' SHAHZAD AKBAR KHAN, J.--- Fazal Muhammad and two others sons of Sher Muhammad 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 appellants 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 Ends.
No,358-62/DK/HVC, dated 10-6-1989. Declaration under section 6 of the said Act was issued by the then Commissioner, Mardan Division, Mardan vide his office Ends. No,5161-63/HVC, dated 7-10-1990.
The relevant award has been assigned the 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 the "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 35 Kanals 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 plaintiff/petitioner has got a cause of action?
(2) Whether the reference petition is within time?
(3) Whether the petitioner/plaintiff are estopped by their own conduct to file the present reference?
(4) Whether the petitioner/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 petitioner/plaintiffs are entitled to the enhancement of compensation as prayed for?
(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 compensation determined by the Collector and upheld by the learned lower Court is not fair as the potential value of the land was not taken into consideration. He contended that the acquired land being located at a short distance from Village Shah Mansoor was fit for the purpose of construction and could fetch higher price of the landowners.
7. On the other hand the learned counsel for the respondents has opposed this appeal and defended the impugned judgment of the Senior Civil Judge almost for the same reasons that are incorporated therein.
8. We have heard the learned counsel for the parties and with their assistance have examined the record. Mirza Muhammad attorney for the appellants was examined as 0.W.2 who claimed that the average price of the suit-land is about Rs,1,00,000 per Kanal. He has placed reliance on a Mutation Exh.O.W.2/2. Patwari Halqa, Umer Dad was examined as P.W.1 who produced the relevant record including the one yearly average. Photostat copies of certain mutations were also produced by him as Exh.P.W.1/3 to Exh.P.W.1/5. This witness admitted that the suit-land is "Barani" and was not irrigated through canal or tubewell. Similarly Haji Samiullah who appeared as 0.W.3 stated that he had sold land in the said 'Wand' at the rate of rupees one lac per Kanal but no mutation or other document could be produced by him nor any party to the transaction was examined to substantiate the version of this witness. The mutations that have been produced by the appellants could not be taken into consideration for two-fold reasons that most of them are photostat copies and being secondary evidence cannot be admitted to evidence as no permission was obtained from the trial Court for the production of the secondary evidence. Secondly, no party to the transaction of Exh.O.W.2/2 was produced. The mere production of a mutation as evidence is not sufficient to believe that the price mentioned therein was entered correctly and bona fide. The owners of the land are burdened with the duty to produce some party to the transaction on which the reliance was placed. In this regard we feel supported by the judgment of a Division Bench of this Court reported as PLD 1976 Pesh.
50. The compensation was fixed by the Collector on the basis of one yearly average which is one of the legal mode of determining the compensation. The land is admittedly `Barani' and irrigated.
Even no request was made by the appellants to the trial Court for the appointment of any Local Commissioner in order to ascertain the location or any potential value of the suit-land. On the existing evidence and the Revenue Record the price of the land fixed as compensation by the Collector and upheld by the trial Court appears to be proper. Consequently, this appeal is dismissed, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.