Muhammad Reaz Akhter Chaudhry, C.J.--Through this appeal the appellants have sought annulment of judgment of the learned single Judge of the High Court dated 15.12.2007, whereby the appeal filed by the appellants against the judgment of the learned District Judge/Reference Judge was dismissed.
2. The precise facts giving rise to the instant appeal are that Respondent No. 1 was owner of the land measuring 7 kanals, comprising Survey No. 150 and land measuring 7 kanals, 8 marlas, comprising Survey No. 526, total measuring 14 kanals, 8 marlas, situate in village Mohra-Sadda, Tehsil Bhimber. This land is situated within the municipal limits of Bhimber. It was acquired by the Collector Land Acquisition. While acquiring the land, the Collector fixed the price of land @ Rs.
1,57,538/- per kanal along with 15% compulsory acquisition charges. Feeling aggrieved from the determination of the price, Respondent No. 1 filed a reference before the Collector Land Acquisition, who referred the matter to the learned District Judge, empowered as Reference Judge. The learned Reference Judge, after the conclusion of trial, accepted the reference and enhanced the price of land @ Rs.50,000/- per marla. In this way the total price of land was fixed Rs. 1,44,00,000/- along with 15% compulsory acquisition charges. Feeling dissatisfied from the finding of the learned Reference Judge, the appellants filed an appeal in the High Court of Azad Jammu and Kashmir.
The appeal was heard by the learned single Judge of the High Court, who dismissed the appeal.
The instant appeal has been filed against the aforesaid judgment of the High Court.
3.Sardar Muhammad Razik Khan, the learned counsel for the appellants, argued that the Collector Land Acquisition rightly fixed the rate of compensation and the learned Reference Judge wrongly enhanced the price of land @ Rs.50,000/- per marla. He submitted that a sale-deed dated 10.3.2005 was produced. in evidence by Respondent No. 1, which was relied upon, while it was executed after the award of the land and the lower Courts have wrongly placed reliance on the said sale-deed. It was next submitted by the learned counsel that when Respondent No. 1 appeared as a witness, he deposed that the average price of land was Rs.20,000/- per marla, but the learned Reference Judge wrongly fixed the price of land @ Rs.50,000/- per marla. The learned counsel was confronted to explain that there is concurrent finding on the question of fact and if any misreading or non-reading of evidence was ,committed by the lower Courts, then he should point of that portion of evidence. He could not point out any such portion of evidence.
4. While controverting the arguments of the learned counsel for the appellants, Ch. Jahandad Khan, the learned counsel for Respondent No. 1, contended that there are concurrent findings on the questions of fact and no misreading or non-reading of evidence was committed by the lower Courts, therefore, this appeal is not maintainable. It was next submitted by the learned counsel that in the instant case the respondent, who filed reference before the learned Reference Judge, produced documentary as well as oral evidence, but in rebuttal no evidence was produced by the present appellants. Thus the evidence of the respondent herein shall be deemed to have been admitted by the appellants. It was also submitted by the learned counsel that the land in dispute is situated on Bhimber-Guj rat road and it is quite adjacent to shops. It is commercial property and it has potential value, therefore, the learned Reference Judge and the learned Judge of the High Court have rightly, enhanced the price of land. He further submitted that the judgments passed by the learned Reference Judge and the learned High Court are perfectly in accordance with law, which do not require any indulgence by this Court.
5. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties.
There are concurrent findings on the questions of fact regarding market value of the land in dispute. The learned Reference Judge fixed the price of land @ Rs. 50,000/- per marla, which was upheld by the learned Judge of the High Court. No misreading or non-reading of evidence was pointed out by the learned counsel for the appellants. Even he was confronted to point out any portion of evidence, which was misread or not read by both the lower Courts, but he could not point outs any such portion. We ourselves have gone through the evidence and did not find any misreading or non-reading of evidence. It is well settled principle of law that concurrent finding on the question of fact shall not be set aside, unless some misreading or non-reading of evidence is committed by the lower Courts. It is established law that where there are concurrent findings, then the second appeal does not lie and while considering second appeal this Court shall not embark upon fresh appreciation of evidence even if erroneous view has been drawn by the lower Courts.
