ABDUL GHAFOOR, J.--Through this revision petition the order of Custodian of Evacuee Property, dated April 15, 1984, whereby the appeal filed by respondent No. 1 against the order, dated 26th June, 1982, passed by Sub-Judge/Deputy Custodian, Rawalakot was accepted and a decree for the land described in para 1 of the plaint was granted in his favour, has been assailed .
2. The brief facts of the case which led the petitioners to file the present revision petition are that respondent, Abdul Qaiyyum filed a declaratory suit in the Court of Sub-Judge/Deputy Custodian Rawalakot on 1st April, 1972 and claimed that he was the owner of the land comprising Survey Nos.
45/1 (2 Kanais and 16 MarJas), 27 (7 Kanals and 5 Marlas) and 45(51 Kanals and 15 Marlas) situate in village Parat Tehsil Rawalakot and the mutation which was sanctioned in favour of the defendants on the basis of Hindu Law (Dhram Shastri) was void and ineffective and inoperative as against his rights and the land comprising Survey No. 299/45 (14 Kanals and '9 Marlas), 300/45 (7 Kanais and 15 Marlas) and 45/1 (2 Kanals and 16 Marlas) which, on the assumption that it was an evacuee property, was allotted in favour of Nawab and Abdul Ghani, defendants and the land comprising Survey No 27 measuring 7 Kanals and 5 Marlas situate in village Parat which was mutated in favour of Mst. Nasim Jan and Mst. Kalli, defendants, 3 and 4, was also illegal. He stated that he was a convert and he embraced Islam in the year 1994 Bk and his ancestral property was confiscated as a punishment and was mutated in favour of defendants Nos. 5 to 10 who were his collaterals. It was claimed that the action, whereby the plaintiff-petitioner was deprived of the above-stated property for embracing Islam, was illegal, therefore, a decree prayed for may be passed in his favour.
3. The defendants through written statement filed on 18th June, 1972 contested the claim of the plaintiff-petitioner and took up the stand that the plaintiff-petitioner in fact sold the land about 10 years before embracing Islam and the defendants were not his collaterals.
4. The learned Sub-Judge/Deputy Custodian on the basis of pleadings of the parties, framed issues and after hearing them, dismissed the suit, through order, dated 26th June, 1982 and the respondent No. 1, feeling dis satisfied with the aforesaid order of the learned Sub-Judge/Deputy Custodian challenged the same by way of an appeal in the Court of Custodian who after hearing the parties, found that the judgment of the Court below and assailed before him, was incorrect, as such he vacated the order and granted a decree prayed for by the respondent-plaintiff vide order, dated 15th April, 1984 and this order of the learned Custodian is the subject-matter of the present revision petition.
5. The learned counsel for the petitioner moved an application and sought permission to file copies of 'Jamabandis' for the year 1992 to 1996 Bk and the Mutation Orders Nos. 252, 267 and 296 of Village Parat. He stated that these documents were not available to him at the time the suit was pending in the trial Court because the original record was destroyed and he obtained these copies from Poonch and as these documents are very important to arrive at a just conclusion of the case, therefore, he may be permitted to place these documents on record and it may be read into evidence. This application was opposed by the respondents and it was claimed that these documents are the act of forgery. Furthermore, the copies stated above have been issued by the authorities working under the Government of Occupied Area of Jammu and Kashmir State which is not recognized by our Government, therefore, these are not admissible in evidence.
6. On merits of the case, the learned counsel assailed the judgment of the learned Custodian and stated that the Custodian even travelled beyond the pleadings of the respondent-plaintiff and without giving proper reading to the evidence brought on the file, arrived at a judgment which is not sustainable. He stated that even on the basis of the evidence produced by the parties before the trial Court, it was proved that the land in dispute was sold by respondent-plaintiff before embracing Islam and the learned Deputy Custodian after making correct appraisal of the evidence, dismissed the suit but the learned Custodian without keeping in view the evidence available on the file, passed a decree in favour of the respondent-plaintiff which is required to be vacated.
7. To meet the argument of the learned counsel for the petitioner, the learned counsel appearing for respondents stated that under the provisions of section 43-A of the Act known as Administration of Evacuee property Act, 1957, this Court has got the jurisdiction to examine the legality or propriety of the order passed by the learned Custodian and has no power td~ admit any additional evidence and from a judgment on the basis of such evidence. He urged that the jurisdiction of this Court is much more limited than that of this Court while exercising jurisdiction under section 115, C.P.C. And pointed out that the learned Custodian after keeping in view the evidence brought on the record and the relevant law, arrived at a judgment which cannot be assailed by way of a revision, as required by section 43-A of the aforesaid Act.
