2001MLD757 (PLP)

Sardar Rafique Mahmood Khan, Advocate for Respondent No.

1. Date of hearing: 17th October, 2000. SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the order of High Court dated 31‑3‑2000, whereby the writ petition filed by respondent No. l was accepted and the judgment passed by the Custodian was set aside.

2. The brief facts giving rise to the present appeal are that Muhammad Aslam, respondent (former Jogander Singh) after obtaining a certificate stipulated under section 23 of the Pakistan (Administration of Evacuee Property) Act, filed an application/suit before the Custodian on 7‑5‑1978 for the restoration of the land comprising Surveys Nos.910 and 912, measuring 10 Kanals, 15 Marlas, situate in village Gojra, alleging that the said piece of land was purchased by Utam Singh, his grandfather, from Sattar Ali, the predecessor‑in‑interest of the appellants, herein, in Dogra Regime and a Mutation No.33 was also attested in his favour. He further alleged that Hakam Singh, his father, and Utam Singh, his grandfather died during the War of Liberation and he was the sole heir of Utam Singh living in Azad Kashmir. Thus, he sought restoration of the aforesaid piece of land. The said application was marked by the Custodian to the Deputy Custodian with the direction to make an inquiry and send report to him. The Deputy Custodian, after taking necessary proceedings in the case, accepted the plea of Muhammad Aslam, respondent, vide his judgment, dated 18‑3‑1985 observing that the land in dispute was in fact purchased by Utam Singh, the grandfather of Muhammad Aslam, respondent herein, in Dogra Regime and he being his sole heir was entitled to the restoration of the same.

3. The appellants, herein, also filed an application/suit before the Deputy Custodian alleging that the certificate issued by the Deputy Rehabilitation Commissioner, Muzaffarabad, in favour of Muhammad Aslam, respondent, for the restoration of the aforesaid land was illegal and that the land was in the ownership of Sattar Ali, their predecessor‑in‑interest, who died and they being his heirs were the owners of the same. They also denied that any sale‑deed was executed by Sattar Ali in his lifetime in favour of Utam Singh, the grandfather of Muhammad Aslam, respondent herein. After inquiry, the Deputy Custodian dismissed the application/suit vide his order, dated 18‑3‑1985 observing that the land in dispute was purchased by Utarr. Singh, the grandfather of Muhammad Aslam, respondent, in Dogra Regime and that the appellants, herein, failed to prove the ownership of the land or rebut the factum of sale by Sattar Ali to Utam Singh, the grandfather of Muhammad Aslam, respondent. Both the recommendations made by the Deputy Custodian in favour of Muhammad Aslam, respondent, and the appeal filed by the appellants, herein, against the findings of the Deputy Custodian dated 18‑3‑1985 came up for consideration before the Custodian who sent the same to the Additional. Custodian for hearing and disposal according to law. The Additional Custodian, after hearing the parties, vide his consolidated judgment, dated 4‑10‑1986, accepted the recommendations made by the Deputy Custodian in favour of Muhammad Aslam for the restoration of the property and dismissed the appeal filed by the appellants, herein. The appellants, herein filed a revision petition before the Custodian on 24‑11‑1986 against the order of the Additional Custodian, dated 4‑10‑1986 who accepted the same and reversed the findings of the Additional Custodian holding that the appellants, herein, being heirs of Sattar Ali, are owners of the land and that property in dispute was not an evacuee property. Muhammad Aslam, respondent, challenged the findings of the Custodian passed in exercise of Revisional Jurisdiction by filing the writ petition in the High Court on 21‑8‑1989 which was decided by the High Court through the impugned judgment on 31‑3‑2000, i.e., after eleven years, on the short ground that as according to the parties the land in dispute was not evacuee property and, thus, only a Civil Court had the jurisdiction in the matter and not the Custodian or the Deputy Custodian. The High Court did not decide the other points which were raised in the writ petition.

