' MUHAMMAD IQBAL, KALHORO, J.--- In this special High Court appeal, the award dated 14.03.2013 passed by the sole Arbitrator (Justice retired Zahid Kurban Alavi) has been challenged.
2. Facts in nutshell are that the appellants Nos.1 to 7 claim that their predecessor in interest were owners of plots bearing No,188. 189,199 and 207 situated in Garden West Karachi. Appellant No,8 is their attorney. These properties were requisitioned on 1.7.1947 and subsequently acquired vide notification dated 27.6.1955. As the Karachi was the federal capital at that time, it became the liability of the Federal Government to pay the compensation. Rs,131,482/- were paid, which the appellants claims were accepted by their predecessors under protest. Thereafter the appellants, it is averred, kept on writing to the Federal Government for appointment of an Arbitrator to decide the issue of finalizing compensation payment but to no avail. Federal Ombudsman was approached in the year... By the appellants, who gave decision in their favour on 28.03.1993 but subsequently on 29.6.1993 in review it was set aside. In appeal, the President of Pakistan, however, restored the original order of the Federal Ombudsman and consequently the appellants were given certain plots in Karachi and Lahore by way of compensation. Later on, the plots were taken back from the appellants, which prompted them to file a CP D-1167/96 in this Court. Therein all the above stated orders were set aside with directions to the authorities concerned to appoint a qualified Arbitrator to resolve the issue. Still not satisfied, the appellants went to Honourable Supreme Court against that order but the result was the same. All this exercise ended in the impugned award whereby the appellants were awarded Rs,399.5541 million; Rs,330.21 million towards value of the land and Rs,69.3441 million as compensation that includes annual interest at rate of 21%. The appellants are however still dissatisfied and have preferred this appeal in the said background.
3. The Federal Government/Respondent No,1 and Respondent No,4/Executive Engineer, Karachi, Central Division IV, Pakistan PWD, Karachi have filed objections seeking setting aside of the Award.
They have also seriously questioned the claim of the appellants that they are the legal heirs of the original owners of the properties as well as authenticity of certain letters indicating that some correspondence ensued between the parties. Their case is that the owners of the properties have received a fair compensation (Rs,131,482/-) in consonance with the then market value and have been paid in full and final settlement of the value of land.
4. On merits of the case, lengthy arguments were advanced by the counsel of the parties. They both stuck to their respective claims as mentioned above. A particular reference to section 4 of the Sindh (Requisition of Land) Act, 1947 was also made by the learned counsel for the appellants to show that amount of compensation could only be fixed either through agreement between the parties or where no such agreement was reached then through arbitration. In the case in hand an Arbitrator was appointed who passed the award. It was urged that the arbitrator did not take into consideration the evidence produced by the appellants in respect of current market value of the property and compensation thereon and fixed the same highly lopsidedly, which was inappropriate and in derogation of the decisions of the Superior Courts on the issue.
5. Mr. Muhammad Aslam Butt learned DAG vehemently disputed the claim of the appellants and submitted a chart indicating a brief detail of the disputed properties; the names (of the owners) as per gazette notification, the names (of the owners) as per powers of attorneys; but total absence of succession certificates; the details about the areas of the subject properties and the rate then fixed and the amount paid. It all shows that the respondent (the Federal Government) is taking the pleas that entire payment, in lieu of the plots, has been made to the owners, and the appellants have failed to establish that they are their legal heirs.
