' MUHAMMAD AZAM KHAN, C.J.---The captioned appeal, with leave of the Court, arises out in the following circumstances.
2. The respondent filed a declaratory suit in the Court of Senior Civil Judge Bhimber on 28th October, 2003, whereby he challenged an agreement-to-sell dated 17th May, 1994 being against law, liable to be set aside. He alleged that the land measuring 64 kanals situate in village Sangri, Tehsil Bernala was allotted to his wife, Hakim Bibi. She died on 3rd April, 1982. After the death of his wife, he contracted second marriage and proceeded abroad. He divorced his second wife Mst. Kalsoom Bibi. Mst. Kalsoom Bibi impersonating herself as deceased Hakim Bibi executed an agreement-to-sell in favour of defendant. After necessary proceedings, the trial Court dismissed the suit. Feeling aggrieved, he filed an appeal in the Court of District Judge, Bhimber. The District Judge Bhimber vide judgment and decree dated 11th September, 2007 partly accepted the appeal, while declaring that Mst. Hakim Bibi alias Kalsoom Bibi herself executed agreement-to-sell but at the same time the learned District Judge cancelled the agreement-to-sell being illegal because under the Azad Jammu and Kashmir Chhamb Area Administration and Development Act, 1976 (hereinafter to be referred as Act) the land could not be transferred, or alienated.
3. The appellant filed an appeal in the Azad Jammu and Kashmir High Court and a learned single Judge in the High Court dismissed the appeal through the impugned judgment and decree on 24th February, 2010
4. Sheikh Masood Iqbal, counsel for the appellant, argued that the judgment of the High Court is not maintainable. It is liable to be set aside. The appellant is a bona fide purchaser. He has purchased the land from Mst. Hakim Bibi and is in possession of the same since long on the basis of the aforesaid agreement-to-sell. He further argued that after the judgment and decree of the District Judge, Mst. Hakim Bibi has executed another agreement-to-sell in favour of some other persons.
He has also challenged the same in the Civil Court. He has also moved an application for amendment in the written statement. He requested that amendment in the written statement be allowed and while accepting the appeal the case be remanded to the trial Court to be decided along with other pending suit. Lastly, he argued that the appellant has made the improvements with the huge expenditure amounting to Rs,1.1 Million. The High Court has not considered this aspect of the case.
5. While controverting the arguments, Raja Niaz Ahmed Khan, counsel for the respondent, argued that the judgment of the High Court is perfectly legal. Under section 3 of the Act, the possessory rights of the land vest in the Government. The land cannot be sold or alienated to any person. He referred to a judgment of this Court in a case titled Ghulam Hussain v. Muhammad Hussain delivered on 6th May, 2005, wherein it is held that an allottee under that Act cannot dispose of the land by sale or through any other means.
6. We have heard the learned counsel for the parties and perused the record. It is an admitted position that the land was allotted to Mst. Hakim Bibi under the provisions of the Act. It is also an admitted fact that Mst. Hakim Bibi sold the land to the appellant for a consideration of Rs,3,60,000 handed over the possession of the land and executed agreement-to-sell in his favour on 17th May, 1994. The District Judge accepted the appeal on the strength of judgment of this Court delivered in a case titled Ghulam Hussain v. Muhammad Hussain (Civil Appeal No,31 of 2004, decided on 6th May, 2005) and the High Court maintained the judgment and decree of District Judge. In the war of 1971, the Chhamb Area was liberated from Indian occupation and it came under the administration of Azad Jammu and Kashmir. For the administration of the Chhamb Area, the Act was promulgated. For determining the purpose of Act, it is necessary to look into the preamble of the Act, which is as under:- "AN ACT to make provisions for the administration and development of Chhamb Area.
' WHEREAS it is expedient to develop the agriculture and other land resources of the Chhamb area for the betterment of the community at large and to provide for its administration:"
' A perusal of the preamble reveals that Act was promulgated and enforced for the purpose of administration and to develop the agriculture and other land resources of the area and for the betterment of the community at large. The administration of the property/land vests in the Government. Under section 3 of the Act, the land situate in Chhamb Area vests in the Government and under section 4, the Government is empowered to allot the land to the persons or classes of persons enumerated therein. Sections 3 and 4 of the Act are reproduced as under-- "3. Vesting of land in Government.---(1) All lands in Chhamb Area shall vest and shall be deemed to have always vested in the Government free from all encumbrances with effect from 17th day of December, 1971: ' Provided that where a person is declared owner of any part of land by Deputy Commissioner, after holding inquiry under this Act, vesting of land to the extent to such declaration shall be deemed to be on behalf of such owner.
"2. The area as a whole shall be deemed to be in possession of Government and any person in possession of any part of the land in such area, shall be deemed to have held the same on behalf of Government, and shall be liable to surrender whenever so ordered.
4. Allotment of land.---(1) Subject to section 3-A the Government may allot the agriculture lands in the area to the following:-
(i) Land owners of the Chhamb Area who have not been allotted any agricultural land in Azad Jammu and Kashmir in lieu of land held by them in Chhamb Area or whose allotment of land is less than the land they owned in Chhamb Area prior to October, 1947.
(ii) 1965 War refugees from India held part of the State of Jammu and Kashmir duly registered with the Deputy Commissioner of the respective districts in Azad Jammu and Kashmir.
(iii) 1971 War displaced persons.
(iv) Ex-Servicemen."
