The Deputy Commissioner, Karachi, at the request of the respondent, Allah Dad has made a reference to this Court under sections 18 and 31 (2) of the Land Acquisition Act, 1894 with regard to the apportionment of the compensation awarded by him under his award dated 8-8-1958.
2. The brief facts giving rise to this reference are that since about the year 1930 Allah Dad, who belonged to the sangria tribe, was residing in a village known as Bhangrio village. This village comprised about 15 acres of land out of unsurveyed Nakhlass No. 125 situated in 13th Gujro Tapo Songal Taluka Karachi, which was popularly known as village Bhangrio. He and his family members along with some 1200 other persons Including ancestors and the families of the present four intervenor, who also belonged to the Bhangria tribe, and who are closely related to him, resided in that village in the year 1943 during the last world war the village land was requisitioned by the military authorities for military camps and ail the inhabitants were got vacated from the village and they moved to anew village in which they now presently reside. Although the land was derequisitioned in 1947, the villagers never returned to the old village which remained an abandoned village until it came under acquisition in 1964 for the Karachi Development Authority Scheme No. 24 known as "Gulsban-i-Iqbal". Notice under section 9 of the Land. Acquisition Act was given to Allah Dad, as be as believed to be the sole owner of that abandoned village. However, during the acquisition proceedings, applications were received frond other claimants including the present intervenors who claimed to share the compensation money with Allah mad. By his award dated 8-8-1968 the Deputy Commissioner awarded Compensation money to be paid equally to the respondent Allah Dad and to four other claimants namely, (1) A.I Khan, (2) Rasool Bux, (3) Taj Mohammad and (4) Muhammad Bachal. Allah Dad claimed the entire compensation money for himself and, therefore, being dissatisfied with the apportionment of the compensation money. He submitted an application to him to refer the question of apportionment to the High Court under section 18(1) of the Land Acquisition Act. Hence the reference.
3. The other successful claimants namely (1) A.I Khan, (2) Rasool Bux, (3) Taj Mohammad and (4)
Mohd. Bacbal who have accepted the award as to the apportionment were joined as intervenors In t4As reference on their joint request.
4. The only question which arises for consideration in this reference is whether Allah Dad has established his exclusive title to the lard and, therefore, to the compensation money. The burden of establishing, his title therefore, falls on him. As stated in Secretary, Cantonment Committee, Barrackpore v. Satish Chandra Sen (AIR 1931 P C 1) it is for the person claiming compensation to establish his title to it affirmatively. It is also clear that if Allah Dad fails to establish his exclusive title to the compensation money, the award must stand as it is. As the four other Intervenors have accepted the award, it will not be open to me to go behind the award and enquire into the title of these four persons to share the compensation with Allah Dad.
5. In support of his case, Allah Dad examined himself and through Juma Khan, a Head Clerk in the Commissioner's office and Mohammad Umer, a Supervising Tapedar in the Mukhtiar kar's office, he produced the relevant correspondence from the records of these offices. In order to refute Allah Dad Khan's claim to exclusive title to the compensation money, Taj Mobamn:ad examined himself.
Two other witnesses were also examined on his behalf who were Haji Ahmed, a clerk in the Survey Department of the Mukhtiar kar---s office and one Ahsan Hasan, a clerk in the office, of the, Deputy Commissioner.
6. Allah Dad stated in his evidence that in or about the year 1935 he applied to the Collector for grant of the village site to him for settlement of his family, which was accorded to him. He received two notices calling upon him to pay 'malkano' (demarcation fees) of Rs. 37-8-0 dated 2-1-1935 and 26-1-1935, copies of which are Exhs. 18-B and 23 respectively. He paid the malkano on 13-2-1936 under tapedar's receipt which was produced in Original No. 4405 (Exh. 34). Thereafter art 'Ijazatnama' was issued to him on 28-4-1936 purporting to be signed by the Mukhtiar kar, a copy of which has been produced as (Exh. 6). As Allah Dad has relied strongly on this document as evidence of his exclusive title to the land in question, it would be convenient to set it out in full: "To Allahdad s/o Ladho Khan Bangrio r/o own village Taluka Karachi, District Karachi.
125 You are hereby granted Non-Class No.15-0 Name Village Deb. Gujrio Taluka, Karachi from year 1936/37 at the rate of Rs. 2-8-0 per acre for ever vide sanction No. 1101 dated 28/3 of the Collector Karachi. Dt. 28th April 1936.
On original (Sd.) Illegible Mukhtiar kar Karachi. 28/4".
