' SARDAR MUHAMMAD SADIQ KHAN, J.---This appeal by leave of the court arises out of the judgment passed by the High Court on 12-12-2003 whereby writ petition filed by the appellants was dismissed.
2. Brief facts giving rise to the instant appeal are that the dispute between, the parties is in respect of the land comprising Survey No,1690/1211,. Measuring 1 kanal, 17 marlas, situated in front of Central Jail Muzaffarabad city. In the revenue record, as claimed by the appellants, the disputed land is entered in the name of "Thakar dwara", {{Urdu Text}} which, according to the appellants is a place reserved for religious purposes, by the non-muslims, "Hisa dar" ){{Urdu Text}} . Out of this land, 12 marlas land is under the possession of the appellants whereas the remaining piece of land is under the possession of Government Co-Operative Bank, respondent No,3. On 8-4-1973, this land was allotted to the Co-Operative Bank, by the Rehabilitation Authorities. This allotment was challenged by Sain Khan, the predecessor-in-interest of the appellants, before the Rehabilitation Commissioner. On 11-2-1979, the claim of Sain Khan was rejected by the Rehabilitation Commissioner. Sain Khan challenged the order of Rehabilitation Commissioner dated 11-2-1979, through a revision petition before the Custodian Evacuee Property. The learned Custodian dismissed the revision petition vide order dated 6-1-1980. Sain Khan, challenged the order of Custodian in writ petition before the High Court on 3-12-1983. The learned High Court vide judgment dated 3-2-1985 dismissed the writ petition and maintained the judgment of Custodian of Evacuee Property as well as Rehabilitation Commissioner. The judgment of the High Court was challenged by Sain Khan, in appeal by way of petition for leave to appeal before the apex Court which was also dismissed on 15-4-1987. Sain Khan, predecessor-in-interest of appellants, again filed an application before the. Custodian Evacuee Property, under section 18-B of the Pakistan Administration of Evacuee Property Act, (hereinafter to be referred as the Act), on the ground that the Evacuee land cannot be allotted to the Co-Operative Bank.. During pendency of the application, Sain Khan died in 1991, and the appellants herein were impleaded as his B legal heirs. In the year 1993, the notification regarding transfer of Evacuee land to the Co-Operative Bank, was issued. On 13-9-1994, the application filed by the appellants was dismissed by the Custodian Evacuee Property. The review petition filed by appellants against the said order was also dismissed by the Custodian of Evacuee Property vide order dated 13-10-1996. The appellants filed a writ petition against the order of Custodian dated 13-10-1996 which was dismissed on 12-12-2003.
Feeling aggrieved, the appellants filed petition for leave to appeal before this Court which was converted into regular appeal on 3-6-2004. Respondents Nos.1 to 3 submitted their concise statements whereas respondents Nos.4 and 5 were proceeded ex parte on 7-7-2004.
3. Mr. Mushtaq Ahmed Janjua Advocate, the learned counsel for the appellants, after stating brief facts, argued that the learned single Judge in the High Court has failed to appreciate the provisions of the Act, as contained in section 7 and section 25 thereof, and by virtue of section 7 of the Act, "Evacuee Trust Property" is not subject to the allotment and even if allotted, its income is to be utilized for fulfilling the purposes of trust for which the property is dedicated. He further submitted that no provisions, whatsoever, exist in the aforesaid law, authorizing either the Custodian Evacuee Property or the Government to transfer "Evacuee Trust Property" in favour of any person whether individual or a legal person. He further contended that the learned High Court has fell in error of law while interpreting the provisions of section 25(2)(s) of the Act while holding that the learned Custodian was competent to transfer the land in dispute in favour of respondent No,3, Co-Operative Bank. He further submitted that the learned Judge in the High Court has also not considered the impact and implication of section 25(1) of the Act and also the fact that the provisions of clause (5) of subsection (2) of section 25, are subject to the provisions of section 25(1) of the Act. The learned counsel contended that when the above-mentioned sections are read together and as a whole, it transpires that the transfer of property can be made only for the purpose of securing, administrating, preserving and managing the Evacuee Property. He further argued that the transfer of land in favour of Co-Operative Bank does not fall in any of the aforesaid categories, therefore, the transfer of land was without jurisdiction and violative to the aforesaid provisions of law. He further submitted that the learned Custodian as well as the High Court, misinterpreted and wrongly applied the provisions of the principle of res judicata. He contended that the earlier round of litigation between the predecessor-in-interest of the appellants and respondent No,3, the Co-Operatiive Bank, was relating to allotment of the disputed property in favour of Bank and the controversy was also restricted to that effect, whereas the present controversy between the parties is regarding transfer of land by Custodian vide notification dated 9-9-1993. He further contended that the subject matter in the present controversy is Ale/transfer of Evacuee Land in the name of the Co Operative Bank for a consideration of Rs,24,49,400 which was neither challenged in the previous round of litigation nor was there any occasion or possibility to challenge the same as the sale/transfer was effected after conclusion of the proceedings up to the apex Court, thus, the principle of res judicata was not applicable by any standard of interpretation of said rule. The learned counsel further argued that the learned Judge in the High Court has also erred in holding that the appellants are not aggrieved and have no locus standi, on the basis of the earlier dictum of the apex Court. He stated that the observation or decision of the apex Court, though being final, by all means, but it was restricted to the facts and circumstances of the previous round of litigation. Grievance of the appellants in the present round of litigation should have been judged with regard to the present cause and not the earlier one. The learned counsel finally contended that the only way of livelihood for the appellants is the aforesaid property out of which only 12 marlas is in their possession, thus, they are aggrieved by sale/transfer of the land in the name of respondent No,3, Co-Operative Bank. Moreover, respondent No,3, being not a legal person in the eye of law so for as Evacuee Property is concerned, was not entitled to the sale/transfer of the land. Therefore, by accepting the appeal filed by appellants, the judgment of the High Court as well as that of Custodian Evacuee Property may be set-aside. In support of his contentions, he has placed reliance upon a case titled Government Boys High School and others v.
