SHAH ZAMAN BABAR, J.---This a Letters Patent Appeal is directed against the judgment dated 4- 10-1968 of a learned Single Judge in First appeal under section 54 of the Land Acquisition Act. The appellant Nur Ahmad had claimed appor--tionment of compensation amount with respect to an area of 3 kanals 1 marla out of Khasra No. 161 measuring l I kanals 7 marlas to the tune of an amount of Rs. 14,000 out of a total compensation amount of Rs. 51,728.31, which had been entirely received by Muhammad Jan Khan and Sikandar Khan respondents.
2. The appeal arises out of the following facts: By Notification No. 27674/Rev. Dated 4-9-1964 corrected on 25-8-1965, land measuring 674 kanals 7 marlas, situated in the area Nawan Sher Shimali was acquired by the Secretary. Joint Development Board, Abbottabad for construction of the Satellite Town in the limits of village Nawan Sher Shimali, Tehsil Abbottabad. The land so acquired included Khasra No. 161 in dispute. A history of the disputed khasra maybe given for the clarification of the dispute. Dost Ali Khan had two sons named Jamal Khan and Isa Khan. Jamal Khan and Isa Khan shared the estate left by Dost Ali Khan in equal share. Jamal Khan had two sons named Mir Zaman and Sikandar Khan, respondent No. 2.
Muhammad Jan Khan respondent No. 1 is the sole heir of Mir Zaman. Is& Khan was survived by a widow Mst. Haji Begum, a son Muhammad Zaman, and a daughter Mst. Sadri. Mst. Haji Begum and Muhammad Zaman are dead. The share of Mst. Sadri out of the estate of her father comes to 17 kanals 9 marlas. Mst. Sadri had been alienating portions of her share. She lastly by a sale deed, executed on 14-10-1959 and registered on 16-10-1959 sold 29/144 share out of her share of the property to the extent of 3 kanals 1 marla out of Khasras Nos. 41 and 161 in favour of Nur Ahmad, appellant-objector. This sale was given effect to in the revenue record by Mutation No. 3677, attested on 26-1-1960. As a result of this mutation in the Jamabandi of the year 1961-62 (copy Exh.
O. W. 4/1) Sikandar Klan, Muhammad Ian Khan, Nur Ahmad Khan and Mst. Habib Jan were shown co-sharers in the proprietary column. Sikandar Khan and Muhammad Jan Khan were however, shown in possession of the entire Khasra No. 161 in dispute measuring 11 kanals 7 marlas. On the basis of the Jamabandi of the year 1961-62 (copy Exh. O. W. 4/1) the Acquisition Collector paid the entire compensation amount of Rs. 51.728.31 with respect to Khasra No. 161 measuring 11 kanals 7 marlas to Muhammad Jan Khan and Sikandar Khan by acquaintance rolls (copy Exh. O. W. 3/1) Nur Ahmad was given no share in the compensation amount with re pact to the disputed Khasra No. 161 by the award dated 31-7-1967, which according to the allegation of Nur Ahmad was the only joint property of Sikandar Khan, Muhammad Jan and himself.
3. Nur Ahmad, therefore, filed an application under section 18/30 of the Land .Acquisition Act claiming apportion--ment of compensation with respect to his share out of Khasra No. 161. He claimed that he was entitled to share the compensation amount with Muhammad Jan Khan and Sikandar Khan and was entitled to an amount of compensation of Rs. 14,000. The application was referred to District Judge, Hazara. Respondents Muhammad Jan Khan and Mst. Habib Jan submitted a separate written statement than Sikandar Khan respondent. The pleas of the parties gave rise to the following Issues:-
(1) Whether the objection application was time-barred?
(2) Whether the land in question had become the possessed property of respondents 1 and 2 by private partition?
(3) whether the objector-applicant was a co-sharer in the land in question before acquisition to the extent of 3 kanals 1 marla (928/4608 share) and was entitled to receive compensation money proportionate to his share ?
(4) Relief.
