' By means of my judgment and order dated 15.4-1974 in a Partition Suit bearing Civil Original No, 1- C/1973 titled Sh. Afzal Ahmed (plaintiff) v. Ijaz Ahmed and 4 others (defendants) (1), I passed a preliminary decree in terms of a compromise which is printed at pages 66-468 of the aforesaid report.
The present judgment should be read in continuation thereof. The properties which were subject- matter of the suit and of which partition was prayed for were two, namely-
(a) property described in para. 2 (a) and para. 6 of the plaint as urban property inclusive of building standing on land measuring 25 canals, 8 marlas and 27 sq. Ft. Situated in Gowalmandi, Lahore (hereinafter with reference to its location called as Gowaimandi property) ; and
(b) property mentioned in para. 2 (b) of the plaint as agricultural land measuring 14 kanals, 13 marks, 211 sq. Ft. Situated in the revenue estate of village Mianmir, Lahore (hereinafter with reference to its location called as Mianmir property).
2. In pursuance of the aforesaid judgment and order, I appointed Mr. Mushtaq Hussain Munir, an ex- Judge of this Court, as a Commission, to assess the value of the properties and suggest ways and means for their
(1) PLD 1975 Lah. 4e4 ' partition and disposal. I also appointed Mian Badruddin, retired Municipal Engineer of Lahore Corporation, to co-opt with the Commission. The Commission in paragraph 8 of his report dated 25- 6-1975 has reported as follows with regard to Gowalmandi property: "I visited the Gowalmandi property as far as I remember on 30th December 1974, in Company of Mr. Sajjad Ahmed Jan, Mr. Ijaz Ahmed, Mr. Afzal Ahmed and Mr. Alba] Ahmad alias Jamshed Haroon. On inspection, it was noticed by me, and also remarked by the parties, that the shops and other construction situated on the property were so congested that it would be impossible to easily demarcate them into five lots the parties present including the plaintiff stated that there was no need to partition this part of the property, which they would try to get sold through Court auction and share the price according to their shares or, in the alternative, leave the property as it is and divide its rent in accordance with the terms of the compromise. In order to satisfy myself that the position was such, I asked Mian Badar-ud-Din to prepare a plan indicating overlapping or portions. As a result he has prepared plan (Ezh. Y) which is self-explanatory. It shows that construction of plot No, 1 also falls in plot No, 2 and construction of plot No, 2 likewise falls in plot No,
3. Similar is the position with regard to plots Nos. 4 and 5. This continues in the remaining area as well. It means that it is difficult to get partition made in such a manner so as no part of a particular plot would fall in the share of the other. Under these circumstances, it is recommended that, as desired by the parties, the property in Gowalmandi may either be sold by open auction, if so required by the parties and after its reserve price as suggested by the parties has been determined, or in the alternative, the rent may be received collectively and apportioned according to the shares."
' Learned counsel for the contesting parties (who are defendant No, 1 Sh. Ijaz Ahmed and defendant No, 3 Mr. Sajjad Ahmed Jan), submitted that actually all the parties have already sold about 40 per cent. Of the Gowalmandi property jointly outside the Court after the report of the Commission and have also received their share of the proportionate price from each sale. These sales were made by all the parties jointly executing the relevant sale deeds. It was submitted that the sales so far made may be allowed to stand and all the parties may be allowed to sell the rest of the Gowalmandi property also in the same manner privately and share the sale proceeds according to their respective shares. If the parties desire to privately sell the property, I have no objection and from my point of view such a course will rather be for the interest and welfare of all concerned if they can maintain family unity, love and affection by mutually disposing of the property aforesaid and avoid unnecessary expenditure and cumbersome procedure through Court for that purpose. Consequently accepting the parties request as made at the Bar and holding the same to be in the interest and welfare of all concerned, I maintain the sales so far made and also authorise the parties concerned to dispose of the rest of the Gowalmandi property through joint private sales as they have already done by sale of 40 per cent. Of this property and share the sale proceeds in accordance with their respective shares. Order accordingly. It is to be clarified that this arrangement should be considered in supersession and modification of the ore contained in the original agreement/ orders on the subject.
3. Coming to the Mianmir property, it was decided in the previous judgment that it was to go to Mr. Sajjad Ahmed Jan exclusively who was, however, to pay a sum of money equivalent to the fractional share belonging to Sh. Ijaz Ahmed as representing his share therein by virtue of heir of his father/propositus Sh. Muhammad Sharif and also heir of his deceased brother Sh. Masood Ahmed.
Prevailing market value of the fractional share of Sh. Ijaz Ahmed was to be determined by the local Commissioner subject to final adjudication by this Court. With regard to this property the Commission after taking lengthy evidence, oral and documentary, as was produced by the contesting parties, has reported
(a) that the land is a potential building site ;
(b) that the area of the land is 14 kanals, 13 marlas and 211 sq. Ft. ;
(c) out of which 4 kanals 2 marlas 51 sq. Ft. Is under or is to be meant for municipal roads
(d) and the net area available thereafter is only 10 kanals, 11 marlas ISO sq. Ft. ;
(e) that the share of Sh. Ijaz Ahmed therein comes to 2 kanals, 12 marlas, 95 sq. Ft.
(f) and the market value of the land is Rs, 17,000 per kanal ; and
(g) and for his share of 2 kanals 12 marlas 95 sq. Ft. Sh. Ijaz Ahmed is entitled to receive a sum of Rs, 44,559 from Mr. Sajjad Ahmed Jan.
' Learned counsel for the parties have raised various points and objections with regard to the aforesaid report to which I will presently advert. Sh. Ijaz Ahmed also argued personally at length.
4. Taking up the point at (a) above, no objection has been raised by any of the parties regarding the nature of the land and all were agreeable that it is a potential building site (and not an agricultural land), prevailing market value whereof with reference to compromise dated 4-4-1974 is to be assessed on that basis. As the parties accept the aforesaid nature, status and classification of land, therefore, the same is hereby maintained and the report and finding of the Commission is accepted in that respect.
