' TASSADUQ HUSSAIN JILLANI, J.---Through this appeal by leave of the court appellants-defendants have challenged the judgment of the Peshawar High Court, Abbottabad Bench dated 28-2-2011 which upheld the judgment and decree of the District Judge dated 10-7-2006 whereby respondents/plaintiffs' suit for declaration was decreed and the judgment of the trial Court dated 13-11-2002 was reversed vide which the said suit had been dismissed.
2. Facts briefly stated are that respondents/plaintiffs filed a suit for declaration and perpetual injunction as also for possession if they fail to prove factum of possession. In the plaint, it was averred that as per record of rights (Jama Bandi) for the year 1979-80, the suit land was allotted to Sardar Muhammad son of Hassan predecessor-in-interest of the plaintiffs in the capacity of refugee from Jammu and Kashmir on temporary basis whereafter the suit land went out of the compensation pool and the Settlement Department/defendant had no authority to make any order qua its allotment to anyone else. Further declaration was sought that the RL-II issued by defendant Department and mutations sanctioned pursuant thereto in favour of the appellants/defendants were illegal, collusive, fraudulent and ineffective qua the rights of the plaintiffs. The appellants/defendants in their written statement controverted the averments made in the plaint and submitted that respondents/plaintiffs' predecessor-in-interest was never allotted the land and that the defendants had purchased the suit land from those who were lawful owners of the suit property. In terms of the written statement 15 issues were framed. The learned trial Court on the basis of its findings on issue Nos,8 to 14 dismissed the suit, which judgment and decree was concurrently reversed and the suit decreed.
3. Leave was granted by this Court in terms of this Court's order dated 4-7-2012, which reads as follows:-- "We issued notice to the respondents and after hearing the learned counsel for the parties, we grant leave to appeal to examine whether;
(1) the property allotted temporarily to Sardar Muhammad under Rule 8 of Scheme 12 for maintenance was liable to be inherited by his legal heiRs, Two judgments of the Lahore High Court Allah Rakhi v. Sughra Bibi (1986 CLC 2095) and Muhammad Bibi v. Province of Punjab (2006 CLC 586) were cited for the proposition that temporary allotment of evacuee land was not inheritable, whereas, on behalf of the respondents Mst. Sakina Bibi v. Mamla (PLD 1977 Lahore 202) and Muhammad Khan v. Karim Bakhsh (PLD 1977 Lahore 747) were cited for the contrary. View;
(ii) without termination of the temporary allotment in favour of Sardar Muhammad, who died in the year 1987, could the lands have been allotted to Habib Shah and Khani Zaman respectively in the years 1977 and 1978;
(iii) the property was validly transferred in the names of Habib Shah and Khani Zaman from whom the petitioners derive title, particularly, in the light of the contention on behalf of the respondents that the order in favour of Habib Shah stood cancelled.
(iv) the earlier litigation to which the petitioners and the contesting respondents were party regarding Khasra No, 228, which was part of the temporary allotment to Sardar Muhammad, decided by this Court in Civil Petition No, 221 of 1995 dated 15-11-1995, can be pressed into service by the respondents to show that the fundamental issue regarding validity of allotment to Sardar Muhammad stands decided in favour of the respondents."
4. Learned counsel for the appellants in support of this appeal submitted as under:---
(i) that no allotment was ever made in favour of the predecessor-in-interest of the respondents/plaintiffs namely Sardar Muhammad and that no evidence was led by them to prove the same and even copy of RL-II was never tendered in evidence;
(ii) that had there been any allotment in favour of the respondents, the same would have duly been entered in the revenue record, in absence of which no presumption could be raised in favour of the respondents/plaintiffs;
(iii) that appellants had purchased the suit land in two separate transactions; first a piece of land measuring 44 kanals, 18 marlas was purchased from one Habib Shah. The said Habib Shah had been allotted the land through RL-II in terms of mutation No, 1026 dated 2-6-1965 (Ex.PW3/D5). The appellants purchased that part of the land through mutation No,1135 attested on 9-3-1967 vide Exh.P.W.3/D-11. Second, they purchased the other piece of land from Khani Zaman measuring 14 kanals, 3 marlas. The latter had purchased it in open auction from Central Government vide mutation No, 1486 attested on 13-9-1976 (Exh.P.W.3/D6). Appellants have purchased that piece of land through mutation No, 1538 attested on 21-10-1978 (Exh . P . W. 3/D8);
(iv) that appellants are in possession of the suit land ever-since its purchase by them;
(v) that the suit was hopelessly time-barred because Sardar Muhammad died in 1987 whereas the suit was filed on 26-7-1995.