4. The application of the objector was found within time and so issue No. 1 was decided in favour of the objector. The learned Reference Court gave his finding on issue No. 2 that private partition of the property between Isa Khan and Jamal Khan was not proved, but it was established that the respon--dents Muhammad Jan and Sikandar Khan continued in possession of the disputed Khasra number eversince the year 1907-1908. On issue No. 3 he gave a finding that Mst. Sadri was entitled to 17 kanals 9 marlas out of the estate of her father, but before the sale by her in the year 1959 in favour of Nur Ahmad objector, she had sold 28 kanals 1 marla out of the joint property viz, about 10 Kanals more than her share and as such she was let with no saleable interest in the disputed Khasra No. 161. He thus held that Mst. Sadri being a co-share was not legally competent to alienate any area to Nur Ahmad objector, which fell in excess of her share in the joint property. He also held that a notice to this effect was served on Nur Ahmad by Sikandar Khan and Muhammad Jan Khan, respondents, wherein Nur Ahmad was warned not to enter into transaction of sale of the disputed Khasra number on behalf of Mst. Sadri. The learned Reference Court, therefore, by its judgment dated 4-5-1968 came to the conclusion that the objector was not entitled to any compensation and, therefore dismissed his objec--tion application.
5. Nur Ahmad preferred an appeal in the High Court under section 54 of the Land Acquisition Act.
The appeal was heard by Faizullah Khan (as he then was) and he dismissed it in limine by his judgment dated 4-10-1968.
6. Two preliminary objections were raised by Mr. Sardar Bahadur Khan, Advocate, counsel for the respondents. Firstly, that the memorandum of the First appeal bore two stamps of Rs. 4 only, while ad valorem court-fee on the amount of compensation claimed viz. Rs. 14,000 should have beers affixed to the memorandum of appeal under section 8 of the Court Fees Act and as such the Memorandum of appeal was not a valid document. The objection has force in it. At the time the Memorandum of the First appeal way filed, the Memorandum was affixed with court-fee stamps ofth Rs.
4. The office aid not object to the deficiency in court-fee but received the same Thus it appears that the memorandum of appeal was received through an inadvertent mistake. The defect in the deficiency of the court-fee can, therefore, be remedied under section 28 of the Court Fees Act. We, therefore, ordered the appellant to make good the deficiency and the same has been clone on 8- 7-1972.
7. The second preliminary objection raised was that in view of section 54 of the Land Acquisition Act an appeal from the judgment of a learned single Judge in First appeal lay to the Supreme Court and that Letters Patent Appeal was not competent. He further contended that even if it is held that this Letters Patent Appeal could lay under Clause 10 of the Letters Patent, it was not competent because it certificate of fitness had not been obtained from the learned Single Judge.
Section 54 of the Land Acquisition Act provides for appeals in proceedings before Court. This section lays: "Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained fn section 110 of the Code of Civil Procedure, 1908, and In Order XIV thereof."
Section 4(1) of C. P. C. Provides: "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."
Clause 10 of the Letters Patent also deals with appeal to the High Court from Judges of the Court.
This clause is also reproduced below: "And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment not in respect of a decree or order made in the exercise of appellate jurisdiction by Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of Criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said .High Court from, a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of February one thousand, nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from, other judgments or Judges of the said Nigh Court or of such Division Court shall be to us. Our heirs or successors in our or their Privy Council, as hereinafter provided."
The meaning of Clause 10 will be clear when the contents of the Clause are marshalled in the following manner: PART I "We do further ordain that an appeal shall lie to the said' High Court of Judicature at Lahore from the judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to section 108, Government of India Act."
PART II "Not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provisions of section 107, Government of India Act or in the exercise of criminal jurisdiction."
PART III "And that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the judge who passed the judgment declares that the case is a fit one for appeal."
It may be remarked that Clause 10 of the Letters Patent of Lahore corresponds to Clause 10 Letters Patent of Nagpur and Allahabad.
"A Letters Patent Appeal is not really an appeal in the strict sense. It may be more aptly described as an internal arrangement of the Court for reviewing its own decision given in the first instance by one member of the Court. The first as well as the second decision remains a decision of the Court."- --See Sheikh Muzaffar Din v. Mst. Allah Vasai and others PLD 1953 Lah. 264.
"Appeal is a determination by a superior Tribunal as to the correctness of the decision of an inferior Tribunal. In a Letters Patent Appeal, however, there is no superior or inferior Tribunal. When the Single Judge decides the case it is decided by the High Court and when the Letters Patent Bench decides the case, it is still decided by the High Court. Perhaps it will be correct to say that there is a full and final decision by the High Court on an appeal only after a Letters Patent Appeal has been heard and decided by the Letters Patent Bench." See Sh. Mahboob Alam v. Sh. Mumtaz Ahmad PLD 1960 Lah. 601.