5. As regards the point (b) of para. 3 above, it is a common ground that the land in dispute in the revenue record bears Khasra No, 2181 in hadbast of Mianmir and was purchased by Sh. Muhammad Sharif through a registered deed of sale, dated 13-9-1929 Exh. C. W. 8/9. In the sale deed the total area mentioned was 20 kanals though the separate area of each Khasra number which comprised this land was not shown which led to mentioning wrong total area. However, in the connected sale mutation bearing No, 1106 dated 12-7-1937 Exh. R. W. 2/2 the area is column No, 14 in possession of vendee was shown only as 15 kanals. Sh. Muhammad Sharif died somewhere in 1935 and in the relevant mutation of inheritance bearing No, 1110 dated 23-7-1937 Exh. R. W. 2/1 this area was shown as 13 kanals 3 marlas and 223 sq. Ft. Mr. Sajjad Ahmed Jan occupied this land in year 1961 or thereabout with the consent of everyone concerned as an exclusive hisedar. At that time as he bad an idea to build a residential house on this land, therefore, to be certain about its exact area he applied to the revenue authorities for its actual demarcation. Mr. Sajjad Ahmed Jan in his deposition before the Commission on 15-12-1974 stated that "my application and the proceedings that followed on it are contained in the attested copies which I file and which are exhibited as R. W. 2/3 and R. W. 2/4. The Patwari came to the spot. My brother-in-law, Mr. Abdul Azle (husband of my step-sister Mon Anna Khatoon), who was also a revenue officer, VISS also present at that time and had signed the proceedings on my behalf. The measurements were taken on the spot in my presence, boundary poles were fixed and the total area was then found to be 14 canals, 13 marlas and 211 sq. Ft. I moved for a correction mutation which was then duly attested on 7-12-1961. The correction pertained to the area of the land from 12 kanals, 10 marlas and 223 sq. Ft. To 14 kanals 13 marlas and 211 sq. Ft. (It is mutation No, 315 marked as Exh. D. W. 2/23). In Exh. D. W. 8/10 which is Khasra Imarti for the year 1961, the area shown is the same. The statement of Mr. Sajjad Ahmed Ian stands fully corroborated from the relevant record referred to above, which I have gone through with the learned counsel for the parties. The Commission in this respect in para. 9 of his report has stated that "I inspected this place after the evidence had been recorded, in order to satisfy myself and asked Mian Badruddin to prepare its plan giving its measurement on all sides. The plan, which he has prepared is marked as Exh. 'Z'. The area comes to 14 kanals 13 marlas 211 sq. Ft. The inspection was made in presence of Sh. Ghias Muhammad and Kh. Muhammad Tufail, Advocate for Mr. Sajjad Ahmed Jan who was also present, Mr. Hakam Qureshi, Advocate for defendants Nos. 1 and 4. Ijaz Ahmed (plaintiff) came a little late. However, the parties interested in this dispute, namely, Sajjad Ahmed Jan and Ijaz Ahmed were present and the spot was inspected in their presence". I have perused the plan Exh. 'Z' in Court. It contains measurement on all sides and shows the total area as 14 kanals, 13 marlas and 211 sq. Ft. Apart from the fact that there is no evidence to the contrary, coupled with this is the circumstance, that in 1961 much before the present litigation when Mr. Sajjad Ahmed Jan got the exact area demarcated obviously the intention was to be certain about the actual area on the spot and if possible to get it increased and not to part with any part of the same in favour of any person or to otherwise dwindle it to his own detriment. The demarcation proceedings were attended to by Mr. Abdul Aziz husband of Mst. Asma Khatoon (defendant No, 5 stepsister of Mr. Sajjad Ahmed Jan), which is a guarantee by itself about the correctness of the demarcation. The said measurement has remained operative without any demur from any quarters up-to-date. When confronted with the above, learned counsel for Sh. Ijaz Ahmed addressed no arguments on merits of this matter, but tried to raise certain technical points. Firstly, he submitted that the Commission did not make inspection of the spot in the presence of his client. The plea is not correct. It is clearly recited in the report that Sh. Ljaz Ahmed and his counsel were both present along with others. When confronted with this recital, learned counsel did not press the matter further. The second point argued was that as the Commission did not prepare or keep a note in writing of the spot-inspection, therefore, no value should be attached to the same. The contention has no merit. It is not a must that a note in writing should always be prepared or kept and each case depends upon its own facts and circumstances. Learned counsel could not support this submission by any text, law or precedent on the subject. In my opinion, keeping a mental note of spot- inspection in certain cases can as well serve the requisite purpose and no hard and fast rule can be laid down in this respect. In the instant case the Commission inspected the spot after the parties closed their evidence. The inspection was done in the presence of the parties and nothing has been brought to my notice to show that the area of the land was more. The third point argued was that in para. 1 (ii) of the compromise it was written that "the precise measurement. . Mill be made by local Commissioner". Learned eounsel argued that the measurement should have been done by Mr. Mushtaq Hussain Munk himself and not by Misn Badaruddin. The plea is not correct. The co-opted member of toe Commission, who was a technical, hand, could competently be asked to attend to such a technical matter. He, was in such matters a part of the Commission and the plan &h. 'Z' prepared by him, from that point of view, does not suffer from any infirmity. The last objection in this respect was that Mian Badaruddin made the measurement in the absence of Sh. Ijaz Ahmed. This objection also has no merit. The report of the Commission shows that inspection of the spot was done in the presence of the parties and Mian Badaruddin was asked to prepare its plan giving its measurement on all sides, which plan was prepared by him in the form of Exh. 'Z'. It is not the case of Sh. Ijaz Ahmed that the plot was not identified or specified by the parties before the Commission. In that view of the matter, this objection also has no substance. It has been not shown to me as to in what respect the areas was wrongly mentioned in correction mutation No, 315 dated 7-12-1961 Exh. D.
W. 2/23 or in the plan Exh. 'Z'. At this place it may be mentioned that Sh. Afzal Ahmed, plaintiff, real brother of Sh. Ijaz Ahmed defendant, had himself mentioned in para. 2 (b) of the plaint that the area of this land was 14 kanals 13 marlas and 211 sq. Ft. Sh. Ijaz Ahmed in the corresponding para. Of his written statement did not plead or give any specific different area. It may be further noticed that after the receipt of the report of the Commission Sh. Ijaz Ahmed filed objections thereto on 11.5-1976 and an affidavit dated 11-10-1976. In none of these he raised any objection regarding non-maintenance of inspection note in writing and nor was it said that the measurement as shown in plan Exh. 'Z' by Mian Badaruddin was done in the absence of Sh. Ijaz Ahmed or that it was an incorrect measurement. As a matter of fact, in none of these two documents dated 11-5-1976 and 11-10-1976 any objection as to the actual area of Khasra No, 2181 was raised. As a result of this discussion, I maintain the report of the Commission and hold that the area of the land in dispute on the spot is 14 kanals. 13 marlas and 211 sq.
Ft.
6. As regards the points at (c), (d) & (e) in para. 3 above, claim for deduction of area for roads is of three kinds, namely, (i) road on the southern side of the plot throughout from east and west measuring 465 ft in length and 60 ft. In width ; (ii) road on the western side ; (iii) general deductions for roads on the basis of the plot being a potential building site.
(i) Re : Road on southern side.-Taking up the road on the southern side, which is to go through and through along a length of 465 from east to west, Mr. Sajjad Ahmed Jan (R. W. 1/defendant No, 3) deposed that "As I was intending to build a house, I had prior to the demarcation proceedings addressed a letter to the Town Planner, Lahore Improvement Trust, Lahore, of which I file a true copy Exh. R. W. 2/5. This was because I was informed that the Lahore Improvement Trust was proposing to make a road along side this land. I wanted to be sure about the exact alignment of the land so that I could construct my bungalow in accordance therewith. I received a reply from the Town Planner, which is Exh. D. W. 2 which stated that after examination of the position it was found that my land was affected by a 60 ft.
Wide road, as shown in the plan which was attached with the letter which I produce and which is marked as Exh R. W. 2/6, and that in view of this, no objection certificate could not be granted for the construction of a bungalow a; the plot is split up by the road. The splitting up of the land is denoted in this plan in rod pencil as marked by the Lahore Improvement Trust. I wrote again to the Town Planner on this subject representing that this proposed road would completely destroy the utility of this land dissecting it into two corner triangles and that I would be unable to build any house on any part of the land. The true copy of this letter is Exh. R. W. 2/7. The reply I received was Exh. D. W. 1/A. The decision on my representation then was taken and it was stated that the 60 ft. Wide proposed road was to be constructed along side my land and that of the adjoining owners and each party was to share it on half and half basis i,e, to say I was to leave half of the land and so was the other party. The adjoining owners are the heirs of late K. B. Muhammad Zeman. Thereafter I got the p'an for my house duly sanctioned by the Corporation and I planned my house fully bearing in mind that I was to make my building line in accordance with the behest of tee Lahore Improvement Trust that I was to surrender 30 ft. Of my land throughout the the length of my land from east to west."
' It is in evidence from the statement of Illam Din (R. W. 1 defendant No, 3) that the length of the entire land from east to west is 4h5'. Same measurement was given in correction mutation No, 315 dates 7- 12-1961 Exh. R. W. 2/23 (page 121 of the Commission's file). The contributory width from this land being 30 ft so in this way lend measuring 3 kanals and 2 marlas will have to be left vacant for that road. Sh.
Ijaz Ahmed pleaded complete ignorance on this subject an in his statement he deposed that : "I do not know whether there was a proposed road passing through the entire land left by our father. I also do not know whether due to the efforts of Judge Sahib, the proposed road was shifted from the land in dispute."
