' MUHAMMAD MEHMOOD BHATTI, J.-This judgment will dispose of R. F. A. No, 139 of 1975, R. F. A. No, 3 of 1976, R. F. A. No, 6 of 1976, R. F. A. No, 8 of 1976 and Writ Petition No, 1067 of 1976 (which is still in motion). The appellant has challenged the validity of the order of the learned Senior Civil Judge, Lahore dated 8.11-1975 by which the claim of Muhammad Ishaq appellant was dismissed.
2. According to the facts of the case the Provincial Government of Punjab wanted to acquire some hind for the construction of new Ravi Bridge, Lahore and for that purpose Notifications under section 4, 5 and 6 of the Land Acquisition Act, 1814 (hereinafter called the Act) were issued. The total area to be acquired for this purpose appears to be 53 kanals marlas. This area, according to the entry in the Revenue record in the year 1953-54, is Shamlat Deb as is shown in the ownership column of Revenue Record and possession is that of the Rehabilitation Commissioner. Out of the total area mentioned above 39 kanals 13 marlas was notified while the remaining area was to be got notified through the Chief Settlement Commissioner and a reference for sanction for the same was submitted to the said offices to the same effect. But no action was taken by the Chief Settlement Commissioner to this effect and during this period whole of the area I e. 53 kanals 9 marlas was allotted to some persons against their verified claims. The Collector proceeded to acquire the land and an award under section 11 was given for whole of the lard out of which compensation for 13 kanals 16 marks, which was not notified, was withheld by the Collector, till such time, the Chief Settlement Commissioner greats sanction.
' The learned Collectcr issued notice to the affected persons presumably under section 9 of the Act on 13-1-1971. One Muhammad All Mukhtar-e-Aam of Abdul Ariz etc. Filed an application claiming compensation at the rate of Rs, 680 per marla. On 23-6-1973 the appellant through his Advocate claimed amount at the rate of Rs, 800 per marla and on 6-8-1973 Mat. Fakhar-un-Nisa claimed compensation at the rate of Rs, 7C0 per marla. The learned Collector gave an award under section 11 and the total compensation to be given to the deserving persons was Rs, 5,92,767. Since it was a Shamlat land the learned Collector could not decide as to who was entitled to compensation. A reference under section 30 was made to the Civil Court in the following words:- "According to the entries in the Revenue Record relating to the year 1953-54 the words "Shamlat Deb" have been entered in the ownership column and the possession is that of the Rehabilitation Commissioner. The factual position is that out of 53 kanals 9 marlas an area of 39 kanals 13 marlas was notified while the remaining area was not got notified. During this period this whole area i,e, 53 kanals marlas was allotted by the Local Authorities to the persons against their verified claims. The allotments of evacuee land in this village has been done without preparing "Titammas" and the allotting Authority have only mentioned the word Min while allotting these lands. In these circumstances it is difficult to ascertain as to who are the persons in the physical possession of the land under acquisition. The matter is, therefore, referred herewith under section 3 of the Land Acquisition Act, 1894, to the Senior Civil Judge, Lahore for establishing the title of the persons to whom the compensation should be paid."
' The last line of the Reference order indicates that the learned Senior Civil Judge was required to summon all the persons to whom compensation could be paid in case they established their entitlement. The learned Civil Judge while deciding this case did not issue notice to all the persons entitled to the compensation. Only notices to 12 persons were sent and out of these three persons, namely, Abdul Aziz, Mohammad Sharif and Muhammad Ismail were neither served nor represented personally or through counsel before the Reference Court. The Reference Court framed the following issues:- "Who is entitled to compensation in respect of the acquired land in question as and to what extent?"