6. Since, the issue of heirship is cardinal to the otherwise merits of the case; we have decided to look into it first before proceeding further. It has been the constant claim of the appellants that they are the legal heirs of the owners of the above mentioned properties and in the said capacity have been writing to the authorities concerned for recovering due amount against requisition and acquisition of those properties. Only when they failed, they filed proceedings for recovery of the amount before the Federal Ombudsman. We have ferreted entire record to find out any document confirming the claim of the appellants to be legal heirs of the owners but our efforts have born no fruit. In order to prove such fact, the appellants have not placed any document on record except the powers of attorneys. An examination of the file shows that they are two sets of power of attorneys available on record. First set of power of attorney (nine in number) is available at page number 189 onwards of the file; in all these instruments neither the number nor the description of the respective properties is mentioned. These powers of attorneys do not specify or establish clearly the purpose for which these proceedings have been initiated by the appellants. The persons who have executed these instruments have not disclosed as to how they have come to be owners of the subject property. The suggestion to the ownership of the executants has been merely stated in these documents without any supporting document. The other set of powers of attorneys is present at page number 759 onwards. The power of attorney exactly at page 759 has been executed subsequently by the attorney appointed under above stated powers of attorneys (by the so-called original owners) namely Mrs. Mucca Bejon Kandawalla in favour of appellant No,8 and is in respect of plot No,207. When the power of attorney through which he stands appointed as attorney does not disclose description of the property, then how and under what authority he has given power of attorney in relation to plot No,207 to appellant No,8. Power of attorney at page No,767 is also without any detail or specification of the relevant property. The power of attorney in respect of plots Nos.188 and 189 available at page No,775 has been executed by one Mr. Darius Kandawalla, who claims to be trustee of M.E.K. Charitable Trust, in favour of appellant No,
8. Here also no documents to establish his trusteeship have been attached. It is not clear under what authority he claims to be trustee and has given power of attorney to appellant No,8 in respect of two plots. These documents in our view are not of any assistance to infer that the appellants have been able to establish their direct connection with the pedigree of the original owners or they in any capacity claim any right in the subject properties. Record reflects that apart from these documents, some letters exchanged between the parties over the subject matter were also relied upon by the appellants not only to establish their claim on the subject properties but to refer to them as a proof of their relation with the owners. Admittedly this correspondence can only point out to the factum of requisition and acquisition of the said properties, but it does not in any manner furnish a substantive piece of evidence showing authority of the appellants to claim compensation or their relation with the original owners. The fact that the appellants are in possession of some official letters pertaining to dispute in hand would not imply either their authority or their being heirs of the owners. Legally they are required to produce, inter alia, succession certificates as well as relevant documents of the Trust in this regard, as a verification of not only their proprietary interest in the subject properties but their blood-bond with the owners. It goes without saying that under the law it requires only convincing evidence to determine that the appellants are their legal heirs or they have any locus standi to raise any claim to the subject properties.
7. Learned sole Arbitrator has dealt with this issue of ownership of the appellants in paras Nos.27 to 34 of the impugned award and has concluded that the appellants have the title of ownership of the subject plots and they can claim compensation accordingly. A recital of these paras shows that apparently the learned Arbitrator was swayed by a skewed proposition that burden was on the Federal Government to disprove the appellants' bloodline with the owners. He has referred to requisition notice for plot No, 188 in para No,29 and has inferred that it is property of the Trust. In para No,30 he observes that the Federal Government has not at all disputed the plot No, 198 is the property of the Trust. In para No,31 learned Arbitrator proceeds to observe that plot No,207 belonged to Mrs. Mucca Bejon Kandawalla, who passed away during the arbitration proceedings and then appellants Nos.1 (a) to 1 (e) were impleaded as her legal heirs in some proceedings pending before the Honourable Supreme Court, which, in his view, sufficiently proved credentials of the appellants as his legal heirs. Plot No, 199 finds mention in para No,32 that it was sold by the predecessor in interest of the appellants prior to its requisition but then such sale went into dispute and was never finalized. It has been specifically noted therein that original Record of Rights of the plots was produced by Mr. Darius Kandawalla during his cross-examination. Although it may not be relevant or of any assistance to decide authority and the status of the appellants as legal heirs by just looking at the original Record of Rights, we nonetheless have seen the entire cross- examination of this witness to find out any such endorsement therein, but regrettably have failed.
And this scanning is irrespective of the fact that production of certain record from ones possession during his evidence in any proceedings would scarcely mean that he is the owner of the properties mentioned therein. But if he is making such claim then in view of a myriad of provisions of the Qanune-Shahadat Order, 1984, burden would be upon him to prove it and not on the other side to disprove it. Article 117 that deals with such situation reads "(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. " Then in terms of scheme under Articles 118 and 119, it is clear that burden to prove their authority to claim compensation and their status as legal heirs of the owners of the subject properties is on the appellants, because if no evidence is led in this regard, it is the appellants who would fail in absence of any document showing undisputedly their authority and legal heirship. For ready reference both these Articles are reproduced herein below.
118. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
119. Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
8. A word on the evidence of Mr. Darius Kandawalla examined during the award proceedings on behalf of the appellants would also be relevant in the present context. In response to a question in his cross-examination that whether he has produced any document to show that he is a legal heir, he states that he has produced a power of attorney. He further states that he is not owner of all the properties but has been given power of attorney for all the properties by the owners. While replying to the next question, he admits that neither details of properties nor the details of the shares of each owner are shown in any of the powers of attorneys (Page 1373 of the file). He has also admitted that first litigation started in 1980's. While looking at General Power of Attorney executed by Dinaz Polad, he states "it is correct that it was executed in 1985. P/A does not mention the details of the property. There were many properties gifted to Dinaz Plad. I have not attached Gift Deed with .The affidavit-in-evidence. There are four properties. No,1 belong(s) to my mother, 2 properties belong to Trust. 4 to my grandfather's firm". Then he states that plot No,188 belongs to Merwanjee Eduljee Kandawalla Firm. He frankly concedes that he has not submitted any Trust Deed and except for the power of attorney no other document of Trust has been produced by him (Page 1377 of the file). He also admits that he has not filed any resolution of the Trust. He has further disclosed that for the first time they made complaint against PWD to the Federal Ombudsman (This letter dated 01.08.1992 is available at page 723 of the file). Then he accepts that no legal heirship certificate has been filed in the proceedings and further states that they had received compensation under protest. He also stated that he came to know of the dispute in 1968 when he returned from abroad. A perusal of page No,1383 of the file shows that this witness not only admits that he has not filed any document to show that he is legal heir of Mucca Bejon Kandawalla, but rest of the appellants have not produced any documents either showing them as the legal heirs or having any legal right in the properties. A further perusal of his cross-examination shows that he claims that he has connection with all the properties either in his personal capacity or as a shareholder or as a trustee of the Trust and as attorney of heirs of Mr. Godrej Kandawalla and Mr. Hoshang Kandawalla. But no document in this regard has been produced by him, except the power of attorneys, which themselves are doubtful for the reasons discussed above. Regarding legal heirs of Mrs. Mucca Bejon Kandawalla, he states that they were placed on record during the proceedings in the Supreme Court. However, it is apparent that no supporting document has been filed in this regard to show that they were already legal heirs of Mrs. Mucca Bejon Kandawalla. We have seen that in the reply to the award filed by the Federal Government, preliminary objections to the locus standi of the appellants and their claim as legal heirs of the owners of the subject properties was taken, nevertheless no effort was made by the appellants to establish their credentials.
9. The other witness examined by the appellants during award proceedings is Syed Shafi Haider Zaidi. He appears to be evaluator of properties working in the firm of 'Iqbal Nanji and Company'. He states that he evaluated subject properties after consulting with property dealers of the subject area. But then admits, he has not mentioned name of any property dealer in his report nor has attached any such certificate thereto. He seems to have no idea about area of each property and concedes that the plots are not in original position as per documents that he examined. He also states that no documents of the properties have been attached in his report. According to him, the properties were identified by Mr. Kandawalla. He also acknowledges that none of the (so- called) owners of the properties were with him at the time of evaluation and inspection of the properties. About the rate of the properties evaluated by him in his report, he admits that it is not supported by any document. It is obvious that his evidence is confined only to a baseless evaluation of the subject properties and is thus of no help to the appellants particulafly when their antecedents as legal heirs of original owners are also doubtful. And even the purpose for which this witness was hired was not accomplished. His evaluation report, in addition to being non- satisfactory, is not credit worthy for want of necessary requirements and elementary details, which he himself has admitted in his evidence as discussed above. The evidence of Mr. Darius Kandawalla as discussed above also evidently indicates that the appellants do not possess any document proving that they are legal heirs of the original owners of the properties. The contention, that in some proceedings before the Honourable Supreme Court appellants 1 (a) to (e) claimed to be legal heirs of Mrs. Mucca Bejon Kandawalla and therefore it is a sufficient proof of their being his legal heirs, cannot be subscribed to. As is clear from the record, the proceedings before the Apex court were not for determining the legal heirship of the appellants and it has not been urged or shown by the appellants that if any enquiry in this respect was conducted in such proceedings and thereafter their names were brought on the record as legal heirs. We were not even informed if such heirship certificates were produced by the appellants in the said .Proceedings. By merely showing names of some persons as legal heirs of a deceased in some Court proceedings, which are not concerned with any issue of heirship between the parties, normally would not make them entitled to inheritance of that person under any law, unless, of course, they are so declared by the competent Court of law. We are therefore clear in our minds that the appellants have miserably failed to establish themselves as the legal heirs or successors-in-interest of the original owners of the subject properties. In this connection the objection of the learned DAG is sustained.