Allah Dad also relied on the correspondence exchanged between the Revenue Department and the Collector's office which are (Exhs. 7 to 15) on file, relating to his claim of rent for the requisi-- tioned land, in which he has been referred to as ---owner--- `khatedar' and 'landlord'. He also relies on the fact that rent for the requisitioned land amounting to Rs. 1,024-5-0 or the period 19-1- 1943 to 31-1-1947 was paid to him. In cross-examination he admitted inter alia that he had no other document of title to the land in question in his favour except the said Ijazatrama (Exh. 6). He also stated that the copy of the application for grant of the land is not available.
7. Mohammad Umer, Supervising Tepedar, in the office of the Deputy Commissioner, Karachi who was examined on behalf of the intervenors produced the certified copy of the entry in the record of rights with regard to the land icy question as (Exh. 30/1). The date of the entry shown is 31-5-1934; the transferor anal the transferee are shown as "the Government", and under the column, "nature of rights", the following appears: "Village Bhangrio was measured 15-0. Entry made according to ghat wadh form No. 15. The area of remaining No. 125 is 234-23."
He also produced a certified copy of the 'ghat wadh' form (addition and subtraction) relating to Deh Gujro in which the land is situated as (Exh. 30/2). This shows that Nakhlass No. 125 had a total area 249 acres and 23 ghuntas of which 15-0 acres were subtracted and the cause of the substraction is shown in the following words :- "Sanctioned for Village Bhangrio vide sanction No. 2749 dated 29th September 1933 of Collector of Karachi and vide sanction No. 472 dated 19-10-1933 of Assistant Collector, Thatta."
The witness stated that the sanction letter No. 2749 dated 29-9-1933 referred to in the above column is not available In the office; nor is the other letter of sanction referred to as No. 472 dated 19-10-1933.
9. I have considered the evidence and the documents produced in this case. In my opinion, Allah Dad's claim to the exclusive title to the land comprised in village Bhangrio has not been established. In the first place, the authenticity of the "Ijazatnama" (Exh. 6) has not been established, as only a plain copy of it has been produced. The sanction letter referred to as bearing No. 1101 dated 28-3-1936 has also not been produced. It is also doubtful whether it could be construed as a grant of land, which the Collector had power to make subject to the orders of the Commissioner under section 37 of the Sind Land Revenue Code, 1879. Mr. Zulfiqar A.I Valiani, learned Advocate for the respondent submitted that the "Ijazatnama" should be construed as a 'kubullyat' land issued under section 60 of that Code. But in the absence of a lease document or agreement, I cannot accept this submission. On the other hand, the entries in the record of rights (Exhs. 30/1 and 30/2) are evidence of the facts recorded in them under section 35 of the Evidence Act, 1872 and under section 135-J of the Sind Land Revenue Code, 1879, they shall be presumed to be true until the contrary is proved. The entry in the record-of-rights (Exh. 30/1) shows chat the name of the transferee is the 'government' and not Allah Dad, The form "ghat wadh" (addition and substraction)
(Exh. 30/2) also shows that 15 acres of the land out of Nakhlass 125 were deducted arid the cause of the deduction is shown as sanctioned "for village Bhangrio" on 29-9-1933. Allah Dad its not produced any other document to rebut the presumption of the correctness of the above entries in the record-of-rights except the "Ijazatnama" (Exh. 6) which has not been proved as authentic. It also stands falsified by the above-mentioned entries in the record-of-rights (Exhs. 30/1 and 30/2). I therefore agree with the submission of Mr. Sami Ahmed for the Intervenors that the land was given to Allah Dad for a village and not as his private property. In my opinion, the payment of 'malkano'
(development charges) by Allah Dad is an equivocal piece of evidence as he may have done so being the headman of the village. Equally, without legal significance, is the fact that rent for the requisitioned village was paid to him. It may be that no one else came forward to demand it. I am, therefore, of the opinion that Allah Dad has not discharged the burden of establishing exclusive title to the land comprised in village Bhangrio.
9. Mr. Valiani next submitted that if Allah Dad has failed to establish his exclusive title to the land, the Intervenors have not succeeded either in establishing their title to it. In this connec--petition, he submitted that none of the Intervenors has produced any documentary evidence to support his title. He also requested me to consider other circumstances which showed that none of the Intervenors really had any title and that the Deputy Commis--sioner had acceded to their claims because of some influence and pressure which were brought to bear upon him. This has been denied by Taj Mohammad who stated in his evidence that as there are five main families in the village of which Allah Dad and the four intervenors were the respective headmen, the compensa-- petition is to be shared equally among the five families. As stated earlier, the intervenors have not challenged the award of appor--tionment. I cannot therefore go behind the award and enquire into their title on the abjection of a person who has failed to establish his own.
10. In the circumstances, apportionment of the compensation moneys awarded by the Deputy Commissioner under his award dated 8-8-1968 is confirmed and the reference is answered accordingly.