' SHAHZAD AKBAR KHAN, J.--- Saeed-ur-Rehman and 4 others residents of village Shah Mansoor Tehsil and District Swabi have filed this appeal questioning the correctness of the judgment, dated 10-12-1996 passed by the learned Senior Civil Judge/Land Acquisition Judge, Swabi, whereby the reference filed by the appellant under sections 18/30 of the Land Acquisition Act was dismissed.
2. The short facts of the case are that land measuring 2123 Kanals, 13 Marlas was acquired for the purpose of construction of Shah Mansoor Township. Notification under section 4 of the Land Acquisition Act, 1894 was issued by the then Deputy Commissioner, Swabi vide his office Endst.
No,358-62/DK/KVC, dated 10-6-1989. Declaration under section 6 of the said Act was issued by the then Commissioner, Mardan Division, Mardan vide his office Endst. No,5161-63/HVC, dated 7-10- 1990. The relevant award has been assigned its number as 728/31/ACS dated 16-3-1991. The area acquired by the Land Acquisition Collector, Swabi was of two kinds i.e, Chahi and Maira land. The price of Chahi land was determined by the Collector as Rs,37,352 per Kanal while that of Maira land was determined as Rs,13,553 per Kanal based on one yearly average.
3. 15% compulsory acquisition charges were also given to the landowners. The land measuring 90 Kanals, 3 Marlas belonging to the appellants was included in the acquired land.
4. Dissatisfied with the compensation amount, the appellants filed reference before the Senior Civil Judge/Land Acquisition Judge, Swabi. The reference was resisted by the respondents by filing reply thereto and the rival pleadings generated the following issues:--
(1) Whether the plaintiffs/petitioners have got a cause of action?
(2) Whether the reference petition is within time?
(3) Whether the petitioners/plaintiffs are estopped by their own conduct to file the present reference?
(4) Whether the petitioners/plaintiffs have received the compensation without objection?
(5) Whether the compensation of the suit-land is wrongly assessed, if so, what is the correct and accurate compensation?
(6) Whether the .Petitioners/plaintiffs are entitled to the enhancement of compensation as prayed?
(7) Relief.
5. Both the parties adduced their respective evidence. However, the trial of the matter ended into dismissal of the reference petition.
6. The learned counsel for the appellants has argued that the Land Acquisition Collector as well as the learned Land Acquisition Judge, Swabi have erred in law by not taking into consideration all the relevant factors for the purpose of determining the correct price of the acquired land and as such the price determined by the Land Acquisition Collector and upheld by the Land Acquisition Judge, is much less and unfair. He contended that the suit-land is situated near the Village Abadi and on the road side which can be used for the purpose of construction and these are the adding factors to the potentiality of the suit-land. He also argued that the mutations mentioned in para.3 of the reference application were not taken into consideration for the purpose of determining the correct price. He also stated that though attorney of the appellants i.e, P.W.2 namely Saeed-ur-Rehman has not deposed about the installation of the tube-well in the acquired land nevertheless it has been mentioned in the reference application that a tube-well on the expenses of Rs,82,500 has been installed in the land by the appellants which too has not been taken into consideration by the learned lower Court.
7. On the other hand the learned counsel appearing for the respondents has submitted that the land of the appellants is admittedly not situated on the road side. It is located far-off the Village Abadi of Shah Mansoor. He further urged that the land is provenly a Maira kind and that it has got no potential value. He contended that out of the seventeen applicants all except appellants Nos.1 and 2 had received the compensation without recording any protest. Appellants Nos.1 and 2 had not received the compensation. He also stated that out of the seventeen persons only five have filed the instant appeal. He also argued that in the circumstances the best mode of determining the value of the suit-land was to employ the method of one yearly average on the basis of the Revenue Record which has been accordingly done.
8. We have heard and considered the rival arguments of the learned counsel for the parties in the light of the record. Patwari Halqa Umar Dad was examined as P. W.1 who produced the one yearly average from 30-4-1991 to 30-4-1992 and five yearly average from 30-4-1987 to 30-4-1992 Exh.P.W.1/1 and Exh.P.W.1/2. This witness has clearly stated that the acquired land is of Maira kind. On re-examination P. W.1 produced only the photostat copies of Mutation No,13061, dated 25-2-1986, 13875 and 13876 attested on 29-8-1989. Appellant No,1 Saeed-ur-Rehman was examined as P.W.2.
He assailed the price of the acquired land on the ground that the suit-land was situated on SwabiJehangira Road and there is Abadi near it. A Technical College is situated near the land acquired for the Shah Mansoor Township and the land of Muhammad Amin (P.W.3) was sold to the Education Department for a play ground at the rate of Rs,1,00,000 per Kanal. Moreover, the Education Department also acquired land for a sum of Rs,40,000 per Kanal. In the cross- examination this witness has admitted that his land is not alongwith the road side. He also admitted that the distance between Village Shah Mansoor and the Tbwnship is two kilometers. He also admitted that he has not brought the mutations on which the land in the said locality was sold for. Rs,1,00,000 per Kanal. Similarly P.W.3 although stated that he sold a portion of his property for Rs,1,00,000 per Kanal in favour of one Gul Rehman but no mutation or other document was produced in this regard. Even Gul Rehman to whom the property was statedly sad by P.W.3 was not examined. P.W.3 admitted that the distance between his house and the acquired land is four kilometers. Thus, it is an admitted position that the land of the appellants is not located on the road side and no documentary roof was produced by P.Ws.2 and 3 to establish the fact that any other land in the same locality was sold for a higher price. The mere bald statement of P.Ws.2 and 3 would not be sufficient to accept their claim for a higher price. On reexamination the Patwari Halqa produced only photostat copies of the three mutations referred above but the same cannot be taken into consideration in view of section 76 of Qanun-e-Shahadat Order (No,10 of 1984) as no attested copy thereof could be brought on the record. On evaluating the evidence it follows that the land of the appellants is of Maira kind. It is not culturable. It is not situated on the road side and is located at a sufficient distance admittedly of two K.Ms. From Shah Mansoor Village, therefore, no element of the potential value is emerging from the record. In the application filed before the Land Acquisition Judge though a tube-well has been mentioned but none of the P.Ws. Has deposed about the existence of any tube-well. The pleadings of the parties is not evidence and the fact alleged in the pleadings must be proved through the evidence of the party which claims the existence of certain facts (Article 117 of Qanun-e-Shahadat Order (No,10 of 1984) the determination of the price of the acquired land for the purpose of compensation through one yearly average is one of the modes recognized by law which has been employed by the Land Acquisition Collector very correctly. Resultantly we find no force in the arguments of the learned counsel for the appellants and thus, the appeal being devoid of merits is dismissed, with no order as to costs.