6. It is pertinent to note that in the instant case the respondent, who filed reference, appeared before the learned Reference Judge as a fitness. He produced documentary as well as oral evidence in support of his version. Khadim Hussain and Tariq Mehmood appeared in support of his evidencefHe produced sale-deeds Ex.PA, PG and PH regarding market value of the land, while from the other side no evidence in rebuttal was produced by the appellants herein. Only a list, containing price of different lands, was produced, which was prepared by Patwari and countersigned by the Tehsildar. It could not be ignored that in the civil case the onus of proof does not remain fixed on one party. When some evidence is led by one party, then it shifts on the other party. If the other party fails to produce any evidence, then the evidence of the first party shall be deemed to have been admitted by the other party. This view finds support from a case reported as Khan Muhammad Badar and others vs. Mst. Roshni and others [2008 SCR 46] wherein it has been held as under:-- "It would not be out of place to mention here that in a civil case the onus of proof does not remain fix on one party. The moment some evidence is led by one party, then it shifts to other party. It is the basic duty of the other party to rebut that through evidence. Any failure on the part of other party will be deemed as an admission of fact."
The aforesaid view further finds support from another case titled Akbar Ali and 4 others vs. Ehsan Ellahi [PLD 1980 Lah. 145], wherein it has been observed as under:-- ".....The onus of an issue in a civil case is not permanently fixed but is constantly shifting. The moment some evidence is placed on record, this shifts the onus on the other side who would fail if he is unable to rebut."
The aforesaid view also finds support from another case reported as Ghulam Nabi etc. vs. Mst.
Zainab Bibi etc. [NLR 2004 641].
7. It is to be noted that in para 3(i) of the reference, it was stated by the present respondent that the land, in dispute is situated on both sides of Bhirnber-Gujrat road and it is commercial land.
Some portion of the land is situated within the limits of municipality and shops are adjacent to the land. The facts mention in this para were not denied by the present appellants in their objections; rather the same were admitted. It was the basic duty of the appellants to deny each and every allegation alleged in the reference.
8. The respondent, Ch. Manzoor Hussain, appeared as a witness before the learned Reference Judge. He stated that the land is situated on Bhimber-Gujrat road. On the nothern and southern side of the land, shops have been constructed and the land is commercial. This portion of his statement was not challenged during the cross-examination. It is well settled principle of law that where a portion of statement is not challenged during the cross-examination, then that shall be deemed to have been admitted. Therefore it was admitted fact that the land is situated on Bhimber-Gujrat road, shops have been constructed on both sides of the land and the land is commercial.
9. As the contention of the learned counsel for the appellants is concerned that the respondent deposed that the market value of the land in dispute is Rs.20,000/- per marla, it is wrong because as such was never stated by him. The respondent stated that the price of land in dispute is more than Rs. 20,000/- per marla and the land adjacent to his land was sold @ Rs. 60,000/- per mar/a.
He further stated during the cross-examination that the land is situated on the road, therefore, it is being sold in small quantity of one marla. The land behind the road was also sold @ Rs. 60,000/ per mar/a.
10.Khadim Hussain and Tariq Mehmood also appeared as witnesses in support of Ch. Manzoor Hussain. Khadim Hussain deposed that the land is commercial and on the southern and northern side of the land shops have been constructed. He stated that the price of the land in dispute is sixty or seventy thousand rupees per marla and on the road the price of land is one lac rupee per marla.
During the cross-examination this portion of his statement was not challenged, thus it was an admitted fact that the land in dispute is commercial and its market value was sixty or seventy thousand rupees per marla. Tariq Mehmood also appeared as a witness. He also deposed that the land in dispute is commercial and shops have been constructed adjacent to land in dispute. The price of the land is one lac rupee per marla. The entire land is situated on the road. This portion of his statement was also not challenged during the cross-examination, thus it was also admitted. It would also be proper to mention here that the respondent produced sale-deed dated 7.3.2000, which was executed much before the issuance of notification under Section 4 of the Land Acquisition Act. According to this sale-deed, one kanal land was'sold in lieu of ten lac rupees, which is a proof of fact that at that time the market value of the land was fifty thousand rupees per marla.
Another sale-deed Ex. PH was of five marlas land, which was alienated on 18.8.2000, three years before the issuance of aforesaid notification. It was sold in lieu of Rs.2,50,000/- which means that three years before the issuance of said notification the market value of the land was Rs.50,000/- per marla. It is pertinent to note that from the other side no evidence in rebuttal was produced.
Only a list, containing price of different lands, was produced by the appellants. Even the Patwari, who prepared list and the Tehsildar who countersigned it, did not appear as witnesses. The list was not proved in the manner as required under the Qanun-e-Shahadat Order. This list does not contain, whether the different pieces of land mentioned therein, are situated on Bhimber-Guj rat road or somewhere-else, thus it would not serve any purpose. The appellants did not produce any evidence in rebuttal of evidence of present respondent, who proved his case from the entire evidence satisfactorily.
11. The nub of above discussion is that finding no force in this appeal it is hereby dismissed.