' In this State of affairs, I have no option but to accept the statement of Mr. Sajjad Ahmed Jan, especially when there was no counter version from the side of Mr. Ijaz Ahmed in his own deposition on oath before the Commission. The statement of Mr. Sajjad Ahmed Jan finds full corroboration from the documents mentioned and placed by him on record which have been gone through by me with the help of the learned counsel for the parties. However, during the course of arguments before the Commission, a plea was taken by the learned counsel for Sh. Ijaz Ahmed that actually the width of road on the southern side is only 40 feet with the resut that the land in dispute will contribute 20 feet width area whereas the other 20 feet width area shall have to be taken from the owners of adjacent lands opposite to the present land. Reliance was placed for this purpose on Appendix M'/ Exh. P/2 which is a proposal of the Town Planner, dated 30.4-1963 and is to be read with Trust Resolution No, 12 dated 25-5-1963 ; another Resolution dated 10-12-1974 Exh. P/3 ; Exh. P/1 which is blue map of Gulberg V Scheme (the present land, however, does not fall within that Sciatme) and Exh. C. W. 8/11 which is aks rnossavi " URDU TEXT". The document (M. P/2) and Resolution No, 12 show that the width of the road has ben, narrowed down only between plots Nos. 14 and 15 occurring in the Scheme and net in the land presently in dispute which, as already mentioned above is outside the Scheme. Resolution Exh. P/3 states that the road was to be built by the Lahore Improvement Trust and the Municipal Corporation and rather supports the factum of the necessity of a road at the spot. The blue map Exh. P/1 similarly also refers to the area from the eastern side upto an intervening plot No, 14 and not beyond that. The Commission attended to this matter and reached to the same conclusion in para. 11 of its report has been independently found by me. Learned counsel for Sh. Ijaz Ahmed referred to Exb. C. W. 8/12 (URDU TEXT) for the years 1957-58 to indicate that in Khasra No, 2179 there is a road of the area mentioned therein. He also referred to Exh. C. W. 8/10 "URDU TEXT" for the year 1961-62 showing road in Kbasra No, 2180. His argument was that as certain area of these Khasra numbers was shown as a road, therefore, in the face of the same, there was no justification for any road in any part of the present Khasra No, 2181. I am not to determine the antecedents of Khasra Nos. 2179 and 2180 which are not subject of adjudication before me and nor are owners thereof parties in this case. I am to confine this discussion to the present Khasra No, 2181 with regard to which I find ample material to hold that road is to pass through it and area for that purpose shall have to be slashed out. I see no justification to differ from the report of the Commission in that respect and hold that an area of 3 kanals and 2 marlas will be sliced away for the road under construction. Re : road on western side
(ii) As regards the road on the western side, the report of the Commission on the subject as contained in para. 12 is as follows "By letter (Exb. D. W. 2) the Town Planner sent site plan to Mr. Sajjad Ahmed Jan which is Exh. R. W. 2/6.
The letter informs Mr. Sajjad Ahmed Jan that he cannot build the bungalow because 60' wide road passes through his land. An examination of this plan would reveal that Mr. Sajjad Ahmed Jan shall have to surrender at least 20' wide area on the western side of his house when the Improvement Trust takes over the property and constructs 60' wide road in front. This is made further clear by plan (Exh. D.
W. 1/A). This is further made clear by plan (Exh. P/1) produced by Mr. Ljaz Ahmed that Improvement Trust authorities intend to construct 60' wide road in front of the bungalow of Mr. Sajjad Ahmed Jan on the west. Thus, out of the entire area of the bungalow, another 1 kanal 51 sq. Ft. Shall be slashed. The deductions on both sides shall leave an area of 10 kanals 11 marlas 160 sq. Ft."
' The report of the Commission stands supported from plan Exh. D. W. 1/A and Exh. P/1 which clearly show existence of road on the western side. Plan Exh. 'Z' also indicates that road. According to the scales shown in those maps it is clear that the area to be sliced away from this side for road is 1 kanal 51 sq. Ft. I hold accordingly. Re : General deduction for road (s)
(iii) As regards the general deductions, the Commission dealt with the matter in para. 13 of its report in the following words: "Before parting with this aspect of the case, I would like to mention that basing his argument on the case of Sh. Manzoor Hussain v. Mahan Improvement Trust, Multan (PLD 1972 Lab. 225), where the Hon'ble Judges have said that an allowance should be made for making of plots and constructions of roads of the land ranging between 3a % to 40% of the gross area of the land involved Sh. Ghias Muhammad suggested that the share of Mr. Ljaz Ahmed should be determined after slashing at least 33% from the total area. I have perused the judgment. The learned Judges were themselves of the view that each case depends upon its own facts. When I am making deduction of two roads, a further deduction appears to me to be uncalled for. However, if I were to slash at least 30% area from the entire property then the share of Mr. Ijaz Ahmed including late Sh. Masud Ahmed's share shall come to 2 kanals and 10 marlas, 213 sq. Ft."
' Sh. Ghias Muhammad, Advocate, in his written arguments dated 29-1.1977 has not claimed any general deductions for road (s), though verbally he submitted that if alteration in market value is to be made then he would press this claim also. As my judgment later on will show I have not altered the market value, therefore, I need not go into this matter and uphold the report of the Commission in this particular respect.
(iv) Summing up the area under road comes to 3 kanals, 2 marks 0 sq. Ft. (for road on the southern side) and 1 kanal 51 sq, ft. For road on the western side totalling 4 kanals 2 marlas and 51 sq. Ft. This will have to be deducted from the total area of the land, namely, 14 kanals 13 marlas 211 sq. Ft., with the result that the net area, market value whereof is to be determined, is 10 kanals, 11 marlas and 160 sq. Ft.
I am not determining the market value of the area under roads, because, for the purpose of the plot as a potential building site, deducti ns for roads have to be made. Since that area is not to be owned or taken over by Mr. Sajjad Ahmed Jan, therefore, he is obviously not required to pay fractional share of its price to Sh. Ijaz Ahmed. The proper order that can be passed in these circumstaces on this precise matter is that when the municipal authorities pay compensation for building roads on that area then Sh. Ijaz Ahmed can also claim his proportionate share therein. I hold and order accordingly.
7. Taking up the point in para. 3 (e) above, I have now to determine the share of Sh. Ijaz Ahmed in this property. For that purpose the following pedigree-table may be kept in view : Sb. Muhammad Sharif (died in 1935) #TBS Ijaz Ahmed Mst. Asma defendant Khatoon No, 1 defendant No, 5 #TBE #TBS Sajjad Ahmed Jan defendant No, 3. #TBE #TBS First wile #TBE #TBS Iqbal Ahmad alias Jamshed Haroon defendant No, 2 #TBE #TBS r Mst. Dilshad Jehan Second wife, (defendant No, 4) #TBE #TBS Masood Ahmed Afzal Ahmed died in 1940 plaintiff #TBE It is a common ground between the parties that the land in dispute belonged to SI Muhammad Sharif.
He died somewhere in 1935. It is also agreed that devolution to this land was to be regulated by the Punjab custom. According to para. 7 of "A Digest of Customary Law in the Punjab" by Sir W. H. Rattigan as revised by Om Parkash Aggarwala (1953 Edition) page 238 "the general rule in the Punjab is that sons whether by the same or different wives, share equally". In this way it is contended and conceded by Sh. Ijaz Ahmed that the initial shares of the various heirs were as follows. Namely, Sh. Iqbal Ahmed alias Jamshed Haroon 1/5, Sh. Ijaz Ahmed 1/5, Sh. Masood Ahmed 1/5, Sh. Afzal Ahmed, plaintiff, 1/5 and Mr. Sajjad Ahme Jan 1/5. Sh. Maqsood Ahmed died somewhere in 1940. At that time Customary Law was in force, whereunder, as laid down in para. 22 Of Rattigan's Customary Law "in default of male lineal descedants or a widow, the mother of the deceased succeeds to a life interest provided she has not remarried." In this way Mst. Dilshad khan (defendant No, 4) mother of Sh. Masood Ahmed, succeeded as a life estate. According to section 3 of the West Pakistan Muslim Personal Law (Shariat)
Application Act V of 1962, which came into force on 31-12.1962 all life estates under custom came to an end arid as laid down in section 5 the land "shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) Application Act upon the death of the last full owner". Consequently, according to Shariat law, following became the shares of the various heirs in the 1/5th share of Sh. Masood Ahmed : {{TABLE}}
(1) Mother (Mst. Dilshad Jehan defendant No, 4) 1/6 x1/5=1/30
(2) Residue left after giving to mother 1/5-1/30=6-1/30 =5/30=1/6
(3) Real sister Mst. Asma Khatoon (defendant No, 5) 1/7 x 1/6=1/42
(4) Real brother Iqbal Ahmed alias Jamshed Haroon (defendant No, 2) 2/7 x 1/6=2/42=1/21
(5) Real brother Sh. Ifzal Ahmed, plaintiff 2/7 x 1/6=2/42 1/21
(6) Real brother Ijaz Ahmed (defen- dant No, 1) ... 2/7 x 1/6 = 2/42=1/21 ' According to the preliminary decree and the compromise contained therein only Sh. Ljaz Ahmed is to receive a sum of money equivalent to his fractional share from Mr. Sajjad Ahmed Jan as the other heirs have already settled the matter. The actual share of Sh. Ijaz Ahmed in this way works out to be as follows :{{TABLE}}
(I) As heir to Sh. Muhammad Sharif ... 1/5
(ii) As heir of Sh. Masood Ahmed ... 1/21= ' Total extent of his individual share ... 1/5 + 1/21=21 +5/105= 26/105 ' The Commission seems to have awarded price to Sh. Ijaz Ahmed in that ratio.
