P L D 2006 Supreme Court (AJ&K) 1 (PLP)

SYED MANZOOR HUSSAIN GILANI, J.

This appeal is filed against the judgment of a learned Judge of the High Court dated 1-2-2005 at Mirpur, in two Writ Petitions No.74 of 2003 and No.4/2004.

2. Facts giving rise to the filing of the present appeal are that evacuee land measuring 25 Kanals, 2 Marlas comprising number Khasra 472 re-numbered as 773 situate in village Bhimber Rajani was allotted in the name of appellants on 18-3-1971. They obtained Proprietary Rights Transfer Order on 15-4-1993. A review petition was filed by respondents against the allotment and Proprietary Rights Transfer Order before the Custodian on 16-7-2001, which was dismissed on 19-6-2002 as time barred. The respondents were held to be in unauthorized possession of the land. The respondents simultaneously filed a suit in the Court of Civil Judge Bhimber on 2-10-2000, for a declaration that they are in adverse possession of the land. This was dismissed on 27-6-2002. Appeal against it was also dismissed by the District Judge on 20-11-2002. The respondents thereafter filed a second review petition before the custodian on 18-7-2002. This review petition was accepted by the Custodian on 25-4-2003, however, holding the appellants as allottees of the land, but the respondent's possession is given protection as its old tenants. This order was challenged before the High Court by both the parties. The learned Judge of the High Court felt pleased to dismiss the petition filed by Said Muhammad and others by vacating their allotment and directing the rehabilitation authority to allot the land in favour of respondent if found deserving on preferential basis on account of their being old tenants. The petition No.4 of 2002 filed by respondents is consequently accepted.

3. The learned Advocate appearing for the appellants contended that the Custodian had in earlier round of litigation accepted the claim of the appellants on 19-6-2002, which was not assailed before any forum and it attained finality. He further contended that the respondents' suit was dismissed by Civil Court and this finding was also upheld by the District Judge, which was not set aside by any competent forum, hence it has also attained finality. According to him, in presence of these facts, there was no occasion for the respondents to file any fresh review petition before the Custodian, more so, when the points agitated in subsequent review petition were the same as agitated in the earlier review petition which was disallowed. He further contended that appellants had raised several preliminary objections to the maintainability of the writ petition filed by the respondents before the High Court, but the learned Judge of the High Court has not dilated upon even a single objection nor decided the same. It is failure to exercise the jurisdiction which renders the judgment as illegal. He relied upon the report of a decision in Civil Review No.22 of 2000 in the case of Muhammad Fateh v. Muhammad Shafi, whereby the case was remanded by the Supreme Court in second review that the High Court failed to decide the points raised before it. According to the learned Advocate, the Civil. Court as well as the District Judge disallowed the claim of the respondents to be in possession of.the land, not to speak of in adverse possession or as old tenants.

4. The learned Advocate for the respondents defended the order passed by the High Court contending that second review petition is equally competent when it is brought on record that the material points are not considered by the High Court, and it is an error apparent on the face of record. He relied upon a case reported as Sardar Ali and others v. Karamat Ali Khan and others 1992 CLC 1861. According to him, the respondents are admittedly the old tenants and have been entered as such in Revenue Record. He further contended that appellant, Said Muhammad is admittedly born in Azad Kashmir. He has never migrated from the other part of the State, hence he is not refugee and cannot claim the allotment. He relied upon cases reported as 2003 SCR 242 and 2001 YLR 1527.

5. We have considered the arguments of the learned counsel for the parties and gone through the orders passed by the learned Custodian in review petitions as well as the judgment of the Civil Court and that of District Judge.

6. The respondents filed first review petition on 16-7-2001 calling in question the Proprietary Rights Transfer Order issued in favour of appellants on 15-4-1993. Respondents also kept on pursuing civil suit before Senior Civil Judge Bhimber filed on 2-10-2000, claiming declaration from the Senior Civil Judge that they are in adverse possession of the land. This suit was dismissed on 27-6-2002 holding that the respondents have not been able to prove their case for a decree of adverse possession over the land. In deciding issue No.1, it is observed by Civil Judge that respondents have not been able to prove their possession over the land not to speak of adverse possession. The District Judge Bhimber dismissed the appeal filed by the respondents on 20-11-2002 upholding the judgment and decree passed by the Civil Judge. This finding is not assailed before the High Court and is intact. This fact does not appear to have been brought to the notice of High Court as it is not discussed by the learned Judge.

7. The only ground on the basis of which the learned Judge of the High Court has cancelled the allotment and Proprietary Rights Transfer Order issued in favour of the appellants is that Said Muhammad was born in 1948 and he is included in the family of his mother on account of which he was not entitled to separate allotment. It appears that the learned Judge of the High Court has failed to take notice of the fact that the petition before the High Court was filed by five persons, all of whom claim the allotment jointly as sons of Lal Din (father) and Mhando (mother). Said Muhammad was not alone, but a member of the family whose mother was a refugee (their father had perhaps died before migration, as the allotment proceedings were conducted in and around the name, of their mother). The learned Custodian in his judgment dated 25-4-2003 at page 4 has recorded that mother of Said Muhammad has got her statement recorded that she being in advanced old age wants the allotment to be made in the name of her son, Said Muhammad and if there is any allotment in her name anywhere else that may be cancelled and that she has earlier surrendered the allotment, if any, in her name. This fact has also not been taken into consideration by the learned Judge of the High Court.

8. There is no cavil with the proposition that a person who is not refugee cannot claim the benefits and perks attached to the refugee's status. But if one is the descendant of the refuge, who was entitled to the perks, as in the case in hand to the allotment and has not obtained the benefits/perks to which he/she was entitled, and by way, of a statement categorically stated that allotment may be made in the name of her son, the descendant of that refugee cannot be deprived of that right, which his father or mother had. Thus the authorities of law cited by the learned counsel for the respondents in the case in hand do not help, as the facts of the case are totally different.

9. It is also revealed from the perusal of the record that the questions raised in the second review petition are same as were in the first, whether this could be allowed and first order reversed by challenging the earlier view, has also to be considered by the High Court. None of the preliminary objections which go to the root of the case has been attended. It is of course, open-to the Court to observe that the preliminary objections do not merit consideration or that they are not worth credence, but the objections are substantive in nature, these ought to have been considered by the High Court and decided.???????????

10. In the absence of any categoric finding on the important question of law and facts, this Court does not deem it proper to decide the case in appeal without first having the finding by the High Court. In view of above, accepting the appeal with costs, impugned order is set aside and the case is remanded to the High Court with the direction to decide it afresh in the light of above observations. H.B.T./14/SC(AJ&K)????????????????????????????????????????????????????????????? Case remanded.