Section 54 of the Land Acquisition Act confers general, Jurisdiction for appeals in proceedings before Court while Clause 10 of the Letters Patent is a special law. It is well settled that a special law overrides the general jurisdiction: "The word 'only' (in section 54 of the Land Acquisition. Act) does not restrict the right of appeal was intended to make it clear that the forum of appeal in land acquisi--tion cases Is always the High Court and not the District Court. It is beyond dispute that Clause 10 of the Letters Patent gives in express terms a right of appeal, and that right has not been impliedly taken away by section 54 more especially when the section is merely an enabling section and was enacted in order to confer a right of Appeal to His Majesty-in-Council."-See Har Dial Shah etc. v. The Secretary of State for India-fn-Council AIR 1923 Lab. 275 In Narayandas Daga v. Ganpatrao (AIR 1944 Nag. 284), the learned Judges of the Division Bench following AIR 1923 Lah. 275 and other decisions held that right of appeal under Clause 10 against Single Judge is not affected by section 54, Land Acquisition Act and appeal lies to Division Bench under Clause 10 against the decision of Single Judge in land acquisition appeal. Thus it is established that Letters Patent Appeal under Clause 10, of the Letters Patent from a judgment of the Single Judge in first appeal in land acquisition cases under section 54 of the Land Acquisition Act is competent.
It is also contended that this letters patent appeal being without a fitness certificate is not a valid appeal. A plain reading of Clause 10 of the letters patent analysed above, in three parts, will show that no leave to file letters patent appeal is necessary from a judgment of a Single Judge in first appeal, while such fitness certificate is essential in Letters Patent Appeal directed against the judgment of a Single Judge in second appeal only. In Madhuker Trimbakalal v. Shri Sati Godawari Upasani Maharaj of Sakart and others (AIR 1940 Nag. 39), it was held: "The leave to file an appeal under the Letters Patent is necessary only for an appeal from a judo pent passed by al, Single Judge in the exercise of his appellate powers in second" appeal but not for those which are passed by him in the exercise, of his original or first appellate jurisdiction."
In AIR 1944 Nag. 284, it was also held that under Clause 10 of Letters Patent in land acquisition appeal decided by High Court Judge, no leave is necessary for the appeal.
Section 3 of the Law Reforms Ordinance, 1972 (Ordinance No. XII of 1972) enforced from 14th April 1972, provides "3. As from the commencement of this Ordinance-
(a) no appeal under the provisions of any letters patent, as applicable to a High Court, shall be entertained by such High Court, and (b). . ------------------------------------------..
Provided that nothing contained in this Ordinance shall be construed affecting any such appeal which was pending immediately before the commencement of this Ordinance."
This Letters Patent Appeal being pending immediately before the commencement of the Ordinance, therefore, is not affected by the bar contained in section 3(a).
We thus overrule the second preliminary objection.
8. On merits of the case Qazi Asadul Haq, learned counsel %for the appellants canvassed the following contentions
(1) The appellant is bona fide transferee of the share of Kist. Sadri in the proprietary column and so the sale in his favour is protected under section 41 of the Transfer of Property Act. As such, the finding of the learned District judge confirmed by the learned Single Judge that Mst. Sadri bad no alienable title in Khasra No. 161, is erroneous in law.
(2) That the appellant's title as co-sharer was not the subject-matter of the reference before the District Judge, and as such the District Judge had no jurisdiction to adjudicate upon the matter not referred to him. The respondents not having filed objections against the Award could not urge exclusive ownership and possession before the District Judge.
(3) That the respondents as co-sharers in exclusive posses--sion were not entitled to the entire compensation. The appellant being a co-sharer could claim apportionment of compensation money proportionate to his share.
9. As regards the first contention, Nur Ahmad appellant has purchased 29/146 share out of Khasra No. 161 in dispute -from Mst. Sadri vide registered sale deed dated 16-10-1959. Mutation No. 3677 has been attested on 26-1-1960 on the basis of this gale in favour of Nur Ahmad. The sale has been given effect to in the proprietary column of the jamabandi of the year 1961-62, copy Exh. O. W. 4/1.
The learned reference Court has found that Mst. Sadri was entitled to 17 kanals 19 marlas out of the entire estate, 49 kanals 6 marlas, of her father Isa Khan, but the lady has sold 28 kanals 1 marla out of the estate of her father by means of 4 mutations referred to in the judgment, and in this way Mst.
