' The land measuring 87 Kanals 16 Marlas, represented by Khasra Nos. 1806 and 1707, situated in village Salam-Khand, was purchased by Gul Dad through Mutation No. 1130, attested on 26-6-1979, for an ostensible amount of Rs. 25,000. The sale was pre-empted by Gul Din who claimed that he being participator in the immunities and appendages of the suit land and having land contiguous thereto had superior right of pre-emption over the vendee-defendant. It was further alleged in the plaint that the sale consideration paid was only Rs.5,000 and in the sale mutation an inflated amount was entered as sale consideration.
2. The suit was contested by the defendant on factual and legal grounds, which gave rise to the following issues:
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff has got superior right of pre-emption?
(3) Whether a sum of Rs. 25,000 has been paid or fixed actually?
(4) Whether the defendant has made improvements, if so to what effect and extent?
(5) Whether the plaintiff is estopped to sue?
(6) Whether the suit is time-barred?.
(7) Relief.
3. The finding of the learned trial Judge on issue No. 3 was against the defendant. On the basis of 5 yearly average the price of the suit land was fixed at Rs.15,840.70. Issues Nos. 4, 5 and 6 were also not proved in the evidence brought on record and were, therefore, decided against the defendant.
On issues Nos. 1 and 2, which were discussed together, the finding of the learned trial Judge was that since both the parties were having land contiguous to different Khasra numbers, therefore, the pre-emptor had failed to prove his superior right of pre-emption over the defendant. Both these issues were, therefore, decided against him. The learned trial Judge, consequently, vide his judgment and decree dated 12-6-1984, dismissed the pre-emption suit filed by the plaintiff, leaving the parties to bear their own costs.
4. The legal heirs of Gul Din pre-emptor were not satisfied with the result of the suit instituted by their ancestor and they filed two separate appeals, which were registered as Appeal No. 64/13 and Appeal No. 68/13 of the year 1984, in the Court of Additional District Judge, Haripur against the aforesaid decree of the learned Civil Judge. Both the appeals were taken up together by the learned Appellate Judge, who, vide his judgment and decree dated 11-12-1984, while partially accepting both the appeals, passed a decree for possession by pre-emption of the land represented by Khasra No. 1707 in favour of the legal heirs of the pre-emptor on payment of Rs.
8,179.59. This finding was recorded by the learned Appellate Judge on the basis of admission made before him by both the learned counsel for the parties that the pre-emptor was having land contiguous to Khasra No. 1707 alone but not to Khasra No. 1806 which was located at a considerable distance from Khasra No. 1707 and with which the vendee-defendant was also owning contiguous land. The learned Appellate Judge also found the two disputed Khasra numbers not situated is one block.
5. The vendee-defendant was not happy over the decision made by the learned Appellate Judge in partially decreeing the suit against him. He has, therefore, come up in revision to this Court and in the petition filed by him he has prayed for setting aside the decree passed by the learned Appellate Judge and for restoring the decree passed by the learned trial Judge.
6. Mr. Muhammad Younas Tanoli, Advocate appeared on behalf of the petitioner and Mr. Fida Muhammad Khan, Advocate appeared on behalf of respondents. Since from the evidence recorded at the trial it was not clear as to whether or not the two disputed Khasra numbers were situated in one block, Patwari Halqa was examined in this Court as a Court witness. His statement would clearly show that the two Khasra numbers in suit having been situated at a distance of about 2000 yards from each other were not situated in one block. The learned counsel for the petitioner argued that the learned Appellate Judge having found that the pre-emptor was not having land contiguous to Khasra No. 1806 has dismissed the suit with respect to it and. that since with Khasra No. 1806 in suit the vendee-petitioner was having contiguous land, comprising of Khasra No. 1810, he would, therefore, be deemed having land contiguous to Khasra No. 1707 in suit because both the disputed Khasra numbers being part of one Khata No. 169/134 would be deemed to be situated in one block. In support of his argument the learned counsel for the petitioner relied on Muhammad Yousaf's case PLD 1970 Pesh.
160. The learned counsel for the respondents, however, argued that from the statement of Patwari Halqa recorded today in this Court it is clear that the two disputed Khasras are situated at a distance of about 2000 yards from each other and for that reason, no matter they form part of one Khata, they cannot be regarded as situated in one block. That being so, the learned counsel urged, the finding of the learned lower Appellate Judge that the two Khasra numbers in suit did not form one block or one property was correct. He also argued that the authority relied upon by the learned counsel for the petitioner did not lay down the law as was understood by the learned counsel and that it did not advance the case of the petitioner.
