1. The captioned appeal has been filed against judgment and decree recorded by learned Reference Judge Mangla Dam Raising Project Mirpur dated 31.12.2019, whereby reference filed by appellants herein has been dismissed for want of proof.
2. Precise facts forming background of the instant appeal are appellants herein filed a reference against respondents before Reference Judge Mangla Dam Raising Project Mirpur on 11.01.2013 qua it. was submitted that land comprising Survey No. 105 renumbered as 86 Khata No. 47 to 51 measuring 28 kanals and 12 marlas situated in village Kalarvari Tehsil Dadyal District Mirpur was allotted to Hayyat Ali predecessor of Petitioners No. 1 to 6, Baseer Begum widow of Atta Muhammad mother of applicant No. 7 and Nazir Ahmed S/O Shah Muhammad, Respondent No. 1 as being refugees of 1947 and Custodian Evacuee Property got executed a sale deed in favour of allottees on 20.12.1965. It was contended that earlier in the year 1965, 16 kanals and 18 marlas of land was acquired for Mangla Dam and compensation was paid to all the three allottees in equal shares and thereafter all the three allottees were paid Re. 2,00,000/- each. It was stated that vide award No. 10/2007 dated 31.03.2007, the land measuring 5 kanals and 8 marlas has been awarded for Mangla Dam Raising Project Mirpur however, Collector anomalously assessed compensation only in the name of private respondent, Nazir Ahmed, hence requested for acceptance of reference.
3. Respondent No. 1 contested the reference by filing objections wherein, besides raising several legal objections submitted that acquired land was allotted to Nazir Ahmed and compensation has rightly been assessed in his name as being owner in possession of the acquired land. It was also claimed that land allotted to Farzand Begum D/o Noor Begum widow of Hayyat Ali was acquired in the year 1965 and she has received compensation of her whole share and the land acquired through Award No. 10/2016 comes within the share of Nazir Ahmed. The learned Reference Judge framed issues in the light of pleadings of the parities provided them opportunity to lead evidence heard pro and contra and at the conclusion of proceedings, dismissed the reference for want of proof vide its impugned judgment and decree dated 31.12.2019, hence, the captioned appeal.
4. The learned counsel for the appellants reiterated the facts and grounds already taken in the pleadings by submitted that appellants proved their claim by producing convincing and reliable documentary as well as oral evidence but the learned Court below miserably failed to appreciate the relevant evidence in a legal fashion and erroneously dropped the reference for want of proof.
5. Vide order dated 02.02.2024, the learned counsel for the respondents was directed to file written arguments within three days but till date he has not complied with the order of the Court which is very unfortunate and regrettable hence the judgment is being delivered on the basis of available record as being an old case.
6. I have heard the learned counsel for the appellants, gone through the record of the case with utmost care and caution.
7. Being a first appeal, it is required to be decided issue-wise. Issues No. 1 & 2.
8. Issues No. 1 & 2 Issues No. 1 & 2 are interlinked, hence, are decided simultaneously. The stance taken by the appellants in their reference was, land comprising Survey No. 105 renumbered as 86 and further renumbered as 126 Khata No. 47 to 51 situated in village Kalarvari Tehsil Dadyal as being an evacuee property was allotted to Hayyat Ali predecessor of Petitioners No. 1 to 6, Baseer Begum, mother of Petitioner No. 7 and Nazir Ahmed S/O Shah Muhammad being refugee of 1947. This claim of the petitioners/appellants is amply established from register allotment Exh.PA which is very obvious as names of all three allottees are clearly mentioned in the allotment. The learned Reference Judge Mangla Dam Raising Project Mirpur did not accept this document on the ground that village and district of the land has not been illuminated. This observation of the Reference Judge is against the record because in the column of name of mozia, village is mentioned and even otherwise, the respondents did not deny this document as it is an admitted fact that the land allotted to the allottees was situated in village Kalarvari, thus the appellants succeeded to substantiate that awarded land was allotted to Hayyat Ali, Baseer Begum and Nazir Ahmed in equal shares. It is also pertinent to mark that if in the allotment, the shares of allottees are not mentioned, the same would have been allotted to allottees in equal shares.
9. The petitioners further claimed that Custodian Evacuee Property executed sale deed in favour of allottees on 20.12.1965 regarding same land, this stance of the petitioners/appellants is also endorsed from the sale deed Exh.PG which also envisages that ownership of land was transferred by Custodian in favour of allottees in equal shares as shares of allottees were not bifurcated. This document has also not been denied by the respondents. In the sale deed, the location of land situated in village Kalarvari Tehsil Mirpur is blatantly incorporated which is sufficient proof of the fact that the said sale deed was executed regarding the land in question, hence the observations recorded by learned Reference Judge Mangla Dam Raising Project Mirpur that documentary evidence is silent about the fact that where the allotted land is situated, are against the record and the learned Court below failed to ponder the sale deed Exh.PG in a legal fashion.
