2021 PLP 97 (YLRN)

MUHAMMAD SHERAZ KIANI, J.

The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby following prayer is made by petitioner:-- "(i) that by issuing the appropriate writ the judgment/ decision/order of respondent No.1 dated 05.10.2018, may kindly be declared as null and void and to set aside the same and authorities may kindly be restrained from implementing the above said impugned order."

2. The precise facts of the case are that petitioners are 1st class State subject of Azad Jammu and Kashmir. It is stated that land bearing Survey Nos. 354, 349, measuring 30 Kanals 14 Marlas situated at Chawala, Tehsil Charhoi District Kotli basically is an evacuee property which was dully allotted in favour of the father of the petitioner No.3 namely Gulzar Hussain Shah, and his two brothers namely Mardan Hussain Shah and Bostan Hussain Shah, sons of Fazal Hussain. Shah, which is in the possession of petitioners Nos. 1 and

2. It is further stated that on the basis of allotment the proprietary rights of suit property were given to the petitioner No.3 namely Ibrar Hussain Shah, after the death of Gulzar Hussain Shah and a mutation was also attested in his favour along with other allottees. It is maintained that petitioner No.3 namely Ibrar Hussain Shah and Bostan Hussain Shah sold the suit land to the extent of their share to petitioners Nos. 1 and 2 and also delivered the possession of the land accordingly to the buyers. It is further stated that Qurban Hussain Shah respondent No.1 filed a review petition before the learned Custodian of Evacuee Property-respondent No.2, on 05.07.2017, for cancellation of proprietary rights already granted in favour of Ibrar Hussain Shah, petitioner No.3. and others and this process was kept secret from the petitioners and respondent No.2 illegally got cancelled the proprietary rights already given to the petitioners vide order dated 05.10.2018. It is stated that the application of respondent No.1 for the cancellation of proprietary rights was filed after passing more than 10 years, therefore, hopelessly barred by limitation, hence, the same is illegal and unlawful as well as ultra wires of the constitution, therefore, submitted for acceptance of writ petition.

3. The respondent No.2, despite service failed to appear before the Court, hence, he was proceeded ex-parte vide order dated 23.01.2020, and the respondent No.1 failed to file written statement despite availing various opportunities, hence, his right of defence was closed vide order dated 10.02.2020.

4. Ch. Muhammad Akram, Advocate, the learned counsel for the petitioners vehemently argued that the respondent No.2 has passed the order against law and facts, hence, liable to be set-aside. He further argued that respondent No.1 had no right over the suit property at all as well as he had no locus standi to file any review petition on 05.07.2017 against the proprietary rights issued on 31.05.2008 being time barred. The learned counsel alleged that the impugned order has been passed by the respondent No.2, without hearing the petitioners, hence, prayed for acceptance of the instant writ petition. The learned counsel in support of his contention referred to relied upon the following case law:- i. Muhammad Khalil and 2 others v. Abdul Sattar and 8 others (2005 SCR 97). ii. Mst. Khalida v. Raja Muhammad Khurshid Khan and 9 others (2008 CLC 1570); iii. Bashir Ahmad v. Abdul Hameed and another 1984 SCMR 689; iv. Ch. Muhammad Zaman v. Amir Hanif and others 2005 YLR 694 v. Mahmood Ahemd v. Custodian and 10 others (2016 SCR 90) vi. Muhammad Khaliq and 10 others v. Custodian Evacuee Property and 4 others (2015 SCR 1229); vii. Chairman AJK Council v. Abdul Latif and 5 others l997 MLD 2926 viii. Copy of Misel-e-Haqeeyat for the years 1973-74.

5. Mirza Abdul Aziz Ratalvi, Advocate, the learned counsel for the respondent No.1, strenuously argued that petitioner No.3 has filed an affidavit dated 16.05.2008, pertaining to his father's death whereas, his father was alive at that time, hence, on the basis of fraud, he was able to obtain Proprietary Rights Transfer Order dated 31.05.2008, as well as executed a sale deed dated 21.02.2009, in favour of petitioners Nos.1 and 2, hence, the said review petition is not time barred, therefore, craved for dismissal of the instant writ petition. The learned counsel in support of his contention referred to and relied upon the following case law:- i. 2015 SCR 1229; ii. 2016 SCR 90 and iii. 2015 YLR 694.

6. After hearing the learned counsel for parties, I have perused the contents of writ petition and examined the appended documents made available with utmost care. 7 A contemplate perusal of record reveals that Mardan Shah son of Fazal Hussain Shah filed a suit for pre-emption against petitioners, herein, before the learned Civil Judge, Court No.3, Kotli, on 12.06.2008, which was dismissed due to non-depositing of 1/5th consideration amount vide judgment and decree dated 15.10.2008. Being not satisfied, Qurban Shah also filed an appeal before the learned District Judge, Kotli against the said judgment and decree dated 15.10.2008, which also met the same fate vide judgment and decree dated 16.06.2010. It further reflects from the record that Mardan Shah again filed a suit for declaration against petitioners, herein, before the learned Civil Judge, Court No.3, Kotli on 04.05.2009, which was also dismissed for non-compliance of Court order as well as for want of prosecution vide judgment and decree dated 24.07.2009. Being aggrieved from the aforesaid judgment and decree dated 24.07.2009, Mardan Shah filed an, appeal before the learned District Judge, Kotli on 02.10.2009, which was also dismissed being not maintainable vide its judgment and decree dated 12.06.2010. It also reveals from the record that Qurban Hussain Shah also filed a suit for declaration before the learned Civil Judge, Court No.III, Kotli on 30.04.2009 which was also dismissed under Order VII, Rule 11 of Civil Procedure Code, 1908, vide its judgment and decree dated 25.11.2010. However, Qurban Hussain Shah and another filed an appeal before the learned Additional District Judge, Sehnsa Camp Roth on 22.12.2010, against the judgments and decrees dated 25.11.2010 and 12.06.2009, which was also dismissed through judgment and decree dated 22.07.2011. Being dissatisfied from the aforesaid judgment and decree dated 22.07.2011, Qurban Hussain Shah, respondent No.1, filed an appeal before this Court on 28.07.2011 which was also dismissed vide its judgment and decree dated 28.06.2013. Lastly, Qurban Hussain Shah son of Mardan Hussain Shah filed an appeal before the Hon'ble Apex Court on 27.08.2013 against the judgment and decree dated 28.06.2013, whereby the plaint filed by the respondent No.1 Qurban Hussain Shah was rejected under Order VII rule 11 of Civil Procedure Code, 1908. hence, the case is disposed of vide judgment dated 18.11.2015.