' In support of the submissions made, learned counsel relied on Muhammad Bibi v. Province of Punjab and others (2006 CLC 586), Allah Rakhi v. Assistant Commissioner/Additional Settlement Commissioner (L), Narowal and others (1989 M LD 3343), Allah Rakhi v. Sughra Bibi (1986 CLC 2035) and Raisham Bibi v. Umar Din (1986 CLC 2354).
5. Learned counsel for the respondents/plaintiffs, on the other hand, defended the impugned judgment by submitting that respondents/plaintiffs had been in possession of the suit land as tenants since 1952 and thereafter as refugees from Jammu and Kashmir; that since the suit land stood allotted under the scheme, it could neither have been allotted to anyone nor purchased by the predecessor-in-interest of the appellants; that the ownership of Sardar Muhammad predecessor-in-interest of the plaintiffs in respect of Khasra No, 228 of the same Mauza came under litigation as the Joint Secretary Ministry of Religious Affairs, Government of Pakistan had decided the matter against the plaintiffs but the Peshawar High Court allowed respondents'
Constitution petition (bearing No,12 of 1990) and set aside the said order. While accepting the Constitution petition on 27-2-1995, the court gave a specific finding that appellants Kala and Muhammad Irfan (deceased) sons of Hafeez Ullah were tenants at will and were not entitled to the allotment of land.
6. We have heard learned counsel for the parties at some length and have also gone through the precedent case-law cited at the bar.
7. The learned trial Court vide its judgment dated 13-11-2002 dismissed the suit of the respondents/plaintiffs on the basis of its findings on issue Nos,8-14 by holding as follows:-- ' From perusal of the file and arguments of the learned counsel it is evident that (a) the plaintiff bases his claim on the entries of serial Nos,232 and 254 in the Register of Temporary Allotment No, II for the refugees of Kashmir and India. The printed heading show (sic) it as {{URDU TEXT}} ' In his plaint he states about the temporary allotted property that {{URDU TEXT}} ' It clearly show (sic) that the temporary allotment is made permanent as per rule after the payment of consideration The plaintiff have not shown how their temporary allotment has been made permanent because the permanent allotment order makes a person the owner. The plaintiffs by their selves say that the temporary allotment was for return (sic)/livelihood (b) The revenue record show that entries in the names of the defendants. It has consistency. In few khasra numbers the predecessor of the plaintiff has been shown as tenant at will, which does not confer any title of the nature of ownership. (c) On the contrary the defendants have in their favour the R.L.II Nos, 9 and 11. As already stated these, R.L.IIs have the support of revenue record. On the R.L.-II No,11 there is an entry to the effect that as per application of the Habib Shah the Khasra No, 101 stands cancel (sic). The learned counsel for the plaintiff stressed at this point that the document is required to be considered in its totality, so the cancellation be treated as material one. The learned counsel for the defendants states that the entry is by A.S.C. Who is not competent to make such an order, moreover the R.L.II has no defect or deficiency and the said remark has not been corroborated by the rest of the evidence; rather the operative part of the R.L.II is in consonance with the revenue record. So the R.L.IIs along with other corroborative evidence create a proof in favour of the defendants. It can be concluded that the defendants have a bona fide title to the disputed land and the sale, uncorroborated temporary allotment order does not create title for the plaintiff so both the issues are decided in favour of the defendants against the plaintiffs."