Sadri has sold about 10 kanals more than her share in the estate of her father. Nur Ahmad (O. W. 6) has deposed that Muhammad Jan and Sikandar Khan were in possession as co-sharers when he purchased the land in dispute, and that they are still in posses--sion as co-sharers. He stated in cross-examination that he did not know if the land in dispute had fallen to the share of Muhammad Jan Khan and Sikandar Khan as at result of private partition, because at the time of purchase it consulted the revenue received but did not consult the entire share of Mst. Sadri falling even in other Khasra numbers as a result of Inheritance and also to find if they had been entirely alienated by her. The case of the respondents in the evidence of R. W. 1 Muhammad Jan Khan is that Muhammad Jan Khan met Nut Ahmad personally and told him that Mst. Sadri had already sold more land than her due share and that the objector should not be deceived by the entries in the ownership column o the revenue record. Muhammad Jan Khan further alleges the registered notice to this effect was also sent to Nur Ahmad but the envelope containing the notice was refused delivery b; Nur Ahmad. Nur Ahmad O. W., on the other hand, allege that Muhammad Jan Khan told him that Mst. Sadri being their relative, he (Nut Ahmad) should not purchase the suit land. The envelope containing the notice (Exh. R. W. 1/2 was open in Court. This notice contains the allegations of Sikandar Khan that besides this notice in writing he had orally also informed Nur Ahmad not to purchase the land fro Mat. Sadri. Nur Ahmad admits that Muhammad Jan had informed him not to purchase the land. Thus it can be inferred from the evidence of Nur Ahmad that at least an oral notice in respect of the sale of land by Mst. Sadri in favour of Nur Muhammad was conveyed to Nur Ahmad. The testimony of Muhammad Jan Khan, corroborated by the notice R. W. 1/2, establishes the fact that the notice conveyed by the respondents to Nur Ahmad was that Nur Ahmad should not purchase the land as the vendor Mst. Sadri was left with no saleable title in Khasra No. 161.
Section 41 of the Transfer of Property Act protects a, transferee provided he acted in good faith and took reasonable care to ascertain that the transferor had power to make the transfer. Inquiry into title involves inquiry as to actual possession. In the present case the respondents Muhammad Jan Khan and Sikandar Khan are co-sharers in Khasra No. 161 and are in its exclusive possession. The exclusive possession of the suit Khasra is itself a notice to the transferee. The general principle of law is that no man can transfer to another a right or title greater than what he himself possesses and he gives not who has not. The entry in column of cultivation showing the respondents in exclusive possession of the disputed khasra was, therefore, a notice to the appellant and while purchasing the land he ought to have been vigilant and to have made diligent inquiries as to title, in spite of notice as to why the respondents were entered as co-sharers in possession D of the suit land; failing which the appellant could not have recourse to the equitable principle and claim protection under, section 41, T. P. Act. Reliance is placed on Muhammad Sarfraz khan and another v.
Farid Khan and 22 others (PLD 1972 Pesh. 109). Moreover, the learned reference Court and the learned Single Judge have concurred in arriving at this conclusion on a question of fact. The question of fact concurred in by the District Judge and the appellate authority, cannot be raised afresh before the High Court in Letters Patent Appeal. In Letters Patent Appeal investigation into facts cannot be made at any stage of such appeal. Reliance is placed on
(1) Mst. Mumtaz Begum v. Sheikh Inayatullah PLD 1969 Lah. 16 and
(2) Hussain Bakhsh and others v. Bashir Ahmad and others PLD 1966 Lah. 393.
10. Arguing the second contention, the learned counsel laid great stress on the contents of the reference application and canvassed the argument that the appellant had applied for reference to Court for his objection to the apportionment of compensation money on the ground of his being owner-- co-sharer in Khasra No. 161 in dispute. As such, the reference Court had no jurisdiction to adjudicate upon the question of title of the objector as the same was not referred. He also argued that the respondents on account of their failure to file objections against the Award could not urge exclusive owner--ship and possession of the disputed Khasra. In support of the contention the learned counsel relied on Abu Baker v. Peary Mohan Mukerjee (I L R 34 Cal. 451). In this judgment it has been held: "In a proceeding under the Land Acquisition Act, a party who bad raised no objection to the apportionment of com--pensation made by the Collector must be taken to have accepted the award in that respect.
Under sections 18, 20 and 21 of the Land Acquisition Act all that the Court can deal with is the objection which has been referred to it; it cannot go into a question raised for the first time by a party who had not referred any question or any objection to it under section 18 of the Act"
This authority, in our view, is of no assistance to the appellant. As explained earlier, the entire compensation money with respect to Khasra No. 161 was paid by the Acquisition Collector to the respondents. The respondents therefore could raise no objection by themselves for the apportionment of the compensa--tion money with the appellant objector.
