' RAJA MUHAMMAD KHURSHID KHAN, C.J.--This appeal, by leave, addressed against the judgment of the High Court, passed on 24-1-1982, has arisen in the following circumstances: ' Lease of evacuee land measuring 64 Kanals situate in the area of village Dhamni, District Poonch, was granted to the appellant No. 1 by the learned Custodian of Evacuee Property (arrayed here as appellant No. 2) on 14-6-1981. The lease order was challenged by way of a writ in the High Court by the respondents under section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, inter alia, on the ground that as the possession of the land was with them at the time the lease was granted, the lease was incompetent. A Division Bench of the High Court, on 24-1-1982, while accepting the plea vacated the lease order. The sole ground advanced for the vacation of the order was that constructive possession of the land as required under section 25 (1) of the Administration of Evacuee Property Act, 1957 (as adapted in Azad Kashmir) is a condition precedent for a valid order of lease; and as such possession was not with the Custodian at the time the lease was granted, the lease order is a nullity. This order of the High Court is made subject of bitter criticism in this appeal.
2. The solitary point stressed on behalf of the appellant during the course of argument was as to whether the lease of the land granted to the appellant by the Custodian without prior ejectment of the respondents, who retained its possession at the time of lease, can be termed to be a valid one.
The learned counsel for the appellant, in order to defend the order of the learned Custodian, in the first instance took section 25(1) of the Administration of Evacuee Property Act, 1957, as a legal cover asserting that this section empowers the Custodian to lease out any evacuee property irrespective of the fact as to whether he retains its actual possession or not. In his view constructive posses sion of the land, as held by the High Court, is not a condition precedent for a valid lease. He further maintained that every person who is or has at any time after 28th day of February, 1947, been in Possession or supervision of any evacuee property shall under section 10(1) of the Administration of Evacuee Property Act, 1957, which reads: "(1) Every person who is, or has at any time after the twenty-eighth day of February, 1947, been in possession, super vision or management of any evacuee property, shall be deemed to hold or to have held, as the case may be such property on behalf of the Custodian.
(2)
(3) be deemed to hold or have held, as the case may be, such property on behalf of the Custodian.
The possession of such person in such cases, therefore, according to the learned counsel, shall be considered to be the possession of the Custodian by fiction of law. He also argued that all evacuee property, as stipulated under section 7 (1) of the Administra tion of Evacuee Property Act, 1957, which reads:- "All evacuee property shall vest and shall be deemed to have vested in the Custodian with effect from the first day of March, 1947." ' vests and shall be deemed to have always vested in the Custodian with effect from the first day of March, 1947. Therefore, under section 7 (1) read with section 10 (1) of the Administration of Evacuee Property Act, 1957, all evacuee property shall be deemed to be of the Custodian with possession and whosoever occupies such land shall be taken to be the possession on behalf of the Custodian.
3. On the above field of the arguments the learned counsel submitted that the learned Judges in the High Court misdirected themselves to hold the constructive possession of the evacuee property with the Custo dian is a condition precedent for leasing it out.
4. The argument advanced, in our estimation, has substance. The wisdom behind sections 7 (1) and 10 (1) of the Administration of Evacuee Property Act, 1957, referred to above, seems to be that even if a person is found to be in actual possession of the property declared to be evacuee, the possession shall always be deemed to be that of the Custodian. The Custodian, no doubt, had not, in the case before us, taken actual possession of the property in dispute yet by fiction of law in terms of section 10 (1) of the Administration of Evacuee Property Act it would be said that possession of the evacuee property lay with the Custodian at the time it was leased out and it would hardly make any difference even if in fact the property was in possession of some other person. So was held in Syed Salahuddin Ahmad v. Janki Mohtan AIR 1957 Pat.
549. Reference to Maqsood Alam v. Mossamat Bibi Husna and another AIR 1971 Pat. 31 made by the Division Bench of the High Court with a view to show that the proposition of law enunciated in Syed Salahuddin Ahmad v. Janki Mohton was overruled in that case, does not seem to be correct. The relevant observation in Maqsood Alam v. Mossamat Bibi Husna may be reproduced. It reads as under:- "With great respect, this view is open to some doubt. Under the provision of. the Act, any one, who is in possession has to make over possession on demand to the Custodian; but there is noting to show that there is any conclusive presumption that actual possession is at a particular time with the Custodian. If a proceeding under section 145 is drawn up, the only question which is to be determined is the question of actual possession. If it is found that some person other than the Custodian can proceed under section 9 of the Act to demand possession which is necessarily to be surrendered to him. In this view of the matter, I don't think that there is any conflict between the provisions of the Act and the provision of section 145 of the Code."