8. The learned District Judge, Mansehra reversed the judgment and decree of the learned Trial Court without considering the evidence on record and mainly relying on a judgment of the High Court in Writ Petition No,12 of 1990 and observed as follows:-- "9. Perusal of the record further would reveal that almost similar issue respecting such a situation arose when certain land was allotted to Sardar Muhammad which allotment was cancelled by the Secretary Rehabilitation, Central Government Pakistan, Islamabad which instead was allotted vide R.L-II to some of the same set of the defendants/respondents, for rectification and correction of which, authorities concerned were approached by Sardar Muhammad but proved to be a futile attempt, thus filed Writ Petition No,12 of 1990 before the honourable Peshawar High Court, Bench Abbottabad, where Joint Secretary Ministry of Religious Affairs and Minorities Affairs, Government of Pakistan, Islamabad, Administrator, Evacuee Trust Property, Rawalpindi, Assistant Administrator, Evacuee Trust Property, Abbottabad, Kala, Muhammad Irfan, defendants/respondents Nos,4 and No, 5 (there-in), Government of Pakistan through Secretary Ministry of Religious Affairs and Evacuee Trust Islamabad, Chairman Evacuee Trust Board, Lahore, were impleaded as respondents and many others, which writ petition was heard by their Lordship Mr. Justice Mian Muhammad Ajmal and Mr. Justice Javed Nawaz Khan Ganda Pur and were pleased to hold that when once certain evacuee land was allotted to Sardar Muhammad, the predecessor-in-interest of the plaintiffs/ appellants (petitioners there-in) could not be cancelled by the respondents (there-in) and on the acceptance of the writ petition, the impugned order (there-in) passed by Joint Secretary, Ministry of Religious Affairs, Government of Pakistan, Administrator Evacuee Trust Property, Abbottabad (respondent No, 2 there-in) were set aside and Temporary Allotment made in the name of Sardar Muhammad was restored, leaving no room to doubt, that such a temporary allotment could be cancelled as and when desired and the land could be re-allotted to some one else at the strength of R.L-II etc.
(10) ...........................................................................................
(11) Keeping in view of the afore-said judgments of the honourable Peshawar High Court, Bench Abbottabad and august Supreme Court of Pakistan, it is but clearly reflected that once certain evacuee property/land is allotted even if, temporarily to a refugee could not be cancelled being no more the ownership of the Government of Pakistan and out of the compensation pool, therefore, the settlement department and others (i,e, defendants/respondents Nos,1 to 3) could neither have cancelled the temporary allotment made in the name of Sardar Muhammad nor could be re-allotted to some one else. In this connection besides placing reliance on the afore- mentioned judgments of the honourable Peshawar High Court and honourable Supreme Court of Pakistan, reference can also be made to 2006 SCMR 25, PLD 1991 (Supreme Court) 391 and PLD 2003 (Supreme Court) 688 and many otheRs,"
9. Even the learned High Court based its finding on the judgment of the Peshawar High Court in Writ Petition No,12 of 1990 and allowed the Constitution petition of respondents by holding as follows:- "Record further shows that a similar situation arose when certain land was allotted to Sardar Muhammad, which allotment was cancelled by Secretary Rehabilitation, Central Government of Pakistan, Islamabad which instead was allotted vide R.L. II to some of petitioneRs, He approached for rectification/correction to the authorities concerned but failed and thus he was obliged to file Writ Petition No,12 of 1990 before this Court wherein their Lordships held "that when once certain evacuee land was allotted to Sardar Muhammad, the predecessor-in-interest of plaintiffs/appellants (petitioners therein) could not be cancelled by the respondents (therein)".
Joint Secretary Ministry of Religious Affairs and Minorities Affairs, Government of Pakistan Islamabad filed Civil Petition No,221 of 1995 before august Supreme Court which was dismissed on 15-11-1995 by maintaining judgment of this Court."