7. I have considered the arguments of the learned counsel for the parties in the light of the evidence brought on record and the admission made by the learned counsel representing the parties before the learned lower Appellate Judge, which has been specifically mentioned in the impugned judgment. The two Khasras in suit are situated at a considerable distance (2000 yards) from each other and as such, do not fall in one block so as to give any right of defence to the vendee-petitioner in respect of the Khasra with which his land was not contiguous. The authority relied upon by the learned counsel for the petitioner, as rightly pointed out by the learned counsel for the respondents, was of no help to the petitioner's case because it was applicable in the circumstances where different Khasra numbers were situated adjacent to each other, thus forming one block. This is not so here and no rational thinking would convert the two Khasra numbers in suit into one lot or one block. The finding of the learned lower Appellate Judge in this regard was, therefore, correct.
8. Finding no merit in this revision petition, it is hereby dismissed with costs.
Petition dismissed.
1985 CLC 2605 Peshawar) be fore Fazal Elahi Khan and Faiz Muhammad Khan, JJ LAND ACQUISITION COLLECTOR and 2 others--Appellants versus SHAHDAD KHAN and 2 others--Respondents Regular First Appeal No. 70 of 1981, decided on 9th April, 1985.
(a) Land Acquisition Act (I of 1894)-- ---S. 18--Objection petition--Reclassification of Khasra--Change in Khasra Girdawari relied upon by objector which also formed basis of impugned judgment and decree highly doubtful and unreliable on face of record due to overwriting in diagonals drawn by Patwari in relevant column of register of Khasra Girdawari in front of disputed Khasra number in Kharif. 1965 and Rabi 1966 and objectors, names inserted showing them in cultivating and Hissadari possession of land--Though said insertion and manipulation apparent from copy placed on file, Land Acquisition Judge failing to take notice of it and making these entries basis for reclassification of land--Moreover, entire land covered by Khasra numbers was under river bed till Rabi 1965, all of a sudden objectors could not reclaim a large portion of it and bring it under plough in short period in Kharif 1965--No other reliable evidence produced in support of change in classification of land--Held, Land Acquisition Judge committed illegality by placing reliance on illegal and manipulated entries made in Khasra Girdawari while ordering reclassification of land and holding objectors in Hissadari possession of it- -Judgment and decree of land Acquisition Judge set aside and classification made by Land Acquisition Collector while making award upheld. [p 26081 A & C
(b) Land Acquisition Act (I of 1894)-- ---S. 18--Evidence Act (I of 1872), S. 35--Khasra Girdawari- Presumption of truth--Although presumption of truth, held, could be attached to entries in Khasra Girdawari yet it being admissible in evidence under section 35, Evidence Act, before any weight attached to it, it must be established by a party who placed reliance on it, that entries were made by a person in discharge of official duty in accordance with law, even then it is for Court, in given circumstances, what value is to be attached to such entries. [p. 2608] B S. Ibne Ali Addl. A.-G. for Appellants. Maulvi Sirajul Haq for Respondents. Date of hearing: 9th April, 1985.
' FAZAL ELAHI KHAN, J.--Shandad and two others aggrieved by the judgment and decree of the learned Acquisition Judge dated 24-5-1980, whereby part of their claim made in the objection petition against Award No. 31, dated 3-12-1971 in respect of their acquired landed property was rejected have come in appeal to this Court. The Land Acquisition Collector and two others also feeling aggrieved by the same judgment and decree on partial acceptance of the objection petition of the aforementioned land owners have also come in appeal. These two appeals bearing R.F.A. No. 50 of 1981 (Muhammad Zaman and 2 others v. Government of N.-W.F.P. and 2 others) and R.F.A. No. 70 of 1980 (Land Acquisition Collector and 2 others v. Shah Dad), are, therefore, disposed of by this single judgment.
2. For the acquisition of land situated in village Dheri, Tehsil Haripur, including the land of the objector-appellants Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as the Act) was published in the official Gazette on 3-5-1967. The land in question was required for the construction of Tarbela/Dam Project (reservoir), for public purpose at public expense.
3. After hearing the affectees especially with regard to the classification of their land and its valuation the learned Land Acquisition Collector vide his Award No. 31, dated 3-12-1971 fixed valuation for the different types of the acquired land.