(ii) When confronted with the above, Sh. Ijaz Ahmed and his learned counsel argued that on the death of his brother Sh. Masood Ahmed no doubt the devolution was to take place under custom, but, according to them, the distribution should be done by ignoring the intervening life estate of Msr.
Dilshad Jehan and proneeding straightaway to determine the collateral succession on the principle that whole blood excluded the half blood with the result that Mr. Sajjad Ahmed Jan should not be considered as an heir of Sb. Masood Ahmed, inasmuch as, he was only his step-brother. This argument, if the emphasis therein is simply to exclude Mr. Sajjad Ahmed Jan, is not correct. Firstly, because, according to Ghulam Muhammad v. Muhammad Bakhsh (1) and Sher Khan and ethers v.
Muhammad Khan (2), if original inheritance took place under pag vand and not chunda vand system, then-(unless contrary is proved by a contestant which proof has not been adduced in this case the same rule of pag rand succession to the collateral succession of Sh. Masood Ahmed will apply and in that way Mr. Sajjad Ahmed Jan's share will not have to be excluded. Secondly, this approach of the matter is, even otherwise, not justified, because, it is based on omitting to note the intervening life estate of Mst. Dilshad Johan (defendant No, 4) (mother of Sb. Masood Ahmed) and the applicability of the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962. It is this important middle step which Sh. Ijaz Ahmed and his learned counsel are not taking note of and which makes the real difference. As a result of the above discussion, I hold that the share of Sh. Ijaz Ahmed is only to the extent of 26/105 and it is in that ratio that he is to receive the price from Mr, Sajjad Ahmed Jan. I had asked the learned counsel to file their written arguments in respect of this matter. The written arguments were filed by Sh. Ijaz Ahmed on 18.1-1977 and by Sb. Ghias Muhammad on behalf of Mr. Sajjad Ahmed Jan on 29-1-1977. I have disposed of those arguments in the above paragraph.
' Re t Market Price-Oral evidence produced by S. Ijaz Ahmed
8. This brings me to the most contested matter in point (f) of para. 3 above, namely, market value of the land. Sh. Ijaz Ahmed in his deposition claimed that the market value of this land was Rs, 60,000 per kanal. Taking up his oral evidence, he produced C. W. 1 Hidayat Ullah, who claimed to be a property dealer doing business in the name and style of "Malik Property Dealers, Main Market Gulberg, Lahore".
He also claimed to be President of Lahore District Property Dealers' Association. He made statement on 6.10-1974. He deposed contrary to Sb. Ijaz Ahmed's own deposition that today's market value of the land would be about Rs, 48,000 to Rs, 50,000 per kanal and about 8 months earlier thereto the price would have been Rs, 42,000 to Rs, 45,000 per kanal. In March 1973 its value was between Rs, 40,000 to Rs, 42,000' and the same would be the price in April 1974. (It appears that as the compromise between the parties was dated 4-4-1974 and contemplated fixation of market price as prevalent on that date or period, therefore, it was probably with reference to that date that the above figure was obtained from the witness in cross-examination by the learned counsel for Mr. Sajjad Ahmed Jan). The witness deposed that two years back its price would also have been between Rs, 37,000 to Rs, 40.000 per kanal. The witness issued a certificate to Sh. Ijaz Ahmed Exh. C/1 stating the market value for front portion as Rs, 55,000 and for real portion as Rs, 40,000 per kanal though he made no such classification while making the statement on oath before the Commission. The said certificate.
However, is not relevant now when the witness himself has appeared in Court to give evidence apart from the fact that it is different from his statement on oath. It may be pointed out that the witness conceded that he had not sold any land in close proximity of or adjacent to the land in dispute as a broker and nor entered into any transaction of sale or purchase in this locality or even near about it.
His evidence thus is hardly of any worth. He
(1) (1891) 4 P R 56 (2) AIR 1924 Lah. 505 ' deposed that the basis for the valuation given by him were (a) prices offered by a purchaser ; (b) minutes of the Property Dealers' Association regarding valuation of properties and (c) his own experience. His evidence does not refer to any price offered by any purchaser and obviously he could not quote any such alleged offer, because, he had conceded that he had not transacted any deal in this locality. He has not referred to any precise minutes of any meeting of the so-called Property Dealers' Association which may have led him to give his aforesaid opinion and similarly he has not deposed about any incident of his experience. His evidence is of no value so far as the contesting defendant Mr. Sajjad Ahmed Jan is concerned though from the point of view of Sh. Ijaz Ahmed it goes against his own version. It appears that he appeared as a witness to oblige Sh. Ljaz Ahmed, just as he obliged him, as he volunteered by visiting the site for giving his opinion without charging any fee.
' C. W. 2/defendant No, 1 is Muhammad Hussain of Al-Asifa Property Dealers, 21-Empress Road, Bibi Pak Daman, Lahore. Though he connected himself with the so-called Al-Asifa Property Dealers, but he conceded that he was not the owner of the same and was a broker by profession. He did not pay income-tax and nor did he know whether the owners of Al-Asifa paid any income-tax or not. The owner of that firm was one Malik Asif, who was a Zamindar and who himself did not work as a broker but simply financed him. He said that the aforesaid office had been established by the said Zamindar for his sake. The connection claimed by the witness with the aforesaid firm is of a strange type and has put me on guard whether the witness has really any connection with the said firm or was merely trying to enhance his status by making mention of the same. It appears that he realised the hollowness of the connection he claimed with Al-Asifa and, therefore, deposed that he was only a broker by profession and had sold two plots bearing Nos. 19 and 20 in Gulberg Scheme V near the house of Mr. Justice Sardar Muhammad Iqbal which were, however, at some distance from the present plot. The sales transacted through him were registered and took place two years ago (he made the statement on 6-10-1974). First he said that he did not remember the names of the purchasers and sellers, but then said that the purchaser was the brother of Mian Aslam owner of Sargodha Textile Mills and that he received Rs, 11,000 in cash as commission by one Shah Sahib whose name he did not know but who was brother of Mian Babar. He then volunteered that "although the land was sold at the rate of Rs, 40,000 per kanal but it was mentioned as Rs, 20,000 per kanal in the deed". He again said that "I cannot say as to who purchased Plots Nos. 19 & 20". He further said that "I have not transacted as broker any other business in the vicinity of plots Nos. 19 & 20. In fact. I have not entered into any transaction other than the ones mentioned above on the Canal Bank". The statement of this witness goes much against the price claimed by Sh. Ijaz Ahmed, because, it concedes that the price in the two registered sale deeds was only Rs, 20,000 per kanal, though orally actually Rs, 40,000 per kanal were paid as the price. Beside the other infirmities in the statement of this witness this later portion of his deposition obviously cannot be accepted as it is, according to his own showing, at variance with the terms of the relevant sale deed (s). He has not deposed about any offers having been received by him for the land in dispute and rather concedes, as already mentioned, that "I have not entered into any transaction other than the ones mentioned above on the Canal Bank".
