997 the learned counsel for the appellants objected to the findings of the trial Court on Issues Nos.3, 4, 5 and 6 and prayed for its reversal to the effect that appellants be declared entitled to receive the compensation being owner in possession at the time of its acquisition in light of Mutation No. 146 attested on 27-4-1966 and rate of compensation be enhanced in light of judgment reported in Abdul Samad Khan v. Project Director Mardan Development Authority PLJ 2000 Peshawar 259 respecting adjacent land. 8. On the other hand learned counsel for contesting private respondents supported the findings of the trial Court on Issues Nos.3 and 6 being based on evidence of the parties and in accordance with law. 9. Khalid Patwari Halqa was examined as R. W.1 who produced the record of Fard Jamabandi from 1925-26 to 1978-79 as Exhs.R.W.l/1 to R. W .1 / 11 whereby Shah Pasand Khan is recorded as owner and after his death Muhammad Sharif Khan the grandfather of appellant is recorded owner of 1/2 share in Khasra No.308 till Jamabandi for the year 1965-66 (Exhs.R.W.I/1 to R.W.1/10). In Jamabandi for the year 1969-70 A.I Haider (the vendee through registered sale-deed dated 12-11-1968) is recorded in ownership column. In Jamabandi for the. Year 1978-79 A.I Haider alongwith owners are recorded in column of ownership as well as in column of cultivation while appellants are not recorded as owners but their names are appearing in the cultivation column in the bottom. He also produced Fardi. Badar No. 114 attested on 12-10-1987 as Exh.R.W.l/12 whereby the names of Abdus Samad Khan etc. Were recorded in the ownership column on the basis of gift Mutation No. 146, dated 27-4-1966. He also produced Khasra Girdawari of disputed Khasra No.308 as Exh.R.W.I/13 from Kharif 1979 to Rabi 1992. He affirmed that A.I Haider, the father of Ahmad Khan respondent has purchased half of the area of Khasra No.308 from Muhammad Sharif Khan (grandfather of Abdus Samad Khan etc. Appellants) through Mutation No. 210 attested on 22-2-1969 as Exh.R.W.I/R-1. He also produced sale Mutation No.160 attested on 17-1-1967 through which A.I Haider has purchased two Marlas of land from Muhammad Azam Khan as Exh.R.W.I/R-2. He also produced Mutation No. 121 whereby 12 Kanals of land was mutated in the name of A.I Haider by Muhammad Azam Khan copy of the, said mutation is Exh.R.W.I/R-3. 69 Kanals, 15-1/2 Marlas of land was purchased by Maj. Hidayatullah from Muhammad Azam Khan through Mutation Eich.R.W.I/R-4. All the mutations relate to Khasra No.308. Muhammad Azam Khan was owner of the half of the area in Khasra No.308 as those sold is entire holding through the aforesaid mutation. Half of the area of Khasra No.308 measuring 81 Kanals, 16-1/2 Marlas owned by Muhammad Sharif Khan was sold to A.I, Haider through mutation mentioned above. The said mutation was given effect in the subsequent
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Jamabandi of 1969-70. The land purchased by Maj. Hidayatullah was successfully pre--empted by A.I Haider and the said land was mutated in his name through Parth Patwar Exh.R.W.I/R-5. Though the names of Abdus Samad Khan etc. Are appearing in the Jamabandi for the year 1969-70 but it was noticed that their names were subsequently recorded, and that too through a different ink in the Jamabandi Exh.R.W.1/11. In Khasra Girdawaris from Kharif 1979 to Rabi 1983 copy Exh.R.W.I/R-6 the names of Abdus Samad Khan etc. Appellants were admitted to be recorded through different ink respecting Khasra No.308. The witness also affirmed that A.I. Haider the vendor had sold some of the land purchased by him through the aforesaid mutation to different persons (respondents in the instant appeal). 10. Abdul Qayum A.D.K., Mardan was examined on oath as R.W.3. He produced the Tamlik Mutation No. 146 attested on 27-4-19615 in favour of the appellants copy whereof is Exh.R.W.3/1. In his cross- examination lie stated that the original Jamabandi of 1969-70 has been lost and the case was registered against the peon namely Dost Muhammad under the Anticorruption Laws who was ultimately convicted and subsequently he died. He produced the original Jamabandi of 1978-79 regarding Khasra No.308 as Exh.R.W.3/R-1 wherein the names of Abdus Samad Khan etc. Appellants are not appearing in the column of ownership. However, their names are mentioned in the column of cultivation at the bottom. He neither affirmed nor denied the suggestion that the ink used for the names of appellants are different than the ink used for other entries. However, he stated that the said Jamabandi was prepared by Mir Ahmad Jan, the then Patwari Halqa who has by then retired from service. 