Shah Muhammad and another, reported as (2002 SCR 329).
4. On the other hand, Mr. Raza Ali Khan, Muhammad' Aslam Rathore and Ch. Muhammad Latif, Advocates, the learned counsel for respondents Nos. 1 to 3, while controverting the arguments advanced by the learned counsel for the appellants, raised preliminary objection that the prayer clause of the present appeal reveals that the order of Custodian Evacuee Property, respondent No,2, has been challenged but the order under challenge is not attached with the appeal filed in the Supreme Court. Under the provisions of Supreme Court Rules, 1978, it is mandatory that any judgment which has been challenged, a certified copy of the same must be attached with the appeal whereas the requirement has not been fulfilled. On merits of the case the learned counsel submitted that the learned Judge High Court has rightly interpreted the provisions of the Act.
Section 25 of the Act, fully empowers the Custodian Evacuee Property, to transfer the Evacuee Property with the approval of the Government as such the impugned notification for transfer of land in favour of Bank was issued on 9-9-1993 by respondent No,2, according to law and rules dealing the subject. It is further submitted that the land in dispute is not the Evacuee Trust Property.
Neither the appellants have produced any proof to this effect before the Custodian; the Tribunal of exclusive jurisdiction, nor this point was agitated before the High Court. They submitted that the disputed question of fact cannot be raised in this Court for the first time, just to protect the ill- gotten gains because the appellant intended to continue the illegal possession. It is also contended that there is no religious back ground of the land in dispute or use of its income to any religious purpose. It is argued that the person filing writ petition in the High Court must come with clean hands. They submitted that the version of appellants to the effect that the learned Judge in the High Court has wrongly interpreted the principle of res judicata, is not correct as the earlier round of litigation relate to the same land and almost the parties were the same. In the present case, the appellants have no independent claim rather they claim on the basis of possession of their late father as such the appellants do not fall within the definition of aggrieved person and the transfer of land to respondent No,3 was made quite in accordance with law. Neither any violation of law has been committed in this regard nor any question of violation of fundamental rights in the circumstances of the case arises at all. The, High Court has rightly dismissed the writ petition, therefore, the appeal merits dismissal.
5. We have paid our utmost muse to the arguments advanced at bar and perused the record made available. The controversy between the parties appears regarding the allotment of evacuee land comprising Survey No, 1690/1211, measuring 1 kanal 17 marlas, situated in front of Central Jail in the Muzaffarabad City. The predecessor-in-interest of the appellants, Raja Sain Khan, claimed that he was in possession of the said evacuee land for 35 years which is entered in the revenue record as "Thakar dawara" ( eJI),AA ){{Urdu Text}} . He further claimed that he has constructed a house consisting of 7 rooms on 12 marlas of the said land. He applied for the allotment of the said land but the Rehabilitation Authorities refused to allot the same in his favour. The Rehabilitation Authorities f.
Allotted the said land in the name of registrar Co-Operative Society. The father of appellants challenged the allotment made in favour of Registrar Co-Operative Society, but his claim was rejected by the Rehabilitation Authorities and the decision of Rehabilitation Commissioner remained intact up to the apex Court.
