2000 PLP 1088 (YLR)

Farooq Hussain Kashmiri, Advocate for Respondent No.

1. Ch. Muhammad Ibrahim Zia, Advocate for Respondent No.3, Date of hearing: 6th October, 1999 MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal with the leave of the Court, is directed against the judgment of the High Court dated 25‑3‑1998, whereby the writ petition filed by the appellant, herein, was dismissed.

2. The precise facts forming the background of present appeal are that an evacuee land measuring 38 Kanals and 7 Marlas comprising survey Nos. 137, 139, 102, 116 and 128 situate in village Chinnal Bang, Tehsil and District Muzaffarsabad was claimed to have been allotted to the appellant and his father Syed Rehman Shah an 6‑7‑1955. It is further claimed by them that they were in its possession since the date of allotment. According to the appellant the land was subsequently allotted to one Anayat Shah at the back of the appellant who surrendered his allotment in favour of one Lal Din. The appellant when acquired knowledge of this allotment challenged the legality of the same before the D.R.C. Muzaffarabad on 24‑6‑1972. Lal Din by conceding the allotment of appellant surrendered in his favour. However, his statement could not be recorded as he failed to appear before the D.R.C. The D.R.C vide his order dated 24‑5 1982 remanded the case to A.R.C. for fresh order after a thorough probe. The A.R.C. contrary to the spirit of remand order allotted the land to Lal Din respondent No.4. The appellant assailed the order. in revision petition before their Rehabilitation Commissioner who by accepting the petition once again remanded the case to A.R.C. Muzaffarabad for fresh decision. Respondent No.3 Habibullah, claiming himself to be a refugee challenged the legality of this order passed by the A.C.R. dated 20‑10‑1972 before the Rehabilitation Commissioner by concealing the fact that the said order was not holding the field as it stood cancelled while deciding the previous revision petition filed by the appellant. The Rehabilitation Commissioner again set aside the order dated 20‑10‑1972, and held Habibullah respondent No.3 entitled to allotment of land. According to the appellant this order was passed at his back. However, when he acquired the knowledge of the same he assailed this order before the Custodian who vide his judgment dated 22‑9‑1994, dismissed the same on the ground that the appellant had failed to satisfy him that the land in dispute was previously allotted to him. The writ petition filed by the appellant was also dismissed vide order impugned mainly on the ground that the allotment made in favour of the appellant on 6‑7‑1955 was bad in law as the same was passed without cancelling the previous allotment of respondent No.3 made in his favour on 24‑6‑1953.

3. Arguing the case on behalf of the appellant, Syed Nazir Hussain Shah Kazmi, has vehemently contended that allotment in favour of respondent No. 3 on the face of it appears to be fake and forged as the same was claimed to be made on 24‑6‑1953 whereas the Ration Card in his favour appears to be issued on 21‑9‑1955 and in the allotment order of the said respondent the entry of Ration Card issued on 21‑9‑1955, is conspicuously apparent. The learned counsel for the appellant further elaborated that it is the case of respondent No.3 himself that the allotment in his favour was made on 6‑7‑1953, but how the entry of Ration Card issued on 21‑9‑1955 appears on his allotment chit. It was also contended by the learned counsel for the appellant that the Rehabilitation Commissioner, while passing the order in favour of respondent No.3 did not afford the appellant an opportunity of being heard whereas the fact of the matter is that on the revision petition filed by the appellant before the Rehabilitation Commissioner he set aside the impugned allotment thereby declaring the allotment of appellant as being genuine.

4. In reply it was contended by Ch. Muhammad Ibrahim Zia, the learned counsel for respondent No.3, that a new case has been set up by the appellant for the first time in the Supreme Court. During litigation before the Rehabilitation Commissioner, Custodian and the High Court it was not the case of the appellant that the allotment of respondent No.3 was fake and forged because in the allotment chit the entry of Ration Card issued on 21‑9‑1955, is apparent. Thus, according to the learned counsel for the respondent this stew plea could not be taken at such a belated stage. The learned counsel pointed out that before the Rehabilitation Authorities, Custodian and the High Court the appellant simply averred iii vague terms that the allotment of respondent No.3 was bogus and fictitious without assigning any reason whatsoever. The learned counsel for the respondent submitted that in the name of respondent No.3 a valid allotment was made by the competent Rehabilitation Authorities on 24‑6‑1953 and the copy of allotment chit has been duly appended by the answering respondent. Before the Rehabilitation Authorities the appellant . could not substantiate his claim that in fact the allotment of answering respondent was fake or bogus. The Rehabilitation authorities as well as the Custodian reached the conclusion that a valid allotment was made in favour of answering respondent and during its subsistence the subsequent allotment which is claimed by the appellant to have been made on 6‑7‑1955 would be a nullity in the eye of law. The learned counsel for the respondent also strenuously argued that the allotment claimed to have been made on 6‑7‑1955, according to the allotment chit Annexure has been made in favour of Rehman Shah son of Muhammad Shah Miskeen Shah, Kala Shah, Akbar Shah and Nooran Shah jointly but none of them has filed the writ petition except Miskeen Shah whose share is negligible out of the disputed land. According to the learned counsel it is also neither explained nor averred in the writ petition that how his share of land is adversely affected particularly so when rest of the allottees have not filed the writ petition as such the writ petition before the High Court was not maintainable.

