RAJA SAEED AKRAM KHAN, J. --- The titled appeal, by leave of the Court, has been preferred against the judgment of the High Court dated 6.10.2017, through which the writ petition filed by the appellant, herein, was dismissed.
2. The facts of the case, as narrated, are that the father of the appellant migrated from Indian occupied Kashmir during the liberation war in the year 1947 and got settled in Sersala, Tehsil Samahni, District Bhimber . Being a refugee, the father of the appellant was issued ration-card and was also allotted a piece of land measuring 10 kanals comprising curvey Nos, 893/476 and 893/536-min, in village Sersala, Bhimber . The appellant approached the ARC (possession) Bhimber for possession of 5 kanals land and took the stance that the land measuring 10 kanals was allotted to his father on 27.12.1951, whereas, only 5 kanals land is in possession of the appellant and rest of the allotted land measuring 5 kanals has illegally been occupied by respondent No, 1, herein. The ARC (possession) dismissed the application vide order dated 12.02.1981. The appellant filed an appeal before the Additional District Rehabilitation Commissioner , who accepted the appeal and remanded the case to the ARC. After remand of the case, the ARC accepted the application and ordered for possession, whereupon, respondent No, 1, herein, filed an appeal before the ADRC, Bhimber , who rejected the appeal. Respondent No, 1, filed a revision petition before the Rehabilitation Commissioner , who accepted the same and remanded the case to the DRC for allotting 5 kanals land to each party , vide its judgment dated 16.11.1996. Against the order passed by the Rehabilitation Commissioner , the appella nt filed a revision petition before the Custodian of Evacuee Property , which was rejected. The appellant filed writ petition before the High Court and the matter was remanded to the Commissioner by the High Court. The learned Rehabilitation Commissioner . maintained the order for dispossession of respondent No,
1. Respondent No, 1, filed a revision petition before the Custodian of Evacuee Property , which was also dismissed. Respondent No, 1 filed a writ petition, which met the same fate. Thereafter , he filed an appeal before this Court. This Court remanded the case for its disposal on merits. On remand of the case, the learned Custodian accepted the revision petition and while setting aside the order of the Rehabilitation Commissioner , declared respondent No, 1, as legal allottee of half of the disputed land. The appellant, herein, challenged the judgment of the Custodian before the High Court by filing the writ petition, which has been dismissed through the impugned judgment, hence, this appeal, by leave.
3. Mr. Farooq Minhas, Advocate, counsel for the appellant, submitted that the impugned judgment is based on misconception of law and the facts of the case. He added that important documents remained escaped the notice of the Court. He referred to pages 46 and 47 of the record of the writ petition, while submitting that Ex.PC/1, a relevant document, which goes to the roots of the case, has not been appreciated in a legal manner , He added that the referred document clearly postulates that the permit of allotment was issued in the name of father of the appellant, namely Ghulam Hussain, who was the sole allottee. He further added that the learned High Court as well as the Custodian of Evacuee Property failed to take into account that Ghulam Hussain and father of respondent No, 1, namely Sher Muhammad, who were real brothers, were issued separate ration cards and allotment in dispute was made on the application moved by Ghulam Hussain in the year 1951, through allotment dated 27.12.1951. The learned counsel added that in the early round of litigation, the writ petition filed by the respondent was dismissed and he approached this Court by filing an appeal, on which the case was remanded to the Custodian of Evacuee Property for decisi on on merits but the learned Custodian and the. High Court failed to take into consideration the record/material in a legal manner , without taking into consideration that respondent No, 1, has got the land by practicing fraud, whereas he has no legal right. The learned counsel added that the allotment was made solely in the name of Ghulam Hussain and the same cannot be divided in equal shares on the strength of ration card, as no valid allotment was made in the name of father of respondents No,
1. He lastly argued that the findings of the learned High Court that the Custodian, is a special Tribunal of exclu sive jurisdiction and its findings of facts cannot be called in question in writ petition, is also against law, as if a judgm ent/order is nullity in the eye of law, the same is always open for interference by the High Court, while exercising its writ jurisdiction.
4. Conversely , Ch. Muhammad Afzal, advocate, counsel for the respondents, stren uously opposed the arguments of the counsel for the appellant and submitted that the judgment is well-reasoned, which is not open for interference by this Court. He submitted that there is an admitted position that Ghulam Hussain and Sher Muhammad were real brothers and both were refugees of Indian held Kashmir . He further added that the learned Tribunal appreciated the material brought on the record and also admitted that no other land, except the land in dispute, has been allotted to Sher Muhammad. It was also rightly held that both are equal share-holders in the allotted land.
5. We have heard the learned counsel for the parties and gone through the impugn ed judgment alongwith the other record made available.