6. On 6-2-1989, Raja Sain Khan, Predecessor-in-interest of the appellants, filed an application under section 18-B .Of the Act, through which he challenged the allotment made in the name of Registrar Co-Operative Society, on different grounds. During pendency of this application, Raja Sain Khan died and present appellants were impleaded as his legal heirs. On 13-9-1994, this application was also turned down by the Custodian Evacuee Property. The appellants herein, filed writ petition before the High Court, challenging the propriety of the order of Custodian dated 13-9-1994. The learned High Court, dismissed the writ, petition filed by the appellants vide its judgment dated 12- 12-2003; firstly, on the ground that the father, of the appellants was not an aggrieved party, therefore, he had no locus-standi to invoke the extraordinary Constitutional jurisdiction of the High Court; secondly, that the appellants are debarred to challenge the validity of allotment in favour of respondent-Bank; thirdly, that the evacuee land has been transferred in favour of respondent- bank by the learned Custodian as he was competent to do so under section 25(s) of the Act, after obtaining approval by the Government and lastly, that the issue of allotment in favour of respondent-bank stood resolved during previous round of litigation, however, even if it is accepted that after introduction of section 18-B of the Act, the Custodian was competent to re-open the matter, it is immaterial because the evacuee land has been transferred through a sale-deed in favour of respondent-bank which is recognized by relevant law.
7. The respondents have raised a preliminary objection that copy of the order of Custodian Evacuee Property, has not been appended with the memo of appeal. Under Supreme Court Rules, 1978, it is mandatory for the appellants to file copy of the order passed by the lower Tribunal, therefore, the appeal merits dismissal on this point. Under Order XIII, Rule 3(1)(ii) of the Supreme Court Rules, 1978, following, are the mandatory documents:- "3. (1) the petitioner shall lodge at least four copies of the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under section 42(11) of the Constitution, if any, one copy of which shall be certified to be correct; ' The above quoted rule reveals that the order of lower Tribunal which was challenged in the High Court, filing of the copy of the same before this Court. Is not mandatory, thus, the objection stands repelled.
8. Another question which needs determination is that whether the father of the appellants was justified in filing the application under section 18-B of the Act, or not, when the controversy between the parties, regarding allotment of the same land stood already concluded in appeal by the apex Court vide judgment dated 15-4-1987. For brevity, relevant provision of section 18-B of the Act, is reproduced as under:-- ... 18-B. (1) Notwithstanding anything contrary in any other law, for the time being in force, and without prejudice to the generality of the powers which already vest in him, the Custodian may cancel any allotment of evacuee property in the following cases:- ' where an allottee has failed to comply with the terms and conditions of allotment within the meaning of section 18 of the Act;
(b) where an allottee has, to the satisfaction of the custodian, voluntarily surrendered or abandoned the allotment;
(c) where the allotment has been made in violation of law or is without jurisdiction..."
' The aforementioned provisions of section 18-B of the Act, deal with the powers of Custodian to allot the evacuee property or cancel the allotment of the same by following the principles laid down therein. In view of the referred provisions, the application filed by the predecessor-in-interest of the appellants was not entertainable and the same was rightly dismissed by the Custodian as well as High Court on the sole ground that the controversy stood resolved between the parties in earlier round of litigation.
9. The next question raised by the learned counsel for the appellants is that the learned single Judge High Court has failed to interpret the provisions of section 7 of the Act. We have perused section 7 of the Act, and relevant provision is reproduced below:-- "7. Vesting of evacuee property in Custodian.- ' where any evacuee property which has vested in the Custodian or of which possession has been taken by the Custodian is property in trust for a public purpose or a religious or charitable nature, it shall be lawful for the Central Government, notwithstanding any thing contained in the instrument of trust or any law for the time being in force, to appoint, by general or special order, new trustees in place of the evacuee trustees and the property shall remain vested in the Custodian or in his possession only until such time as the new trustees are so appointed; and pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling as far as possible, the purpose of the trust...."
' The above cited provision deals with the trust property or, the property used for religious purposes but we find nothing on record to determine whether the property known as "Thakar Dawara" is used for religious, social or any other purpose of public interest. Moreover, this is a question of fact and has been raised for the first time before this Court whereas it is settled principle that the question which has not been raised in the lower Court, the same cannot be raised in appeal for the first time before this Court.
10. Another point which needs consideration is that whether the High Court has erred in law while interpreting the provisions of section 25 (2) (s), subject to subsection (1) of the Act, while holding that the learned Custodian was competent to transfer the land in dispute in favour of respondent- bank. However, for proper appreciation, section 25(1) and (2)(s) of the Act, are reproduced as under:-- "25. Powers and duties of the Custodian generally.--
(1) The Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property or property of which possession has been taken by him and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereof.
(2) Without prejudice to the generality of the provisions contained in subsection (1), the Custodian may--
(a) ..........................
(b) ..........................
(c) ..........................
(d) ..........................
(e) ..........................
(1) ......................
(g) ..........
