SHAHZAD AKBAR KHAN. J.---Wazirdullah and 9 others residents of village Shah Mansoor, Tehsil and District Swabi have filed this appeal questioning the correctness of the judgment dated 10-12-1996 passed by the learned Senior Civil Tudge/Land Acquisition Judge, Swabi, whereby the reference filed by the appellant under sections 18/30 of the Land Acquisition Act was dismissed.
2. The short facts of the case are that land measuring 2123 Kanals 13 Marlas was acquired for the purpose of construction of Shah Mansoor Township. Notification under section 4 of the Land Acquisition Act, 1894 was issued by the then Deputy Commissioner, Swabi vide his office Endst.
No,358-62/DK/HVC, dated 10-6-1989 Declaration under section 6 of the said Act was issued by the then Commissioner, Mardan Division, Mardan vide his office Endst.No,5161-63/HVC, dated 7-10-1990.
The relevant award has been assigned its number as 728-31/ACS, dated 16-3-1991. The area acquired by the Land Acquisition Collector, Swabi was of two kinds i,e, 'Chahi' and 'Maira' land. The price of the 'Chahi' land was determined byCollelctor as Rs,37,352 per Kanal while that of 'Maira' land was determined as Rs,13,553 per Kanal based on one yearly average.
3. 15% compulsory acquisition charges were also given to the land owners. The land measuring 61 Karials, 10 Marlas belonging to the appellants was included in the acquired land.
4. Dissatisfied with compensation amount, the appellants filed reference before the Senior Civil Judge/Land Acquisition Judge. Swabi. The reference was resisted by the respondents by filing reply thereto and the rival pleadings generated the following issues:-
(1) Whether the plaintiff/petitioner has got cause of action? (2) Whether the reference petition is within time?
(3) Whether the petitioner/plaintiff is estopped by his own conduct to file the present reference?
(4) Whether the petitioner/plaintiff received the compensation without objection?
(5) Whether the compensation of the suit-land is wrongly assessed, if of so, what is the correct and accurate compensation?
(6) Whether the petitioner/plaintiff is entitled to the enhancement compensation as prayed for?
(7) Relief.
5. Both the parties adduced their respective evidence. However the trial of the matter ended into dismissal of the reference petition.
6. The learned counsel for the appellants has argued that a very low price of the acquired land was determined by the Land Acquisition Collector. He argued that the land of the appellants could be brought into use for construction. The suit-land is located close to village 'Abadi` and land adjacent to the suit-land has been sold for a higher price and that the learned trial Court was required to have appointed a Commission for the assessment of the price of the acquired land which he has failed to do.
7. On the other hand the learned counsel for the respondents has defended the impugned judgment arguing that the price determined by the Collector is fair which is based on one yearly average and the land is of 'Maira' type and is not culturable. He further contended that the award was announced on 16-3-1991 and the reference was filed by the appellants on 8-6-1991 which was hopelessly time-barred. He also argued that the Record Keeper of the Land Acquisition Collector appearing as D.W.1 produced the entire relevant record including the acquittance roll, which clearly indicatesthat the compensation was received by the appellants without recording any sort of objection.
8. We have heard the arguments of the learned counsel for the parties and have examined the record. No arguments on the point of limitation regarding the filing of the reference out of time has been raised nor the factum of receiving the compensation amount without any objection has been controverted before us. Appellant Wazirdullah when examined as P.W.2 he admitted that the suit- land is 'Barani' and that it is situated away from Swabi Jehangira Road by a distance of one furlong.
He also admitted that he has not produced any of the party to the transaction embodies in the Mutations Exh.P.W.2/4 to Exh.P.W.2/4. We have noted that only the photostat copies of the mutations have been placed on file, which being secondary evidence could not be taken into consideration unless permission in accordance with 'Qanun-e-Shahadat' was obtained from the Court. A similar point came out for consideration before a Division Bench of this Court in case of Land Acquisition Collector II, Tarbela Dam Re-Settlement Organization, WAPDA and 2 others v. Haji Hakim Khan and 41 others reported as PLD 1976 Pesh.
50. In the said judgment it was held that burden of proof regarding bona fide of transaction of transfer of land was on the landowners. Mere production of copy of mutation in evidence was entirely insufficient and the landowners are burdened to examine some party to the sale transaction. Undoubtedly no party to the transaction of the above referred mutations was examined. In these circumstances we hold that the judgment of the learned lower Court is well- founded and does not require any interference Consequently this appeal is dismissed, with no order as to costs.