2000 PLP 2326 (YLR)

Sardar Rafique Mahmood Khan, Advocate for Respondent No.

5. Date of hearing: 17th November, 1999. MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, is directed against an order passed by the High Court on 25‑7‑1998, whereby the writ petition filed by the appellant, herein, was dismissed.

2. The brief facts, giving rise to the present appeal, are that according to the appellant his father owned landed property in Occupied Kashmir Poonch in village Salotri and also in Azad area. The land measuring 31 Kanals, 4 Marlas, comprising Survey Nos.2832 and 2834, situate in village Pachit Rawalakot, which is the subject to dispute between the parties, was firstly allotted in favour of appellant which was cancelled on 11‑10‑1973, by Multiple Judge observing therein that the appellant did not fall within the definition of local destitute as, envisaged under Government Order 25/60. Against the aforesaid order the appellant filed a review petition before the Multiple Judge who dismissed the same on 14‑1‑1983, by observing that the appellant may establish his claim as a refugee before the Rehabilitation Authorities in order to obtain allotment of evacuee land afresh. On 4‑8‑1990 the appellant moved an application before the Custodian of Evacuee Property that he being refugee is entitled to allotment of disputed land, which was made over the Additional' Custodian. The Additional Custodian vide his order dated 27‑12‑1994, observed that the land left by the father of appellant in Occupied Kashmir had devolved on ‑his son, the appellant, therefore he was entitled to get allotment of the land in dispute. The Custodian vide his order dated 14‑11‑1996, vacated the order passed by the Additional Custodian on the ground that the Additional Custodian or for that matter the Custodian had no jurisdiction to probe as to whether a person is a refugee and as such is entitled for allotment as the same is within the exclusive jurisdiction of the Rehabilitation Authorities. The order of Custodian was assailed by the appellant through a writ petition before the High Court which was dismissed vide the impugned order dated 25‑7‑1998. It is the aforesaid order of the High Court which is the subject‑matter of present appeal.

3. It was vehemently contended by Sh. Abdul Aziz, the learned counsel for the appellant that the High Court failed to observe in the impugned judgment as to whether the appellant was rightly held as a refugee by the Additional Custodian or not, :but on the other hand it recorded observation that appellant had been taking different stands from time to time and thus was not entitled to any relief. The learned counsel submitted that the aforesaid observation of the High Court was against the documentary evidence placed on record by the appellant. The learned counsel submitted that the appellant's stand throughout had been that he left the landed property in Occupied Kashmir and thus he fell within the definition of refugee and was entitled to the allotment right from very beginning and his claim rested on a document of 1982 Bk., which purported to be a copy of mutation, whereby the landed property owned by the father of appellant devolved on him. In the alternative the learned counsel for the appellant contended that the land in dispute was allotted to the appellant vide order of A.R.C. on 4‑12‑1994, therefore in presence of the allotment in favour of appellant the subsequent allotment made in favour of respondent No.5, Muhammad Aslam, and another on 14‑7‑1998, was nullity in the eye of law.

4. On the other hand Sardar Rafique Mahmood Khan, the learned counsel for respondent No.5, pressed into service the submission that the land in question stood cancelled from the name of appellant on 11‑10‑1973. Against this order of cancellation the appellant filed a review petition in April, 1983. It was for the first time in 1983 that the appellant claimed himself to be a refugee and submitted an application before the Custodian of Evacuee Property for making allotment in his favour as a refugee. However, the Custodian made over the case to Additional Custodian who recommended in favour of appellant but the learned Custodian vide his order dated 14‑11‑1996, opined that the Additional Custodian or the Custodian were not competent to grant a declaration to the effect that the appellant was a refugee and thus entitled to the allotment. The learned counsel contended that before the High Court no document was appended by the appellant showing therein that the land belonging to his father in the Occupied Kashmir devolved on the appellant. According to the learned counsel for respondent it is for the first time that the appellant appended a photostat copy of mutation in this Court which is inadmissible in evidence and cannot be relied upon. The learned counsel for respondent contended that in the writ petition filed by the appellant in the High Court his prayer in the relief para. was that after setting aside the order of Custodian dated 14‑11‑1996, the order for allotment of the land in question be passed in his favour but during the course of arguments for the first time he raised a submission that the land in question stood allotted to him vide order of the A.R.C. dated 4‑12‑1994. The learned counsel maintained that the appellant for the first time during the arguments raised a new point which was neither urged nor argued before the High Court and nor the same was raised in the memorandum of appeal before this Court or in the concise statement, as such he could not take a totally inconsistent and different stand.

5. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available, it may be stated that the appellant's case throughout had been that initially the land in question was allotted to him but the same was cancelled vide the order of Multiple Judge dated 11‑10‑1973. The appellant submitted a review petition on 24‑2‑1983, against the aforesaid order of Multiple Judge which was dismissed on 14‑11‑1983. In the beginning the appellant had been trying to get the land allotted in his name as a local destitute. However, in 1983, for the first time he moved the Custodian by submitting that he was entitled for the allotment as a refugee. The case was made over to Additional Custodian who observed that the appellant being refugee was entitled for the allotment. However, this order was set aside by the Custodian on the ground that only Rehabilitation Authorities could decide the matter of entitlement of appellant for the allotment of the land in dispute and the Additional Custodian and the Custodian were not vested with any jurisdiction to issue, declaration that the appellant was a refugee and thus was entitled to any allotment. This order of the Custodian was assailed by filing a writ petition in the High Court and the appellant alongwith his writ petition never appended any document on the basis of which the land left by his father devolved on him. It was for the first time in this Court that photostat copy of mutation sanctioned in favour of appellant was appended. This Court is not obliged to look into those documents which were not placed ‑on record before the High Court. Even otherwise the photostat copy being inadmissible in evidence cannot be relied upon.

6. We have also noticed that the appellant for the first time has raised a plea that the land in question stood allotted to him vide the order of A.R.C. dated 4‑12‑1994, and the same was not cancelled so far by any competent authority. It was urged that in presence of this allotment the allotment in favour of Muhammad Aslam Khan and another on 14‑7‑1998, was void. We are afraid that we cannot subscribe to the view of the learned counsel for the appellant as this point is a totally inconsistent and alien to the original stand taken by the appellant in his writ petition. No record whatsoever with regard to allotment made by A.R.C. in favour of appellant was placed on record either in the High Court or in this Court. Even the plea was not raised in the memorandum of appeal or in the concise statement. Therefore, this plea being inconsistent to the original plea raised by the appellant cannot be allowed to be raised during the arguments in this Court. Thus the contention raised by the learned counsel for the appellant stands repelled.

7. It is pertinent to note that 'the allotment made in favour of respondents on 14‑7‑1998, of the land in question was not challenged before any competent forum. Therefore the plea which is alien to the pleadings of the parties cannot be allowed to be raised at this stage.

8. The nutshell of the above discussion is that the appeal, having no merits in it, stands dismissed with costs. H.B.T./34/SC(AJ&K) Appeal dismissed.