11. Fida Hussain, Head Clerk in the office of Land Acquisition Collector, Mardan was examined as R.W.4 who produced Notification under section 4, dated 13-4-1989 as Exh.R.W.4/1. The Corrigendum Notification under section 4 issued on 3-2-1990 as Exh.R.W.4/2, Notification under section 5 issued on 9-10-1990 as Exh.R.W.4/3, one year average from 11-1-1989 to 11-1-1990 showing the average market price as Rs.6,716 per Marla as Exh.R.W.4/4. The map of acquired land as Exh.R.W.4/5. The Award No.67/3 ;passed on private Notification regarding the adjacent land announced on 7-7-1992 as Exh.R.W.4/6 whereby for the land measuring 341 Kanals, 11 Marlas the rate of compensation was fixed Rs.90,000 per Kanal (Rs.3,500 per Marla). He also produced one year average of the sale mutation in Mauza Roria in between 13-4-1988 to 13-4-1989 as Exh.R.W.4/7 extracting an average price of Rs.1,20,650 per Marla, notice issued under section 9 by the Acquisition Collector on 4-7-1992 directing the interested landowners to appear before him on 19-7-1992 as Exh.R.W.4/8. Notification under section 17 issued by the Commissioner, Maidan Division for urgently taking possession of the land under acquisition as Exh.R.W.4/9, Notification under section 6 issued by Land Acquisition Collector, dated 29-9-1992 as Exh.R.W.4/10, one year average of the sale mutation in the said, Mauza from .14-4-1991 to 14-4-1992 whereby an average of Rs.4,156.23 per Marla was drawn as Exh.R.W.4/11, another one year average for the same period was produced as Exh.R.W.4/12, copy of Award No.70/3 subject-matter of the instant proceedings regarding land measuring 171 Kanals, 12 Marlas including the disputed Khasra No.308 (163 Kanals, 17 Marlas), Goshwara showing the name of owners and occupants 44 in number of the land bearing Khasra Nos.308, 309, 323, 327 to 330, 332 and 311 to 322 of the total acquired land through .Award No.70/3 measuring 171 Kanals, 12 Marlas including Khasra No-308 (measuring 163, Kanals 15 Marlas) as Exh.R.W.4/13, an application of the appellants regarding release of compensation as Exh.R.W.4/14 and the acquaintance roll whereby the land owners of various Khasras Nos. Have received the compensation under protest. 12. Abdus Samad Khan appellant appeared as his own witness and on behalf of other appellants as R. W.5. He deposed that the land in question was originally owned by their grandfather namely Muhammad Sharif Khan who transferred the same through Tamlik Mutation No.146 attested on 27- 4-1966 Exh.R.W.3/1 and they were put in possession. On the strength of aforesaid gift mutation he claimed to be the owner of 81 Kanals, 17-1/2 Marlas half of the total area of Khasra No.308. In the
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cross-examination he stated that Muhammad Sharif Khan had two sons Abdul Hamid Khan and Ghulan: Sarwar Khan. Muhammad Sharif Khan died in the year 1971 at the age of 93 years and his father Abdul Hamid Khan died in the year 1992. At the time of gift mutation both his father and uncle were alive. While appearing pursuance to the notice under section .9 before the Land Acquisition Collector, he submitted an application, dated 13-9-1992 copy Exh.R.W.5/P-1 wherein it was stated that the Tamlik Mutation No:146 attested on 27-4-1966 regarding Khasra No.308 was not given effect in the subsequent Jamabandis and the same was done through Fardi Badar (Exh.R.W.I/12) attested on 13-10-1987. He was confronted with the original sale-deed executed by Muhammad Sharif Khan his grandfather on 12-11-1968 copy whereof is Exh.R.W.5/P-2 but he denied the signature of his grandfather on it. Also stated that he is not conversant with the signature of his grandfather. He stated that his grandfather was pious man with no habit of defrauding persons and an educated man. He denied the sale in favour of A.I Haider by his grandfather through Exh.R.W.5/P-2 on the ground that in view of gift Mutation (Exh.R.W.3/1) he was not owner of this land and secondly that he was an old man of 93 years at the time