Through this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief has been claimed by the petitioners.
"It is therefore humbly prayed that the writ petition may kindly be accepted and an appropriate writ in favour of petitioners against the respondents may kindly be issued whereby order passed by the Respondent No, 2 on 25.09.2013 may kindly be declared against law, facts and record. Any other relief which deemed proper may also be granted in the interest of justice."
2. Facts of the case, shortly stated are that petitioners have purchased land including Survey No, 683 through registered sale deed dated 06.04.2009. The possession of land purchased by the petitioners was duly handed over to the petitioners by the vendors. It is alleged that Respondent No, 3 filed a suit before the revenue authorities on the same grounds. It is further alleged that the trial Court dismissed the claim of Respondent No, 3 being against law facts and record. It is averred that during pendency of suit a commission was also appointed and reported that the petitioners are owner and in possession of land Khasra No, 683. It is further averred that Respondent No, 3 did not file any objection on the report of commission. Lastly prayer has been made for acceptance of the petition.
3. The petition has been contested by the respondents by filing written statement. In the comments, which were, later on, treated as written statement, on their request, the claim of the petitioner has been refuted in toto and it has been stated that necessary parties have not been arrayed in the line of respondents. It is further alleged that the writ petition is hit by laches therefore, is liable to be dismissed. It (sic) challenged the validity of impugned order dated 25.09.2013 by filing a review petition before the Board of Revenue on 27.09.2014 but without awaiting the result of review application, the petitioners have filed this writ petition against the said judgment. The petitioners seek two remedies against the same order. Lastly prayer for dismissal of the writ petition with costs has been made.
4. Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the petitioners, repeated his version taken in the petition and stressed the point that the trial Court appointed commission who after site inspection has reported that the petitioners are owner in possession of land. He contended that tempering has been made in the judicial record room whereas the other copies are in correct form. Khasra No, 683 has been tempered and changed into Khasra No, 686. He further contended that civil Judge has decided the matter on 06.04.2011 in favour of petitioners. He craved for acceptance the writ petition.
5. Conversely, Barrister Humayun Nawaz Khan, Advocate, the learned counsel for respondents refuted the claim of the petitioners, categorically and stated that the petitioners have sought two remedies. It is further alleged that the necessary parties have not been impleaded in the line of respondents, therefore, the writ is not maintainable and liable to be dismissed. It is further alleged that the impugned order has been passed on 25.09.2013 and the writ petition was filed on 26.06.2014, after elapse of 9 months, the writ petition suffers from laches therefore, liable to be dismissed. Lastly the learned counsel prayed for dismissing the writ, petition with costs and referred the following case law:-
1. 2004 SCR 328,
2. 1995 SCR 259,
3. PLD 2011 AJK 17,
4. 2003 YLR 346,
5. 1999 SCR 214,
6. PLD 1985 SC AJK 10.
6. I have heard the learned counsel for the parties, gone through the record of the case and have also considered the law on the subject, with due care.
7. It is not denied by the learned counsel for the petitioner that the review petition was filed before the revenue authority by the petitioners wherein impugned order was assailed on 2 7.09.2013 which has been dismissed in default on 22.08.2014.
8. A bare reading of contents of the writ petition filed before this Court on 30.06.2014 shows that the above noted review petition was pending adjudication before Defendant No, 1, whereas, the same fact has been suppressed in the instant writ petition. Moreover, it is evident that the petition has been filed before this Court after elapse of a period of 9 months, which is obviously hit by laches.
9. A perusal of writ petition also reveals that the impugned order has been passed by the Respondent No, 2 against the order of Commissioner Revenue Mirpur Division dated 12.01.2012 as well as the order of Deputy Commissioner/Collector, District Mirpur dated 26.10.2011 but none of them have been arrayed in the line of respondents
10. A perusal of record also suggests that matter pertains to correction of record which has been decided by tribunal of exclusive jurisdiction. However, only concluding argument of the learned counsel for the petitioners that the order has been passed in lump sum manner whereas it was enjoined upon the respondents to pass any such order after a detailed inquiry and fixing the responsibility of some one for tempering the record. I have gone through the record appended with the pleadings of the parties whereby it can safely be concluded that the contention of the learned counsel for petitioner is without any force.
112 As for as the stance of the learned counsel for the petitioner regarding the civil litigation between the parties and ,the order of Civil Judge dated 06.04.2011 is concerned. A perusal of impugned order shows that the matter pertaining to the correction of record has not been touched or decided by the Civil Court, being matter pertaining to correction of revenue record pending before the relevant-forum,
12. The above findings are fortified by 1995 SCR 259 (Haji Summandar Khan & others v. Azad Govt.), wherein, it has been held that writ petitions were belated by 5 to 8 months. No reasonable explanation given for delay. Writs were held to be hit by laches. In PLD 2011 High Court, AJK 17 (Muhammad Anayat Khan v. ADJ, Poonch Rawalakot & others), it has been held by the Hon'ble Chief Justice of this Court that Authority or public functionary, who has passed order against a person was necessary party and in absence, whereof, no writ could be issued". In 1992 SCR 214 (Mirza Laal Hussain v. Custodian Evacuee Property & others), it has been held by the apex Court of AJK. That, If a person affected by void order but he does not challenge it within reasonable time the Court may refuse to ignore it and if a necessary party is absent-there can be no adjudication' and in PLD 1985 SC(AJK) 120 (Muhammad Ashraf and 8 others u. Azad Gout. & 13 others), the apex Court has been pleased to hold that ' Non-impleadmg of necessary parties during limitation period- equitable considerations-Court not to see equity only in favour of one party but to safeguard interests of other party too in whom right had come to reside because of their non-impleadment in time
13. In the light of what has been stated above the instant writ petition, being hit by laches, non- joinder of necessary party and after availing a remedy, as well as being against the findings of .a tribunal of exclusive jurisdiction is incompetent, which is hereby dismissed.
14. Order announced. The file shall be consigned to record after due completion.