1. RAZA ALI KHAN, J. --- The captioned appeal has been filed against the judgment and decree passed by the learned Reference Judge Mangla Dam Raising Project Mirpur , dated 30.10.2013, whereby the learned Reference Judge dismissed the reference filed by the present appellants. Facts forming the background of the captioned appeal are that land comprising Khewat No 78 situated in village Bandral Tehsil Mirpur was acquired by the Collector Land Acquisition Mangla Dam Raising Project Mirpur vide award No. 40/2006 issued on 15.11.2006. Feeling dissatisfied with the above-said award, appellants filed a reference under Section 18 of the Land Acquisition Act, 1894 and submitted that out of land comprising Khasra Nos. 31, 40, 41, 54, 220, 220/1, 22, 726, 982, 722, 997, 1569, 1851, 1862, 1874, 1875, 1910, 1911, 1926, 1940, 1941, 942, 1946, 2008, 2009, 1852, 1897, 1967, 1026, 1028, 34, 39, 59, 211, 215, 210 min, 700, 981, 908, 1025, 1566, 1850, 1861, 1896, 1927, 1937, 1943, 2007, 2011, 2014, 2027; 2067, 212, 210 min, 33, 37, 44, 723, 1027, 1029, 1568, 1579, 1876, 1925, 1930 min, 1939, 1948, 1983 min, 1963, 209, 1928, 1912, 1915, 219, 239, 38 min, 224 min, 42 min, 224 min, 38 min, 221, 50, 62, 63, 234, 235, 699, 701, 1867, 1868, 1902, 1903, 1907, 1984, 1985, 2026, 260, 2061, 48, 52, 67, 226, 223, 711, 1023, 1576, 1869, 1889, 1909, 1967, 2022, 2059, 46, 66, 228, 232, 704, 1022, 1577, 1866, 1892,1944, 2023 , 47, 218, 231, 705, 1019, 1021, 1585, 1966, 1865, 1901, 1908, 2034, 703, 1570, 49, 65, 229, 1905, 1883, 1890, 1906, 51, 227, 230,710, 980, 1014, 1016, 1017, 1018, 1020, 1548, 1571, 1882, 1904, 1921, 2006, 45, 58, 223, 225, 236, 725, 727, 998, 1013, 1015, 1864, 1879, 1886, 1898, 1972, 1978, 2005, 2021, 2062, 35, 53, 56, 214, 217, 237, 238 min, 720, 728, 996, 1009, 1012, 1853, 1873, 1880, 1887, 1894, 1900, 1924, 2063, 36, 43, 55, 216, 238 min, 702, 1011, 1032, 1854, 1881, 1893, 1899, 1.930 min, 1931 min, 1983 min,1877 Khata Nos, 77 to 207 Khewat No. 66/69 situated in village Bandral Tehsil Mirpur , 1/15 share was in the ownership and possession of Phala and Fatoo S/o Hashmat Rio Balyala. It was further submitted that Phula and Fatoo had sold their whole share measuring 17 kanals, 9 marlas situated in village Bandral and Thothal vide sale-deed dated 13 katak, 2003 B.K. attested on 17 katak 2003 B.K. to Sakhi grandfather of petitioners No. 2 to 7 and father of petitioner No 8 for the consideration of Rs. 3500/-. The sold land in settlement of 1991-92 has been renumbered as 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, 456,229, 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 and 172 Khata Nos. 428 to 465 Khewat No. 78. It was contended that mutation No. 305 was also attested in favour of Sakhi, however , revenue record had destroyed in the revolution of freedom. It was alleged that names of father of non-applicant No. 1, Rehmdad S/o Fatoo, mother-in-law of non-applicant No. 3, Said Bibi grandmother of non-applicants No. 4 to 10, mother-in-law of non--applicant No. 11, grandmother of non-applicants No. 12 to 15, grandmother of non-applicants No. 16 to 19, Said Bibi d/o Fatoo, mother of non-applicant No. 20 and Zeenat Bibi d/o Fatoo mother of non-applicants No. 21 and 22 were wrongly entered in the revenue record as owners, while the land in dispute comprising khewat No. 78 was purchased by Sakhi father-in-law of applicant No. I grandfather of applicants No. 2 to 7 father of applicant No. 8 and they are the owners of the land in dispute. It was alleged that revenue record consisting of settlement and Misl-e-Haqiat 1959-60, Jamabandi 1968-69, Misl-e-Haqiat 1991-92 and Jamabandi 2001-02 are illegal, ineffective and inoperative against the rights of the applicants. It was further alleged that compensation has wrongly been assessed in favour of non-a pplicants, who have no concern with the land in dispute and are not entitled to get compensation of the land of the applicants. It was also stated that market value of the land has also not been properly assessed. The applicants claimed that market value of the land may kindly be assessed Rs. 15,00,000/- per kanal. Non-applicants were summ oned who appeared before the Reference Court and filed objections, wherein it was submitted that applicants have no right to file reference. It was further submitted that reference has. been filed in order to deprive of the answering non-applicants from their legitimate right. It was also stated that compensation has rightly beets assessed in the name of the answering non- applicants. The non-applicants prayed that the applicants' reference may kindly be dismissed. The learned Reference Judge after receiving objections framed issues in the light of pleadings of the parties. After hearing the parties, the learned Reference Judge reached at the conclusion that the applicants are miserably failed to prove their case and the application/reference was dismissed, hence, this appeal.
