1998CLC286 (PLP)

Ch. Shah Wali, Advocate for Respondents. Date of hearing: 26th March, 1997. MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, with the leave of the Court, has been filed against an order passed by the High Court on June 12, 1996, whereby the writ petition filed by the appellant herein was dismissed.

2. The precise facts, leading up to the present controversy, are that the appellant herein filed a writ petition in the High Court claiming therein that land measuring 34 Kanals, 4 Marlas, comprising Survey Nos.210, 224, , 244, 581, 448, 200, 189, 364 and 317, situate in Village Ankar, Tehsil Dadyal, District Mirpur, was allotted to him on February 18, 1969. The allotment permit was also issued in his favour. The possession of the land was claimed by the appellant since its allotment and a residential house was also claimed to have been constructed by him in the aforesaid land. The Proprietary Rights Transfer Order was issued in favour of appellant and a mutation on its basis was also sanctioned. On June 8, 1992, a review petition was filed by respondent No. l and the learned Custodian by accepting the review petition cancelled the allotment of Survey No. 189 measuring 4 Kanals, 2 Marlas and Survey No. 364 measuring 4 Kanals, 11 Marlas from the name of the appellant. The above order was challenged through a writ petition filed by the appellant in the High Court, as said earlier, and the same was dismissed vide the order impugned. Hence this appeal.

3. Arguing the case on behalf of appellant Mr. Abdul Ghafoor Qureshi, the learned counsel, vehemently submitted that the order passed by the Custodian cancelling the allotment from the name of appellant was violative of law, without any jurisdiction and lawful authority as the same was based on no material. The learned counsel submitted that no record in the shape of allotment permit, copy of register of allotment was produced by the respondent before the Custodian as such the reliance placed by him on Misl‑e‑Haqiat for the year 1957‑58 along in absence of above‑referred record could not have been made. According to the learned counsel the review petition was hopelessly time‑barred as the same was filed on 8th of June, 1992 to challenge the allotment made in the year 1969. The learned counsel submitted that the High Court without any cogent and valid reason dismissed the writ petition filed by the appellant. The learned counsel also maintained that in one of the aforesaid number Khasras a residential house of the appellant stood constructed and in other number Khasra there was an entry of graveyard, thus, these facts being known to the respondent the review petition was clearly barred by limitation.

4. In reply Ch. Shah Wali, the learned counsel, representing the respondents, submitted that the order of allotment in favour of appellant was void ab initio. According to the learned counsel allotment of Survey Nos. 189 and 364 was made in favour of mother of respondent as such the same was a nullity in the eye of law. It was also emphasised by the learned counsel that the factum of allotment in favour of respondent was fully supported by a copy of Misl‑e‑Haqiat for the year 1957‑58 and Khasra,Girdawari from Rabih 1976 to Rabih 1979. It was further contended by the learned counsel for respondents that Mst. Resham Bibi, the mother of respondent No.l, in whose favour the allotment of the above two number Khasras was made, was not afforded an opportunity of hearing at the time of subsequent allotment made in favour of appellant nor the allotment was cancelled from her name as such the learned Custodian rightly held that the subsequent allotment in favour of appellant was void ab initio. The teamed counsel also argued that the factum of subsequent allotment came within the knowledge of appellant on 30‑5‑1992 and he filed the review petition promptly on 8‑6‑1992 as such the review petition was within time.

5. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. It is an admitted position between the parties that allotment of land measuring 34 Kanals 4 Marlas including the land in dispute was made in favour of appellant in the year 1969. The issuance of Proprietary Rights Transfer Order and attestation of a mutation in favour of appellant is also admitted. However, the respondent claims to have been allotted the land in dispute comprising survey numbers 189 and 364 in the name of his mother prior to the order of allotment made in favour of appellant.

6. The learned Custodian while accepting the review petition filed by respondent No.l formed the view that in Misl‑e‑Haqiat 1957‑58 as against number Khasras 189 and 364, Mst. Resham Bi, the mother of respondent No. 1, was entered as allottee. Similarly in the copy of Khasra Girdawari of Rabih 1965 to Kharif 1968 there was also an entry of Mst. Resham Bibi, allottee of the aforesaid number Khasras but despite the existence of these entries in the Revenue record, the A.R.C. neither summoned Mst. Resham Bibi nor provided her an opportunity of hearing nor cancelled her allotment at any stage. The learned Custodian also formed the opinion that during the subsistence of allotment in favour of Mst. Resharn Bibi, the subsequent allotment could not have been made in favour of appellant and the same was void allotment in the eye of law.

7. In our considered view the reasons recorded by the leaned Custodian in his judgment are quite weighty and not without any substance as such could not be overlooked. We have ourselves perused the entries of Misl‑e‑Haqiat 1957‑58 wherein in number Khasras 189 measuring 4 Kanals, 2 Marlas and 364 measuring 4 Kanals 11 Marlas Mst. Resham Bibi, the mother of respondent No. l is entered as an allottee on whose behalf Karam Ellahi and Muhammad Sharif are entered as tenants‑at‑will in number Khasra 189 and Muhammad Hassan and others as tenants‑at‑will in number Khasra

364. Similarly in Khasra Girdawari starting from Rabih 1976 to Kharif 1979 Exh.D‑C produced before the High Court Mst. Resham Bibi is shown as allottee on whose behalf Karam Ellahi, Muhammad Sharif in number Khasra 189 and Muhammad Hassan and others in number Khasra 364 are entered as tenants‑at‑will. However, in Kharif 1978 in column No.7 there is an entry to the effect that as per order of A.R.C., dated 18‑2‑1969 the allotment of these two number Khasras is cancelled from the name of Mst. Resham Bibi and is shown to have been made in favour of Zafar Iqbal, appellant. These entries positively show that the allotment in the first instance was made in favour of Mst. Resham Bibi and in view of existence of allotment in her name, the A.R.C. had no lawful authority to make the allotment of these two numbers in favour of appellant, which in fact were not available for allotment. Moreover, had the allotment not been existing in the name of Mst. Resham Bibi, the mother of respondent No. 1, there seems to be no point for making the entries in Khasra Girdawari that the allotment from her name has been cancelled.