10. In addition to what we have concluded herein above, we find that the claim of the appellants is also time-barred. In terms of section 10(1) of the Sindh (Requisition of Land) Act, 1947 the right was available to the owners of the subject properties to file appeal against such requisition and acquisition within 15 days of its order being duly served upon them, if they felt aggrieved by such arrangement. The record however does not reflect that any such appeal was ever preferred by the owners. That clearly demonstrates their acceptance and satisfaction over the arrangement against which their properties were requisitioned and subsequently acquired. It is also part of the record that payment of Rs,1,31,482/- was made to the owners between 1957 to 1960 on the basis of Government orders dated 24.10.1956. That payment from the ratio of the amount (discussed below) appears to have included both acquisition and requisition compensation. As even against such determination, no appeal was filed within stipulated time by the owners. The owners seemingly had agreed to that arrangement and did not feel any need to ever make a request for appointment of an Arbitrator in terms of clause (b) of section 4 of 1947 Act. We also find from the record that determination of compensation was made on the basis of the market value assessed by the Collector of the area in 1950 and 1951. In his letter dated 04.12.1951 the Collector determined market value of land of Garden West, Garden East and Jamshed Quarters as Rs,13, Rs,8 and Rs,25/- per square yard respectively and as per his recommendations that figure was to be taken as a guide for arriving at figure of compensation but it was made clear by him that it should not be more than Rs,1,07,272/-. Learned DAG in his arguments while referring to the chart submitted by him pointed out that value of the subject properties was fixed at Rs,8/- per square yard for all the purposes and going by that calculation, and keeping in view the respective area of each plot, the total amount payable to the owner was Rs,88,856/- but they were paid an amount larger than that (Rs,1,31,482/-). That payment, according to him, was more than due and was indicative of the fact that it included not only cost of the land but was all inclusive compensation. He stressed that it was a very high figure at the relevant time. He also emphasized that no document was produced by the appellants to specify that the said amount was accepted under protest. In his opinion, should that had been the position; the owners immediately within stipulated time of 15 days would have filed appeal against it. However, for years together there is silence after seeking compensation. Since no document was produced before us to controvert such argument of learned DAG, we have no reason to disbelieve him. There is also nothing on record to show that in terms of Article 17 of the Limitation Act, 1908,the appellants filed any suit for recovery of compensation against the Government within one year of acquisition of their properties. We have also seen the correspondence between the parties referred to by learned counsel for the appellants. It contains a few letters exchanged between the private parties, which have nothing to do with the official mail; and quite a few letters addressed to the then officials, but they do not show any acknowledgement affixed thereon to confirm their delivery. They either relate to the years before 1960 when final payment was made to the owners or are of much later time when the claim had already become time-barred. Certain official letters in photo stat copies are also available from page No,655 onwards of the file showing correspondence between the parties over compensation, but their authenticity for want of their original copies is not without doubt. Moreso, as we have concluded above mere possession of these documents would not make the appellants entitled to any amount of compensation of the plots. And it also does not prove that they are in fact the legal heirs of the original owners.
11. For what we have discussed above, the appeal is dismissed and the impugned award is also set aside in the light of objections filed by I the Respondents to this appeal and by reason of an obligation of justice (ex debito justitiae). There is no order as to costs.