' C. W. 3/defendant No, 1 is Raja Riaz Ahmed Khan who claimed to be a property dealer in Main Market, Gulberg, Lahore, He deposed that he was a property dealer for the last 16 years and was General Secretary of the Lahore District Property Dealers' Association and claimed (rather. If I can so observe boasted) that half of the city of Lahoro Lad been sold through him. He stated that the land underneath the bungalow of Mr. Sajjad Ahmed Jan would be worth rupees eight lacs. He said that he bad issued a certificate Exh. C/2 which, in view of his actual deposition in Court, has no relevancy. He deposed that about two furlongs from the bungalow of Mr. Sajjad Ahmed Jan a plot was sold through him by a registered sale deed, area whereof was about 10 to 12 kanals and the sale price was rupees 4 or 5 lacs.
The sale took place last year though later on he stated that he was not a party to any sale/transaction in the vicinity of the site in dispute during the last one year. He did not remember the names of the parties to the transaction hereinbefore mentioned. He could not state whether any construction on that plot had been raised or not, though he bad passed near that plot about a week back. He then made mention of another sale made by him of land measuring 4 kanals 10 marlas through a registered sale deed more than a sear ago at the rate of Rs, 40,000 per kanal, but he did not remember the names of the parties. That plot was towards the Mall Road. He did not remember whether he entered into any other transaction in the vicinity of this property during this period. He further deposed that "the basis of the valuation given by me in respect of the land in dispute are the offers made to me by my customers. These offers were made to me orally". As is self evident the evidence of this witness is all vague ; of doubtful nature, not supported by any concrete instance and nor was he able to give address and names of the parties concerned. His statement is contradictory ; some time quoting a transaction but then, at the same time, stating that he had not sold any land during the last year. While quoting one price he left the margin of one lac by saying that the price might be 4 or 5 lacs. The standard of approximation applied by him varies by a lac (or so) and is self- speaking in its vagueness and needs no further comments. In the certificate herein-before mentioned he said that the value of the front portion plot was Rs, 55,000 per kanal and for the rear portion Rs, 40,000 per kanal. However, in his deposition in Court he did not say so. The Commission with regard to his statement observed that "when asked to name the customer, he prevaricated and stated that he was one Waji Khan, a Government contractor of Hazara. He could not give his address".
' C. W. 4/defendant No, 1 is Zakaullah Kichli. He claimed to be an intending purchaser of the disputed land and stated that he offered a price of Rs, 45,000 per kanal for that portion which was towards Gulberg side and Rs, 40,000 per kanal for the land adjacent to the bungalow. This offer was made by him to Sh. Ijaz Ahmed but then he did not purchase the plot. The land shown to him, according to him, measured 6 or 7 kanals. He could not give correct location of the land and his statement in this respect was very vague. He conceded that he had purchased no land in the vicinity of the disputed plot though he claimed to have purchased some land in Upper Mall Scheme across the Mall at a price of Rs, 33,000 per kanal in early 1971. He claimed that he indulged in purchasing a plot of land, raising construction thereon and then selling off the same. His statement is not supported by any document on the record.
' C. W. 5/defendant No, 1 is Mohammad Tufail, who claimed to be a Property Dealer. He stated that he was asked by Sh. Ijaz Ahmed to sell a plot of land for him at the rate of Rs, 60,000 per kanal, but the witness valued the property at Rs, 45,000 per kanal and in this way the bargain did not go through. He claimed to have sold one plot on Jail road, Ingola Cinema, near Mozang Chungi. His statement is just of a ceremonial nature without any written corroboration from any quarters.
' C. W. 6/defendant No, 1 is Malik Khurshid Ahmed, Deed-Writer. He did not make any deposition about the valuation of the property in dispute and all that he stated was that there was a tendency in the parties sometime to inflate and sometime to deflate prices in sale deeds.
' C. W. 7/defendant No, 1 is Mohammad Ijaz, who deposed that the value of the land in dispute would be in-between Rs, 40,000 to Rs, 45,000 per kanal and that he made an offer to Sh. Ijaz Ahmed. He stated that he knew Sh. Ijaz Ahmed when he (Sh. Ijaz Ahmed) was Settlement Commissioner, Lahore and was introduced to him by a property dealer, named Mohammad Siddiq Butt of Flaming Road, Lahore. His statement is also of a casual and ceremonial nature, without any written corroboration from any quarters.
' C. W. 8 is defendant No, 1 Sh. Ijaz Ahmed himself. In his oral evidence he claimed the price of the plot in dispute at Rs, 60,000 per kanal. As has been depicted above, none of his witnesses supported that price and rather C. W. 2 (Mohammad Hussain) gave instance of a sale of Rs, 20,000 per kanal.
9. Summing up his oral evidence, I must say that though Sh. Ijaz Ahmed had valued the land at Rs, 60,000 per kanal, but the oral evidence of his own witnesses does not support him in that figure. Even otherwise the figures quoted by his witnesses are not trustworthy, because, they are not supported by any concrete instance or basis. The chief characteristics of each witness have been mentioned above.
All these witnesses appeared to be of obliging type who have tried to oblige Sh. Ijaz Ahmad by making their respective statements. Their statements are vague, indefinite, without any account books and registers etc. And cannot be relied upon. Sh. Ijaz Ahmed and his learned counsel argued that C. W. 1 Hidayat Ullah, C. W. 2 Mohammad Hussain, C. W. 3 Raja Riaz Ahmed Khan and C. W. 5 Mohammad Tufail were experts (or expert witnesses) and, therefore, their evidence was of great value. Apart from the inherent infirmities in their depositions above highlighted and there being a great doubt about their soclaimed status of 'experts', even otherwise, it is well settled, as observed by Lord Hobhouse in The Secretary of State for Foreign Affairs v. Charlesworth Pillingh & Co. And another (1), that "everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity", with the result that the enquiry abounds with uncertainty and gives more than ordinary room for guess work. Further the expert witness sometimes begins with a pre-determined conclusion and tries to adjust his figures, his answers and his conjectures to that conclusion. To the same strain are Government v. The Century Spinning and Manufacturing Co. Ltd. (2); Salig Ram and others v. Barkat Ali and others (3) and Priphu Diyal v.
Secretary of State (4), wherein it was held that where experts give no real data in support of their opinion, their evidence, may be excluded from consideration as affording no assistance in arriving at a correct value. In the instant case the so-called brokers/experts neither
(1) I L R 26 Bom. 1 (P C) (2) AIR 1942 Bons. 105
(3) A 1 R 1924 Lah, 48 (4) AIR 1931 Lab. 364 ' referred to nor produced any account books nor registers showing that they had been selling similar plots in the vicinity at or near the relevantly time and had given no real data in support of their opinica.
Sh. Ijaz Ahmadand his learned ccunsel then submitted that C. W. 4 Zakaullah C. W. 7 Mohammad Ijaz gave evidence of offers which they made or received for purchasing this land and their evidence was of great importance Evidence of offers though admissible is generally of very little probative value.
They can be arranged without any loss or inconvenience to either party. In Reddiar v. Secretary of State (1) the Court went so far as to hold that "no doubt, proof of bona fide offers have to be considered by a Court, but the probative value of offers has, for good reasons in this country, been held to be very low indeed, for, the offers alleged in Land Acquisition Proceedings are scarcely ever bona fide. They can be easily arranged without any loss or inconvenience to either party, and individuals respectable in their various relations of life, have no compunction in lending themselves to fictitious transactions which may assist a friend in extracting more than his due from Government or a public body at no cost to themselves". No doubt this statement of law leans slightly towards an extreme in its sweeping nature, but the point that probative value of offers is generally very low cannot be doubted, though each case will have to be examined on its own facts and circumstances and sometimes there may be exceptional cases as well which, however, is not the position here. In Government of Bombay, v. Merwanji Muncherji Cama (2) it was observed at page 919 by Batchelor, J.
Who wrote judgment of the Full Bench that "it appears to us that in ascertaining the market value under the Act too much importance must not be attached to evidence of offers. An offer does not come within the category of sales and purchases. If an offer for the whole or a portion of the land under acquisition is proved, it amounts merely to an expression of opinion on the part of the offeror.
