1999 PLP 531 (MLD)

The above-titled petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Admitted facts are that on 17-1-1968, Ali Akber Shah, the rather of respondents Nos.2 to 6 and his other brothers brought a claim before Deputy Custodian Kolti that they alongwith pro forma-defendants mentioned mere in and Ameen Shah, the grandfather of the present petitioners were joint owners of the suit land. According to Akber Shah and others, Ameen Shah and his father were deprived from the possession of their share in the suit land. Ameen Shah tried to obtain the possession of suit land, to the extent of his share from Akber Shah and others in the Dogra Regime some 40 years back but this attempt was resisted and ultimately foiled. Ameen Shah then sold his share in the suit land to one Pandat Bhagat Ram for Rs.500 through sale-deed registered on 4th Jateh, 1992 BK. The plaintiffs Akber Shah and others alongwith pro forma ornaments resisted the attention of mutation No.42 which was entered in the name of Pandat Bhagat Ram on the basis of sale-deed. The case of the Akber Shah and others before Deputy Custodian was that they resisted this attempt, as such, Pandat Bhagat Ram failed to get the mutation attested in his favour. Later on, he made second attempt and got mutation No.46 attested in his favour without the possession of the suit land. On the basis of these averments, Akber Shah and others claimed their adverse possession over the suit land, which according to ,them had ripened into ownership. The Rehabilitation Department resisted this claim of plaintiffs therein. The learned Deputy Custodian after trial came to the conclusion that the plaintiff Akber Shah and others as well as proforma-defendants did not allow Amin Shah or vendee Pandat Bhagat Ram to enter into the possession of suit land. In this regard, the Deputy Custodian as well as learned Custodian relied on the entries of mutation No.42, which show that when Ameen Shah sold the land to Pandat Bhagat Ram, the Akber Shah and other plaintiffs and proforma-defendants had raised strong objections to the entry mutation to his name on the ground that neither Ameen Shah the vendor nor non-Muslim vendee were in possession of the suit land. It will not be out of place to mention here that all evidence was produced by the respondents, but the department failed to rebut the evidence even through oral evidence. In the light of these facts, the learned Deputy Custodian after trial had drawn the conclusion that plaintiffs and proforma respondents had succeeded in proving their adverse possession over the suit land, as such he decreed their claim and referred his findings for the approval of learned Custodian. The learned Custodian, vide his order dated 16-7-1974, confirmed the findings recorded by learned Deputy Custodian vide his order dated 4-5-1971. The present-petitioners, after the lapse of about 24 years challenged the correctness of this judgment of the learned Custodian, through their review petition before Custodian on 24-4-1995. The learned Custodian dismissed the same vide his order dated 14-1-1997. Hence the present writ petition. I have heard the learned Counsel for the parties and gone through the record of the case made available by the parties with the petition. In my view, this petition is liable to be dismissed on the following grounds:-- (1) that the present-petitioners are the legal descendants of Ameen Shah, who admittedly had sold his share in the suit land to one Pandat Bhagat Ram for Rs.500 vide registered sale-deed, dated Jateh 4, 1992 Bk. Therefore, they had no legal title to challenge the correctness of the order of the Custodian passed on 16-7-1973, through review petition, Even otherwise, this review-petition was hopelessly barred by limitation, therefore, the learned Custodian had no option but to reject it. (2) that under section 39 of the Administration of the Evacuee Property Act, 1957, the Custodian has got exclusive jurisdiction to declare any person or property as evacuee or non-evacuee. In case any property is declared non-evacuee, after first day of January, 1957, the Government under section 43(A) is legally competent to file petition before the Division Bench of this Court. Section 43(a) of the Administration of Evacuee Property Act, 1957, being relevant is reproduced for the convenience as under:- 43(a)(1)

If in any case of which a Custodian has, on or after the 1st day of January 1953, declared any evacuee or any evacuee property to be non evacuee or, as the case may be, non evacuee property, the Central Government of or the Government West Pakistan considers it necessary so to do, it may, notwithstanding anything in this Act or in any other law for the time being in force send, within six months of the commencement of the Pakistan (Administration of Evacuee Property) Amendment) Act, 1958, or within three months of such declaration, whichever be later, the record of the case to the High Court for the purpose of satisfying itself as to the legality or propriety of the order passed by the Custodian and the High Court may pass such order in the case as it may deem fit. (2) Notwithstanding the provisions of the subsection (1), the High Court may, on an application made to it in this behalf by any person within the period specified in the said-section, call for the record of any such case as is referred to therein, not being a case the record of which has already been sent to the High Court, for the purpose of satisfying itself as to the legality or propriety of the order passed by the Custodian, and may pass such order as it may deem fit. (3) Any case, the record of which has been sent to the High Court under subsection (1) or has been called by the High Court under subsection (2) shall be heard by a Bench of not less than two Judges of the High Court and in respect of such case the provisions of section 98 of the Code of Civil Procedure 1908 shall so far may be apply. (4) Where the High Court passes an order to the effect that any evacuee property declared to be non-evacuee property should not have been so declared, and such property is or has been in the hands of a bona fide purchaser or purchasers for adequate value, the High Court shall determine the amount of compensation to be paid to such purchaser or purchasers, after such property has vested in the Custodian. In the present case, the learned Custodian had finally confirmed the decree of learned Deputy Custodian on 16-7-1974. The Rehabilitation Department was contesting party before the Deputy Custodian as well as the learned Custodian. Therefore, if the Rehabilitation Department has any grievance about the declaration of the learned Custodian in respect of non -evacuee character of the property, it should have moved Government for availing remedy under aforesaid section of the Administration of Evacuee Property Act, 1957. In this case, remedy available to Rehabilitation Department or Government for that purpose was not availed, the order passed by the learned Custodian on 16-7-1973, had attained finality. Its correctness, therefore, cannot be disputed before this Court in writ jurisdiction after the lapse of 24 years;

3. That the learned Custodian has declared property non-evacuee. The petitioners who are Muslims and claimed their share in the land have got no locus standi to seek the declaration that land in dispute was wrongly declared A non-evacuee by the Custodian. They should seek remedy from the proper Court to accordance with law, if so advised. The review petition filed by them before the Custodian, after so many years, was rightly rejected by the learned Custodian. As said in the aforesaid para. remedy was available before the Division ' Bench of this Court, which was neither availed by the Government or Rehabilitation Department of the Government nor even by the present petitioners, as such, writ petition is not maintainable before this Court. Even otherwise, this writ petition has been filed after 24 years, as such, it is liable to be dismissed on account of laches. In view of above, finding no force in this petition, the same stands dismissed with costs. H.B.T./160/AJ&K Petition dismissed.