' SHAHZAD AKBAR KHAN, J.--- Atiqullah son of Samiullah and Rashid Muhammad son of Said.
Ahmad 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 Judge/Land Acquisition Judge, Swabi, whereby the reference filed by the appellant under section 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 by the Collector 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 of the appellants that was acquired was 24 Kanals, 2 Marlas.
4. Dissatisfied with the compensation amount, the appellants filed reference before the Senior Civil Judge and 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 a cause of action?
(2) Whether the reference petition is within time?
(3) Whether the petitioner, plaintiffs are estopped by their own conduct to file the present reference?
(4) Whether the petitioner, plaintiffs have received the compensation without objection?
(5) Whether the compensation of the suit-land is wrongly assessed, if so, what is the correct and accurate compensation?
(6), Whether the petitioners, plaintiffs are entitled to the enhancement of 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 appearing for the appellants has contended that the price of the land determined by the Collector was not proper as the land is situated near the village Abadi and that it is situated adjacent to the path which could be used for the purpose of construction. He also stated that Mutations Nos.I3876, 13061 and 13875 which find mention in the statement of Atiqullah appellant (P.W.2) were not taken into consideration. He further argued that in view of the objection of the land owners the learned referee Judge was required to have appointed Local Commissioner for ascertaining the correct price of the acquired land.
7. On the other hand the learned counsel for the respondents has opposed this appeal urging that the kind of land acquired from the appellant was Maira and was neither located on any road side nor near the village which could be used for private construction. He defended the impugned judgment also for the reasons incorporated therein.
8. We have considered the rival contentions of the learned counsel for the parties in the light of the record. In support of their case the appellants examined Umardad Khan Patwari Halqa as P.W.1 who produced, inter alia, one yearly average from 30-4-1991 to 30-4-1992 Exh.P.W. 1/2. This witness eloquently stated that the suit-land is contiguous to a Khawar (ravine) and the dry portion of the said Khawar is used by the tractor trollies and the same Khawar can be used by the public as a path. In the cross-examination this witness has admitted that lie has seen the suit-land and that it is not adjacent to the main road. It is a significant feature of the case that from the Patwari Halqa neither the mutations, referred to by the counsel for the appellant, are brought on the record nor any reference about them was recorded in his statement. P.W'.2 i.e, appellant No,1 though claimed that they have levelled the suit-land nevertheless no evidence was brought on the record to this effect. The appellant stated that he has not produced the site-plan regarding Abadi near the suit property. He also stated that he has not produced any Revenue Record mentioned by him in his statement. The argument of the learned counsel for the appellant that the mutations referred by the appellant in his statement as P.W.2 have not been taken into account is of least significance.
The land owners were burdened to examine some of the parties to the sale transaction. Mere production of the copies of mutations which were only photostat copies were entirely insufficient for accepting the claim of the appellants for the enhancement of compensation. Reference on this proposition is made to PLD 1976 Pesh.
50. With regard to the appointment of the Local Commissioner we may observe that the record does not indicate that the petitioner had ever made any application to the trial Court for appointment of a Local Commissioner for the purpose of determining the price by inspection of the spot. The learned counsel for the appellant also when confronted with this lacuna could not tell us that any application was made by the appellants. At this stage such an argument cannot be received with any amount of favour.
' On the above statement of facts and the evidence we feel no force in the instant appeal which is consequently, dismissed, with no order as to costs.