(h) ..........................
(i)
(1)
(k) ............
(1) .....................................
(m)
(n) ..........................
(0) (P)
(q)
(r)
(s) transfer any evacuee property notwithstanding anything contained in any law or agreement to the contrary relating thereto..."
' It appears from perusal of above cited provisions that the Custodian is empowered to transfer such property without being prejudice to the generality of the provisions contained in subsection
(1) of section 25 of the Act. In the case in hand, the learned Custodian after getting approval from the Government, has transferred the property to respondent No,3 through a sale-deed in consideration of Rs,24,49,40Q, which is quite in line with the above referred provisions of the Act.
11. It is interesting to note that in the first round of litigation, the father, predecessor-in-interest of the appellants, challenged the allotment made in favour of respondent-Bank on the ground that he is tenant of the respondent-bank. The claim of the appellants was rejected by the Rehabilitation authorities and the judgment was upheld up to the apex Court.. In the present round of litigation, the appellants jumped into another territory and claimed themselves entitled to the evacuee property, being local destitute. Therefore, it appears that the appellant wants to get the unlawful benefit by knocking the doors of the Courts of law. Our this finding is supported by the judgment of this Court dated 15-4-1987. In the last paragraph it has been observed as under:-- ' The appellant-petitioner admits to be the tenant of the respondent. He does not claim either to be a refugee or destitute. No claim for his entitlement to the allotment has been made by him either in his petition for leave to appeal and the concise statement or in his writ petition before the High Court."
' The above quoted observation of this Court in previous round of litigation, clearly shows that the predecessor-in-interest of the appellants never claimed himself a local destitute or refugee, therefore, in the present round of litigation, taking different stand by the appellants in our view is futile exercise just to drag the respondents in an unnecessary litigation. It may be stated here that, the, appellants have claimed that the "Thakar Dawara"{{Urdu Text}} is a land reserved for religious purposes and the same cannot be allotted to any person, thus, the allotment in favour of respondent-bank, is unlawful. On the other hand, they claim themselves entitled to the allotment of said land as local destitute, which is clear contradiction on their part. Thus, it is proved that the appellants-party want the allotment of same land in their favour which according to their own version is a place reserved for religious purposes and cannot be allotted to any person. The appellants cannot be allowed to blow hot and cold in one breath, therefore, this argument is not available to the appellants.
12. The argument of the learned counsel for the appellants that his clients fall within the definition of aggrieved persons, therefore, they have rightly filed review petition before the Custodian of Evacuee Property and after that invoked the extra-ordinary writ jurisdiction of the 'High Court, challenging the allotment/sale to respondent-bank, appear to be without any force. We have gone through the judgment of this Court recorded on 15-4-1987. In the concluding paragraph of the said judgment, following observation has been made by this Court:-- "...As regards the second point of preliminary objection that the appellants-petitioner not being an aggrieved person was not entitled to any relief and the writ petition was not competent; we have carefully gone through the record made available. The appellant-petitioner admits to be the tenant of the respondents. He does not claim either to be a refugee or destitute. No claim for his entitlement to the allotment has been made by him either in his petition for leave to appeal and the concise statement or in his writ petition before the High Court. Since there is nothing on record showing as to how he is aggrieved by the impugned order, he in our estimation has no locus- standi to invoke the extraordinary constitutional jurisdiction of the High Court by way of writ petition..."
' In the present round of litigation, the appellants have miserably failed to prove that they are aggrieved by any act of the Custodian or the Government. There is nothing on record to support the claim of the appellants. The Custodian of Evacuee Property, with the approval of Government, has issued the notification regarding transfer/sale of the evacuee land in consideration of Rs,24,49,400, in which rent of the land is also included. According to the provisions of the Act, the Custodian was empowered to do so. Therefore, the appellants failed to prove their claim of being aggrieved by the act of Custodian. It is settled principle that the writ petition could be entertained only on the application of an aggrieved person, therefore, the High Court has rightly dismissed the same on this ground as well.
' As for the question of res judicata raised by the respondents is concerned, we are afraid that when the controversy regarding allotment of the land in question between the parties stood concluded up to this Court in previous round of litigation, filing of an application by the appellants under section 18-B of the Act, to re-open the same is just a struggle to defeat the judgment of this Court recorded on 15-4-1987. This practice cannot be allowed as it will open the way to challenge the judgments of the apex Court and start an unlimited chain of litigation. Thus, the findings of the Custodian of Evacuee Property, recorded vide order dated 13-10-1994 and that of the High Court dated 12-12-2003 are quite in line with the statutory provisions, which does not call for indulgence by this Court, thus the same are upheld.
' In the light of what has been stated above, we find no force in this appeal, thus, the same stands dismissed with no order as to costs.