5. Mr. Farooq Hussain Kashmiri, the learned counsel for respondent No. 1 fully supported the arguments advanced by the learned counsel for the appellant No.3 and submitted that the appellant though averred before the Rehabilitation Authorities as well as before the Custodian and the High Court that the allotment of respondent No.3 was fake and fictitious but failed to prove the above fact by any cogent material. The learned counsel submitted that it was rightly observed by the Custodian and the High Court that the proper forum for the appellant to prove the factum of fake and fictitious allotment was to approach the Rehabilitation Authorities.

6. We have given our due consideration to the arguments advanced at the bar and perused the relevant record. It is conceded by the appellant that the land in dispute was allotted to him alongwith others on 6‑7‑1955 whereas the allotment in favour of respondent No.3 was made on 24‑6‑1953 but the precise contention of the appellant is that the allotment of respondent No.3 was fake and fictitious. Once it is conceded that the allotment of respondent No.3 was made prior in time a heavy burden was cast upon the appellant to prove the fraud and the fact that the allotment was bogus. Not to speak of a cogent material with regard to the fakeness of the allotment of respondent No.3 it was not I even averred in clear terms as to how the allotment of respondent No.3 was fake or bogus. The contention raised by the learned counsel for the respondent appears to be substantial that at no stage either before the Rehabilitation Authorities, the. Custodian or the High Court the case of the appellant has been that the allotment of respondent No.3 was fake and fictitious because of the fact that there was an entry of Ration Card issued on 21‑9‑1955 on the allotment chit produced by the respondent which purports to have been issued on 24‑6‑1953. It is for the first time that this plea has been raised in the Supreme Court. It is a settled law that a plea which has not been taken before the lower Tribunals or in the High Court cannot be permitted to be raised for the first time in the Supreme Court. Even otherwise the mere fact that the allotment chit produced by the respondent carries the entry of Ration Card issued on 21 9‑1955 does not render the allotment as being fake. It was rightly pointed out by the learned Custodian as well as the High Court that they could not go deep into the question of fakeness of allotment and for this purpose the proper form was the Rehabilitation Authorities but the appellant failed to prove there that the allotment in the name of respondent No.3 was fictitious.

7. We have carefully examined the allotment chit issued in favour of respondent No.3 by the competent Rehabilitation Authority dated 24‑6‑1953. This allotment in the name of respondent No.3 was not cancelled by any competent Authority so far. The claim of the appellant that from the date of allotment he had been in continuous possession of the land in dispute as allottee is also negated by the Khasra Girdawaris produced by the appellant himself. We have carefully perused the entries of the Khasra Girdawaris relied upon by the appellant. In none of Girdawaris appellant is entered as an allottee of the land in dispute. On the other hand, his entry in the possession column is that of ghala batai so the assertion of the appellant that in ‑lieu of allotment he entered into the possession of the disputed land stands negated by the documentary evidence brought on record. 7‑A. As said earlier, it is also conceded by appellant that allotment in favour of respondent No.3 was made on 24‑6‑1953. This shows that the allotment in favour of respondent No.3 was made much earlier than the allotment made in favour of the appellant. It is a cardinal principle of law that during the substitute of the first allotment the subsequent allotment is a nullity in the eye of law and it shall be deemed as having not been made at all.

8. Even otherwise after examining the allotment chit issued in favour of the appellant which forms part of the record it is evident that a joint allotment has been made in the names of Rehman Shah son of Muhammad Ahmad, Miskeen Shah, Kala Shah, Akbar Shah and Nooran Shah but none of them has filed the writ petition except Miskeerr Shah in whose name the allotment is Rehman Shah, his father and whose share out of the disputed land is negligible. It has also not been averred in the writ petition that his share of the land is adversely affected particularly so when the rest of the allottees have not filed writ petition. The other allotteess being necessary parties were to be impleaded in the writ petition either as petitioners or pro forma‑respondents. Even on this score the writ petition was liable to be dismissed for non‑impalement of necessary parties. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs. H.B.T./445/SC (AJ&K) Appeal dismissed.