10. We may observe with respect that the learned two courts below did not appreciate that the issue in Writ Petition No,12 of 1990 before the Peshawar High Court was relatable only to Khasra No,228 situated in Village Chitti Gatti, Tehsil Mansehra, which according to respondents writ petitioners had wrongly been included in mutation No,1154 attested on 18-12-1967 in favour of one Gul Hassan whereas in the instant case the suit land and the khasra numbers are different and there is no common link between the two pieces of land. The facts leading to the filing of the said writ petition would be instructive. The widow of Sardar Muhammad had filed an application (dated 5-6-1968) before the Deputy Commissioner/Chairman District Evacuee Trust Committee Hazara Abbotabad that her husband late Sardar Muhammad was allotted Khasra Number 228 (measuring 10 kanals, 17 marlas) as a refugee from Azad Jammu and Kashmir; that the said land had been fraudulently mutated in the name of Gul Hassan and that the revenue record be corrected. The application was allowed by the Deputy Commissioner vide order dated 12th of October, 1968. This order was challenged before the Joint Secretary, Ministry of Religious Affairs who reversed the order whereafter she had to file the afore-mentioned Writ Petition (No,12 of 1990).
Having gone through the contents of Writ Petition No,12 of 1990, we find that in the entire body of the petition, there was no mention of the suit land, subject matter of this appeal, having ever been allotted to the respondents-plaintiffs. The suit land comprises of khasra numbers 229, 231, 232, 233, 234, 238, 239, 240. This land had been purchased by the appellants-plaintiffs much earlier than filing of the Writ Petition (No, 12 of 1990) by the respondents (reflected in Mutation No,1026 dated 2- 6-1965 (Exh.P.W.3/D5) and Mutation No,1135 dated 1-3-1967 Exh.P.W.3/D11). If they had any claim qua this land there was nothing to stop them to make a mention of it in the writ petition or to agitate the issue any further before any appropriate forum. Thus any finding recorded by the High Court in favour of Sardar Muhammad with regard to that khasra (Khasra No, 228) would be of no avail to the respondents/plaintiffs in the instant case which had to proceed on its own merits and in the light of the evidence led.
11. Learned counsel for the respondents was specifically confronted with the above aspect and he tried to argue that Khasra No, 228 Moza Chitti Gatti, Tehsil Mansehra, which was subject matter of Writ Petition No,12 of 1990, was part of the land which included khasra numbers of the suit land that was temporarily allotted to the predecessor-in-interest of the respondents/plaintiffs Sardar Muhammad and if there is a finding with regard to his title qua Khasra No, 228, the said finding proves that the suit land was also allotted to the said Sardar Muhammad (predecessor-in-interest of respondents). This argument is not tenable for three reasons: first because the said finding is relatable to Khasra No,228 only; second the learned High Court had confronted the department with the official record in its possession where Sardar Muhammad had been recorded as allottee which allotment evert the contesting respondents in the said writ petition did not dispute before the Peshawar High Court. The learned High Court in its judgment dated 27-2-1995 specifically adverted to this aspect in terms as follows:-- ... When he was confronted that according to official record, which is in their possession, Sardar Muhammad has been recorded the allottee, which has also been admitted by respondents Nos, 4 and 5 in their application dated 19-12-1983 (Annexure Z) he had no plausible explanation to offer."
' Third, the respondent-plaintiffs did not lead any evidence qua allotment of the suit land in favour of their predecessor-in-interest. The onus to prove issues Nos, 1 to 5 and 7 was on the respondents/plaintiffs. In order to prove temporary allotment they tendered in evidence Exh.P.W.1/1 and Exh.P.W.1/2. Exh.P.W.1/1 is copy of serial number 232 of the register of temporary allotment (RL-II) of the refugees from Jammu and Kashmir and to prove the same P.W.1 Muhammad Javed, Settlement Clerk, was produced. In cross-examination, the authenticity of both these documents was demolished as he admitted that the register did not bear the signature of the competent authority and there were no printed numbers on any page either. He said as follows:-- "The entries on Exh.P.W.1/1 not made in my hand writing. Similarly Exh.P.W.1/2 does not bear the entries made therein in my hand writing. Exh.P.W.1/2 bears its title in my register {{URDU TEXT}} ' which is still existing and has not been crossed. This register does not bear the signature of any competent authority. It is an old register maintained by Patwari ' Abadkari prepared in 1950-51 and has been handed over to in charge as it is. The said register bears numbers in hand writing. No printed number on any page of the register is available. Entry made on register about the death of Sardar son of Hashim Ali is in my hand writing. The said entry is not dated by me. Self stated that 1 have signed it."
