1999 PLP 1676 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, is directed against an order passed by the High Court on 4‑6‑1998, whereby the writ petition filed by the appellants, herein, was dismissed.

2. The necessary facts, for the disposal of present appeal, are that on 17‑1‑1968 Ali Akbar Shah, father of respondents 4 and 5, brought a claim before the Deputy Custodian, Kotli that he alongwith pro forma‑defendants mentioned therein and Ameen Shah, the grandfather of the present appellants, were joint owners of the suit land. According to Akbar Shah and others, Ameen Shah and his father were deprived of their share in the suit land. Ameen Shah tried to obtain the possession of the suit land to the extent of his share in Dogra Regime some 40 years back but he failed. Ameen Shah then sold his share in the suit land to one Pandat Bhagat Ram for consideration of Rs.500 through sale‑deed registered on 4th Jeth, 1992 Bk. The plaintiff Akbar Shah and others alongwith pro forma respondents resisted the attestation of Mutation No.42 which was entered in the name of Pandat Bhagat Ram on the basis of sale‑deed. The case of Akbar Shah and others before the Deputy Custodian was that they resisted this attempt, as such Pandat Bhagat Ram failed to get that mutation attested in his favour. However, in the second attempt he got Mutation No.46 attested without the possession of the suit land. On the basis of these averments Akbar Shah and others claimed their adverse possession over the suit land, which according to them, had ripened into ownership.

3. The Rehabilitation Department controverted the claim of the plaintiffs. The learned Deputy Custodian after trial of the case, came to the conclusion that the plaintiffs Akbar Shah and others as well as pro forma defendants did not allow Ameen Shah or the vendee Pandat Bhagat Ram to enter into the possession of suit land. In this regard, the Deputy Custodian as well as the learned Custodian relied on the entries of Mutation No.42, which show that when Ameen Shah sold the land to Pandat Bhagat Ram, Akbar Shah and other plaintiffs and pro forma defendants had raised strong objections to the entry of mutation in his name on the ground that neither Ameen Shah nor non‑Muslim vendee was in possession of the suit land. The learned Deputy Custodian after the trial had drawn the conclusion that plaintiff and pro forma‑defendants had succeeded in proving their adverse possession over the suit land, as such, he decreed their claim and referred his findings for the approval of learned Custodian. The learned Custodian, vide his order, dated 16‑7‑1974, confirmed the findings recorded by the learned Deputy Custodian, dated 4‑5‑1971. The appellants herein challenged the correctness of the judgment of the learned Custodian through their review petition filed on 24‑4‑1995, which was dismissed by the Custodian vide his order, dated 14‑1‑1997. The writ petition filed by the appellants against the review order passed by the Custodian, as said earlier, was dismissed by the High Court vide the impugned order, dated 4‑6‑1998. It is the aforesaid order of the High Court which is the subject of present appeal before this Court.

4. It was vehemently contended by Syed Mushtaq Hussain Gilani, the learned counsel for the appellants, that the learned Deputy Custodian could not have passed a finding of adverse possession in favour of respondents nor the same could have been confirmed by the learned Custodian. During the proceedings before the Deputy Custodian the appellants were proceeded ex parte as their service was not procured. In the summons issued by the Deputy Custodian the signatures of some other persons other than the appellants were obtained by the process- server with the connivance of the respondents. Since the decree passed in favour of respondents was void ab initio, after obtaining its knowledge, the appellants immediately filed a review petition which was dismissed by the Custodian without any sufficient reason. Alternatively it was contended by the learned counsel for the appellants that after lst of July, 1957, the Custodian was not competent to declare the non‑evacuee property as an evacuee property.