But this can only be proved by the evidence of the offeror himself and is then relevant. The evidence of offers made by irresponsible brokers on behalf of undisclosed principals, or perhaps for their own purposes without any principal behind them, is in our opinion useless, even supposing it is relvant, which we doubt. The evidence that the owner refused an offer so made through a broker is only evidence that in his opinion his land was worth more than the figure of value named or that the offer was for some other reason of a nature which he was unwilling to accept. Evidence of such offers by brokers for neighbouring land is still less effective. If the offeror himself gives evidence, it is evidence that in his opinion such neighbouring land was of a certain value, and such evidence would only be relevant if he had formed an opinion by comparison of the land under acquisition". The result of this discussion is that the oral evidence above-mentioned produced by Sh. Ijaz Ahmed, for the various reasons already given, is hereby held to be of no probative value against the contesting defendant and is, therefore, discarded.
' Ret Market value-Documentary evidence of Sh. Ijaz Ahmed
10. Sh. Ijaz Ahmed placed the following documents to show the instances of sales contained therein:-
(1) Sale deed dated 25-7-1973 Exh. R. W. 2/A regarding land from Khasra No, 2178 min by Colonel Fawad Ahmed Zaman in favour of Mst. Sayeda Iffat Zuhra for a sum of Rs, 7,125. The area was 2 kanals 3 marlas and 117 sq. Ft. And was sold at the rate of Rs, 35,000 per kanal (approx.);
(1) AIR 1928 Rang. 65 (2) (1908) 10 Bout. L B. 907
(ii) Sale deed dated 21-11-1973 Exh. C. W. 8/6 (to be read with mutation Exh. C. W. 8/5 dated 13-9-1974) by Colonel Fawad Ahmed Zaman in favour of Mst. Razia Sultana for a sum of Rs, 78,775. It shows that Es. 20,000 were paid as earnest money. The rate of the sale comes to Rs, 35,000 (approx.) per kanal.
This is also a sale from khasra No, 2178 which adjoins the land in disputes
(iii) Sale deed dated 18-12-1968 Exh. C. W. 8/1 for a sale of an area of 10 marlas and 45 sq. Ft. For Rs, 30,000 (page 200 of the file of the Commission);
(iv) Sale deed dated 7-6-1973 Exh. C. W. 8/2 for a sale of an area of 6 marlas and 125 sq. Ft. At the price of Rs, 14,950 pertaining to Khasra No, 2896 (page 203 of the Commission's report);
(v) Sale deed dated 7-6-1973 Exh. C. W. 8/3 for an area of 6 marlas 122 sq. Ft. For a price of Rs, 14,950 pertaining to Khasra No, 2896/1 (page 206 of the report of the Commission); and
(vi) Sale deed dated 15-2-1974 Exh. C. W. 8/4 for an area of 10 marlas 214 sq. Ft. For a sum of Rs, 30,000 pertaining to Khasra No, 1987/2 (page 208 of the Commission's report).
' The report of the Commission with regard to the instances at (iii) to (vi) was as follows: "Mr. Ijaz Ahmed (defendant No, 1) relied on four other instances which are not of much value for the simple reason that they are far off from the land in dispute. Three of them are situated in Garhi Shahu which is, at least, more than two miles away from the spot and the fourth is somewhere near Mian Mir in the Upper Mall area. Moreover, the area of these lands is quite small. For example, areas of 6 marlas 25 sq. Ft. And 6 marlas 122 sq. Ft. Were sold regarding which documents (Ezhs. C. W. 8/14 and C. W. 8/3) have been produced. Third one is 10 marlas 45 sq. Ft. And the fourth one is 10 mulcts 214 sq. Ft. So, these instances cannot be taken into consideration because, according to 11am Din (R. W. 1) these are either situated in commercial localities or in thickly populated areas in a street. At any rate, these are far off from the land in dispute, therefore, of no value. Moreover, no reference was made to these instances during the arguments by either of the parties."
' No doubt these instances, though not pressed before the Commission, were however, pressed before me, but the fact that they were instances of very small plots situated far off from the land in dispute in tie commercial localities and thickly populated streets, were not taken exception to. In that view of the matter, these instances are of no probative value for our purposes. I hold accordingly.
' We are thus left only with two instances mentioned at serial Nos. (i) and (ii) above. It is to be noticed that from Khasra No, 2178 we have three instances on record; (a) one is sale deed Exh. R. W. 2/19 dated 18.4-1974 to be read with Exh. R. W. 2/20 by Mst. Ghazala Fawad which show a rate of Rs, 16,885 (approx.) per kanal and (b) the other two are those which are mentioned at serial Nos. (1) and (ii) above and are dated 25-7-1973 and 21-11-1970 respectively. Sale in Exh. R. W. 2/19 is subsequent in time and it is significant to note that if it is to be compared with Exh. R. W. 2/A and g42. R. W. 8/6 it means that the prices in these documents Ls.
' Exh. R. W. 2/A and Exh. R. W. 8/6 were much inflated, especially when we examine them in the light of the prices of plots which are situated in the heart and interior of Gulberg Scheme No, V Khasra No, 2178, however, not being in that scheme which were sold during those very days e.g. Exh. R. W. 2/16 and Exh.
R. W. 2/17 mentioned in the list of Mr. Sajjad Ahmed Jan which indicate price of Rs, 20,000 per kanal including the development charges at the rate of R s. 1800 per kanal which if excluded make the net price as Rs, 18,200 per kanal. The instances quoted by Sb. Ijaz Ahmed thus cannot be relied upon as they possess no probative value for the land in dispute and are discarded with the observations hereinbefore made. All this discussion should be read in conjunction with my findings regarding oral and documentary evidence produced by Mr. Sajjad Ahmed Jan which are as follows:- ' Re: Market value-Oral evidence of Mr. Sajjad Ahmad Jan
11. As earlier mentioned Mr. Sajjad Ahmed Jan appeared as his own witness as R. W. 2 and made a very comprehensive statement. He deposed that in 1959, on his elevation as a Judge of the High Court of West Pakistan he came to Lahore and put up in the Circuit House. His stay there was prolonged for a year and a half as he was unable to get any official accommodation. He took possession of this land as a hissedar in exclusive possession with the consent of every one concerned as he wanted to build a house for his shelter in Lahore. The first step he took was to get the area of this land demarcated as detailed in earlier pages of this judgment, which aspect need not be repeated here over again. The land was initially agricultural in character. The revenue record showed that it was full of ditches and depressions and when he came and visited the site for the first time he was rather disappointed to see that it was much lower than the street in front. It was at that time a katcha street. He asked his mother and his brothers as to why those very depressions and they told him that Mr. Maqsood who had built a house in the neighbourhood had removed considerable amount of earth from that land and that was why the deep depressions occurred in the land. As the area was very much near the canal, the architect and engineer of the witness advised him to think of some other site because filling it would be a very costly affair, but the witness did not agree to that suggestion as it was a part of his paternal estate. He, therefore, started filling the land and it cost him quite a huge amount as the site was at least 5 ft. Below the street in front and in those days, according to the witness, it would work out to be at least rupees 12,000 to rupees 15,000. The witness stated that he had made a small basement in his house the floor of which would show the amount of filling done in the entire area for the purpose of construction. The witness then gave details of direct dealings of the parties about this land and placed certain relevant documents on record to which I will advert later. He also placed on record certain other instances of sales details whereof will be given while dealing with the documentary evidence.
According to the witness he would not put at a higher value the land in dispute than that which had been paid to Begum Mr. Ijaz Batalvi by him under any circumstances (this has reference to sale deed Exh. R. W. 2/15 to be attended to later).