12. Similarly copy of Jama Bandi for the year 1958-1959/record of rights was produced as Exh.P.W.3/4 and the said document was sought to be proved by P.W.3 Muhammad Inayat Patwari of Inayatabad. He neither referred to any allotment order or the date of allotment. Even in this document Sardar Muhammad is not shown as an allottee. Had he been an allottee, his heirs would have come forward to depose during trial. He was survived by the following heirs:--
(i) Mst. Khanum Begum (widow and one of the plaintiffs). She died in 2001.
(ii) Muhammad Riaz (son). He died in 1998.
(iii) Muhammad Iqbal (son). He is still alive.
(iv) Mst. Zarina (daughter). She is still alive.
' None of the afore-mentioned heirs bothered to appear during trial. Only one Muhammad Shafi who claimed to be Special Attorney of respondents/plaintiffs appeared as P.W.4. He could not give any date of the alleged temporary allotment made in favour of Sardar Muhammad. He agreed with the suggestion that the only temporary allotment mentioned in 'char khan register' maintained by the record keeper of Rehabilitation Department, we have no other document regarding the proof of temporary allotment." The credibility of this "Register Char Khan" was eroded in the cross-examination of P.W.1 Settlement Clerk Muhammad Javed as noted in para 11 above. He was specifically confronted with the query that Sardar Muhammad had been recorded as tenant at will in Jamma Bandi for the year 1968-69 which was repeated in 1958-59 and his reply was evasive. In his entire statement he never stated that respondents/plaintiffs were ever in possession.
13. The lack of interest shown by the legal heirs of Sardar Muhammad besides being intriguing, casts a serious doubt on the bona fides of the claim set up in the plaint P.W.4 Muhammad Shafi could not give any plausible explanation of their non-appearance. It was also put to him that he and one Jumma Khan had been instrumental in having the instant civil suit filed to extract money from the legal heirs of Sardar Muhammad by misusing latter's name. Though he denied the suggestion but when queried that certified copies of the revenue record for filing the instant suit were obtained by the said Jumma Khan, he again denied the suggestion but when confronted with the copy of Jamabandi/revenue record appended with the plaint, he was left with no option but to admit that, "it is correct that it is recorded on Fard Jamabandi for the year 1979-80 accompanied with plaint that Jumma Khan has obtained Fard Jamabandi from Patwari Halqa."
14. A perusal of the Exh.P.W.3/4 indicates that besides entry of Sardar Muhammad's name as a cultivator/tenant at will, there is an entry that the land was allotted to Habib Shah son of Gulab Shah vide mutation No,1026 attested on 2-6-1965. Appellants tendered in evidence mutation No,1135 attested on 9-3-1967 (Exh.P.W.3/D-11) vide which this piece of land was purchased by them from the said Habib Shah. Exh.P3/D5 is copy of the mutation vide which the land was allotted to Habib Shah on the basis of form QPR-V submitted by him. Under Rule 7 of the Scheme for the Temporary Allotment of Rural Evacuee Agricultural Land to Jammu and Kashmir Displaced Persons with verified Claims in Schedule V to the Registration of Claims (Displaced Persons) Act, 1956 initially temporary allotment is made on each entitlement certificate in form QPR-V. On Exh.P.W.3/D5 there is a specific endorsement that the allotment was made on production of entitlement certificate tendered by the allottee in form QPR-V. Similarly the other piece of land was owned by Khani Zaman. The said Khani Zaman had purchased it in open auction from Central Government vide mutation No, 1486 attested on 13-9-1976 and appellants purchased it from him through mutation No,1538 attested on 21-10-1978 (Exh.P.W.3/D8). Thus appellants are bona fide purchasers from two vendors i,e, (i) Habib Shah who was allotted the land vide mutation dated 2- 6-1965 (No, 1026) and (ii) from Khani Zaman who purchased it through open auction on 13-9-1976.
Both these transactions i,e, of allotment and purchase are of prior date than the entries of temporary allotment purported to have been made in favour of predecessor-in-interest of respondents/plaintiffs namely Sardar Muhammad.