8. It is an admitted fact that the land was allotted in favour of Ibrar Hussain Shah and the proprietary rights have been alienated on 31.05.2008, and a sale deed dated 21.02.2009, was executed between the petitioner No.3 and petitioners Nos. 1 and

2. In this regard, possession has also been delivered by petitioner No. 3 to the petitioners Nos.1 and 2, which was confirmed by the learned Civil Judge, Court No.3, Kotli vide its judgment and decree dated 15.10.2008. After the judgments of the Courts below as well as the Hon'ble Apex Court, in light of the principle of res-judicata, the respondents cannot avail the remedy by challenging the said sale deed dated 21.02.2009. Even, if it is declared that the allotment and proprietary rights was obtained by Ibrar Hussain Shah on the basis of fraud and false facts, even then on the basis of proprietary rights alienated through the sale deed dated 21.02.2009, apart whom, no afresh and new resolution or findings can be passed in view of the earlier supra mentioned judgments. The aforesaid view was expressed by the Hon'ble Apex Court in case titled "Muhammad Khalil and 2 others v. Abdul Sattar and 8 others" (2005 SCR 97), wherein, at page 101, it was observed as under:- "

7. As far the contention of the learned Advocate for the appellants that Chiragh Din had sworn a false affidavit that he had not obtained any other allotment anywhere, except at Hardawachi district Mirpur is concerned, it attracts penal provisions to be invoked against him in accordance with law not a penalty of cancellation of the allotment as done by the Custodian."

9. Furthermore, proprietary rights were obtained by the petitioner Ibrar Hussain Shah on 31.05.2008, and review petition was filed after 09 years 01 month and 04 days, on 05.07.2017 by the respondents, whereas, upto the Hon'ble Apex Court as well as under the statutory provisions of Evacuee Property Act, 1952, the limitation for review petition is provided 30 days and if a person come to the Court for filing a review after the prescribed period of limitation, he has to explain delay of each and every single day, law is well settled that no such delay can be condoned, hence, Qurban Hussain Shah, respondent No.1 cannot take the plea that he did not have knowledge about the proprietary rights transferred on 31.05.2008, in favour of Ibrar Hussain Shah, petitioner No.3, as he had filed the first civil suit on 12.06.2008, so knowledge shall be deemed on that day. hence the review petition was shown clearly time barred and validity of the allotment should have been checked by the learned Custodian only if the respondents-petitioners would have crossed the barrier of limitation. So the time barred review petition has been accepted by the learned Custodian, thus he made a clearly violation of law and committed grave illegality through the impugned judgment dated 05.10.2018 which is liable to be suspended in the eye of law. However, the contention of the learned counsel for respondents is that the petitioner was able to obtain Proprietary Rights Transfer Order on 31.05.2008, on the basis of fraud and there is no limitation for challenging a void order. If the respondent No.1, is successful in establishing the fact that the Proprietary Rights Transfer Order is ab initio void, then too the respondents-petitioners should have challenged the same within a reasonable time, hence, the contention of the learned counsel for respondents is turned down. The aforesaid point came under consideration before the Apex Court in case tiled "Mahmood Ahmed v. Custodian and 10 others" (2016 SCR 90), wherein, it was opined at page 93, of the report, as under: - "The limitation for filing review petition under Rule 17(3) of the Administration of Evacuee Property Rules, 1950, is 30 days.

10. It further reflects from the record that Custodian has illegally accepted the review petition which was time barred and cancelled the Proprietary Rights Transfer Order dated 31.05.2008, on the basis of said cancellation, the sale deed dated 21.02.2009, became infructuous. The cancellation of registered documents is also regulated by a separate law and procedure. The Custodian of Evacuee Property was not competent to cancel the sale-deed in a summary manner. The aforesaid view was expressed by the Honble Apex Court in case titled "Muhammad Khalil and 2 others v. Abdul Sattar and 8 others" (2005 SCR 97), wherein, at page 102, it was opined as below: - "The cancellation of registered documents is also regulated by a separate law and procedure. The Custodian of Evacuee Property was not competent to cancel the sale-deed. It could of course be cancelled by proper Court in accordance with due process of law, not in a summary manner as the learned Custodian has done."

11. The crux of above discussion is that the instant writ petition is hereby accepted and the impugned judgment dated 05.10.2018, passed by the learned Custodian, is hereby set aside. SA/40/HC(AJ&K) Petition accepted.