12. Mr. Sajjad Ahmed Jan produced R. W. 1 Ilam Din, a retired Tehsildar of Lahore Municipal Corporation, who had been dealing with the property of the parties to this suit since the days of the propositus Sh, Mohammad Shari!. He was appointed a Patwari in July 1926 in the Lahore Corporation and was then promoted as land surveyor, property surveyor, Naib-Tehsildar, Abiana Officer and ultimately retired as a Tehsildar. He was also on deputation with the Rehabilitation department where he worked as Tehsildar (Plots). He deposed that he had seen the land in dispute even at the time when it was not under cultivation. There were deep depressions (URDU TEXT) all through the land with 6-7 depth. Mr. Sajjad Ahmed Jan had filled it with earth and even now the level of the entire plot was not uniform, as at some places it was higher and in some places it was low. According to the witness about 15,000 to to 20,000 rupees must have been spent on filling of the land. Now there exists a street in front of the bungalow of Mr. Sajjad Ahmed Jan. It is a narrow street and two-way traffic creates difficulties in the passage of the cars passing each other. There is no other passage to the land and the bungalow. He then described the location of the plot and its surroundings and also gave indication as to where the various properties mentioned in the various sale deeds were located and what were their characteristics. Re: Market value-Documentary evidence produced by Mr. Saffad Ahmed Jan
13. (a) Direct instances of this land. -In this ' case there has come on record evidence regarding direct transactions of the suit land by the parties to the suit themselves. First is an agreement to sell by Afzal Ahmed plaintiff of his share to Mr. Sajjad Ahmed Jan Exh. R. W. 2/10 dated and registered on 12-10-1962 to be read with Exh. R. W. 2/11 dated 30-10-1972 and the statement of Mr. Sajjad Ahmed Jan showing that the sale was to be at the rate of Rs, 50,000 per kanal to be paid at the time of partition of land.
Second is a registered sale deed dated 2-4-1965 Exh. R. W. 2/12 whereby Iqbal Ahmed alias Jamshed Haroon real brother of Afzal Ahmed along with his mother Mst. Dilshad Jehan and his real sister Mst.
Asma Khatoon sold 4 kanals out of this land to one Khawaja Amanullah for a sum of Rs, 40,000 i,e, at the rate of Rs, 10,000 per kanal. The same land was then mortgaged by Khawaja Amanullah in favour of Iqbal Ahmed alias Jamshed Haroon for a sum of Rs, 20,000 and was later redeemed vide redemption deed Exh. R. W. 2/14 on 07-11-1970. Third is a registered deed of sale by Khawaja Amanullah dated 7-11-1970 Exh. R. W. 2/13 whereby he sold away the same land to Begum Falahat Ijaz Hussain wife and Master Sarwar Hussain and Master Shahid Hussain (minors) sons of Mr. Ijaz Hussion Batalvi Bar- at-Law for a sum of Rs, 55.000 on 7-11-1970 at the rate of Rs, 13,750 per kanal. Fourth is a further sale by Begum Falahat Ijaz Hussain and her two minor sons which they made in favour of Mr. Sajjad Ahmed Jan vide Exh. R. W. 2/15 dated 2-2-1973 registered on 12-3-1973 for a sum of Rs, 50,000 at the rate of Rs, 12,500 per kanal. These transactions have a direct bearing on the market value of the suit land. They show that from year 1962 to year 1973 the shareholders in this case have been evaluating the price of this land at the relevant rates mentioned above. The latest transaction of this land which took place on 12-3-1973 fixed the price at Rs, 12, 500 per kanal vide Exh. R. W. 2/15.
(b) Evidence of other instances In the locality.-Mr. Sajjad Ahmed Jan has placed evidence of the following instances on records Serial NoPartiesDate of saleMode of saleArea transferredWhere locatedPrice At the rate ofPrice TotalMode of paymentRemarks 1 2 3 4 5 6 7 8 9 10 1Maratab Ali Shah (vendor)Dr. Abdul Qadoos vendee)22- 9- 69Registered deed dated 22- 9-695K 10M 186 sq.ftKhasra No.2240 situated on the north side of the property in dispute - - furlongRs.13320 per Kanal (approx)Rs. 73952CashSee Mutation R.W. 2/21 2Mst. Aziz Begum (vendor) Mst.
Nasim Begum son of Ali Muhammad (vendee)20- 6-73Registered deed dated 20- 6-732KKhasra No2027?
Upper Mall scheme at about 6 Flgs from the site in dispute near NIPA5000 per KanalRs.10,000CashSee Mutation R.W.
2/22 3Mst. Ghazala Fawad (vendor)
Shah Jahan Khan (vendee)18- 4-74Registered deed dated 18- 4-742K 7M 85 sq.ftKhasra No.2178 adjacent to the property in dispute.Rs.16885 per KanalRs.40,000CashR.W. 2/19 R.W.
2/20 4Akhtar Ehsan (vendor)
Muhammad Sadiq (vendor)29- 4-74Registered deed dated 29- 4-747K 8M 50 sq.ftPlot No.17 Gulberg scheme No.V adjoining plot No.16 on the east side of the property in disputeRs.20,000 per Kanal including dev.charges Rs.1800 per Kanal. The prcie of plot Rs. 18,200 per Kanal.Rs.
1,48,234Cash R.W. 2/17 5Syed Akhtar Ehsan (vendor)
Mst. Shagufta Begum(vendee)2-5- 74Registered deed dated 2- 5-747K 18M 53 sq.ftPlot No.16 Gulberg Scheme N0.V situated in the east side 200 Ft from the property in disputeRs.20,000 per Kanal including Rs.1800 per Kanal dev.charges.
The price of Rs. 18,200 per Kanal.Rs.
1,58,235Cash R.W. 2/16 ' Taking up the instance at serial No, (i) in the above table it is of 22.9-1969 about a piece of land bearing Khasra No, 2240 which is situated on the northern side at a distance of about 2 furlongs from the property in dispute. It was sold at the rate of Rs, 13320 (approx.) per kanal.
(ii) Item No, (ii) is dated 20-6-1973 of land in Khasra No, 2027 in the Upper Mall Scheme at about six furlongs from the site in dispute near NIPA on the left side of the Upper Mall Road. It shows rate of Rs, 5,000 per kanlas
(iii) Item No, (iii) is dated 18-4-1474 regarding Khasra No, 2178 adjacent to the land in dispute at the rate of Rs, 16,885 (approx.) per kanal (also referred to in para. 9 of this judgment).
(iv) Item No, (iv) is dated 29-4-1974 regarding plot No, 17 in Gulberg Scheme No, V adjoining plot No, 16 on the east side of the property in dispute. It shows a rate of Rs, 20,000 per kanal inclusive of Rs, 1,000 as development charges per kanal leaving the net price at Rs, 18,2C0 per kanal. It is a well-developed plot containing all amenities.
(v) Instance No, (v) is dated 2-5-1974 regarding plot No, 16 in Gulberg Scheme No, V situated in the east at a distance of about 200 feet from the plot in dispute which was sold at the rate of Rs, 20,000 per kanal inclusive of Rs, 1,800 per kanal as the development charges leaving the net price at Rs, 18,200 per kanal.
' At this stage it may be mentioned as laid down in Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer (1) that "It is perhaps desirable in this connection to say something about this expression 'the market price'. There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity. The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar positions, and this is what must be meant in general by 'the market value." In Amrita Lai Basack and another v. The Secretary of State for India in Council (2) it was held by Bannerjee, J., that "one of the recognized methods of determining the market value was by ascertaining the price at which the lands in the vicinity have been sold and purchased and making all duo allowance for situation and the circumstances attending each particular sale. In M. S.