15. There is yet another aspect of the case. It is in evidence that Sardar Muhammad predecessor- in-interest of the respondents died in 1987. He never challenged the allotment made in favour of Habib Shah vide the order dated 2-6-1965 and in favour of Khani Zaman on 13-9-1976 and surprisingly even the plaintiffs did not challenge those allotments till filing of the suit i,e, on 26-7- 1995 almost after 30 years of allotment made in favour of Habib Shah and 19 years of the allotment made in favour of Khani Zaman. This contumacious conduct and laches would impinge on their bona fides. In Abdul Haq v. Surraya Begum (2002 SCM R 1330), the suit was dismissed because the plaintiffs had challenged the sanction of mutation after nine years of its sanction and the person from whom the respondents claimed inheritance had not challenged those mutations during his lifetime. The Court observed as under:- "1 1. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late as in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."
16. There is no cavil to the proposition that once the land is allotted to a Jammu and Kashmir refugee, the same goes out of the compensation pool and cannot be allotted by the Settlement Department to anyone behind the back of the said allottee. This is so provided in paras 4-A(ix) and 44-A of the Rehabilitation Settlement Scheme which was framed under section 6(1) of the Pakistan Rehabilitation Act, 1956. Reference to those provisions would be pertinent and the same are as follows:-- "4-A. The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the Scheme:---
(i) urban land;
(ii) and mortgaged with possession by evacuees in favour of Muslim mortgagees except where a claimant is prepared to secure an allotment of such land in its encumbered state without demanding any additional compensation on account of such an encumbrance;
(iii) land attached to evacuee charitable, religious and educational trusts;
(iv) land reserved for expansion of village Abadis and other public purposes;
(v) deleted;
(vi) deleted;
(vii) deleted;
(viii) evacuee land under Muslim Occupancy tenants, and
(ix) land allotted on temporary basis to Jammu and Kashmir refugees." (Emphasis is supplied).
44-A. Allotment to Jammu and Kashmir refugees.---After meeting the claims pending on 12th February, 1957 for settlement under the Rehabilitation Settlement Scheme, all categories of rural evacuee agricultural land available in six border districts of Sialkot, Gujranwala, Gujrat, Jhelum, Rawalpindi and Attock should be reserved and utilized for temporary allotment to those Jammu and Kashmir refugees who can cultivate the land themselves. The transfer of claims under any circumstances to these districts should not be permitted. The evacuee land thus, allotted to Jammu and Kashmir refugees will be excluded from the Rehabilitation Settlement Scheme."
(Emphasis is supplied)
17. Some of the judgments of this court wherein the effect of para 44-A of the Rehabilitation Settlement Scheme quoted above has been dilated upon are as follows:--
(i) Dost Muhammad v. Badal Jan (19'76 SCMR 112)
(ii) Jan Muhammad v. Sher Muhammad (PLD 1979 SC 985)
(iii) Muhammad Din and others v. Allah Lok and otheRs, (1989 SCM R 323)
(iv) Ghulam Muhammad v. Ahmad Khan (PLD 1991 SC 391)
(v) Noor Muhammad v. Muzaffar Bibi (2006 SCM R 25)
18. The law laid down in the afore-referred judgments could have been of relevance to the case of the respondents/plaintiffs if they had succeeded in proving that the suit land was ever allotted to their predecessor-in-interest Sardar Muhammad in which attempt they failed. Similarly the question whether temporary allotment to a refugee of Jammu and Kashmir is heritable or not would not be relevant in this case: first, because the respondents-plaintiffs failed to prove the allotment; and second because of belated challenge to the allotment made to the vendors of the appellant/defendants as the suit was filed after thirty yeaRs,
19. For what has been discussed above, we are of the considered view that both the learned District Judge and the learned High Court have non-read and misread material evidence on record. The judgments on that score are. Not sustainable. Consequently, this appeal is allowed and the judgments of the District Judge dated 10-7-2006 and that of the learned High Court dated 28-2- 2011 are set aside and the judgment of the trial Court dated 13-11-2002 is restored with the consequence that the suit of the respondents/plaintiffs is dismissed throughout, with no order as to costs.