4. Shah Dad, Muhammad Zaman and Chan Muhammad land owners having not accepted the award made an objection petition before the Land Acquisition Collector to the valuation and classification of their land. Prayer was made to refer the objection petition to the Land Acquisition Judge for determination of fair compensation and for re-classification of their land as 'Bagh Abi' and 'Grera Abi' instead of Ghair Mumkin 'Sindh' classified in the award and assessed as such.
Compensation was also claimed for the fruit bearing trees which allegedly existed in part of the suit land at the time of its acquisition but has not been accounted for in the award. This objection petition was referred to the Land Acquisition Judge, where it was registered as Reference Case No. 109/4, for the determination of the question raised in the objection petition. It was further prayed that the compensation of the land in question be paid to the person in Hissadari possession of the Shamilat land at the relevant time. The Land Acquisition Collector and others resisted the objection petition in their written statement. The learned Acquisition Judge for giving his decision in the matter and in view of the pleadings of the parties framed the following issues:-
(1) Whether the land under rule has been wrongly classified and undervalued by the Collector, if so, what is the correct classifica tion and fair compensation?
(2) Whether the trees of the objectors have been undervalued, if so, to what fair compensation the objectors are entitled?
(3) Whether the objection petition has not been referred to this Court by a competent Collector?
(4) Whether the objection petition is within time?
(5) Whether the objectors have received the compensation without protest, if so, its effect?
(6) Whether the objectors have failed to respond to notices under sections 9 and 10 of the L.A. Act, if so, its effect?
(7) Whether the objectors have cause of action? (8). Relief.
' In support of their case the objectors produced Mian Badruddin EADA who placed on the file Goshwara Exh. P.W. 1/1 showing the valuation of different types of fruit bearing trees. Irshad Khan Patwari was examined as P.W. 2 who produced the revenue record before the Court and placed on file from it copies of Khasra Girdawari Exh. O.W. 2/1 and Exh. O.W. 2/2 of the disputed Khasra numbers which pertained to the relevant period. He also produced 'Goshwara' of mutations of sales attested during the period from 2-5-1960 to 3-5-1967 and from it worked out different averages of different types of land. These are Exh. O.W. 2/4 and Ex. O.W. 2/5 on the file. He also produced 'Parts Bandobasti' copy Exh. O.W. 1/5. Muhammad Zaman one of the objectors appeared as his own witness and reiterated their claim made in the objection petition. Taus Khan was produced by the objectors to land support to their case referred to above. On behalf of the Land Acquisition Collector his reader Muhammad Yaqoob appeared and produced the acquisition file and placed on the file copy of Naqsha All as Exh. R.W. 1/1. He deposed that the land involved in the objection petition was 'Shamilat Deh' the compensation amount of which worked out by the Collector has been paid to the Committee appointed for the purpose. He further deposed that the land in dispute was 'Ghair Mumkin Sindh' and assessed as such, in accordance with the entries in the revenue record.
5. After considering the evidence produced before him the learned Acquisition Judge basing reliance on the entries in the Khasra Girdawari referred to above re-classified the following four Khasras numbers mentioned below, to which the objectors confined their claim, as under:- Khasra classification Re-classification by the Number Area Awarded. Acquisition Judge.
Kls-M 2514 '19-9 Chair Mumkin Gandam Grera Abi = 130 K Sindh Sindh....................... = 89 K 2531 222-4 Gandam Grera Abi = 100 K Sindh.................... = 122 K 2521 .76-12 Gandam Grera Abi = 150 K Sindh...................... = 26 K 2522 63-19 Gandam Grera Abi = 50 K Sindh...................... = 13 K The valuation of different types of land was, however, fixed in accordance with the judgment of this Court Sher Ahmad Khan and 4 others v. Land Acquisition Collector and 2 others PLD 1978 Pesh.
138. The claim of the objector regarding fruit bearing trees was not accepted.
6. The learned counsel for the objector in support of the judgment of the learned Acquisition Judge as far as related to re-classification of the aforementioned Khasra numbers mainly relied on the entries made in the Khasra Girdawari for the year 1965-66. It was argued that considerable portion of the acquired land improved upon and converted into Chahi but the evidence produced by the objectors has been misread and not considered in its true perspective. It was further argued that the objectors are entitled to the compensation of the aforementioned Khasra numbers as Chahi type of land rather than Grera A bi held by the Acquisition Judge. The learned Advocate appearing for the Land Acquisition Collector, however, was aggrieved of the re-classification of major portion of the aforesaid 4 Khasra numbers and vehemently argued that the entries in the Khasra Girdawari are forged and manipulated one brought in the record after the issuance of the Notification under section 4 of the Land Acquisition Act. The entries showing the objectors to be in Hissadari possession of the disputed Khasra numbers were also challenged. In that case too the learned Acquisition Judge has placed reliance on the aforementioned forged entries. The judgment and order of the learned Acquisition Judge was, therefore, challenged to be based on no evidence and liable to be set aside.
