ABDUR RAUF KHAN LUGHMANI, J.--- Dilawar Khan by instituting Civil Suit No.59/1 in the Court of Senior Civil Judge, Bannu, sought declaration that he is owner in possession of the land, measuring 40 Kanals, comprising Khasras Nos.3126/2095, 2096 and 3441/2097, situate in village Tajori, Tehsil Lakki Marwat, having purchased it from his brother Zaman Shah, through oral sale and that Mutation No.10602, attested on 30-1-1961 purportedly by said Zaman Shah in favour of defendant No.4 is liable to cancellation as inoperative and ineffective against his rights. He also by way of consequential relief prayed for decree for permanent injunction directing defendants Nos. l to 4 to demolish the building constructed over the said land or in the alternative to pay compensation.
This suit was dismissed by the judgment and decree, dated 5-6-1989 of the Senior Civil Judge, Bannu. Appeal of the plaintiff also met the same fate, vide judgment of Additional District Judge, Bannu order, dated 14-3-1990. The plaintiff filed a civil revision petition in this Court and by the judgment, dated 22-5-1993 of the Honourable Judge of this Court the judgments and decrees of the Courts below were set aside. The plaintiff was granted leave of the Court to amend his plaint to the effect of seeking compensation at the market rate for the suit land in accordance with the decision of the respondents/Government of 1984 in lieu of the agreement for which the cause of action arose on 26-7--1984 and in the alternative possession in case no compensation was paid to the plaintiff.
2. After remand Mr. Muhammad Naseem Khan, Senior Civil Judge was seized of the case and by his judgment and decree, dated 20-9-1995, granted a decree against defendants- Nos. l to 4 for a sum of Rs.20 million with interest at the rate of 7% from the date of attestation of the mutation i.e. 22-1-1961 uptill final payment to the plaintiff. Aggrieved by the said judgment and decree the defendants have filed the instant Regular First Appeal.
3. The plaintiffs have alleged that the land in question originally belonged to his brother Zaman Shah, who through an oral sale had sold the same to him in the year 1960 and possession thereof had also been delivered to him. According to him, he donated the said land free of any consideration therefore to the Civil Surgeon, Bannu (defendant No.4) for construction of Rural Health Centre, Tajori with an understanding that the menial staff at the said Centre would be appointed at the recommendation of the plaintiff. The Revenue Record on the other hand discloses that vide Mutation No. 10602 attested on 30-1-1961 in the column of cultivation Zaman Shah, the original owner of the land had transferred the said land in favour of defendant No.4. Whether the plaintiff has established his ownership over the suit land through reliable evidence or whether the suit filed by him was within time having not been seriously contested by the defendants- appellants we would refrain to adjudicate upon that aspect of the matter. The plaintiff has nowhere claimed in the plaint that in case the menial staff appointed at the Rural Health Centre was not so appointed on his recommendation either the land was to be retransferred to him or the defendants would be liable to pay any compensation therefore. On the other hand appointments in lieu of land grants was deprecated by the august Supreme Court in Munawar Khan v. Niaz Muhammad and 7 others 1993 SCM R 1287. Their Lordships at page 1294 held that:----- "As regards the policy of making appointments against land grants, we find that this amounts to, in fact, sale of public office for property. Not only it is against the Constitutional law applicable to public office but is not conducive to public interest. What could be done within the framework of the law was to create a margin of preference for those who make such grants, other conditions. Of eligibility and suitability and fitness being equal. We, therefore, overrule this practice prospectively."
It is well-settled that an unlawful act cannot be made lawful by consent of the parties. Once it is held that public office cannot be given for land grants, even if the department had agreed to appoint the staff at the Rural Health Centre on the recommendation of the plaintiff, that condition being not lawful is of no avail.
4. Be that as it may in this appeal it is to be ascertained whether, the compensation amount fixed by the trial Court was adequate. The alleged transfer of the suit property by Zaman Shah in favour of Dilawar Khan, plaintiff was through oral sale. The actual sale consideration is, thus, not ascertainable through documentary evidence. The plaintiff, while appearing as his own witness, has admitted that he had paid Rs.50,000 as sale consideration to his brother. The price of the suit land per Kanal according to his own admission thus, comes to Rs.1,250. The trial Judge has granted decree to the plaintiff for Rs.20 million i.e. Rs.7,00,000 per Kanal. He has fixed this amount on the basis of report of a Local Commissioner, namely, Sardar A.I Khan, Advocate who was so appointed on the application of the plaintiff. The report of the Local Commissioner regarding value per Kanal of the suit land is virtually based on just conjectures, in that, in his report he has admitted that while making sale transactions the people in the area avoid registration/mutation of the property to avoid taxes. On the oral statements made before him by the local Zamindars he formed the opinion that the price per Kanal of the land was Rs.7,00,000. Although the solitary report of the Local Commissioner without any documentary corroboration regarding sale transaction cannot be made the sole basis for coming to definite conclusion but assuming the same is virtually the position prevalent still this price per Kanal is the existing market value i.e. In the year 1995 when the Local Commissioner visited the area and formed his opinion about the sale consideration. On the other hand the land in suit had been given to the Health Department in the year 1961 and was allegedly purchased by Dilawar Khan, plaintiff in 1960 from his brother through oral sale transaction against a consideration of Rs.50,000 as per his own admission. Yousuf Khan, Patwari Halqa, while appearing as P.W.1 produced the five years' average of the locality and according to him the price per Kanal of the lands in the area comes to Rs.3,548.80. .No doubt the Patwari has in his statement admitted of half Marla of land having been sold against sale consideration of Rs.15,000 vide mutation attested on 16-11-1994, which according to him is adjacent to the suit land, but this cannot be made the basis for fixing the compensation of the suit land, firstly because a selected/manipulated sale transaction cannot be held a valid evidence with regard to fixation of the market value, particularly when it is not even consistent with the value obtained by the Local C6mmissioner and secondly, because the mutation pertains to a period of 34 years subsequent to the donation of the land in suit to the Health Department.
5. Anyhow, since, the Patwari Halqa has worked out the market value of the suit land at Rs.3,548.80 in our view the plaintiff is entitled to the compensation of the land in suit on the basis of the said market value.
Accordingly while partially accepting this appeal we reduce the decretal amount from Rs.20 million to Rs.1,41,952 plus 8% interest from the date of acquisition till the date of final payment. No order as to costs.