1982 PLP 1720 (CLC)

‑‑S. 44‑Writ jurisdiction ‑Estoppel, plea of‑Held, cannot be permitted to be raised for first time in writ proceedings‑Evidence Act (1 of 1872), S. 115.‑[Estoppel] (d) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)‑ ‑‑‑‑S. 44‑Writ jurisdiction‑Questions of fact‑Held, cannot be allowed to be raised for first in writ jurisdiction.‑ [Question of fact]. Abdur Rashid for Petitioner. Muhammad Saeed and Manzoorul Hassan Gilani for Non‑Petitioners. Date of institution : 20th February, 1980. SARDAR SAID MUHAMMAD KHAN, J.‑The facts resulting in the present Writ Petition are that land measuring 6 marlas and 5 sarsais, out of land comprising survey No. 1237, measur ing one kanal and 7 marlas situated in Muzaffarabad Town, was leased to "Seerat Committee" Muzaffarabad, vide the Government Order No. RS/443/65, dated 13‑9‑1965. According to the case of the petitioner, respondents 2 to 12 were tenants under the said Committee and had been paying rent to it till year 1977. It is further the case of the petitioner that even before the grant of lease by the Government in 1965, the disputed piece of land, over which the shops were allegedly constructed by the "Seerat Committee' had been in possession of the Committee since 1949. It appears that subsequently, a dispute arose between the petitioner and respondents and the matter came up before Custodian who passed the impugned order dated the 7th of May, 1979 holding that the property in dispute was evacuee property within the meaning of section 2 (3) of the Pakistan Administration of Evacuee Property Act of 1957. The petitioner questions the legality of the order passed by the Custodian. We have heard the arguments and gone through the entire record. The sole question which needs determination is as to whether the Custodian has correctly interpreted the provisions contained in section 2 (3) of the Pakistan Administration of Evacuee Property Act of 1957, read with section 57 of the said Act. It is common ground between the parties that land in dispute is entered in the revenue record in the ownership of `Sri Sarkar Daulat Madar." However, the dispute is as to whether the property in dispute had assumed the character of an evacuee property because, that was in the possession of Karpal Singh and another, the evacuees at the time of their migration. In copy Khasra Girdawari, pertaining to the year 1994‑97 whole of the land comprising survey No. 1237 measuring one kanal and 7 marlas has been shown in possession of Public Works Department. From 1994 Bk. to `Kharif' 1995 Btc. the land has been shown in the possession of Karpal Singh as "Bawaja Tassawwar ‑e‑Haq‑e‑Malqiyat Khud" and this entry is repeated till 'Kharif' 1999 Bk. In `Rabi' 2000 Bk. the possession is shown that of Karpal Singh and his brother Debyan Singh in equal shares. This entry continues till `Rabi' 2001 Bk. In 'Rabi' 2001 Bk. the possession of 5 marlas has been shown disputed between one Sardar Khan son of Sher Khan and evacuees, while shop constructed on 7 marlas has been shown in possession of Karpal Singh; 15 marlas have been shown "Banjar Qadeem". In 2002 Bk, out of the total area of one kanal and 7 marlas, a shop measuring 2 marlas has been shown in possession of one Abdul Latif but there is a note that possession of Abdul Latif is on behalf of Karpal Singh and Tara, Singh sons of Dehyan Singh. Apart from the shops, the remaining ara of the land, has also been shown in possession of Karpal Singh and Tara Singh. The entry is repeated till 2005 Bk. It is for the first time in 2006 Bk. that Abdul Qadir and others have been shown as tenants under Seerat Committee. It is obvious from what has been stated above that prior to 2006 Bk, the possession of the land comprising survey No. 1237 including shops, has been shown that of no evacuees except that after 2002 Bk. a shop measuring 2 marlas was shown in possession of Abdul Latif and that too, on behalf of non‑evacuees. The possession of Karpal Singh and others evacuees, as has been already pointed out, has been shown as "Bawaja Tassawwar‑e‑Haq‑e‑Malqivat Khud" which, expression, according to the statement of Muhammad Khalid Mir, Sadar Qanoongo, means that evacuees possessed the land in dispute on the basis of their claim of ownership. The learned Counsel for the petitioner has vehemently argued that out of the land comprising survey No. 1237, Faqir Joo and Muhammad Hussain and others were . also granted land treating it to be the Crown Land ; that there had been litigation between Auqaf Department and the Seerat Committee which shows that the land was not an evacuee property ; and that there had been dispute between the petitioner and non‑petitioners Nos. 2 to 12, with regard to the rate at which the rent was to be realized, before the Rent Controller and the matter was settled between the parties with their consent, which shows the non‑petitioners Nos. 2 to 12 accepted the position of Seerat Committee as that of a landlord, as such respon dents were estopped to deny the title of the Committee to . the shop in dispute. It may be observed here that the Custodian was not party to any of the aforesaid proceedings, either before the civil Court or Rent Control ler. Therefore, the petitioner cannot be heard saying that the said liti gation shows that the property in dispute was not an evacuee property. Moreover, under the Pakistan Administration of Evacuee Property Act o 1957, it is only the Custodian who is competent to