of alleged sale mutation. However, he did not produce his age certificate. Also stated that appellants donees had challenged the entries of the Revenue Record and sale-deed Exh:R.W.I/R-1 and Exh.R.W.5/P-2 but the said suit ultimately became infructuous due to acquisition of Khasra No.308 subject--matter of-dispute. He admitted that there is continuous entries in favour of A.I Haider vendee through sale-deed Exh.R.W.5/P-2. Also admitted that Swabi Marble Factory is also recorded in the Revenue Record who had, purchased the land from A.I Haider vendee through Mutation No.322, dated 5-6-1974. He has admitted that half of the area in Khasra No.308 owned by Muhammad Azam Khan was purchased by the said A.I Haider. He denied that the incorporation of the names of appellants in the Revenue Record was done through overwriting and through different ink and as a result of fraud and collusion with the Revenue officials. The omission of their names in the acquittance roll was termed as clerical mistake and was not due, to omission of their names in the Revenue Record. Admitted that his father and grandfather did not challenge the sale-deed Exh.R.W.5/P-2 and Mutation ' No. 210 attested on 22-2-1969 Exh.R.W.l/R-1 was neither challenged by his grandfather nor by his father in their lifetime being disinterested. The construction of Swabi Marble and Haji Abdul Hakim was raised on the portion purchased from Muhammad Azam Khan and not on the land purchased through Exh.R.W.5/P-2. He admitted that in their partition application of the land in village Roria Khasra No.308 was not included. However, he denied that the said omission was not accidental but due to purchased by 'A.I Haider. 13. Jehanzeb Khan, Junior Clerk of the Sub-Registrar, Mardan produced the original register of sale- deed, dated 12-11-1968 executed by Muhammad Sharif Khan as Vendor in favour of A.I Harder respecting the land bearing Khasra No.308 measuring 81 Kanals, 16-1/2 Marlas copy whereof is Exh.R.W.7/1. Ahmad Khan respondent appeared as R.W.8 in his own capacity as well as attorney for some of the respondents mentioned in Exh.R.W.8/1 and Exh.R.W.8/2. He stated that the land in question was owned by Sharif Khan who sold it to A.I Harder (his father) against sale consideration of Rupees one lac through registered sale-deed, dated 12-11-1968 copy whereof is Exh.R.W.8/3. The delivery of possession followed the sale-deed and the same was mutated in the name of vendee in the Revenue Record. Certain construction was made on it and a boundary wall was also erected. A portion of said purchased land was alienated in favour of Swabi Marble with possession. The gift mutation in favour of appellants was termed fictitious as no possession was delivered to them pursuant to the alleged gift mutation. He produced Fard Jamabandi for the year 1969-70 respecting Khasra No.308 obtained by his father A.I Harder the vendee on 15-6-1976 copy whereof was produced as R.W.8/4 wherein the names of appellants are not recorded in columns of ownership and cultivation. He also produced Fard Jamabandi for the year 1978-79 regarding Khasra No.308 as Exh.R.W.8/5 and Khasra Girdawari for Kharif 1974 to Rabi 19.76 as Exh.R.W.8/6 in
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support of his contention. During cross-examination he stated that his father A.I Raider had died in the year 1986. Sirajur Rehman (since dead) and Anwanuddin were the attesting witnesses of the sale-deed. Faqir Muhammad and Amirullah (now dead) were the marginal witnesses of the deed while Haji Maqbool Ahmad (since dead) scribed the deed. He was told by his father that half of the area of Khasra No. 308 was purchased by him through Exh.R.W.8/3 whereon construction was also made. He admits that he has not filed any proceedings against the subsequent entries of appellants in the Revenue Record. He denied the suggestion that Sharif Khan vendor had already transferred this land through gift Mutation No.146 attested on 27-4-1966 in favour of appellants. The record of .The construction on the land in question made by his father and grandfather was in possession of Excise and Taxation Department as by then the suit-land was not within the limit of Municipal Corporation, Mardan. He admitted that he has received the compensation for the remaining half portion, of the land bearing Khasra No.308 while the compensation for the land' in dispute is still attached. 