GHULAM MUST AFA MUGHAL, J. The captioned appeals have been directed against the consolidated judgment and decree dated 26.07.2018 passed by the Azad Jammu and Kashmir High Court in Civil Appeal No. 4 of 2014.
As all the appeals arise out of the common judgment of the High Court and involve common questions of facts and law, hence, were heard together and are decided as such.
2. The brief facts of the case are that through award No.40/2006, dated 15.11.2006, the land comprising Khewat No.78, situated at village Bandral, Tehsil Mirpur was acquired by the Collector , Land Acquisition, Mangla Dam Raising Project. The respondents, Farzand Bibi & others, feeling dissatisfied filed a reference before the learned Reference Judge, Mirpur on 19.12.2006. It was stated that out of the land comprising survey numbers (enumerated therein., which for the sake of brevity are not repeated here), 1/5th share was in the ownership and possession of Phula and Fatoo sons of Hashmat, who sold the land measuring 17 Kanals , 9 marlas vide sale-deed dated 13 Katak , 2003 Bik. attested on 17 Katak, 2003 Bik to Sakhi, grandfather of respondents No. 1 to 6 and father of respondent No. 8. The sold land was renumbered in settlement of 1991-92 (which again for the sake of brevity is not repeated). It was further alleged that mutation No. 305 was also attested in favour of Sakhi on the basis of mentioned sale-deed, however , the revenue record stood destroyed in the libration war. The names of predecessors of appellants and proforma-respondents, herein, were wrongly entered in the revenue record as owners; whereas, the land in dispute was purchased by Sakhi, hence, the respondents are owners of same. It was further alleged that the revenue record consisting of Settlement, Misl-e-Haqiat for the years 1959-60, Jamabandi for the years 1968-69, Misle-Haqiat for the years 1991-92 and Jamabandi for the years 2001-02 are illegal, ineffective and inoperative as against their rights. The compensation has wrongly been assessed in favour of appellants and proforma-respondents, herein. It was further stated that the market value of the land has also been wrongly assessed which in fact is Rs. 15,00,000/- per kanal .
3. The reference was contested by the appellants and proforma-respondents, herein by filing objections wherein it was submitted that the applicants/respondents have no right to file reference. The compensation has been rightly assessed in their favour . At the conclusion of proceedings, the learned Reference Judge vide judgment and decree dated 30.10.2013 dismissed the reference for want of proof. However , in appeal filed by the respondents before the High Court, through the impugned judgment dated 26.07.2018, following relief has been granted to them:- "In view of above the appeal stands acce pted, the appellants are declared owners of the land comprising Khasra Nos. 18, 220, 250, 288, 296, 297, 298, 371, 380, 388, 389, 420, 394, 436, 401, 156, 185,221, 428, 218, 230, 231, 435, 356, 229, 228, 285, 393, 216, 219, 249, 287, 299, 318, 381, 390, 419, 182, 187, 247, 291, 317, 387, 391, 421, 454/1, 179, 237, 292, 314, 328, 378, 433, 187, 204, 207, 278, 330, 374, 379, 441, 180,191, 294, 372, 192, 432, 377, 183, 295, 373, 165, 206, 375, 166, 205, 279, 457, 376, 203, 215, 225, 277, 168, 276, 404, 181, 184, 158, 162, 173, 222, 224, 225, 315, 397, 403, 417, 224, 214, 217, 163, 174, 243, 398, 402, 418, 164, 447, 370, 382, 172, Khata Nos. 428 to 465 Khewat No. 78, and they are declared entitled to receive the compensation of their land having kind Chahi Rs. 7,50,000/- per kanal, Hail Rs. 7,00,000/- per kanal, Maira Awal Rs. 6,00,000/- per kanal, Maira Doim Rs. 5,00,000/- per kanal, Abadi Deh Rs. 7,00,000/- per kanal, brick kiln Rs. 7,50,000/- per kanal, Ghair Mumkin Rs. 1,50,000/- per kanal alongwith 15% CAC."
Against the impugned judgment of the High Court, Appeals No. 183 and 197 of 2018 have been filed for setting aside the same, whereas, Appeal No. 206 has been filed for further enhancement of the compensation determined by the learned High Court.
