2017 PLP 193 (YLRN)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court arises out of the judgment of the High Court dated 22.06.2013 through which the writ petition filed by the petitioner against the judgment of Custodian Evacuee property dated 01.04.2011 has been dismissed.

2. The facts briefly stated are that the evacuee land bearing survey Nos. 160, 107, 104, 103, 93, 295/94, 96 measuring 127 Kanals 15 marlas situated in Mozia Kehna Mori, was allotted in favour of Malik Nazir Ahmed son of Ghulam Ali, Ghulam Nabi son of Abdullah; and Begum Bibi widow of Imam Din being refugees of 1947, by the competent authority on 10.05.1955. Mst. Begum Bibi widow of Imam Din was real paternal grandmother of the appellants. After the death of the grandmother of the appellants the said land was inherited by the father of the appellants, Noor Alam son of Begum Bibi. The present appellants are the heirs and owner of the said land. Out of the said land the share of Mst. Begum Bibi comes to 15 Kanals, 5 marlas out of survey No. 93 total measuring 45 Kanals 16 marlas. Similarly out of the land bearing survey No. 96 total measuring 16 Kanals 4 Marlas, the share of Begum Bibi comes to 20 Kanals and 8 marlas. Likewise, Mst. Begum Bibi was also allottee of other survey numbers having 1/3rd share out of the total allotted land. Respondent No. 2 got allotment chit regarding survey No. 93-min, measuring 23 Kanals 12 marlas, survey No. 160-min, measuring 2 kanals 2 marlas and survey No. 96 measuring 22 Kanals on 04.1.1968 and also got proprietary right transfer order regarding the said land on 22.09.1994. Subsequently, the appellants filed a review petition under section 43(6) of the Pakistan Administration of Evacuee Property Act, 1957 along with an application under section 18-B of the same Act for the cancellation of the allotment chit and proprietary right transfer order issued in favour of respondent No.

2. The learned Custodian Evacuee Property after hearing the arguments dismissed the review petition of the petitioners-appellants vide order dated 01.04.2011. Ultimately, the petitioners-appellants filed writ petition before the High Court which was also dismissed by the learned Judge of the High Court vide impugned judgment dated 22.06.2013., hence this appeal by leave of the Court.

3. Syed Shafqat Hussain Gardezi, Advocate, the learned counsel for the appellants argued the case at some length. He discussed facts of the case in detail. He forcefully argued that the courts below have fell in error of law while ignoring the contents of the petition of the appellants regarding the alleged fraud and fabrication in the record. He submitted that in case of fraud the provisions of Article 18 of Limitation Act, 1908 are attracted and this aspect has totally been ignored by the Courts below. He further submitted that according to the record and respondents' own version the whole proceedings of allotment in their favour appear to be fake and fraudulent. He specially referred to the allotment chit marked as Annexure "D", wherein the date of allotment is mentioned as 1st January, 2004, whereas the delivery of possession of land is mentioned as year 1953. According to the contents of the same document it appears that it has been signed by the concerned officer on 4th October, 1966. He also submitted that respondent No. 2 unequivocally in the affidavit deposed his year of birth as 1955. In the light of the case history neither he has migrated nor he was entitled for allotment just in the age of 9 years. He further submitted that on the question of allotment of "Begum Bi" the findings recorded by the learned Custodian are self contradictory and not maintainable. Under these circumstances according to law for ends of justice it was necessary to hold a detailed thorough inquiry in the matter but the learned Custodian has failed to act in accordance with law and exercise powers vested in him under the provisions of the Pakistan Administration of Evacuee Property Act read with the provisions of Rehabilitation Act, 1956 which resulted into miscarriage of justice and violation of law. In these circumstances the findings recorded by the Custodian are not maintainable but this aspect has also totally been ignored by the High Court whereas, grant of writ petition was justified.

4. Conversely, Kh. Muhammad Nasim, Advocate, the learned counsel for respondents Nos.2 to 4 strongly opposed the appeal on the ground that the judgments of the Courts below are quite consistent with the statutory provisions as well as the principles of Administration of Justice. The appellants have failed to prove their claim. It has been borne out from the record that no land was allotted to "Begum Bi". He further submitted that the appellants filed review petition which was hopelessly time barred and the same has rightly been dismissed by the learned Custodian. The judgment of the custodian as well as High Court are well reasoned, based upon proper appreciation of material and law which are un-exceptionable and does not call for interference. Thus, this appeal is liable to be dismissed.