10. The petitioners/appellants also stated in their reference that earlier 16 kanals and 18 marlas of land out of 28 kanals 12 marlas of land was acquired for construction of Mangla Dam qua the compensation was divided amongst the allottees in equal shares, whereas, Respondent Nazir Ahmed took a specific stance that Farzand Begum D/o Noor Begum widow of Hayyat Ali has received compensation of her whole allotted land in pursuance of award issued in the year 1965.
11. The stance taken by the appellants that in pursuance of award issued in the year 1965, all the allottees received compensation in equal shares is fully supported by Exb.PB, report of the Collector, Exh.PI, report issued by Tehsildar Mangla Dam Affairs Mirpur, hence the plaintiffs also proved through cogent and reliable documentary evidence that earlier compensation of allotted land was paid to the allottees in equal shares while on the other hand, respondents failed to place on record any proof to prove that Farzand Begum has already received compensation of her whole share.
12. The appellants in support of their claim also got recorded statements of Muhammad Gulzar and Muhammad Aslam who fully supported the version taken by the appellants. Syed Ali Abbas Shah, Record Keeper Revenue Department also appeared as witness and deposed that Exh.PA is correct as per record. Farooq Ahmed, employee of Collector Mangla Dam Affairs Mirpur recorded his statement and stated that Exh.PB was prepared by him which is correct as per record, so the oral evidence also sufficiently established the claim of petitioners/appellants. The learned Court below wretchedly failed to appreciate the relevant and pivotal evidence in a legal manner and wrongly decided Issues Nos. 1 & 2 against petitioners, therefore, the findings of the Court below are set at naught and Issues Nos. 1 & 2 are decided in favour of petitioners/appellants.
13. It is also relevant to mention that vide order dated 26.06.1967, it is provided that where any evacuee immovable property is acquired by government, the allottee shall be entitled to pay 2/3rd of the compensation money but this order shall not apply to evacuee immovable property which has been acquired by the government in connection with the construction of Mangla Dam Mirpur, thus the allottees are entitled to receive whole compensation amount assessed by the Collector.
14. Issue No. 3.
15. As far as Issue No. 3 that whether the reference is time barred? is concerned, the Court below also failed to decided the same in a lawful fashion and wrongly observed that initially, the petitioners approached the Custodian Evacuee Property Azad Jammu and Kashmir on 20.07.2009 and when their application was rejected, they filed a reference, hence is time barred. Section 14 of the Limitation Act, 1908 postulates that if a party approaches wrong forum with due diligence, while computing the period of limitation prescribed for the proceedings, the period consumed before wrong forum shall be excluded. For ready reference Section 14 of the said Act is reproduced as under: "14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application the time during which the application has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature is unable to entertain it.
16. Explanation I. In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceeding therein ended, shall both be counted.
17. Explanation II. For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
18. Explanation III. For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
19. In view of above reproduced provision of law, while deciding Issue No. 3 the period from 20.07.2009 (date of institution of application before Custodian), to 16.11.2012 (date of decision by the Custodian) was liable to be excluded from limitation. The judgment was delivered by Custodian Evacuee Property on 16.11.2012 and reference was presented before Collector Land Acquisition on 04.12.2012, hence it was within limitation. Furthermore, no notice under Section 12(2) of the Land Acquisition Act was issued to the petitioners, hence the limitation would start from the date of knowledge of the petitioners, so the reference was within limitation after excluding the period, the petitioners remained prosecuting the application before Custodian Evacuee Property, thus Issue No. 3 is decided against respondents.
20. Issue No 4.
21. As Issue No. 4 was not pressed by counsel for the respondents during reference, thus no deliberation by this Court is required. Even otherwise the petitioners were the allottees of the land in equal shares, hence have got a cause of action to file the reference as the compensation was assessed solely in favour of Nazir Ahmed.
22. Issue No. 5.
23. Since during pendency of reference WAPDA through Chairman was made party, in the case, hence the Court below rightly decided Issue No. 5 which is liable to be maintained.
24. The sum and substance of the above discussion is, the reference filed by petitioners/appellants is hereby accepted and respondents are directed to assess and pay compensation of land comprising Survey No. 86 measuring 5 kanals 8 marlas in favour of all allottees including appellants in equal shares.