6. The controversy involved in the matter is regarding the land measuring 10 kanals, allegedly allotted in the year 1951. The argument of the counsel for the appellant is that respondent No, 1 has no concern whatsoever , with the land. To appreciate the argument, we have minutely taken into consideration the record made available, which reveals that the appellant's father namely Ghulam Hussain and the respondent's father , namely Sher Muhammad, were real brothers and both were refugees. The record also reveals that allotment of the disputed land measuring 10 kanals was made on 27.12.1951. During the course of arguments, query was made to the counsel for the appellant that whether any other land was allotted to the respondent's father? He very fairly stated that he has not aware of that and nor any such allotment has come on the record. It also reveals that originally two separate ration cards were issued but later on the same were emerged into single ration card after adding the members of other ration card. This fact has not been denied before the learned High Court, however , it was submitted that the same was an afterthought but in this regard, no material has been brought on the record. The learned High Court while attending to this issue, has recorded plausible reasons in para 8 of the impugned judgment, which is reproduced as under:--- "8. As far the objection of the learned counsel for the petitioner that the insertion of the name of the respondent in the ration card is an afterthought and has been made with the connivance of the concerned officials, is concerned, in this regard it may be stated that these entries have attained finality and even otherwise, presumption of truth lies with the official record. This view of the Court also finds support from the referred case, 1997 SCR 258. Relevant observation lies at page 261 of the report which reads as under:-- Another significant aspect of the matter is that at the time of filing writ petition in the High Court no ground whatsoever was taken by the appellant herein that entries made in Misl-e-Haqiat 1957-58 and the Khasra Girdawari referred above were either fictitious or fake and not in accordance with the ground reality as alleged by the learned counsel for the appellant during the course of arguments. In absence of such a plea raised by the learned counsel for the appellant we cannot assume that the entries made in the Misl-e-Haqiat and Khasra Girdawari were factually incorrect. Particularly so when under law the presumption of truth is attached to the entries made in Misl-e-Haqiat or Jamabandi."
7. Moreover , we do not intend to differ with the findings recorded in para 9 of the judgment that the Custodian of Evacuee Property is a Special Tribunal of exclusive jurisdiction and its findings of the facts cannot be interfered with in writ jurisdiction. There is a plethor a of judgments on the point that the findings of facts cannot be called in question while invoking extraordinary writ jurisdiction. In the case reported as Baqa Muhammad Khan v. Custodian of Evacuee Property & 8 others [2001 SCR 344], this Court has observed as under:--- "In the light of the contrary stand taken by the parties the decision on this disputed question of fact .was not amenable to writ jurisdiction, because High Court while exercising Constitutional jurisdiction cannot assume the role of a Court of appeal. However , in the present case, the learned Judge in the High Court took into consideration all the documents which were made available before him by the parties and found himself in full agreement with the finding recorded by the Custodian on these disputed questions of facts, ordinarily in writ jurisdiction, High Court has to accept as correct, the findings given by the Custodian in respect of matters falling in his exclusive jurisdiction, as such it seldom allowed invoking of its writ jurisdiction under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, against his orders. However , if it is shown, that the findings of facts recorded by Custodian were due to mis-reading or non-reading of evidence, or on the assumption that a piece of evidence did exist while it did not, then for such finding immunity from examination of record by High Court even in writ jurisdiction cannot be claimed ...."
Similarly , in the case reported as Muhammad Shaft Khan & another v. Ghulam Din & 4 others [PLD 1992 Supreme Court (AJ&K) 58], it was observed as under:-- "The sanctity of findings of fact of Tribunals or functionaries of exclusive jurisdiction is undisputed but we are unable to agree with the proposition that such findings cannot be disturbed at all. The correct state of law is that a finding of fact cannot be disturbed in writ jurisdiction except when the Court comes to the conclusion that it is based on no evidence as held in Muhammad Aslam v. Ata Muhammad (1969 SCMR 16) or, as laid down in N.M. Khan v.
C.S. & R.C. (1970 SCMR 158), where it is based on erroneous deduction from facts which manifestly could not support such an inference or, as held in Chief Election Commissioner v. Ch. Abdu l Majid (PLD 1986 SC (AJ&K)
120), if it is patently wrong, is based on inadmissible evidence or there is gross non-reading or misreading of evidence."
Thus, it can safely be 'held that the findings of facts recorded by the Tribunal of exclusive jurisdiction can only be interfered with, if the same are against the record or suffering lack of jurisdiction, misreading or non-reading of evidence or based on no-evidence, but no such eventuality is available in the case in hand.
In the light of the supra findings, it may be observed that the findings of the High Court are in accordance with the pronouncements of this Court, which do not need interference. We have failed to find any illegality in the judgment of the Custodian of Evacuee Property , which is passed after proper appreciation of the material and the same have been concurred with by the High Court in exercise of writ jurisdiction. It may also be mentioned here that the parties are in litigation for the last considerable period of time and there must be an end to the litigation. In this scenario, the learned counsel for the appellant failed to substantiate the case for interference of this Court. Resultantly , the appeal is dismissed with no order as to costs.