5. Controverting the arguments raised by the leaned counsel for the appellants, Mr. Farooq Hussain Kahsmiri, the learned counsel for the respondents, submitted that Ameen Shah and his father sold their share in the suit land to one Pandat Bhagat Ram for consideration of Rs.500 through sale‑deed registered on 4th of Jeth, 1992‑Bk. and after selling their share they had no locus standi to file a writ petition. On the application filed by Akbar Shah and others as well as pro forma‑defendants the learned Deputy Custodian reached the conclusion that the plaintiffs had succeeded in proving their adverse possession over the suit land as such he decreed their claim which was confirmed by the learned Custodian. The appellants challenged the findings of the Custodian through a review petition which was also dismissed. Similarly the writ petition before the High Court met the same fate. According to the learned counsel for respondents the High Court committed no illegality in dismissing the writ petition filed by the appellants.

6. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that it was observed by the High Court that the learned Deputy Custodian after conclusion of trial came to conclusion that plaintiff Akbar Shah and others as well as pro forma‑defendants did not allow Ameen Shah or vendee Pandat Bhagat Ram to enter into possession of the suit land. In this regard the Deputy Custodian as well as the learned Custodian relied on the entries of Mutation No.42, which show that when Ameen Shah sold the land to Pandat Bhagat Ram, Akbar Shah and other plaintiffs and pro forma defendants had raised strong objections to the entry of mutation in his name on the ground that neither Ameen Shah, the vendor, nor non‑Muslim vendee was in possession of the suit land. It was also observed that all the evidence was produced by the respondents but the department failed to rebut the evidence even through the oral evidence. In light o: these facts the learned Deputy Custodian after trial had drawn the conclusion that the plaintiffs and pro forma‑respondents had succeeded in proving their advelse possession over the quit land, as such he decreed their claim which was finally confirmed by the learned Custodian. The present appellants after the lapse of 24 years challenged the correctness of the judgment of the learned Custodian through a review petition which was dismissed on 24‑4‑1995. The High Court. dismissed the writ petition filed by the appellants inter alia on the following grounds:‑‑ (i) That the appellants are legal descendants of Ameen Shah, who admittedly had sold his share, in the suit land to one Pandat Bhagat Ram for Rs.500 vide registered sale‑deed, dated 4th Jeth, 1992 Bk. Therefore, they had no legal title to challenge the correctness of the order of the Custodian passed on 16‑7‑1973, through review petition. Even otherwise the review petition was hopelessly barred by limitation, therefore, the learned Custodian had no option but to reject it; (ii) that under section 39 of the Administration of Evacuee Property Act, 1957, the Custodian has got exclusive jurisdiction to declare any person or property as evacuee or non‑evacuee. In case any property is declared non‑evacuee, after first day of January, 1957, the Government under section 43(A) is legally competent to file petition before the High Court even under subsec tion (4) of the said section as to pass an order to the effect that any evacuee property declared to be non -evacuee property should have been declared so, and such property is or has been in the hands of a bona fide purchaser or purchasers for adequate value, the High Court shall determine the amount of compensation to be paid to such purchaser or purchasers, after such property has vested in the Custodian, but no such course was adopted by the appellants.

7. If the Rehabilitation Department had any grievance about the declaration of the land by the Custodian in respect of its non -evacuee property, it should have moved the Government for availing remedy under the aforesaid section of the Administration of Evacuee Property Act, 1957. In this case remedy available to Rehabilitation Department or Government for that purpose was not availed and the order passed by the Custodian on 16‑7‑1973 had attained finality. Its correctness, therefore, could not have been disputed before the High Court in exercise of writ jurisdiction after the lapse of 24 years.

8. We are also of the opinion that even if a non‑evacuee property was treated by the Custodian as evacuee property, the same being a question of fact, it was not within the competence of the High Court to declare the same as non‑evacuee property especially in exercise of writ jurisdiction when the writ petition was filed after the lapse of period of 24 years. The High Court, in our view, committed no illegality as its judgment suffers from no such legal infirmity, as is suggested by the learned counsel for the appellants.

9. For the reasons recorded herein before, the appeal having no merits in it stands dismissed with costs. H.B.T./411/SC(AJ&K)