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Regular First Appeal No. 39 of 1979, decided on 31st May, 1983.

‑‑ Ss. 18 & 54‑Compensation‑Objection petition, held, must be before Acquisition Judge and lawfully referred in order to exercise jurisdiction under relevant provision of law.

‑‑ Ss. 18 & 54‑Valid objection petition having not been made before Land Acquisition Collector after announcement of award no legal reference, held, stood before Land Acquisition Judge‑Finding of Land Acquisition Judge rejecting objection petition for compensation on account of fruit trees etc., held further, fully justified and well‑founded.

P L D 1972 Pesh. 197 ; P L 0 1971 Kar. 692 ; P L D 1969 Kar. 314; PLD1967SC191andPLD1983SC109ref.

‑‑‑‑ Ss. 18 & 54‑Civil Procedure Code (V of 1908), O. XLI, r. 22‑Objection petition‑Compensation‑No appeal or cross' objection competent against finding on issues decided against respondent when objection petition dismissed is toto‑Respondent, held, entitled to challenge finding under O. XLI, r. 22, Civil Procedure Code.

‑‑‑ Ss. 9, .10, 18 & 54‑Objection petition‑Compensation for wall and fruit trees‑Objectors basing their claim on estimate prepared by private overseer who admittedly not accompanied by Patwari Halqa at time of preparation of estimate and did not record statement of any objector or any other witness at spot nor served any notice on respondents‑‑Statement made and estimate prepared by private Overseer bearing inherent defect‑Land Acquisition Judge, held, wrong in relying upon such statement Finding of Acquisition Judge, set aside.

Abdus Salam Sarwar for Appellants.

Malik Bashir Ahmad for Respondents.

Date of hearing :17th April, 1983.

‑This is a Regular First Appeal against the judgment and decree of the learned Additional District Judge, Haripur, dated 13th June, 1979 whereby the objection petition, referred to him by the learned Acquisition Collector, was rejected.

2. The relevant facts giving rise to this appeal are that the entire revenue estate of Village Chapper including the Village Abadi was to be acquired for the reservoir of Tarbela Dam Project, a public purpose, at public expenses, and notification under section 4 of the Land Acquisition Act was published in the official Gazette on 3rd May, 1967.

3. However, it later transpired that a part of the estate was affected by the Dam which part measured 4,043 kanals 15 marlas out of 7,303 kanals 3 marlas as detailed in the award.

4. After the publications of the relevant notifications and hearing the objections of the interested persons, award No. 7 was announced by the Land Acquisition Collector on 30th June, 1972.

5. Not satisfied with the award, Taj Muhammad and others, nine in number made an objection petition before the Land Acquisition Collector, under section 18 of the Land Acquisition Act, seeking reference of their objection petition to the Land Acquisition Judge for the deter mination of the fair compensation.

6. On a reference made by the learned Acquisition Collector and thereafter on the pleadings of the parties, the following issues were framed : ‑ .

(1) Whether the protection wall under reference existed at the time of notification under section 4 of the L. A. Act alongwith Pacca irrigation channel and have wrongly been declared by the Collector as after notification construction, if so, what is the amount of fair compensation

(2) Whether the petition has not properly been referred to this Court

(3) Whether the objectors have not responded to the notices under sections 9 and 10 of the L. A. Act, if so, to what effect

(4) Whether the objectors have received the compensation and with out protest if so, to what effect

(5) Whether the petition is within time

7. After recording the evidence of the parties the learned Judge decided Issues Nos. 3 and 4 against the respondents for lack of evidence, while on Issue No. 5 placing reliance on a judgment of the Peshawar High Court P L D 1972 page 197, that the Reference Court is not to go into the question of limitation when once the reference is made to him by the Acquisition Collector, the objection petition was held within time. On issue No. I the estimates of costs, prepared by the private Overseer, namely, Inamullah Khan, O. W. 2, was accepted by the Court wherein he has shown various Walls No. 52,233,243,172 and 69, 13/14 years old, on 5th March, 1979 the date on which he allegedly visited the property and prepared the estimates. However, the learned Judge rejected the objection petition in view of his finding on issue No. 2.

8. In the appeal the learned counsel for the appellants confined his arguments to the findings of the learned Acquisition Judge on issue No. 2. The learned counsel argued that reference of the objection petition, made by the learned Acquisition Collector received by him and registered as such, as is evident from Order Sheet No. 1, dated 10th May, 1977 debarred the learned Court to go into the legality or otherwise of the reference application. Relying on the authorities P L D 1971 Kar. 692, P L D 1969 Kar. 314, P L D 1967 S C 191 and P L D 1983 S C 109, it was contended that the learned Acquisition Judge, jurisdiction was confined to the limited question referred to him for determination and these ques tions were covered by the issues decided in favour of the objectors/ appellants.

9. The law cited above, with due respect, does not answer the questien involved in the present case. In order to exercise jurisdiction under the relevant provision of law, there must be an objection petition before the learned Acquisition Judge and lawfully referred to him for the determination of the claims made therein. However, when objection to the very existence of the reference was raised in the written statement, the learned Judge rightly put it into an issue between the parties. Both the parties, therefore, led evidence in proof thereof.