4. Raja Muhammad Hanif Khan and Mr. Ghulam Mustafa Mughal, Advocates, learned counsel for the appellants, have argued that the High Court had heard the arguments in the writ petition for fifteen times and the parties were also called upon to file the written arguments which were duly filed. However, the High Court did not advert to the important law points raised in the writ petition and in the written arguments and instead dismissed the same on a ground which was neither raised in the High Court nor before the Custodian. The learned counsel have drawn our attention to section 23 of the Pakistan (Administration of Evacuee Property) Act, 1957 and have argued that as Muhammad Aslam, respondent, when applied for the certificate seeking the restoration of the property in dispute, he would be deemed to have admitted that the property was the evacuee property. The learned counsel have also referred to the application/suit filed by Muhammad Aslam, respondent, wherein he alleged that the property in dispute was purchased by Utam Singh, he was his sole heir and was entitled to restoration of the land in dispute under section 23 of the Pakistan (Administration of Evacuee Property) Act. Thus, the learned counsel have argued that the respondent could not take a plea which is inconsistent with his case set up before the Custodian; in fact he did not take any such stand in the writ petition filed by him in the High Court or during the arguments addressed by his counsel in the High Court. The learned counsel have further argued that the High Court has also committed an error in holding that the Deputy Custodian, Additional Custodian and the Custodian had come to the conclusion that the property in dispute was not an evacuee property whereas only the Custodian in exercise of his revisional jurisdiction gave the said finding while others, including the Deputy Custodian and the Additional Custodian, expressed the view that the property in dispute was evacuee property; even the Custodian gave the same finding in the appeal and the reference. Thus, according to the learned counsel for the appellants, the finding of the High Court stands vitiated due to misreading of the record,

5. In reply, Sardar Rafique Mahmood an, Advocate, the learned counsel for respondent No. 1, has conceded that the question of jurisdiction of the Custodian was not raised by Muhammad Aslam at any stage, including the High Court. He has submitted that this point has been suo motu raised by the High Court. When the learned counsel was called upon to justify the finding of the High Court that the Custodian had no jurisdiction in the instant case, he had nothing to say except that the Custodian could declare the property as evacuee or non‑evacuee but he could not opine in his order passed in revision that the appellants?herein, were the owners of the land.

6. We have given our due consideration to the matter. As stated above, the writ petition has been decided after about eleven years of its institution; the arguments in the case appear to have been heard many times and the written arguments were also filed on the direction of the High Court. The High Court has sue motu considered the question of jurisdiction of the Custodian. We are also constrained to remark that the High Court has made incorrect observations that the Custodian and others have come to the conclusion that the land in dispute was not evacuee property whereas it is not so; it is only the Custodian who has given the said finding in revisional jurisdiction which were challenged by Muhammad Aslam, respondent, by filing the writ petition, out of which the present appeal has arisen. A reference may be made to the following paragraph of the impugned judgment of the High Court to elucidate the point; "The contemplate perusal of the record shows that it is an admitted fact between the parties that the property in dispute is non‑evacuee property. It is also pertinent to note that all the Courts (learned Deputy Custodian, Additional Custodian and Custodian) held that the land in dispute is not an evacuee property." The observations made by the High Court that it is admitted fact between the parties that the property in dispute is not evacuee is against the record because Muhammad Aslam, respondent, sought the restoration of the property under section 23 of the Pakistan (Administration of Evacuee Property) Act which implies that he admitted the same to be an evacuee property; his case throughout has been that his grandfather, Utam Singh, had purchased the land from one Sattar Ali during Dogra Regime who was killed during the War of Liberation; therefore, he being his sole heir was entitled to the restoration of the land in dispute. Similarly, as already stated, it has never been held by the Deputy Custodian or the Additional Custodian that the land in dispute was non‑evacuee; rather they have come to the conclusion that the same was an evacuee land. If there is a dispute. between two parties out of which one says that the land in dispute was purchased by a Hindu evacuee from Local Muslim in Dogra Regime while the other contends that no such sale‑deed was executed, the controversy between the parties essentially, would be as to whether the property is an evacuee property or it is non‑evacuee. Obviously, the character of the property would depend upon resolution of the controversy as to whether the sale‑deed was executed by a Muslim owner in favour of a Hindu evacuee or not, as in the instant case.? Thus, in view of sections, 22, 23 and 41 of the Pakistan (Administration of Evacuee) Property Act, the jurisdiction to determine the character of the property is that of the Custodian and not the Civil Court as has been held by the High Court. A reference may be made to a case reported as Abdul Shah v. Rehabilitation Department (1992 SCR 269), wherein it has been held that it is in the exclusive jurisdiction of the Custodian to decide as to whether the property is or is not an evacuee property and the Civil Court has no jurisdiction in such a case.

7. So far as the contention of the learned counsel for respondent No. 1 that the Custodian was not competent to observe in his judgment passed in exercise of revisional jurisdiction that the appellants, herein, are the owners is concerned, that was merely the natural consequence of his finding that no sale‑deed was proved to have been executed in favour of Utam Singh; that would not oust the jurisdiction of the Custodian to declare the property as evacuee or non‑evacuee. In light of what has been stated above, we accept the appeal, set aside the impugned judgment of the High Court and remand the case to it with the direction that it shall re‑hear the arguments of the parties afresh and decide the matter according to law as early as possible. H.B.T./105/SC(AJ&K)??????????????????????????????????????????????????????????????????????? Appeal accepted.