14. Haji Faqir Muhammad a marginal witness of the sale-deed (copy of Exh.R.W.8/3) was examined as R.W.9 who affirmed that the deed was scribed by Maqbool Khan petition writer since dead whereby the vendor Muhammad Sharif Khan alienated the land mentioned in the deed in favour of A.I' Harder. After admitting the contents of the deed by Sharif Khan vendor he signed it and was also signed by him and Asmatullah as marginal witnesses. In his cross-examination he stated that Muhammad Sharif Khan vendor was personally known to him, who used to go to the Mandi of Abdul Hakim Khan a Tobacco dealer. The total area transferred through the deed was 80/81 Kanals and the sale consideration was Rs.1,00;000. The vendor was also accompanied by two persons one of whom was Haji Sirajur Rehman.. 15. Haji Wazir Muhammad, Managing Director, Swabi Marble Factory appeared as R.W.10 who stated that he had purchased 20 Kanals of land through Mutation No.322 attested on 5-6-1974' from A.I Harder an owner through registered sale-deed (Exh.P.W.8/3). Possession of the purchased land was also transferred to him. After the purchase he constructed Swabi Marble Factory and Brekhna Marble Factory on the purchased land. The sale in his favour was also admitted by the vendor's son. In his cross-examination he stated that A.I Harder had not purchased land from Muhammad Azam Khan but the land was purchased from him by Hidayatullah Khan which was pre-empted by Abdul Hakim Khan or his son A.I Harder and through pre--emption decree it became the title of A.I Harder. He denied the suggestion that the land measuring 20 Kanals purchased by him was a part of the land acquired by A.I Harder through pre-emption decree. Haji Wali Muhammad while appearing as P.W.12. Stated that Muhammad Nawaz, Sultan Muhammad, Fazal Raziq etc. Respondents had purchased land under dispute and they were also put into its possession. Some of the vendees also raised construction on the land so purchased. The land in question was purchased by A.I Harder from Muhammad Sharif Khan through a registered sale-deed (Exh.R.W.8/3). He expressed his ignorance regarding any land sold by Muhammad Azam Khan and pre-empted by A.I Harder. 16. Abdus Samad Khan etc. Appellants had fled Suit No.3091 of 1989 against Ahmad Khan etc., private respondents herein for a declaration to the effect that land measuring 81 Kanals, 17-1/2 Marlas out of 163 Kanals, 15 Marlas Khasra No.308 Khata No.37/129 as per Fard Jamabandi 1978-79; Revenue Estate Roria Tehsil and District Mardan is owned by them through Mutation No. 146 attested on 27-4-1966 and that the wrong entries in the Revenue Record are ineffective upon their rights and require to be corrected. Also prayed for a declaration that the registered sale-deed dated 12-11-1968 is fraudulent, illegal and ineffective upon their rights being executed by a non- owner and the entries in the Revenue Record in favour of defendants (respondents herein) are illegal and wrong and against the facts and are liable to correction. The plaintiffs-appellants also filed a separate application for injunction against the defendants and Land Acquisition Authorities
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from disbursement of compensation on defendants. The application was contested and- the learned Civil Judge, Mardan vide his order, dated 23-12-1992 granted the temporary injunction. On appeal the learned District Judge set aside the order of temporary injunction vide his order, dated 15-7-1993. The appellants herein feeling dis-satisfied from the order of District Judge filed Civil Revision No.346 of 1993 which was found infructutous due to acquisition- of the disputed land. The civil revision was disposed of on the statement of counsel for parties through judgment, dated 1-10- 1995. 17. The appellants filed objection petition under section 18 of the Land Acquisition Act- wherein they raised the question of disbursement: of compensation on the respondents being recorded owners in the Revenue Record. Also objected to the rate of compensation and claimed Rs.50,000 per Marla being prevailing market rate with 15 per cent compulsory acquisition charges and ten per cent. Interest. Ahmad Khan etc. Respondents also filed an objection…
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