4. Sheikh Masood lqbal, the learned Advocate appearing for the appellants, argued that the suit land was admittedly in the ownership of the appellants, herein, and they were recorded as owner of the .land in the revenue record without any dispute vis-a-vis to Arshad Mehmood and another who had never claimed the title of the land before the award. He argued that the suit land was awarded vide award No. 40 of 2006, dated 15.11.2006 and the names of the appellants were rightly entered in Asamiwara and the compensation was assessed in favour of the appellants, herein. He argued that the respondents, herein, filed a baseless reference before the Reference Judge Mangla Dam Raising Project on 19.12.2006. The learned Advocate further argued that the respondents, herein, claimed the ownership of the suit land on the basis of sale-deed executed in the year 2003 BK., which was registered on 17 Katak , 2003 B.K. He argued that the plea of the respondents, herein, was rightly rejecte d lay the learned Reference Judge vide judgment dated 30.10.2013. He submitted that the appeal filed by them before the Azad Jammu and Kashmir High Court has illegally been accepted by the learned High Court and the respondents, herein, have been declared as owners of the land and entitled to receive the compe nsation of the land on the basis of sale-deed dated 13 Katak 2003 B.K., registered on 17 Katak, 2003. The learned Advocate argued that the relief claimed by the respondents, herein, could not be granted by the Reference Judge and the proper course for them was to approach the Civil Court. The learned Advocate further submitted that the controversy involved in the case was not within the ambit of the learned Reference Judge. The learned Advocate argued that the sale-deed was fake and fictitious as the proof of its execution has not been produced.
5. Conversely , Ch. Muhammad Afzal, the learned Advocate appearing for respond ents No. 1 to 4, 6 and 7, argued that the respondents, herein, have rightly been declared as owners of the land on the basis of registered sale-deed and dismissal of the reference the Reference Judge was illegal. He argued that the compensation has not properly been enhanced by the learned High Court, therefore, the appellants, herein , are entitled to a reasonable compensation as has been claimed in the reference. He argued that the controversy regarding the title of the case can also be resolved by the Reference Judge. In support of his submission, the learned Advocate has placed reliance on the cases reported as Mst. Begum Jan v. Abdul Wahab and 5 others [PLD-1988 SC (AJ&K) 142], Mst. Naseem Fatima, through Legal Heirs and others v. Sheikh Ala-ud-Din and others [PLD 2005 SC 4551, Pir Mian Jan Said and others v. Land Acquisition Collector District Collector Mardan and 10 others [PLJ 2004 Peshawar 170], Chief Engineer and another v. Anwar Begum & 9 others [2009 SCR 199], Azad Govt. of the State of Jammu and Kashmir through its Chief Secretary , having his office at New Secretariat Complex, Muzaf farabad and 7 others [2013 SCR 513], Muhammad Mehraban v. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project, Mirpur and 3 others [2013 SCR 635] and WAPDA through Chief Engineer , Mangla Dam Raising Project, W APDA Mangla and another [2013 SCR 673].
6. We have heard the arguments of the learned counsel for the parties and gone through the record of the case.
7. The contention of Sheikh Masood Iqbal, the learned Advocate appearing for the appellants that sale-deed dated 17 Katak , 2003 is a fake document because the same has not been entered in the revenue record, in the circumstances of this case, is devoid of any force. The original sale-deed has been produced by the respondents, herein, before the learned Reference Judge and perusal of the same reveals that mutations No. 323 and 305 have been attested in two villages i.e. Thothal and Bandrah , respectively on 30.07.2003, BK on the basis of said sale- deed. None of the attesting witness was alive, therefore, it was difficult to produce those witnesses before the learned Reference Judge. The sale-deed is a registered document and has also come from proper custody , therefore, the learned High Court has rightly accepted the same on the touchstone laid down in Article 100 of Qanoon-e-Shahadat Order , 1984 , which postulates that where a document is 30 years old and has also been produced from proper custody , the same would be presumed to have been executed properly . The learned High Court has also supported its view while referring to Mst. Naseem Fatima's case [PLD 2005 SC 455], wherein, it was observed as under:- "13. A perusal of the above section would indicate that the required presumption at the first place is completely rebuttable. Secondly the presumption is attached only to a document which purports to or is proved to be thirty years old. Thirdly it must come from proper custody . Fourthly the Court has a discretion to presume, that the signature and every other part of such document, which purports to be in the handwriting of any person is in that person's handwriting and further that it was duly executed by, the person by whom it purports to be executed. From these important ingredients, what follows unavoidably is that such old document must be before the Court in original. In case the original is not before the Court, it cannot make any assessment as to whether there are any signatures in original on the document, whether such signatures are legible, capable of being discriminated or deciphered and further capable of being compared with any other signatures. Unless the original is before the Court, no such observations can be made.