It goes without saying that Nur Ahmad claimed apportion--ment of compensation money in his reference application. An application under section 18 is filed by a person interested. Section 3(b) of the Land Acquisition Act defines "persons interested" and lays: "the expression `persons interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; The words "persons interested" include a person whose claim as landlord is denied and whose claim conflicts with the claim of the person to whom compensation money has been awarded. An owner must be deemed to be one of the persons interested in the land to be acquired. The appellant has, therefore, to prove that he in order to claim apportionment must prove himself to be an owner in the land. As earlier discussed, Mst. Sadri was left with no alienable title in Khasra No. 161 for sale to Nur Ahmad objector-appellant in the year 1959. Conversely, therefore, Nur Ahmad is not covered by the definition of "persons interested" to claim apportionment of compensation. The reference Court had, therefore, jurisdiction to inquire into the title of the appellant with respect to his claim for apportionment in the land.
11. The third contention raised by the learned counsel for the appellant is also not weighty in law.
A claimant can get no share of compensation without establishing either title or possession of the land acquired. Om Prakash Aggarawala in his Book "Compulsory Acquisitional of Land", 1950 Edition, at page 346 in his comments under section 30, Land Acquisition Act, under the caption "What the claimant has to prove under section 30-Possession and title" comments "When Government acquire immovable property under the Land Acquisition Act, it is for the person claiming compensation to establish his title to it affirmatively. To support claims to lands acquired under section 30 of the Act, the claimants must show title or in the absence of title-deeds, effective occupation. A claimant in a land acquisition proceedings can get no share of the compensation without establishing either title to or possession of the Ian 3 acquired Where the land is compulsorily acquired by the Government for public purposes, and rival)" claims are made in respect of the compensation awarded for such land the prima facie title to the money is with the party who was in sole and exclusive possession of the land at the time of its acquisition by the Government, and the onus is on the party claiming that he has a better or superior title to such money to prove such title.
The party in possession is prima facie entitled to the money paid for the land acquired until same one else establishes a better claim."
In Secretary, Cantonment Committee, Barrackoore v. Satish Chandra Sen (AIR 1931 P C 1), it is held: "When Government are acquiring immovable property for a public purpose under Act I of 1894, it is for the person, claiming compensation to establish his title to it affirmatively."
At page 1, column 2, it has been observed: "The question seems to have been dealt with in India as if the matter were one of apportionment between two contend--ing claimants, the sole criterion being which of the two had made out the better claim to a particular part of the compensa--tion. Their Lordships, however, have no doubt that, when Government acquiring immovable property of a public purpose under Act I of 1894, is for the person claiming compensation to establish his title to it affirmatively."
In Ghulam Muhammad v. Government of West Pakistan (PLD 1967 SC 191) it has been ruled; "The Land Acquisition Act, 1894, has provided for two-- kinds of reference, one under section 18 and the other under section 30 of the Act, but the scope and the object of these two references are quite distinct and separate. Under section 18 the reference is of a dispute with regard to tee area or the quantum of the compensation or as to the apportionment of the same amongst the persons interested. This reference is strictly limited to the above matters, whereas under section 30 the reference may be made if a dispute arises its to the method of apportionment of the compensation or as the persons to whom the same or any part thereof is payable. The subject- matter of this latter reference is limited to disputes purely of title in which the Government is not directly interested. The award of the Collector, as pointed out by Lord Book master in the case of T.
B. Ramchandra Rao v. A. N. S. Ramchandra Rao and others AIR 1922 P C 80 is an award of the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector his information meaning thereby people whose interests are not in dispute, but where there is a dispute as to who are the persons interested or as to the extent of their Interests or as to the nature of their respective interests that would not be for the Collector to decide under section 18, but should be left to the Courts to adjudicate upon under section 30."
Also in Abdul Sattar and another v. Mst. Hamida Bibi (PLD 1950 Lah. 370). It has been ruled, in a case under section 18 of the Land Acquisition Act: "Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such tribunal is dependent upon the existence of certain facts or circumstances it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that tribunal can function, it goes without saying, that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen."
Consequently we come to a conclusion that this Letters Patent Appeal is without merits and is, therefore, dismissed.
Parties to bear their own costs.