3. The claim of the appellant was dismissed. Mien Muhammad Saeed was declared to be entitled to 122/142 share, Muhammad Siddique etc and heirs of Ilam Din and Ghulam Muhammad etc. To 6/142 share each and Mst. Sardar Beg was declared to be entitled to 4/142 share. Rest of the four shares are not clear from the judgment as to whom they were to the given. Aggrieved by the decision the present four appeals have been filed, namely, R. F. A. No, 139 of 1975, R. F. A. No, 3 of 1976, R. F. A. No, 6 of 1916 and R. F. A. No, 8 of 1976. The first appeal was admitted on 13-11-1975, R. F. A. No, 3 of 1976 was admitted on 6-1-1976, R. F. A. No, 6 of 1976 was admitted on 6-1-1976 and R. F. A. No, 8 of 1976 was admitted on 11-2-1976. At the time of admission of R. F. A. No, 139 of 1975 an application (No, 4292/75) was also submitted by the appellant, in which it was prayed that respondent No, 3 Mian Muhammad Saeed may be directed to furnish bank guarantee to the trial Court or to furnish a bank guarantee before this Court. A notice was issued and in pursuance of the notice the learned counsel for respondent No, 3 raised preliminary objection as to the court-fee and the learned Judge vide order dated 30-6-1976 directed that ad valorem court-fee should be levied on the appeal and directed the appellant to make up the deficiency in court-fee within one month, which was made up by the appellant and court-fee of Rs, 15,000 had been affixed in pursuance of this order and subsequently this matter was placed before the Division Bench because of pecuniary limitation on hearing of first appeals.
4. The learned counsel appearing on behalf of appellant in R. F. A. No, 3 of 1976 made a prayer to withdraw the appeal because he had filed Writ Petition No, 1067/76 which is still in motion. The prayer was allowed and the R. F. A. 3 of 1976 was dismissed as having been withdrawn.
5. Learned counsel appearing in R. F. A. No, 8 of 1976 had also made a prayer to withdraw the appeal because he had already filed a writ petition which having been heard by another learned Judge and the judgment had been reserved. His prayer was also allowed and R. F. A. No, 8 of 1976 was dismissed as having been withdrawn.
6. The learned counsel appearing on behalf of Muhammad Saeed respondent has raised a preliminary objection that the appeal is time barred and the court-fee has not been paid in pursuance of a legal order; as the order of the learned Single Judge is a nullity in the eye of law. In order to substantiate his contention he has relied on High Court Rules and Orders, Volume V, Chapter 3-B, rules 1, 2, 3 and 4 as amended by Correction Slip No, 135 dated 29-11-71 by Extraordinary Gazette of Punjab dated 29-11-1971 (published in PLD 1972 Punjab Statutes page 28) wherein it is provided that if the amount involved does not exceed Rs, 1,00,000 an appeal shall be laid before a Single Bench. The argument is that since the value of the subject-matter of the appeal is more than Rs, 5,00,000 and it is within the competence of the Division Bench therefore the learned Single Judge had no jurisdiction to order for making up the deficiency. It is farther cantered that no application under section 5 of the Limitation Act has been submitted uptil now and that neither the order of the learned Single Judge can be validated nor the extension can he granted under section 149, C. P. C. He has relied on Umer Ail v. The Municipal Committee, Jharg maghiana
(1) wherein the revision was allowed to be treated as second appeal by the learned Single Judge and court-fee was directed to be paid within one week, it was held than - "The appeal, however, was one which under the rules of the Court (1) AIR 1922 Lah. 233 had to be beard by a Division Bench and we are of opinion that the Judge who admitted it did not intend to decide any question of limitation. He could not admit the appeal at all until it was properly stamped and his order of admission was of course subject to all just exceptions and to anything which might be urged at the hearing. We see no ground in the present case for holding that there was sufficient cause for presenting the appeal after time within the meaning of section 5 of the Limitation Act." and the appeal was dismissed. The learned counsel for the respondent has also relied on Balwant Singh v. Jagjit Singh (i) and contended that the learned Single Judge, who passed the order for depositing or making up the deficiency in court-fee within one month was not competent to do so because the case was to be heard by a Division Bench and it is further contended that the order passed by the learned Single Judge was not a judicial order and cannot be deemed to have extended the time for making up the deficiency in court-fee. On the other hand the learned counsel for the appellant has relied on Ganesh Das v. Kanthu and others (2) and it has been contended that the office had not raised any objection about the deficiency of court-fee while entertaining the appeal and the appellant made no deliberate attempt to avoid payment and in such circumstances time must be allowed under section 149. In the authority relied upon by the learned counsel for the appellant it was held that time could be allowed to pay the proper fee, where the appeal filed without proper court-fee was accepted without objection by the office and the question of the fee payable was not free from all doubt and there was no deliberate attempt to avoid payment of the proper fee. There does not appear to be any merit in the contention of the learned counsel for the respondent because R. F. M. Normally are placed before a Single Bench if the value of subject-matter does not exceed certain limit. In order to regulate the procedure, the High Court has framed rules to fix the pecuniary limitation for the Single and Division Benches. In Muhammad Ashfaq v. The State (3) their Lordships of the Supreme Court were pleased to hold :- "A party has a tight of appeal to the High Court and not to any particular Bench of the High Court.
