Kh. Muhammad Nasim, ACJ. The titled appeal has been directed against the judgment and decree of the High Court dated 30.12.2020, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The facts of the case briefly stated are that Muhammad Rafique and others, (proforma- respondents along with appellant, herein) filed an application under Section 7 of the Auqaf Act, 1960, before the District Judge Muzaffarabad on 10.01.2013. It was stated that the applicants are in possession of the suit land comprising of Survey Nos. 555-min, 556, 559, 562-min, situate at Chella Bandi, since their forefathers and they spend huge amount to plain the land. It was further stated that non-applicants issued notice for ejection to Applicants No. 1 and 2 on 09.05.2012 and when they obtained the copies of the revenue record, it came into their knowledge that non-applicants had illegally issued the notification dated 27.04.1995 and on the strength of said notification registered the Mutation No. 1000, on 27.04.1995. In the application they prayed for cancellation of notification dated 24.04.1995 as well as Mutation No. 1000. The non-applicants/respondents, herein, filed objections on the said application. The learned District Judge after hearing the parties dismissed the application filed under Section 7 of Auqaf Act, 1960, being time barred vide its order dated 29.04.2013. Feeling aggrieved, the applicants/appellant, herein, preferred an appeal before the High Court, which has also been dismissed through the impugned judgment, hence this appeal.
3. Mr. Fayyaz Ahmed Janjua, the learned Advocate, representing the appellant submitted that the impugned judgments passed by the Courts below are against law and the record of the case, hence the same are not sustainable in the eye of law. He forcefully argued that the Courts below fell in error of law while deciding the matter, mainly on the ground of limitation, whereas the fact of the matter is that the notification dated 27.04.1995, for the cancellation of which the application was filed, was not in knowledge of the appellant. The appellant got knowledge of the aforesaid Notification on 09.05.2012, when the respondents, issued notice to the appellant and proforma- respondents, herein, for ejection. After having knowledge, the appellant and proforma-respondents filed a suit before the Civil Judge Court No. 1, Muzaffarabad, which was dismissed on the ground of pecuniary jurisdiction. Thereafter, the appellant/applicants filed the application, under Section 7 of the Auqaf Act, 1960, which from the date of knowledge was well within time. Even otherwise, the question of limitation is a mixed question of law and facts and cannot be decided without recording the evidence. In this state of affairs, the dismissal of the application on the point of limitation is a nullity in the eye of law. He prayed for acceptance of appeal.
4. Conversely, Mr. Sajid Hussain Abbasi, the learned Advocate representing the respondents forcefully opposed the arguments addressed on behalf of the appellants and submitted that the impugned judgments are quite in accordance with law, calling for no interference by this Court.
The application filed under Section 7 of the Auqaf Act was hopelessly time barred, hence the same was rightly dismissed on the ground of limitation. He further submitted that there are concurrent findings of facts recorded by both the Courts below, hence the interference by this Court is not warranted under law. He requested for dismissal of appeal.