14. The rebuttable presumption is discretionary and the Court may or may not resort to, the presumption, in the circumstances. Such presumption attached to thirty years old document, carries a logic behind, in that if it is proved be thirty years old, the chances of forger y are minimized. Moreover , the fleeting past of time cast certain peculiar features upon the documents' tenor , the texture, the language, the signature, the thump-impression, the specific date, the existence of witnesses and the paper which it is written upon. All these features cannot be attended to, examined and appreciated unless the document in original is before the Court. Thus, to derive benefit of oldness of a document for a period of thirty years, it must be produced in original."
8. The next argument of the learned Advocate for the appellants that the document has not been entered in the revenue record is also not helpful to him. The sale-deed on the basis of which the ownership is claimed by the appellants, herein, before the learned Reference Judge, is a registered docume nt and admittedly , the revenue record pertaining to the villages Thothal and Bandral stood destroyed in, the liberation war. The subsequent record has no presumption of truth which has been maintained by the revenue officers only for day to day business, however , in the recent settlement, the respondents, herein, have not got entered the sale-deed but the same does not affect their title. The sale-deed which is duly registered in accordance with law, cannot be refused to be acknowledged mere on the ground of delay . The fact that the appellants, herein, have claimed any enhancement of the compensation neither by filing a reference nor before the High Court, also leads to the conclusion that they by their conduct have admitted the ownership of the respondents, herein, over the said land. The proceedings conducted by the Collector Land Acquisiti on are akin to an inquiry and he has base d his conclusion on the basis of entries made in the revenue record. It may be stated that the dispute including the question of title can be resolved by the Reference Judge as has been held in the cases referred to and relied upon by Ch. Muhammad Afzal the learned Advocate appearing for the respondents. This Court has also taken the same view in a case reported as Chief Engineer and another v. Anwar Begum & 9 others [2000 SCR 199] in paragraphs 8 & 9 of the judgment, which reads as under:- "8. A perusal of the Land Acquisition Act reveals that it is a special law which has been enacted for the acquisition of property for the public purpose. The Collector is authorized to acquire the property , and determine the amount of compensation to be paid to the owners on account of such acquisition. Under the provisions of this Act any person aggrieved from the award made by the Collector cannot directly approach the Civil Court. The interested person, who has not accepted the award, may by written application to the Collector require that matter be referred by the Collector to the Court for determination. It will be useful to reproduce Section 18 of the Land Acquisition Act:- "18. Reference to Court. (1) Any person interested who has not accepted the award may, by written application to the Collector , require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made:
(a) if the persons making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12; sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire.
9. It is evident that the person who has not accepted the award cannot approach the Court directly . He has to move the Collector Land Acquisition by a written application that he has not accepted the award whether it is in respect of measurement of the land or amount of compensation or his objections is in respect of entitlement of compensation to the person to whom it is payable or apportionment of the compensation amou nt to the interested person. The section also provides that the application shall be made in a specified period."
This brings us on the question of compensation. The learned High Court has not believed the oral evidence produced by the respondents, herein, however , the learned High Court has observed with reference to a judgment of the apex Court of Pakistan reported as Province of Sindh through Collector of District Dadu and others v.
Ramzan and others [PLD 2004 SC 512] that the land owners cannot be deprived of the fair compensation where the land is acquired compulsorily . The learned High Court on the basis of available evidence has fixed the compensation of the land as under--
(i) Chahi Rs. 7,50,000/- per kanal,
(ii) Hail. Rs. 7,00,000/- per kanal,
(iii) Maira Awal Rs. 6,00,000/- per kanal
(iv) Maira Doim Rs. 5,00,000/- per kanal,
(v) Abadi Deh Rs. 7,00,000/- per kanal.
(vi) Brick Kiln Rs. 7,50,000/- per kanal, and
(vii) Ghair Mumkin Rs. 1,50,000/- per kanal alongwith 15% CAC.
After considering the documentary evidence and the other circumstances, we are inclined to accept Appeal No. 206 of 2018 and enhanced the compensation to the tune of Rs. 1,00,000/- per kanal for each category irrespective of the land of the land except the Brick Kiln. So far as the Brik Kiln is concerned, we maintained the compensation awarded by the learned High Court. As there is no income tax statement of the concerned appellants, herein, however , the appellants, herein, would be entitled to 15% compulsory acquisition charges also.
The upshot of the above discussion is that Appeal No. 183 of 2018 titled Arshad Mehmood and another v. Farzand Bibi and others and Appeal No. 197 of 2018 titled Allah Rakhi & others v. Farzand Bibi & others have no substance in it, the same are hereby dismissed. Whereas, counter-appeal No. 206 of 2018 titled Farzand. Bibi & others v.
Arshad Mehmood & others is accepted in the manners indicated above. 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.