The High Court's own rule providing for the exercise of its various jurisdiction by one or more Judges or by Division Courts constituted of two or more Judges is a rule for regulating the procedure of the High Court and the constitution of its Benches, and not to give any particular party a right to claim that his appeal or matter must be heard by a Bench so constituted."
We have also examined the case and have come to the conclusion that the learned Single Judge has rightly allowed the extension of time under section 149, C. P. C. Read with section 12(2) of the Court Fees Act. The order of the learned Single Judge may not be in accordance with the rules framed by the High Court but no litigant has a vested right in the procedure prescribed by the High Court Rules. Nor it can be challenged on that aunt. Reliance can be placed on All Muhammad v.
Makhdoom Strap Haq Qureshi (4) wherein in similar circumstances their Lordships have laid down the law in the following words :- "Learned counsel next sought to contend that the learned Judge of (1) . I R 1947 Lab,. 210 (2) AIR 1935 Lah. 418 (3) P L P 1973 SC 368(4) 1975 SCR. 33 the High Court sitting singly could not have dismissed his first appeal In limine, but this argument is also not available to the learned counsel now after the change in the rules of the High Court introduced by the amendments published in the Gazette of Punjab, Extraordinary on the 29th of November, 1971 (vide page 28 of PLD 1972 Punjab Statutes). This gave jurisdiction to a learned Single Judge to finally hear and determine any regular first appeal below Rs, 1,00.000. This was a purely procedural amendment which to effect retroactively and applied to pending proceedings. No one has a vested right in procedure. The petitioner cannot, therefore, legitimately complain on this account." ( Underlining is mine).
' In view of the authorities of the Supreme Court mentioned above the order of the High Court cannot be struck down as without jurisdiction.
7. The learned counsel for the appellant raised an objection that the order of the leaned Civil Judge is a without jurisdiction because at the time of writing the judgment he was not a Civil Judge within the meaning of Order XX, rule 2, C. P. C. And be has tried to substantiate his argument by referring to the Court's order dated 27-9-1975 on which date be relinquished his charge but he could not write the judgment. He was in the meantime promoted as Additional District fudge and the judgment was announced on 8-11-1975. When be was Additional District Judge and not Civil Judge The contention of the learned counsel is devoid of force B because while being promoted as Additional District Judge he had not lost territorial jurisdiction and he had not become funtus officio because be was still a member of the Judiciary in the higher hierarchy of the Courts, and in such circumstances it cannot be considered that the judgment was written after ceasing to be a judicial officer. Even in the capacity of Additional District Judge he was a judicial officer and on that basis the judgment written by him after promotion cannot be considered to he a nullity in the eye of law.
Reliance can be placed on Qasi Mehar Din v. Mat. Murad Begum and others (11, wherein it is held at page 450 that:- "The cases, therefore, in which judgments written by a person after transfer or on leave, were held to be valid. Would not be sufficient authority for the view that a judgment written by a Judge who had ceased to hold his office would also be immune from exception."
8. The learned counsel for the appellant has raised an objection, namely, that the trial Court had not issued notices to all the owners of Shamlat Deh.
9. At page 47 of the Paper Book, there is a list of 12 persons out of them 3 were not served with notices and did not appear in person or through counsel before the Court.
10. The last line of the Reference Order clearly stated that all those persons, who were entitled to compensation were to be verified. P. W. 2 Nur Lin, the Land Acquisition Collector, Highway Department appeared as a witness. He has stated that while acquiring the land by the Collector before the issuance of the Notification under section 4 notices were sent to owners in possession, but their respective names are not mentioned in the office copy of the notice retained in his record.
The notice was issued (Here in italics) (1) PhD 1964 SC 446 on 7th December, 1970 In the name of Shamlat Deh, thereafter no notice was ever issued from the office in the name of the owners in possession of the Shamlat Deh and even before the Civil Court notices have not been issued to all the owners of the Shamlat Deh and the decision arrived at is not sustainable in the eye of law.