0. S. P. V. Velayudam Cheitlar and others v. The Special Tehsildar for Land Acquisition Madurai at Madurai Town (3) it was laid down that "the question of fair compensation - (on market value basis)- is not an algebraic problem which would be solved by an abstract formula. Certain methods of valuation have however been recognized by the various judicial decisions, viz. (a) the price paid within a reasonable time for the land; (b) rents and profits of the land received shortly before the acquisition;
(c) price paid for adjacent lands possessing similar advantages and (d) the opinions of the valuers or experts." In the instant case the consideration at (b) does not arise while consideration at (d) has already been dealt with. Proceeding therefore on the rest of the considerations and principles and analysing the above evidence, documentary and oral, led by Mr. Sajjad Ahmed Jan, it is clear that the 'plot in dispute is not properly developed and still suffers from depressions. It is not include in Gulberg V Scheme which ends at some distance away from the present
(1) AIR 1939 P C (2) 22 I C 78
(3) AIR 1959 Mad. 462 ' plot towards the east. This fact was conceded by Sh. Ijaz Ahmad in cross-examination of his statement. It does not possess sewerage, water and gas facilities which are available to plots in that scheme. At the moment there is no proper connection of this plot with teat scheme. The dealings of the owners themselves show that they have been considering it as an inferior or just a modest plot not possessed of very high or exceptiouai potentialities. Sh, Afzal Ahmad plaintiff sold his share to Mr. Sajjad Ahmed Jan at the rate of Rs, 5,000 per kanal. He has not asked for any more money that what has already been received by him so far from Mr. Sajjad Ahmad Jan. Sheikh lqbal Ahmad alias Jamshed Haroon and his mother and sister sold four kends of this land to Khawaja Amanullah on 2-4- 1965 at the rate of Rs, 10,000 per kanal. Khawaja Amanullah then further sold it to Begum Falahat Ijaz Hussain and her two sons on 7-11-1970 for Rs, 55,000 at the rate of Rs, 13,750 per kanal. Begum Falahat Ijaz Hussain and her (minor) sons then sold that land to Mr. Sajjad Ahmed Jan on 4-3-1973 at Rs, 50,000 at the rate of Rs, 12,500 per kanal. As in the last sale there were involved two minors (vendors)
(sons) of Mr. Ijaz Hussain Batalvi and his Begum Sahiba, therefore, the sale was made by the vendors after obtaining permission of the District Judge-(Guardian Judge)-Lahore who granted the sanction holding that the transaction was for the welfare of the minors. This is an intrinsic evidence in support of the genuineness of the price in the sale deed. These transactions were within the knowledge of Sh. Ijaz Hussain as is evident from his own deposition. He said nothing about the prices contained in the aforesaid transactions. In this background if we look to the other instances referred to by Mr. Sajjad Ahmad Jan we notice that C. W. 2 Mohammad Hussain, who was a witness produced by Sh. Ijaz Ahmed, deposed that he had sold plots Nos. 19 and 20 near the house of Mr. Justice Sardar Mohammad Iqbal i,e, quite within the interior and heart of Gulberg V Scheme at Rs, 20,001 per kanal. If development charges at the rate of Rs, 1,800 per kanal are deducted from this price, then the net price for that plot in the interior and heart of the Scheme was Rs 18,200 per kanal. Same is the position of sale of plots Nos. 16 and 17 in the scheme (instances Nos. V and IV in th above table). All these plots, namely, 16, 17, 19 and 20 are fairly developed plots possessed of amenities of gas, water and sewerage.
They open on a 60 feet wide metalled road. The difference between these plots and the disputed plot is that in spite of having been filled in, it is still about 6 feet below plot No, 15 which adjoins plots Nos. 16 and 17 and is not fully developed nor has it been taken over by the Improvement Trust so far Obviously there should thus be a difference between the price of the developed land and the land which has not been developed as yet. Instance at serial No, HI is dated 18.4-1974 and indicates price of Rs, 16885 (Approx ) per kanal and is very much near in time with reference to which we have to determine the market value of the land in this case. It pertains to land in Khasra No, 2178 which is quite adjacent to the present plot. Like the present land it is not in the improvement trust scheme, but it is a level Khasra number with no ditches or depressions. Its quality is better than the present land. Thi instance also knocks out the inflated price in Exh R W. 2/A and C. W. 8/6 Considering all the facts and circumstances herein before high'ighted and the over-all aspects of the matter as a whole and taking account of all the reliable instances, I think that the market value of the land in dispute can safely be fixed at Rs, 17,000 per kanal. The same was the report on the Commission who attended to this subject in very minute details.
14. Taking up the point at (g) of para. 3 above, Sh. Ijaz Ahmed is thus entitled to receive an amount of Rs 44,559 at the rate of Rs, 17,000 per kanal for his fractional share in the plot in dispute. I hold accordingly.
15. Sh. Uhias Mohammad, learned counsel for Mr. Sajjad Ahmed Jan wanted some reduction in the market value on account of and after taking into consideration the improvement made by his client and the money spent In that respect but at the same time submitted that if the present price was to be maintained then he would not press that claim. As I have maintained the present price, I need not attend to that matter.
16. Sh. Ijaz Ahmed on 11-10-1976 filed a civil miscellaneous application bearing No, 5554-C/76 accompanied with an affidavit in which he desired that 1 should summon (i) Mr. Ijaz Hussain Batalvi, Bar-at-Law; (ii) Mr. Iqbal Ahmed Khan and (iii) Mr. Javed Zaman Khan, as witnesses. The presence of Mr. Ijaz Hussain Batalvi was required because, according to Sh. Ijaz Ahmed, he had learnt through the former that he had sold the land to Mr. Sajjad Ahmed Jan at a price less than that on which it was earlier purchased by him because he was persuaded by and through the quarters mentioned therein to sell away the land at Rs, 50,000 only as Mr. Sajjad Ahmad Jan was of the view that the same was its really paid price and not Rs, 55,000 which had earlier been quoted in the relevant sale deed and that Mr. Ijaz Hussain Batalvi was afraid of the litigation which might ensue due to his having purchased disputed land. The presence of Iqbal Ahmed Khan who was the father of the vendees from Colonel Fawad family and the presence of Mr. Javed Zaman Khan, who was the attorney of the vendors, was required to prove that the sales in Exh. R. W. 2/19 and Exh. R. W. 2/20 were made on cheaper rates because the bargain was an old cne and the parties were relatives inter se. This application was opposed by Mr. Sajjad Ahmed Jan who denied on affidavit all the insinuations contained therein. Sh.
Ljaz Ahmed is forgetting that the sale by the wife and sons of Mr. Ljaz Hussain Batalvi was entered into after obtaining solemn sanction and approval of the learned District Judge, Guardian Judge, Lahore, who allowed it as being in the interest of the minors and which fact is a guarantee by itself of the genuineness of that transaction. Thereafter there is left no scope for such quibbles which Sh. Ijaz Ahmad wants this Court to enter into. Mr. Sajjad Ahmad Jan in his reply to the application of Sh. Ljaz Ahmed stated that the transaction of Mr. Ljaz Hussain Batalvi was known to Sh. Ijaz Ahmad at the time when he appeared as his own witness on 13-10.1974 and also at the time when Mr. Sjjad Ahmad Jan made his statement before the Commission on 15-12-1974 No such suggestion was put forward at that relevant time. Even otherwise Sh. Ijaz Ahmed having closed his evidence unreservedly could not be allowed to take up such reckless pleas at this stage of the case. Attending to the averments of Sh. Ljaz Ahmad himself as contained in his application, even otherwise if Mr. Sajjad Ahmed Jan was of the view that earlier purchase by Mr. Ljaz Hussain Batalvi was really at Ks. 50,000 and refused to give more to him, he is rather to be complimented for his firm stand in that respect and his refusal to be exploited or taken in by any fictitious price. Similarly if Mr. Sajjad Ahmad Jan was keen to purchase this land from Ijaz Hussain Batalvi there was nothing wrong in that because any man in that situation and in those circumstances would have reasonably relished same desire to keep his parental land with him instead of letting the strangers occupy it. In fact he purchased the shares of other shareholders i,e, the plaintiff and defendants and similarly if he purchased that share which bad gone outside the family his action was perfectly lawful, natural and just. Moreover. Sh. Ijaz Ahmed Knew about the transactions of Colonel Fawad family and mere was no justification to introduce oral evidence of the kind which was being suggested to be now adduced. All the concerned sales and instances were in the knowledge of Sh. Ljaz Ahmed and he took no such pleas at the proper time. Looked at from whatever angle, I do not find any justification to summon the aforesaid witnesses. The application is rejected.
17. No other point nor any other aspect of the case was argued before me at the bar.
18. The upshot of the above discussion is that Mr. Sajjad Ahmad Jan is directed to deposit a sum of Rs, 44,59 in Court within a period of six months from today in full and anal settlement and satisfaction of the claim of Sh. Ijaz Ahmed in the Mianmir land/property in dispute which as per terms of the compromise and the preliminary decree is to vest and is hereby allowed to vest exclusively in Mr. Sajjad Ahmed Jan. The suit is finally decreed as above and a final decree is passed in terms of this judgment and order. Parties to bear their own costs.