7. For the determination of the controversy raised before us it would be beneficial to refer to the revenue record which existed prior to the relevant Notification and the manner in which the change was brought about. Exh. P.W. 1/1 is the copy of 'Naqsha Alif' which has been placed on the file showing the disputed Khasra numbers as Shamilat Deh and in possession of the owners. Its classification is given to be 'Ghair Mumkin Sindh'. This document was prepared during the acquisition proceeding on the spot verification after the issuance of Notification under section 4 of the Act. In the Jamabandi prior to the notification the same entries existed. Change in the Khasra Girdawari is shown for the first time in Kharif 1965 and Rabi 1966 which is being relied upon by the objectors and is the basis of the impugned judgment and decree. This change in the Khasra Girdawari is, however, highly doubtful and unreliable on the face of the record as there appears to be overwriting in diagonals drawn in column No. 7 of the register of Khasra Girdawari in front of the disputed Khasra numbers. Although no presumption of truth is attached to the entries in Khasra Girdawari yet it being admissible in evidence under section 35 of the Evidence Act, before any weight to be attached to it, it must be established by a party who places reliance on it that the entries were made by a person in the discharge of official duty in accordance with law, even then it is for the Court, in the given circumstances, what value is to be attached to such entries. It is very unfortunate that the learned Acquisition Judge did not apply his mind to the change and the manner in which it was brought about. It may be mentioned that under Chapter 9(3)(ix) of the Land Record Manual which deals with the entries in column No. 7 of the periodical record provides:- ' When no change in the cultivating occupancy has occurred in the Kharif the Patwari should make a stoke of the pen across the oblong space provided for changes in the Khasra from the right hand top corner to the left hand bottom corner, and another diagonal from the left hand top to the right hand bottom corner, if no change has occurred in the Rabi."
'In the instant case in Kharif 1965 and Rabi 1966 there was no change in the occupancy and cultivation columns of the aforementioned Khasra numbers, therefore, the Patwari has drawn two diagonals in column No. 7 of the register (copy Exh. P.W. 1/1 and Exh. P.W. 1/2), however over these two croselines the objectors names are inserted showing them in cultivating and Hissadari possession of the land. Though this insertion and manipulation is apparent from the copy placed on the file, the learned Judge did not take notice of it and made these entries the basis for re- classification of the land. It may further be pointed out that the entire land covered by the aforementioned Khasra numbers was under the river bed till Rabi 1965. It does not stand to reason how all of a sudden objectors reclaimed a large portion of it brought it under the plough in a short period in Kharif 1965.
8. In his judgment the learned Acquisition Judge made reference to the observation made by the Acquisition Collector on page 5 of his award regarding the change in the classification of land, however, he ignored the ultimate finding given by the learned Acquisition Collector in his award where he specifically referred to the spot verification carried out by the Naib-Tehsildar Acquisition and by the Collector Acquisition himself in pursuance of objections raised by some of the land owners. After the spot verification a report was submitted to the Deputy Commissioner for correction of change in the classification of land in accordance with the spot verification. The Deputy Commissioner on the acceptance of the recommendation ordered the necessary correction in the classification of the land detail of which is given on page 8 of the award under the caption 'classification of land'.
9. The learned counsel appearing on behalf of the objector when faced with the situation was unable to convince us that the change in the classification of land was supported by any other reliable evidence. No other point was urged before us.
' For the reasons stated above we have no hesitation in holding that the learned Acquisition Judge has committed illegality by basing reliance on the illegal and manipulated entries made in the Khasra Girdawari while ordering re-classification of the land and holding the objectors in Hissadari possession of it. We, therefore, accept Regular First Appeal No. 70 of 1981 (Land Acquisition Collector v. Shah Dad Khan and others) set aside the judgment and decree of the learned Acquisition Judge and hold that the Land Acquisition Collector has correctly classified the land of the objectors while making the award. Consequently Regular First Appeal No. 50 of 1981 (Muhammad Zaman Khan and others v. Land Acquisition Collector) stands dismissed. There shall be no order as to costs in both these appeals. 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.