11. On 13-3-1974 it appears that one Moharrir of the Land Acquisition Department appeared and he gave a statement that as far as Mst. Sardar Begum is concerned, she was entitled, and there was no dispute, and Rs, 51297.19 are to be given to her, and on this statement only the learned Court ordered for the issuance of a cheque in favour of Mst. Sardar Begum. There is nothing on the record to show that Irshad Ali Moharrir was ever authorised by the Collector to give this statement or in the absence of any compromise between the parties. This order is again open to exception and cannot be maintained.
12. It is further contended that the payment has been made to some of the parties without notice to others and without inviting objections. The learned trial Court was required to find out the entitlement of the claimants and before giving this finding the inquiry was to be held whether those persons, who claimed to be owners of the land were genuine or not and whether all the owners of the Shamlat Deh even if they have not filed any appeal in this Court or had participated in the Reference were entitled to the same. All these facts have not been gone into by the trial Court and the case has to be remanded back for fresh trial.
13. We, therefore, accept the appeal remand the entire matter to the Civil Judge for fresh trial and apportionment of the shares for all those who are entitled to compensation. The learned trial Court shall summon all the persons, who are owners or in any way entitled to compensation of the Shamlat Deh.
14. As far as costs is concerned the appellant has affixed a court-fee of Rs, 15,000 and the decision on this appeal has ensured to the benefit of all other owners of the Shamlat Doh whether they are parties before the Court or not. Learned counsel for the parties before this Court have voluntarily agreed that the court-fee paid by the appellant is to be shared by all of them equally, namely, (1)
Mst. Sardar Begum and Riaz-ud-Din, (2) Mian Saeed Ahmad, (1) Mukhtar Ahmed son of Ilam Din, (4)
Ghulam Muhammad son of Boom (5) Haji Muhammad Tufail and the appellant meaning thereby that the appellant is entitled to recovery of Rs, 2,500 from each party mentioned above. It is hereby ordered that the appellant is entitled to recover Rs, 12,500 from the respondents at the rate of Rs, 2,500 per party mentioned above.
15. It is further directed that all the parties, who have received compensation either from the Collector or from the Court shall surrender the entire compensation to the civil Court. The latter shall invest the same in accordance with section 33 of the Land Acquisition Act and eventually whosoever is declared entitled to compensation shall get the amount along with the interest, which might have accrued duo to this investment.
16. The learned counsel for R. F. A. 6 of 1976 have prayed that in view of the remand order, it has become infructuous and the same is dismissed as having become infructuous.
17. Writ Petition No, 1067 of 1976 is also dismissed as having become infructuous as prayed by the learned counsel for the petitioner.
' MUHAMMAD AFZAL AL ZULLAH, J.-I concur in the conclusions reached by my learned brother also agree that the case be remanded for retrial and fresh decision in accordance with law. I further agree with the operative part of the order containing consequential directions/orders, It is, however, clarified that reference to the facts in the judgment is only in the context of the statements of facts made at the bar. It will be open for the trial Court to determine the facts and decide afresh, all necessary issues and questions involved in the case.
2. It needs to be mentioned that we examined the objection qua court-fee/ limitation on its own merits and after hearing the learned counsel for the objector at length did not find it possible to differ with the approach of the learned Single Judge. It cannot be ignored that on account of original valuation the office had to fix the case before the learned Single Judge who could not refuse passing necessary orders qua valuation and court-fee. If, however, there was any technical defect it stood removed by the permission granted to the appellant (in R. F. A. 139 to file formal application In this behalf. Necessary notices having been issued in this application (C. M. No, 4242/C-77 in R. F. A. 139/71), the same, on the views expressed in this judgment, should also be deemed to have been allowed.
3. The learned trial Court did not properly enquire into all the important questions in this case. For example, proper notices were no issued and all necessary measures/procedures were not adopted to discover the owners in the shamlat deh, all records of rights and other revenue records helpful in this behalf including Short Wajab-ul-arz were not consulted; questions of possession at all relevant times, particularly at the time of various notifications and at the time of physical entry by the authorities concerned, have not been resolved nor the interaction of these questions of possession has been considered vis-a-vis the alleged transfers by the Settlement authorities and/or by private individuals through private transactions, the bona fides and realities of the alleged private transfers and settlement transfer have also been left out of enquiry; facts about allegations of fraud an forgeries allegedly made and established before departmental authorities were on the record of the learned trial Court -no attention has been paid to those matters. It needs to be emphasized that the enquiry by the trial Court, on account of the nature of the proceedings, should have been deeper and wider than actually done in this case. With the above observations, I concur in the orders.