' An analysis of section 3 reveals that all the land in Chhamb Area vested in the Government with effect from the 17th day of December, 1971 and under section 4, the Government is empowered to allot the land to landowners of the Chhamb Area who have not been allotted any agriculture land in Azad Jammu and Kashmir in lieu of land held by them in Chhamb Area, the refugees of the war of 1965 from India held part of the State of Azad Jammu and Kashmir and the persons displaced due to War of 1971. Under section 4, the Government is empowered only to allot the agriculture land.
From the combined reading of sections 3 and 4 of the Act, it can be concluded that none of the allottees falling under four categories has power to transfer, sold or alienate the land or the portion thereof to any person from the land allotted to them. No sale is permissible under the scheme of Act. Only those persons have a right to remain in possession in whose favour the allotment has been made under section 4 of the Act. This interpretation is further A supported from section 6 of the Act, which postulates that any person who enters upon or is in the possession of the land without any right or title, the Deputy Commissioner shall forthwith take the possession of the land from such possession holder and even he may use force to resume the possession. From the above provisions, it is crystal clear that an allottee has no right to transfer or alienate the land allotted under the Act. The propositions came under consideration of this Court in a case titled Ghulam Hussain v. Muhammad Hussain (Civil Appeal No,31 of 2004 decided on 6th May, 2005). In the said case, the allottee of agriculture land in Chhamb Area executed an agreement-to-sell which was challenged through a declaratory suit and the suit was dismissed. The appeals before the District Judge and the High Court also failed. In this Court, the appeal was heard by a bench consisting of two Judges. The Senior Member of the bench, Mr. Justice Syed Manzoor Hussain Gillani, dismissed the appeal, declaring the agreement-to-sell valid to the extent of share of Muhammad Hussain, while the other member of the bench, Mr. Justice Ch. Muhammad Taj, by accepting the appeal held that the transfer of the allotted land or alienation cannot be made by any allottee or allottees. Mr. Justice Kh. Muhammad Saeed, the learned Chief Justice of the time heard the appeal as a referee Judge and accepted the appeal. It was observed by the Court in para 9 as under:-- "9. From the provisions of this Act, it becomes clear that any person who was owner of the land prior to 1947 cannot claim land back to his ownership as of right. He can utilize his property if the same is given to his possession by Deputy Commissioner as allottee for the betterment of the community at large. The allottee, therefore, cannot transfer the land to any person either through sale or contract for sale. The sale as defined in section 54 of the Transfer of Property Act, 1882, is transfer of ownership in exchange for a price paid or promised or part paid and part promised. So sale can be effected only by a person who is owner of some property whereas under the provisions of this Act no allottee including respondent No,1 can claim ownership right on the basis of allotment order made in his favour. Contract of sale is also recognised under section 54 of the Transfer of Property Act, 1882, which has been defined in the following words:-- ' Contract of sale.---A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
' It does not, of itself, create any interest in or charge on such property."
The findings recorded by the Court in the above referred case are reaffirmed. It is hereby declared that an allottee of the agricultural land under the Act in Chhamb Area has no power to alienate or sell the land. The agreement-to-sell executed by the allottee was not a legal document.
7. We have also considered the arguments of the learned counsel for the appellant that the suit filed by the plaintiff, respondent herein, was time barred. We have perused the judgment of the trial Court. No issue was framed in respect of limitation. The limitation is mixed question of fact and law.
The appellant has not raised the question of limitation in the High Court. He cannot be allowed to raise the same for the first time in this Court at the time of arguments.
8. The appellant has also moved an application for amendment in the written statement on the ground that the allottee has executed another agreement-to-sell in favour of some other persons and he has challenged the same by way of a civil suit, which is still, pending in the trial Court. The learned counsel argued that the case may be remanded and both the suits may be heard and decided together. After considering the argument we are of the view that even if the proposed amendment is allowed then too, it cannot be helpful to the case of the appellant as it has already been held that an allottee of agricultural land under the Act, has no right to transfer or alienate the land under the provisions of the Act. The application is without foundation and is disallowed.
9. Now we advert to the argument of the learned counsel for the appellant that he has made improvements in the disputed land, which has not been considered by the High Court. We have perused the judgment of the High Court. At page 5 of the judgment, the High Court has recorded findings in respect of issue of improvement in the following words:-- "Even otherwise, the appellant has produced 3 witnesses i,e, Sadiq Hussain, Abdul Rehman and Ateeya Perveen and they have not deposed in their statements with regard to improvement made by appellant over the suit land. Only appellant deposed in his statement in respect of improvement raised by him over the suit land, which is neither supported by revenue record nor he requested to the Court for appointing commission for spot inspection to prove the issue of improvement. Due to this reason, appellant has miserably failed to discharge the onus of proof of issue of improvement. I have no reason to differ with the findings arrived at by the learned District Judge Bhimber, which requires no legal interference by this Court in appellate jurisdiction."
' The findings record by the High Court shows that the learned single Judge in the High Court perused the statement of Sadiq Hussain, Abdul Rehman, Ateeya Perveen and the appellant and after perusing the evidence derived the conclusion that the appellant failed to prove the issue of improvement. The findings are not assailable. There is no - misreading and non-reading of evidence.
10. Before parting with the case we may observe that admittedly the appellant purchased the land against a price of Rs,3,60,000 through agreement-to-sell and paid the price to Hakim Bibi. It is also admitted by both the parties at bar that the appellant is in possession of the land. We may observe here that the dismissal of appeal from this Court will not affect his right to recover the said amount from Mst. Hakim Bibi.
' The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to the costs.