2. The learned counsel appearing for the appellants argued that land in question was in the ownership and possession of Phula and Fatoo sons of Hashmat. The learned Advocate further argued that Phula and Fatoo were owners of the land to the extent of 1/15 shares. The learned Advocate contended that Phula and Fatoo vide sale- deed dated 13 katak, 2003 Bk. attested on 17 katak 2003 had sold their whole share in favour of Sakhi, predecessor-in-interest of the appellants. The learned Advocate further contended that original sale-deed has been placed on record by the appellants and the said deed being 30 years old has presumption of truth, hence, in presence of original sale-deed which is 30 years old it cannot be said that appellants failed to prove their ownership. The learned Advocate submitted that mutation No. 305 was also attested in favour of Sakhi however , the revenue record stood spoiled in revolution of freedom. The learned Advocate further submitted that market value of the acquired land is Rs. 15,00,000/- per kanal and this fact was proved by the appellants through evidence but the learned Reference Judge failed to appreciate the controversy as well as evidence brought on record and wrongly dismissed the reference.
3. While controverting the arguments of the learned counsel for the appellants, the learned counsel for private respondents argued that the appellants have chosen wrong forum and the proper forum for the purpose was Civil Court and after declaration regarding their ownership the appellants may move the Reference Court for compensation. The learned Advocate contended that earlier some of the land of respondents was acquired by the Collector and the compensation was assessed in favour of respondents, but at that time the appellants accepted the same, hence, now they cannot claim ownership of the land. The learned Advocate contended that the appellants have not placed the sale-deed at any forum, for entry in the revenue record therefore, now they cannot claim any right on the basis of said sale-deed. The learned Advocate submitted that the learned Reference Judge has rightly appreciated the controversy as well as evidence brought on record and reached at just conclusion. The learned counsel prayed that the appeal may kindly be dismissed.
4. In rebuttal, the learned counsel for the appellants argued that after award of the land, any dispute regarding the awarded land can only be resolved by the learned Reference Judge, therefore, the reference has rightly been filed.
5. The learned Advocate further submitted that earlier the acquired land of Fatoo and Phula was not in the share of the appellants hence, they rightly not claimed compensation. The learned Advocate in support of his submissions placed reliance on following cases:---
(1) PLD 2005 S.C. 455 ;
(2) 2012 SCR 404;
(3) 2001 CLC 988 ;
(4) PLJ 2004 Pesh. 170;
(5) PLD 1988 S.C. (AJK) 142:
(6) 2009 SCR 199.
6. M/s. Javed Najam Saqib and Ch. Muhammad Suleman, learned counsel for official respondents, adopted the arguments advanced by Mr . Liaqat Ali Khan, Advocate for the private respondents.
7. I have heard the learned counsel for the parties and gone through the record of the case as well as case-law referred to by the learned counsel for the appellants.
8. Firstly , I would like to resolve the objection of the learned counsel for the responde nts that Reference Court had no jurisdiction to entertain the reference because the appellants claim ownership of the land in dispute and this question can only be resolved by Civil Court. A perusal of record reveals that the learned Reference Judge vide order dated 10.01.2008, after hearing the learned counsel for the parties on issue No. 1, declared that reference has competently been filed before the Reference Judge after award of the land and the said order of the learned Reference Judge has not been challeng ed by the respondents before any higher forum, hence, has attained finality . Even otherwise, it is well-settled principle of law that, if after acquiring the land by the Collector any dispute regarding the acquired land arises the same can be resolved by the Reference Judge. My this view lends support from case titled "Chief Engineer and another v. Anwar Begum and 9 others" [2009 SCR 199). In this case the apex Court of Azad Jammu and Kashmir has observed that any person aggrieved from the award made by the Collector cannot directly approach the Civil Court rather by written application may move to the Collector for referring the matter to the Court. The relevant observation has been recorded in para 8 of the judgment which is as under:-- "A perusal of the Land Acquisition Act, 1894 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 he paid to the owners on account of such acquisition. Under the provision 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 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 objection is in respect of entitlement of compensation to the person to whom it is payable- or apportionment of the compe nsation amount to the interested person. The section also provides that the application shall be made in a specified period."
9. In view of above, it can safely be said that the argument of the learned counsel for the respondents regarding competent forum has no substance, so is repelled.