8. Another significant aspect of the matter is that at the time of filing writ petition in the High Court no ground whatsoever was taken by the appellant herein that entries made in Misl‑e‑Haqiat 1957‑58 and the Khasra Girdawari referred above were either fictitious or fake and not in accordance with the ground reality as alleged by the learned counsel for the appellant during the course of arguments. In absence of such a plea raised by the learned counsel for the appellant we cannot assume that the entries made in the Misl‑e‑Haqiat and Khasra Girdawari were factually incorrect, particularly so when under law the presumption of truth is attached to the entries made in Misl‑e‑Haqiat or Jamahandi.

9. The next point to be resolved by this Court is as to whether the review petition filed by respondent Abdul Aziz entailed dismissal because the same was barred by limitation on account of fact that allotment was made in favour of appellant in 1969 whereas the review petition was filed in the year 1992. This point was also raised before the High Court in the writ petition but the same was repelled on the ground that the delay was condoned by the learned Custodian and his finding could not be disturbed in the exercise of writ jurisdiction. As pointed out earlier the learned Custodian treated the review petition within time in view of the fact that the subsequent allotment made in favour of appellant was void ab initio. Moreover, the respondent categorically stated in his application before the learned Custodian that the matter of subsequent allotment became known to him in 1992 and the same was promptly filed. The perusal of the judgment of the Custodian reveals that he has treated the application for review within time after giving due consideration to the circumstances of the case. The learned Custodian also expressed the view that nothing was brought on record by the appellant showing that the matter of subsequent allotment and the issuance of Proprietary Rights Transfer Order in favour of appellant was within the knowledge of respondent No. l or his mother. Had the same been in their knowledge then it would have been their responsibility to file the application for review within time but no such material was placed before the learned Custodian as such the application filed by respondent No. l for review was treated within time. Therefore the contention of the learned counsel for the appellant that the review petition entailed dismissal as being time‑barred is hereby repelled. As discussed in some earlier part of the judgment we have come to the conclusion that uptil Rabih 1978 Mst. Resham Bibi, the mother of respondent, is entered as an allottee on whose behalf Karam Ellahi and others were shown as tenants‑at‑will in the possession of the above‑referred two numbers so this could not be argued that respondent was in any way having the knowledge of subsequent allotment in favour of appellant.

10. The contention raised by the learned counsel for the appellant that in a certain portion of one number Khasra, a house of appellant stood constructed and in the other Khasra number, in some portion, there is entry of a graveyard as such the same shall be presumed within the knowledge of the respondent, merits no consideration for the simple reason that both the disputed Khasra numbers, even in the Khasra Girdawari of the year 1989‑90 produced by the appellant, are shown in possession of tenants‑at‑will paying share of the produce to the allottee. Moreover, the above‑referred entries were made for the first time in the year 1989‑90, as such the actual physical possession of the land in dispute being with the tenants it could not have been inferred that in fact the house was constructed by the appellant himself and a small portion of the other number Khasra was used as a part of graveyard by the appellant himself.

11. The learned Custodian, as said earlier, treated the review petition within time in view of the peculiar facts and circumstances of the case but even if it had not been treated within time the same was within the powers of Custodian to have condoned it. In a reported case Bashir Ahmad Khan v. Custodian of Evacuee Property (PLD 1992 SC (AJ&K) 49), it was held that where delay in filing the appeal, revision or review etc. has been condoned by the learned Custodian such condonation order is not normally interfered with in exercise of writ jurisdiction. In the aforesaid authority the concerned aggrieved person was also not party to the proceedings wherein the allotment was made as in the instant case. We also have no reason to differ with the view taken by the learned Custodian and the High Court, therefore, the contention of learned counsel for the appellant that review petition entailed dismissal as being barred by limitation is hereby repelled.

12. It was vehemently contended by Mr. Abdul Ghafoor Qureshi, the learned counsel for the appellant that the allotment in favour of Mst. Resham Bibi, the mother of respondent No. 1, appears to be fictitious as the same is not borne out from any record except Misl‑e‑Haqiat 1957‑58 and Khasra Girdawari referred above. The learned counsel submitted that respondent failed to produce any allotment permit pertaining to land in question. It is indeed correct that respondent failed to produce the copy of allotment permit of the land in dispute as his case throughout has been that it has been lost. To this effect he has duly filed a certificate from the office of A.R.C. Mirpur. On the other hand the photo copy of allotment permit of Muhammad Fazal, the father of appellant, Exh.D.A. shows that Mst. Resham Bibi, the mother of respondent No. 1, is entered as allotee of number Khasras 189 and

364. Thus, there remains hardly any doubt that Mst. Resham Bibi, the mother of respondent No .l, was admittedly an allottee of these two number Khasras and without cancellation of her allotment the subsequent allotment was a nullity in the eye of law.

13. For the reasons stated above, finding no force in this appeal, it is hereby dismissed without any order as to costs. A.A./239/S????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.