10. From the perusal of the record it is abundantly clear that no objection petition was made before, the Land Acquisition Collector after the announcement of the award, and that no reference was made by the learned Acquisition Collector to the Learned Acquisition Judge as it purported to be. This reference was received in the Court on 10th May, 1977 and entered as Land Acquisition Case No. 324/4 of 1977. The reference application, provided for under section 19 of the Act, accom panying objecting petition, is allegedly signed by one Muhammad Aslam, Land Acquisition Collector‑I, on 24/8, but purposely year is not given with the date and month under his signature. We may presume that either this is to be read as 24th August, 1977 or 24th August, 1976 but both these assumptions will not help the objectors the objection petition having been received in Court on 10th May, 1977 the possibility of it having been received on 28th August, 1977 would not arise, while in case the same is believed to be 28th April, 1976 to have received, the same all the more is damaging to the case of the petitioners as the form of reference bears year 1977 as the‑year of its printing. In this view of the matter the reference application can safely be ignored.

11. Next from the perusal of the objection petition, in which the date of receipt by the same gentleman is shown as 24/8 (year is not given), while there is a date 5th August, 1972 in different ink and different hand writing. The ink of the signature on reference application and that on the objection petition is one and the same and under both these signature; 24/8 is written in the same hand writing with the same ink.

12. It is the statement of Islam Muhammad, Reader Collector examined as R. W. 1, wherein he stated that on the receipt of the objection petition it is entered in the diary and thereafter on the reference applic ation the same number is shown and after the completion of the record, necessary for making a reference, diary and despatch number in given thereon at the time of making reference under section 18. In the present reference application there is no diary number or despatch number. He further stated that Raja Muhammad Aslam was posted as a Collector for the first time in the year, 1974 and was relieved of his duties on 22nd September, 1976 as is evident from the office order Exh. R. W. 1/2.

13. From all what has been stated above, we hold that there had been no valid objection petition made before the Land Acquisition Collector and that there had been no reference at ail by the Land Acquisi tion Collector, the finding of the learned Acquisition Judge was, therefore, fully justified and well‑founded.

14. The learned counsel appearing for the Land Acquisition Coll ector argued that there being no legal reference before the Land Acquisi tion Judge the finding on the rest of the issues are without jurisdiction and in the alternative he challenged the finding on issue No. 1 on merits too. At this stage the learned counsel for the objectors relying on Khair Ali and 4 others v: Aleem‑ud‑Din and others (PLD1973SC295) argued that no prayer for the setting aside of the findings or decree or its variation could be asked for without filing cross‑objection under Order XLI, rule 22, C. P. C.

15. The contention of the learned counsel for the appellants is misconceived. In the present case no decree has been passed in favour of the appellants. The facts of the case relied upon are quite distinguished from the facts of the present case. In that case one Dinu had executed a deed on 8th December, 1960, describing it to be a mortgage duly recited therein that be has realized the entire consideration for the property and that be would execute a sale‑deed after P. T. D., issued in his favour by the Settlement Department. P. T. D. was issued on 5th December, 1962. The mortgagee, therefore, brought a suit for specific performance or in the alternative a mortgage decree for Rs. 12,500 in their favour. Heirs of Dinu, Dinu having died in the meantime, resisted the suit and raise the plea of limitation in case the suit was held competent for specific performance. While giving his finding with regard to limitation, the trial Court held the suit to be within time. However, on facts the deed was held to be a mortgage deed and consequently passed a decree for redemption on payment of Rs. 5,578. Plaintiff, in the case, did not accept the decree and preferred an appeal before the District Judge. No cross objection was filed challenging the decree of the trial Court. The learned District Judge allowed the appeal and passed a decree for specific per formance. It was in the second appeal, by the heirs of Dinu, that argu ments were addressed, that the suit for specific performance was barred by time. It was on those facts that their Lordships made the above observation and disallowed the appellant, in the second appeal to challenge the findings on the question of limitation as the same was never challenged there in the first appeal by way of cross‑objection. This case is distinguishable as that suit had been partially decreed against the defendants in which the question of limitation, decided against them, was never agitated before the first appellate Court by filing cross‑objection to a decree passed against them, and it was in the second appeal that the findings of the trial Court on the question of limitation was not allowed to be raised. In the present case no appeal or cross‑objection was competent against the finding on the issues decided against the respon dents when the objection petition was dismissed in toto. We, therefore, hold that the respondent is entitled under Order XLI, rule 22 to challenge the findings of the learned Acquisition Judge in this appeal to support the decree. No variation or setting aside of the decree is asked for by the respondent while arguing this appeal.

16. On merits too the appellants have got no case to argue. In response to the notices under sections 9 and 10 of the L. A. Act as many as 57 persons appeared before the Land Acquisition Collector but non of the objectors claimed compensation for their walls allegedly constructed by then 13/14 years next before the acquisition. In addition the only evidence produced by the objectors to support their claim is the estimates, prepared by Inamullah Khan, Overseer, Exh. O. W.211 to Exh. O. W. 2/5. In the cross‑examination this witness admitted that he Was not accompanied by the Patwari Halqa at the time of the preparation of these estimates and that the Khasras numbers were incorporated in the estimates at the instance of the objectors. It was also admitted that he did not) record the statement of any one of the objectors or any other witness at the spot nor any notices were served upon the respondents. Furthermore, Muhammad Afzal objector admitted that he was present at the time when WAPDA Staff took the measurement of the property in the Village. The statement of Overseer employed by private person came for consideration in several cases before this Court and in view of the inherent defeat and somewhat similar grounds as are available in this case, his statement and estimates of costs were rejected in R. F. A. No. 94 of 1978. We are in respectful agreement with the conclusion arrived at by the learned Judges in case cited above and hold that the learned Acquisition Judge was wrong in basing reliance on the statement of Inamullah Khan, Overseer. Consequently, the finding on issue No. 1 is set aside.

17. For the reasons stated above, there is no merit in this appeal which is dismissed with no order as to costs.

M. Y. H. Appeal dismissed.

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