5. We have heard the learned Advocates, representing, the parties and gone through the record of the case along with the impugned judgment. The perusal of the record reveals that the appellant along with proforma-respondents, herein, filed the application/petition for cancellation of the Notification dated 27.04.1995, under Section 7 of the Auqaf Act, 1960 before the District Judge Muzaffarabad on 10.01.2013. The learned District Judge after, hearing the parties dismissed the application vide judgment dated 29.04.2013, on the point of limitation. The learned High Court through the impugned judgment while dismissing the appeal, has upheld the judgment of the learned District Judge. Under Section 7 of the Auqaf Act, 1960, the limitation for filing such application is 30 days. For convenience Section 7 of the Azad Jammu and Kashmir Waqf Property Act, 1960, is reproduced as under:- "7. Petition to District Court against Notification:--(i) Any person claiming any interest in any Waqf Property in respect of which a notification has been issued under the last preceding section may, within thirty days of the publication of such notification, petition to the District Court within whose jurisdiction a part of the Waqf Property is situated for a declaration:--
(a) that the property is not Waqf property;
(b) that the Property is Waqf property within the limits stated in the petition; Provided that notwithstanding anything contained in any law for the time being in force, or in any custom or usage or in any decree, judgment or order of any Court or other authority or any proceeding pending before any Court or other authority no such petition shall lie in respect of any interest in the income offerings, subscriptions or articles referred to in explanation 4 to clause (d) of Section 3, or the services or ceremonies (Rasoomat) mentioned in Section 6,"
The record also reveals that the applicants themselves admitted in Para 4 of the memo. of petition that they got knowledge regarding the notification dated 27.04.1995 on 09.05.2012. For the sake of convenience Paras 4 is reproduced here as under: After going through the abovementioned para, we are of the considered view that the Courts below have committed no illegality while passing the impugned judgments as the applicants themselves admitted in the petition that they got knowledge of the mutation dated 27.04.1995, incorporated in the revenue record on the strength of notification dated 27.04.1995, on 09.05.2012, when the notice for ejection was issued to them. No any application for condonation of delay has been filed by the applicants. The application was hopelessly time barred, hence rightly dismissed by the Courts below on the point of limitation.
7. There is another important aspect of the case which came into the notice of the Court while drafting the judgment that the appellant has filed direct appeal before this Court against the impugned judgment of the High Court, which is not competent, rather la petition for leave to appeal was competent. The relevant provisions of law, on the subject matter is Article 42(11)(d) and
(e) of the Azad Jammu and Kashmir Interim Constitution, 1974, which reads as under:-- "(11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir.
(a) ...................
(b) ...................
(c) ...................
(d) if the amount of value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less, than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; A glance reading of the above provisions shows that a direct appeal lies in this Court when the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied or set aside the impugned judgment or decree of the Court immediately below. The perusal of the record reveals that the learned High Court through the impugned judgment has neither varied nor set aside the judgment of the trial Court. The similar proposition came under consideration of this Court in a case titled Azad Govt. and 3 others vs. Muhammad Reshim Khan and 38 others (Civil Appeal No. 236 of 2015), delivered on 08.02.0216, wherein it was observed as under: "Leaving aside the arguments of the learned counsel for the parties the examination of record reveals that through the impugned judgment the learned High Court has neither varied nor set aside the decree/final order of the Reference Judge (the Court immediately below). Thus, in this state of affairs according to the provision of Section 42(11)(d) and (e) of the Azad Jammu and Kashmir Interim Constitution Act 1974, no direct appeal is competent."
In another case reported as WAPDA and others vs. Taj Begum and others [2014 SCR 588] it has been held by this Court as under: "The proposition in hand relates to Section 42(11)(d) and (e) of the Act, which provides that the appeal shall lie to the Supreme Court of Azad Jammu & Kashmir from any judgment; decree or final order of the High Court of Azad Jammu & Kashmir if the amount or value of the subject matter of the dispute in the Court of first instance was and also in dispute in appeal is not less than fifty thousand rupees or such other sum, as may be specified in that behalf by the Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final of the Court immediately below."
In the instant case, the applicants (appellant and proforma-respondents herein), filed the application under Section 7 of the Auqaf Act, 1960, for cancellation of the notification dated 27.04.1995, regarding the land comprising of different survey numbers, situate at Chella Bandi. The learned District Judge dismissed the application on the point of limitation vide judgment dated 29.04.2013. Against the aforesaid judgment, the appellant along with proforma-respondents, herein, preferred an appeal before the High Court. The learned High Court through the impugned judgment dismissed the appeal and upheld the judgment of the learned District Judge. The learned High Court has neither set aside, nor varied the judgment of the learned District Judge (the Court immediate below), hence in view of the statutory provision of law as well as the principle of law reproduced hereinabove, against the impugned judgment, petition for leave to appeal was competent before this Court, whereas the appellant has filed the direct appeal, which is not competent.
For the above stated reasons, this appeal being filed incompetently and devoid of any force, is hereby dismissed, with no order as to costs.