5. We have paid our utmost attention to the respective arguments of the learned counsel for the parties and also perused the record of the case. The learned Custodian while deciding review petition declared the same as time barred but has not considered and discussed the averments of the appellants made in para 6 of the review petition. It will be useful to reproduce the same here as under: A bare reading of this para clearly reveals that the party has come forward with specific stand of concealment of the facts, forged and fraudulent allotment. An affidavit has also been filed in support of this contention which remained un-rebutted. According to the statutory provisions of section 18 of Limitation Act, 1908 if concealment of facts and fraud is alleged in such case the limitation normally will have to be computed and will start from the date when such concealment or fraud came into the knowledge of the concerned party. It is also question of fact which requires detailed probe and inquiry but in this case this aspect of the matter has not been properly attended by the Custodian and also has been over sighted by the learned High Court. Our this view is further supported by the case, reported as Noordad and 6 others v. Muhammad Sadiq and 40 others 2013 YLR 2829.

6. There is yet another aspect of the matter which has not been properly attended by the learned Custodian as well as the High Court. The appellants herein, filed a combined petition for reviewing the PRTO and a petition for cancellation of allotment under the provision of section 18-B of the Pakistan Administration of Evacuee Property Act, 1957. A perusal of the judgment of the learned Custodian reveals that the review petition has been dismissed as being time barred coupled with other grounds but the aspect of the matter under the provisions of section 18-B of the Administration of Evacuee Property Act, 1957 has not been considered. The plain reading of the statutory provision of Section 18-B of Pakistan Administration of Evacuee Property Act, 1957 clearly reveals that no limitation is prescribed for such application. Under this statutory provision, the custodian is vested with the vast powers in addition to general powers already vested in him including the holding of inquiry. Under the provision of Section 30 of the Administration of Evacuee Property Act, even the Custodian while holding inquiry is vested with the powers of Civil Court in certain matters. Even otherwise, for review of an order under the provision of subsection (6) of section 43 of the Pakistan Administration of Evacuee Property Act, 1957 there is no bar on the Custodian to exercise such powers on his own motion. Thus, the findings recorded by the learned Custodian in this case on the question of limitation are lacking the consideration of the statutory provision of section 18 of the Limitation Act, the suo-motu powers under subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957. Therefore, due to lacking such required appreciation of the statutory provision, the order is not sustainable. All these points have also not been considered in a legal fashion by the learned High Court. This aspect remained unattended by the Courts below.

7. The other arguments of the counsel for the appellants regarding the entitlement of allotment of respondent No. 2 also, prima facie, finds support from the record. On one hand, according to the claim and record of the case, Altaf Hussain is shown as allottee of the disputed land since 1964 and possession of the land has been shown to have been delivered to him according to the contents of the chit in year 1953. According to his own affidavit sworn on 9th March, 1989 he deposed that in the declaration form his age has wrongly been mentioned whereas his actual year of birth is 1955. The wording of this affidavit is as follows: Thus, it is clear that at the time of alleged allotment his age was 9 years. In this perspective, prima-facie his claim being refugee or allottee of the land as refugee not correct. The facts stated in the impugned judgment of the learned Custodian, prima facie, are not plausible. Same like the findings have been recorded by the learned Custodian merely on examination of some record without apprising the parties or providing them opportunity to tender any explanation regarding alleged document or bring on record any proof in support of this contention.

8. In our considered opinion, the peculiar facts of this case require detailed inquiry. Under the statutory provisions on the subject it is the duty of the learned Custodian in such like matters for doing complete justice to exercise its powers for holding an inquiry. In this state of affairs we are constrained to accept this appeal and set aside the judgments of the High Court and the learned Custodian. Consequently, while granting writ petition it is directed that learned Custodian shall hold thorough inquiry in the matter while providing the parties proper opportunity of producing the material and proof in support of their respective contentions and thereafter decide the controversy among the parties according to law. The appeal stands disposed off in the manner indicated above. No order as to costs. ZC/34/SC(AJ&K) Appeal allowed.