' The brief facts out of which the present revision petition arises are that the respondent filed suit for declaration and injunction in the Court of Civil Judge 1st Class, Lahore on 21-6-1981. The contents of the plaint reveal that respondent purchased the plot in question measuring 2 Kanals which is situated in Village Keer Kalan through, registered deed dated 16-11-1961. The land in question along with other adjacent land was acquired by the Government for Housing scheme known as Lahore Township Scheme in the year 1962. The respondent/plaintiff submitted an application before defendant No,2/ petitioner. No,2 for allotment of his own land or another plot in lieu thereof for residential purposes. Petitioner No,2 did not take any action on the application of respondent/plaintiff till 1970. The respondent/plaintiff submitted application before defendant No,3/petitioner No,3 who intimated the respondent/plaintiff that he already has received compensation of Rs,1,640 for the land in question which was acquired by the petitioners on 25-10- 1965, and only a sum of Rs,246 as 15% compulsory acquisition allowance was payable to him. The respondent/plaintiff disowned the alleged receipt and contended that from May, 1962 to April, 1975 he, remained posted in Bahawalpur and that compensation was paid by the department to some wrong person. The contents of the plaint further reveal that the plaintiff/ respondent now claims to be entitled to allotment of a developed plot in Township Scheme. Defendants Nos.1, 3 to 51 petitioners Nos.1, 3 to 5 contested the suit and filed joint written statement and controverted the allegations levelled in the plaint. Defendant No,2/petitioner No,2 has also contested the suit and has taken a stand in the written statement that the respondent/ plaintiff has been paid the compensation of his land and only Rs,246 are now payable. Out of the pleadings of the parties the trial Court framed the following issues:- ( 1) Whether the plaintiff is entitled for allotment of developed plot in Lahore Township Scheme in lieu of the land mentioned in Para. No,1 of the plaint? OPP
(2) Whether the plaint does not disclose any cause of action? OPD
(3) Whether the plaintiff has no locus standi to bring the suit? OPD
(4) Whether the plaintiff is estopped by his conduct to bring the suit? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the plaintiff is disentitled to the relief claimed for? OPD
(7) Whether this Court has no jurisdiction to try the suit? OPD
(8) Relief.
' The trial Court decreed the suit vide judgment and decree dated 5-1-1994 and directed the petitioners/defendants to give residential plot to the respondent/plaintiff in case the defendants/petitioners had given residential plots to other similar landowners. In case allotment of plot not be found possible at all then reasonable compensation for the plaintiff's land be awarded to him. The petitioners being aggrieved filed appeal in the Court of Additional District Judge, Lahore who partly accepted the appeal of the petitioners vide impugned judgment and decree dated. 29- 11-2000 according to which the respondent was entitled to the compensation of Rs,I640 plus Rs,246 as 15% compulsory acquisition charges along with compound interest at the rate of 13% from 1-6- 1993 onward under section 34, C.P.C. The petitioners being aggrieved filed this revision petition.
2. Learned counsel of the petitioners submits that judgments of both the Courts below are result of misreading and non-reading of the record as both the Courts below misread the statement of Muhammad Yousaf Chohan, Naib Tehsildar who appeared as. D.W.1 wherein he has categorically stated that compensation has been paid by the petitioners to the respondent on 26-10-1965 vide Receipt No,8/239. He further submits that First Appellate Court also erred to grant compound interest to the respondent under section 34, C.P.C.
3. Office was directed to fix this revision petition after notice to the respondent who did not appear in spite of service. Therefore, ex parte order is passed against him.
4. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record.
5. It is admitted fact that land of the respondent was acquired by the petitioners. Award was also announced qua the land in question by petitioner No,2.
' The statement of Muhammad Yousaf Chohan, Naib Tehsildar who appeared as D.W.1 reveals that the land of the respondent/plaintiff was acquired for the housing scheme under the name and style of Township Scheme, Lahore. Compensation amounting to Rs,1,640 along with 15% compulsory charges was determined by the Land Acquisition Collector as per award. The compensation amounting to Rs,1640 had been paid to Muhammad Ishaq son of Muhammad Din vide Voucher No,8/239 on 25-10-1965 after identification of said Muhammad Ishaq by Muhammad Afzal and Muhammad Rashid, Member Union Council. It is also admitted fact that said witness has given, reply in the cross- - examination in the following terms:-- {{URDU TEXT}} ' Mere reading the cross-examination of witness of the " petitioners reveals that respondent/plaintiff has not received any compensation qua the land in question which was acquired by the petitioners. The award was also announced. Therefore, both the Courts below have given concurrent finding of fact against the petitioners after proper appreciation of evidence on record. It is admitted fact that award was announced in the year 1963 and allegedly compensation was determined amounting to Rs, L640 along with 15% compulsory charges. The compensation, according to D.W.1 Muhammad Yousaf, was paid to the petitioner amounting to Rs,1640 on 25-10- 1965 after identification by Muhammad Afzal and Muhammad Rashid to Muhammad Ishaq son of Din Muhammad. It is also admitted fact that petitioners have withheld best evidence who have identified said Muhammad [shaq. Therefore, judgments of both the Courts below are in accordance with the law laid down by the superior Courts. It is also admitted fact that both the Courts below after proper appreciation of evidence have given concurrent finding of fact against the petitioners that respondent has no received the compensation from the petitioners since 1963.
Both the Courts below after proper appreciation of evidence have discarded the evidence of DW.1 Muhammad Yousaf with cogent reasons.
6. It is also settled principle of law that nobody should be penalized by the act of the public functionaries as the law laid down by this Court in M. Latif Qureshi's case PLD 1994 Lahore 3. It is also settled principle of law that in case of inconsisiency between the provisions of Land Acquisition Act and provisions of C.P.C. Then provisions of Land Acquisition Act is applicable in view of section 53 of the Land Acquisition Act as the .Law laid down in WAPDA v. Aurangzeb Khan PLD 1975 Peshawar 1. It is also settled principle of law that special law excludes the general law. In arriving to this conclusion I am fortified by the principle laid down by the Honourable Supreme Court in the following judgments:-- ' Zia-ur-Rehman's case PLD 1973 SC 49; ' Mian Nawaz Sharif's case PLD 1993 SC 473.
' The Land Acquisition Act has specific provisions with regard to grant of interest as is evident from section 28 and section 34 of the Land Acquisition Act. Therefore, First Appellate Court erred in law to grant 13% compound interest to respondent under section 34, C.P.C. The respondent is entitled to compound interest at the rate of 8% as the law laid down by the Honourable Supreme Court in Nishat Sarhad Textile Mills PLD 1976 SC 531.
' In view of what has been discussed above, the judgment of the First Appellate Court is upheld to the extent of payment of principal amount and compulsory charges along with, compound interest. However, the rate of compound interest is modified from 13% to 8% per annum from the date when the possession of the land in question was taken over by the petitioners. With these observations the revision petition is disposed of.