' KHAWAJA MUHAMMAD SAEED, J.-This appeal, by way of leave of the Court, is directed against the judgment of the High Court, dated 12-4-2002, whereby the writ petition filed by the respondents herein was allowed and the orders of the Custodian of Evacuee Property, dated 30-11-1994, 4-5- 1995, 30-8-1997 and 18-11-1997 were quashed.
2. The dispute between the parties is in respect of land bearing Survey Nos.194/167/2, total measuring 86 Kanals, 17 Marlas, situate in Village Chakias, Tehsil Haveli, District Bagh. The land in dispute was allotted in the name of appellants by A.R.C. Poonch on 2-4-1970. The case of the contesting respondents is that this land is Crown land over which they have effected improvements in the shape of houses and trees. Therefore, the same was wrongly treated as evacuee property and allotted to appellants. Mst. Mandra Bi and Gulzar Bi, widows of Ali Muhammad and one Hassan Din son of Muhammad Din, filed an appeal before the D.R.C.
Rawalakot, Poonch, on 4-5-1970. The D.R.C. Vide order, dated 17-9-1973 allowed their appeal, set aside the allotment order passed in favour of appellants and remanded the case to Tehsildar on the ground that the land in dispute is a Crown land, as such the same was not available for allotment to any refugee. In the same order the D.R.C. Directed the Tehsildar Haveli that he should conduct a thorough inquiry to the effect that how the appellants are in possession of the suit-land and further that as to whether they have any entitlement to retain its possession and in case they are illegally occupying the land, they shall be ejected from the land in accordance with law. The appellants challenged the order of D.R.C. Before the Rehabilitation Commissioner on 13-10-1973 who maintained the order of D.R.C. And dismissed the appeal on 27-3-1974. The appellants preferred a revision petition before the Custodian on 2-4-1974. The learned Custodian of the time vide his order, dated 7-6-1976 made over the case to the Deputy Custodian Kahuta to effect an inquiry and to report to him as to whether the land in dispute is a Crown land or it was under the ownership of Maharaja Poonch. The Deputy Custodian after conducting inquiry reported the matter to the Custodian on 24-11-1985 that the disputed land is a Crown land and the same was not in the ownership of Maharaja Poonch. The learned Custodian of the time after hearing the parties vide his order, dated 30-11-1994 declared that the property in dispute was owned by Maharaja Poonch as such the same was evacuee land. He also restored the allotment of appellants made in their favour by A.R.C. Poonch on 2-4-1970. The contesting respondents filed a review petition on 11-12- 1994 against the aforesaid order of the Custodian in which the next date of hearing was fixed by him as 4-5-1995. On this date nobody turned up on behalf of the respondents, therefore, the review petition was dismissed for non-prosecution. A further review petition was filed against the order, dated 4-5-1995 before the Custodian which was also dismissed on 30-8-1997. Then another review petition was filed by the respondents against the order, dated 30-8-1997 which also met the same fate vide order of the Custodian of the time, dated 18-11-1997. The respondents, therefore, challenged all the aforesaid orders passed by the Custodian in a writ petition before the High Court. Their writ petition was allowed and the orders passed by the Custodian on 30-11-1994, 4-5- 1995, 30-8-1997 and 18-11-1997 were quashed on the ground that the finding recorded by the Custodian of the time, whereby the land in dispute was held as evacuee land, are against the facts.
3. On behalf of the appellants it was argued by Mr. M. Tabbasum Aftab Alvi, Advocate, that the Custodian has exclusive jurisdictional competence to declare as to whether any property is evacuee or non-evacuee. Therefore, his finding cannot be substituted in writ jurisdiction by the High Court by some new finding. He further argued that the learned Custodian of the time after taking into consideration all the material which was available on record positively formed an opinion that the land in dispute up to 1947 remained under the exclusive use and occupation of Maharaja Poonch. Therefore, this land was rightly treated as an evacuee land by the Custodian and allotment made in favour of his clients in the year, 1970 by A.R.C. Poonch, after recording evidence of so many persons who had no personal interest in the matter, was rightly restored in favour of the appellants. This finding recorded by the Custodian was B wrongly reversed by the High Court in writ jurisdiction. According to the learned counsel, the disputed questions of fact are not resolved in writ jurisdiction, therefore, the very finding of the High Court is bad in law. He further argued that the writ petition was suffering from lathes but despite this defect the same was allowed by the High Court and all the orders passed many years ago were set aside. In the light of documents available on record the learned counsel contended that the villages Chakias and Bandi are adjacent to each other and before liberation these were in the proprietorship of Maharaja Poonch. While elaborating his point of view the learned counsel contended that the land under Survey Nos. 194/167/2, situate in Chakias was previously entered under Survey No,2 in the Revenue Record and it was recorded in the revenue papers as `Chiragah/ Shikargah' which was used by Maharaja of Poonch as grazing field for his animals and also a hunting field for him. In the same way the land under Survey No,88, situate in Village Bandi was also the property of Maharaja of Poonch. This land is somewhere mentioned in the Revenue Record as `Khalsa Sarkar' and at some other places it is mentioned as Khalsa Sarkar/Sardar Dolat Madar, but these entries were not properly taken into consideration by the learned Judge in the High Court. Therefore, the finding of the learned Judge in the High Court is bad in law and liable to be set aside.
4. On the other hand Kh. Muhammad Nasim, the learned counsel for the contesting respondents, argued that the land in dispute is a Crown land and is recorded as such in the revenue papers.