determine the character of the land as evacuee and any finding by any other Court or Authority with regard to the mature of the property being without lawful authority, is of no avail to the case of the petitioner. So far as the question of estoppel is concerned, that was not raised before the Custodian and as such, it cannot be permitted to be raised for the first time in writ proceed ings. Moreover, assuming that the respondents Nos. 2 to 12 are estopped to deny the position of the petitioner as Landlord, that would not create an estoppel against the Custodian to determine the character of the pro perty. The learned Counsel for the petitioner has also argued that property was not treated as evacuee property immediately before the first day of January 1957 and as such, the same could not be treated as evacuee and that, Karpal Singh and Tara Singh are not ‑proved to have left the territory of Azad Kashmir, therefore, they cannot be said to be evacuees. These points have not been agitated before the Custodian and the same being questions of fact, cannot be allowed to be raised for the first time in writ jurisdiction. Now, the sole question which remains to be determined is as to whether the possession of evacuees of the land in question would render the charac ter of the property as evacuee. Under subsection (3) of section 2 of the Pakistan Administration of Evacuee Property Act of 1957 evacuee property has been defined as property in which an evacuee has a right or interest whether personally or as a trustee or as a beneficiary or in any other capacity. It has been urged on behalf of the petitioner that the possession of the evacuees for some years, would not render the property as an evacuee property. It is evident that under section 2(3) of the Pakistan Administra tion of Evacuee Property Act of 1957, not only a right of an evacuee in such property but also an interest of an evacuee in such property has been included in the definition of evacuee property. The words right and interest in section 2(3) of the Administration .of Evacuee Property Act have been used in distinct sense. A person may have no right in the evacuee property but he may still have an interest which may not have been recognized by law in force at the relevant time. Such‑an interest also vests in the Custo dian under section 7(1) of the Pakistan Administration of Evacuee Property Act, irrespective of the fact whether such interest was acquired by an evacuee through legal process or not. While distinguishing the word right from the word interest appearing in section 2(3) of the Pakistan Administration of Evacuee Property Act, a Full Bench of Lahore High Court, in case reported as P L D 1965 Lahore 535 observed as under : "Evacuee Property" means any property in which an evacuee has any right or interest whether personally or as a trustee or as a beneficiary or in any other capacity. A right is defined in Salmond's book on Jurisprudence 1957 Edition as an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. The interests which receive recognition and protection from the rules of right are called rights. Every man who has a right to anything has an interest in it also, but he may have an interest without having his right. Whether his interest amounts to a right depends on whether there exists with respect to it a duty imposed upon any other, person. In other words, his right is an interest the violation of which is a wrong. It will be noticed that the definition clause includes not only the word "right" but also "interest". All that is, necessary is that‑ there should be a right or interest that is, there should be property in which an evacuee has any right or interest." A similar distinction has been made in a case reported as A I R 1957 All.

561. While dealing with the corresponding provision contained in section 2 (f) of the Indian Administration of Evacuee Property Act of 1950, it was observed that a right cannot exist without an interest though an interest can exist without a right since the word "right" in the definition must necessarily include the word "interest" the word "interest" must refer to an interest not derived from a right. The word "or" used in the aforesaid provisions was interpreted to mean that property became evacuee property even if an evacuee had no right in such property but had only an `interest". Coming to the instant case, it is evident from the facts stated above, that non‑evacuees had been in possession of the site in dispute for about seven years when they migrated beyond the limits of Azad Jammu and Kashmir territory. It may also be observed that it has not been recorded in the revenue record that possession of the non‑evacuees was unlawful. However, even if it was so, the fact remains that the non‑evacuees, occu pants, enjoyed the fruits of their possession by constructing shops over the site and as such, it cannot be said that they had no interest in the site in dispute, within the meaning of section 2(3) of the Pakistan Administration of Evacuee Property Act of 1957. Therefore, we have no hesitation in holding that on the migration of Karpal Singh and Tara Singh beyond the limits of Azad Jammu and Kashmir territory, their interest vested in the Custodian under section 7(1) of the Pakistan Administration of Evacuee Property Act of 1957. In the light of what has been stated above, finding no force in this writ petition, it is hereby dismissed with costs. S.S.Q. Petition dismissed,