10. Now while adverting. to the moot point that whether the appellants herein are owners of awarded land and are entitled to receive the compensation of the awarded land, I am of the view that the learned Reference Judge erred while holding that appellants have failed to prove their ownership. It may be stated that appellants herein, have claimed their ownership on the basis of sale-deed dated 13 katak 2003 bk attested on .17 katak 2003 bk and mutation No. 305. To prove their claim the appellants produced original sale-deed dated 13 katak 2003 bk which is available as Exh.P A. A perusal of the sale-deed reveals that Phula and Fatoo had sold the whole share in village Bandral and Thothal, in favour of Sakhi for the consideration of Rs. 3500/- excludin g the land sold through oral sale in favour of Noor Alam. The respondents in their objections have not stated that the sale-deed is fake or bogus rather they submitted that appellants have not got entered the said sale-deed in the revenue record, hence, they are not entitled to the ownership of the land. No doubt, the sale-deed dated 13 katak 2003 bk is 30 years old document and under Article 100 of Qanoon-e-Shahadat, a 30 years old document has presumption of truth. For proper appreciation Article 100 of Qanoon-e-Shahadat is reproduced as under:--- "100. Presumption as to documents thirty years old.-- Where any document, purporting or prove d to be thirty years old, is produced from any custody which the Court in the particular case considers proper , the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting and in the case of a document execute d or attested. That it was duly executed and attested by the person by whom it purports to executed and attested."
11. The above reproduced provision of law makes it clear that an original document which is proved to be thirty years old and it comes from proper custody , has presumption of truth. In the instant case the appellants have placed on record original sale-deed relied upon by them, which appears to have been executed on 13 katak 2003 bk and attested on 17 katak 2003 bk, hence, no doubt, is thirty years old. As the said 'document was executed in favour of Sakhi, predecessor-in-interest of appella nts, hence, has rightly been found from the custody of the appellants.
12. Besides the above factors necessary to attach presumption of truth to a document under Article 100 of Qanoon-e- Shahadat, the language of sale-deed, the stamp papers, the tenor , the texture used in the sale-deed and the specific date mentioned on the said sale-deed force this Court to attach the presu mption of truth to the said sale- deed. In case titled "Mst. Naseem Fatima through Legal Heirs and others v. Sheikh Ala-ud-Din and others " (PLD 2005 Supreme Court 455) the apex Court of Pakistan while considering the scope of Article 100, Qanun-e- Shahadat, 1984 observed as under:-- "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 assessmen t as to whether it in fact is thirty years old, as to whether there are any signatures in original on the document, whether such signatures are legible, Capable of being discriminated or deciph ered and further capable of being compared with any other signatures.
13. 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 presumption, in the circumstances. Such presumption attached to thirty years old document, carries a logic behind, in that, if it is proved to be thirty years old, the chances of forgery are minimized. Moreover , the fleeting past of time cast certain peculiar features upon the documents' tenor , the texture, the language, the signature, the thumb-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.
15. As sale-deed admittedly is thirty years old and has been produced from proper custody and is original, hence, it was necessary to be attached presumption of truth, therefore, in my considered view the learned Reference Judge has fell in error while not believing the same as true. Even otherwise, the respondents have not categorically denied the execution of the said sale-deed in their objections hence, the same would be deemed admitted.
16. Now the question as to whether the market value of the land has properly been determined by the Collector . The appellants have claimed the market value of the land as Rs. 15,00,000/- per kanal. To prove their claim the appellants produced sale-deeds Exh.PQ, PR, PS, PT, PW, PX as documentary evidence and produced Muhammad Latif and Mazhar Ali as witnesses and also got recorded statements of Abdul Ghafoor attorney of the appellant as witness. Though these witne sses have deposed that meager compen sation has been determined by the Collector and the market value of the land is Rs. 15,00,000/- per kanal. However , through the oral evidence the appellants failed to prove that location, nature and other factors of acquired land were same as was to the sold land through the sale-deed produced by them in support of their claim. Hence, while relying upon said sale-deed the appellants cannot be declared entitled to Rs 15,00,000/- per kanal. However , under Section 23 of the Land Acquisition Act, besides other factors it is necessary to consider the damage sustained by the landowner due to change of residence which factor has not been considered by the Collector at the time of determination of the compensation. Moreover it is well-settled principle of law that the land owners are entitled to the maximum compensation not the market value of the land if the land is acquired without consent of the landowners by the State and the compensation is a wider term as compare to the market value of the land. My this view lends support from case titled "Provence of Sindh v. Ramzan and others" PLD 2004 SC 512, wherein it has been observed as under:-- "7. The most important aspect qua the land compulsorily acquired is that the mandatory return proposed to be given to the landowner is the compensation and not the market value. Very Section 23 provides for various matters to be brought under consideration while determining compensation. Market value is only one of such matters to be considered by the Collector or Courts. Compensation is a very wider term indicating that the landowners, for various reasons, is to be compensated and not merely paid the price of land which is just and interaction of supply and demand fixed between a willing buyer and willing seller .
17. Where the lands are not transferred through mutual negotiation, but under the power of State conferred upon it and the land owners are deprived of their land then they are entitled to maximum possible benefits. Courts have to he liberal and generous Ur fixing the quantum of compensation bused on different considerations so that neither the land owner is deprived of his due right nor the acquiring agency is under burdened in the transaction." In view of above the appeal stands accepted, 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, 456, 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, 24, 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, Maia 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.