Under these circumstances there was no justification for the Rehabilitation authorities to assume its evacuee nature and to pass order of allotment in favour of appellants. He also criticized the judgment of the Custodian of the time whereby he disagreed with the findings recorded by the Deputy Custodian and declared the land in dispute owned by Maharaja Poonch and as such an evacuee land. Alternatively he argued that the Custodian can declare any property as evacuee or no-evacuee up to 1st January, 1957. The property in dispute was never treated as evacuee property before the 1st day of January, 1957, therefore, the Custodian had no jurisdictional competence to declare any property as evacuee after this date. The learned counsel also relied on the record appended with the writ petition which is also available on the file of this Court and argued that findings recorded by the Custodian were against the true facts, as such, the learned Judge in the High Court was justified in law in setting aside the same.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The controversy involved in this case is about the character of the land in dispute as to whether it is evacuee or non-evacuee. Under section 41 of the Administration of Evacuee Property Act, 1957, such questions fall within the exclusive jurisdictional competence of the Custodian.
' A condition has been laid down under the same section that whenever any such question shall arise before any Court, the matter shall be referred to the Custodian for decision. In this case the learned Custodian vide his order, dated 7-6-1976 rightly referred the matter to the Deputy Custodian for inquiry and report. The Deputy Custodian conducted an inquiry and submitted his report to the Custodian on 24-1;1985. The report submitted by the Deputy Custodian was not binding upon the Custodian, therefore, the Custodian himself in the light of record which was available with him at that time vide his order, dated 30-11-1994 held that the disputed land was not a Crown land rather it was in the ownership of Maharaja Poonch prior to 1947. This finding was assailed in review petition but unfortunately the same was dismissed id default on 4-5-1995. A second review petition was filed on the same date on the ground that the learned counsel representing the respondents had gone for D performance of Hajj without the notice of his clients, therefore, they as well as their counsel failed to appear before the Custodian at the time when the review petition was called for hearing but this review petition was also dismissed on 30-8-1997.
Then another review petition was filed by the respondents against the order, dated 30-8-1997 which also met the same fate vide order of the Custodian, dated 18-11-1997.
6. The case of the respondents before the Custodian was that the disputed property was not declared or treated as evacuee property before 1-1-1957, therefore, the same could not be declared or treated as such afterwards. Therefore, the allotment secured by the appellants was a nullity in the eye of law. This proposition, as said earlier, was not attended to by the Custodian as to whether the property in dispute was ever treated as evacuee property before 1-1-1957. We are aware of the fact that under section 7 of the Administration of Evacuee Property Act, by fiction of law all the evacuee properties shall vest and shall be deemed always to have been vested in the Custodian w.e.f, 1st March, 1947. If the evacuee character of the property is concealed by any person, then in such circumstances the Custodian has to form an opinion to that effect and only then perhaps after the aforementioned date he may declare any property as evacuee property. In the famous case reported as Ali Iqtadar Shah v. Custodian and others (PLD 1964 Lah. 274) the legal proposition before the Full Bench was about the scope and import of section 3 of the Evacuee Property Act as to whether it has completely taken away the competence of the Custodian to declare any person or property as evacuee who or which was not treated as evacuee person or property before 1-1- 1957 or is it still within his jurisdiction to declare any person or property as evacuee even after the aforementioned date. In the aforesaid authority the history of the Legislature was discussed in minute detail and the point with regard to any order obtained by fraud or any evacuee property hidden from the operation of law was also taken into consideration. It was laid down that in a case which does not fall within subsection (2) of section 3 of the Act, the Custodian after 1-1-1957 has got no jurisdictional competence to exercise suo motu his revisional powers under section 43(4) of the Act. In the present case the Custodian, as said earlier, on the basis of material available before him held that the land in dispute is not a Crown land rather it was in the ownership of Maharaja Poonch prior to 1947, therefore, he restored the allotment of the appellants. Unfortunately he has not taken the view that the evacuee nature of the property was concealed from him and the Rehabilitation Authorities nor has taken into consideration the date laid down under section 3-A of the Administration of Evacuee Property Act. Therefore, the decision of the Custodian was not in accordance with law. In these circumstances, as the Custodian was the sole Judge in the matter requiring determination. In writ jurisdiction, therefore, the High Court had no option but to refer the matter to the learned Custodian for his determination in accordance with law.
7. The learned Judge in the High Court has referred to certain record in the impugned judgment.
Some of the record was not referred to by the Custodian; perhaps it was not on the file of the Custodian or his attention was not drawn towards this record if the same was available on his file.
In these circumstances, in our view, the best course for the High Court was to allow the writ petition, set aside the findings of the Custodian, dated 30-11-1994 and remand the case to the Custodian for fresh decision in accordance with law by keeping in view the record which was made available by the parties on the file of the High Court because, as said earlier, the matter was within the exclusive jurisdictional competence of the Custodian. The learned Judge in the High Court himself quashed the orders passed by the Custodian on 30-11-1994, 4-5-1995, 30-8-1997 and 18-11-1997 in a writ petition which was filed before the High Court on 27-12-1997. In fact the writ petition was suffering from laches in respect of earlier orders, dated 30-11-1994 and 4-5-1995 but in order to have fresh lease, the respondents had filed fresh review petitions before the Custodian and obtained orders against them on 30-8-1997 and 18-11-1997. However, in our view, to meet the requirement of law and the ends of justice, it will be proper to remand the case to the Custodian to attend to the controversy involved between the parties in respect of nature of the suit-land because, as repeatedly said earlier, he is the sole Judge in the case. If any misreading or non-reading of any documentary evidence is proved, only then the High Court or this Court can substitute the findings in the light of such evidence.
8. In view of above reasoning, while allowing this appeal, the impugned judgment of the High Court, dated 12-4-2002 is set aside and the case is remanded to the Custodian for fresh decision in accordance with law.