(Underlining is ours)
5. The careful study of the observation would make the fact manifestly clear that the observation was made in relation to section 145 of the Code of Criminal Procedure which can hardly be made to apply td the facts of the present case which are altogether distinguishable and cover a different field. There is no quarrel with the proposition that under section 145, Code of Criminal Procedure, the only question which is to be determined is the question of actual possession and the possession, by fiction of law in such cases, has no application. This is only which is covered by the above citation.
6. Besides, the impugned judgment of the learned Division Bench of the High Court has reiterated the view earlier recorded in a case reported as Amir Ullah v. Custodian of Evacuee Property, Muzaffarabad and another PLD 1982 Azad J & K 9. In that case it was held that the Custodian has no authority to rent out a premises of evacuee property without taking possession of such property, as it would be violative of section 25 (1) of the Administration of Evacuee Property Act.
7. We have minutely looked into this judgment. The observation seems to be based on misreading of the relevant provision. The wordings of section 25 (1) of the Administration of Evacuee Property Act, which has been reproduced in the aforesaid case of the High Court, are as under:- "The Custodian may take such measures as he considers necessary or expedient for the purpose of securing, administering, preserving and managing any evacuee property of which posses sion has been taken by him and may, for an such purpose as aforesaid, do all acts and incur all expenses necessary or inci dental thereto."
' This is incorrect reproduction of the section. The section correctly reads:- "The Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, pre serving and managing any evacuee property or property of which possession has been taken by him and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto."
8. It would appear that the learned Judges of the High Court were mislead by the incorrect reproduction of the section to hold that lease cannot be granted without prior possession of the evacuee land. The words "any evacuee property or property of which possession has been taken by him" have been wrongly reproduced as "any evacuee property of which possession has been taken by him" and this, in our view, has resulted in a wrong conclusion. Had the learned Judges been made conscious of the mistake, we believe, the error would not have been cropped up.
9. The plain reading of correct section shows that the Custodian is competent to take all measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property, irrespective of the fact as to whether he has actually taken constructive possession of the same or not. This legislation has much wisdom as under sections 7
(1) and 10 (1) of the Administration of Evacuee Property Act, 1957, the evacuee land shall be taken to have vested in the Custodian from the 1st day of March, 1947, and whosoever retains its possession, shall be considered to have such possession on behalf of the Custodian. We are, thus, of the considered view that due to the wrong reproduction of the section a mistaken view of law has been taken; otherwise, the general provision contained in section 25 (1) is comprehensive to give protection to the action of the Custodian in leasing out the evacuee property to the respondents without getting its actual possession. A person, after getting the lease under B section 25 (1) of the Administration of Evacuee Property Act, 1957, of course, is competent to ask for the eviction of the appellant under sub-clause (h) of section 25 of the Act.
10. The word "possession" in context of section 25 (1) when read with sections 7 (1) and 10 (1) of the Administration of Evacuee Property Act must be given a widest possible meanings. It should not be confined to possession, actual or constructive, but must be extended to every sort of possession known to law. A person holding the land on behalf of another cannot claim that the other is not in possession. For instance. where the property is in possession of the receiver, the receiver cannot deny that the party having title to the land has no right to possession. Besides, in the second part of section 25 (1) of the Administration of Evacuee Property Act the legislature has used the word "possession" independently of the first part of the section. The first part deals with the administration and preservation etc. of the evacuee property irrespective of the fact whether it is in the actual possession of the Custodian or not. However, second part of the section makes it imperative for the Custodian that he should hold the possession of the property before taking any action. It appears that the word "possession" in the second part of the section has been used in cases where the character of the property either is not that of the evacuee or it is a joint property with local; and in that case the Custodian is only competent to pass any order after having its possession, which can only be done after its partition. It has no application to the first part of the section. As said earlier, action under 25 (1) of the Administration of Evacuee Property Act can, therefore, be taken by the Custodian irrespective of the fact as to whether the Custodian retains its actual possession or not because under law such land shall be presumed to be in possession of the Custodian.
11. The common example in the field of evacuee property are the cases of evacuee property the possession whereof has been taken by the locals in 1947. Such property, under section 7(1) of the Administration of Evacuee Property Act, vests in the Custodian and its possession under section 10(1) of the Act would be considered to be that of the Custodian. If a trespasser is in possession of such property, such a possession cannot be said to be his possession and he cannot be saidtobe in constructive possession of the property. The Legislature, therefore, thought well not to insist upon for possession of such evacuee property as a condition precedent for application of section 25 (1)
(first part) of the Administration of Evacuee Property Act. The possession referred to in section 25 (1)
(first part), therefore, in terms of section need not be actual and physical but may be in law.
' In the aforesaid view of the matter we are of the view that the judgment recorded by the High Court cannot be sustained. We thus accepting this appeal set aside the judgment of the High Court dated 24-1-1982 and restore the lease order of the Custodian in favour of the appellant made on 25-3-1981. No order as to costs.