8. We have considered the points raised at the bar, perused the record of the case and the provisions of the aforesaid Act and those of Circular No. 107, Resolution No. 6, dated 31st December, 1992 Bk and Act V of 1951 known as the Azad Jammu and Kashmir Removal of Restriction Upon the Conversion to Islam Act, 1951.
9. Resolution No. 6, dated 31st December, 1992 Bk was passed in connection with the person via -a- via his right to succeed his ancestral property who denounced his forefathers" religion and embraced Islam and the respondent No. 1 claimed that on the basis of this resolution, he was deprived of the suit land but after coming into force the Azad Jammu and Kashmir Removal of Restriction Upon the Conversion to Islam Act, 1951, he has become entitled to it. The petitioners do not dispute that the property of the person which was confiscated on his conversion to Islam can be given back to that person but the forum to get that property back is not the civil Court but it is the Revenue Commissioner who could provide relief to such a person. The petitioner's case is that respondent No. 1 sold the property in dispute for consideration before his conversion to Islam and his property was not confiscated. Therefore, he has no title to take the benefit of the provisions of the Act V of 1951:
10. Before reverting to examine the facts of the ease, it is expedient to dispose of the application moved by the petitioner for permission to produce additional evidence. The additional evidence cannot be allowed ordinarily at the appellate stage for the reasons that the appellate Courts are required to examine the legality of the judgment assailed before them but in case where the evidence required to be brought on record is required by the Court to arrive at a just conclusion, and there are sufficient reasons for not producing it, at the proper stage, the permission can be granted.,
11. The claim of respondent No. 1 in the present case is that the land in dispute was confiscated as a punishment for his embracing Islam, whereas the petitioners claim that respondent No. 1 sold the land for consideration before his conversion. It is also not denied that the revenue record in the charge of Patwari prior to the year 1947 was destroyed during the War of Liberation and the Revenue Records kept in the district headquarters i.e. "Poonch" fell into the hands of the authorities working under the control of Indian Held Part of the State of Jammu and Kashmir which would show that there was a reasonable cause for failure of the petitioner to produce these documents at the trial stage.
12. The decision of the dispute between the parties can only be arrived at after taking into consideration the copies of the Revenue Recrods sought to be produced as additional evidence, therefore, we think that these documents are required by the Court to arrive at a judgment but before allowing the additional evidence, the question as to whether the principle enunciated for the admission of the additional evidence in appeals can be extended to revision, is got to be examined.
13. The orders passed by the subordinate Courts whereby the case is decided, can be revised by the High Court to correct the error of jurisdiction as is stipulated in section 115, C.P.C. And to keep this state of law in view, the High Court, while exercising the revisional powers can only revise the orders passed by the lower Court if there is failure to exercise the jurisdiction but here in the present case, we are not hearing the case on the basis of the powers available to us under section 115, C . P.
C . But the powers to hear the revision petition are available to us under section 43-A of the Administration of Evacuee Property Act, 1957 which enables us to examine the legality and propriety of the orders passed by the Custodian and to pass any order as is deemed fit.
14. The powers of revision given to the High Court under section 43-A of the aforesaid Act, we think, are not narrower than the powers to hear an appeal provided under section 100, C.P.C. And we see no bar on the powers of this Court to allow the additional evidence at this stage but the difficulty did not end here and before taking any decision on the point, the worth of the objection taken by the learned counsel for respondent No. 1 that the copies sought to be read into additional evidence are issued by the authorities which are working under the Government of Indian Held Part of the State and the said Government is not recognized by our Government, therefore, these documents cannot be accepted to have been issued under the Evidence Act, as such, these cannot be read in evidence, is sought to be examined.
15. The entry in the public record can be read into evidence under section 35 of the Evidence Act which stipulates that an entry in any public record , made by a public servant in discharge of his official enjoyed by the law of country in which such record is kept, is a relevant fact and section 76 of the said act empowers the person has right to inspect to issue copy of the same.The annual records and mutation registers are prepared by public officials in discharge of their official duties enjoined by law of Indian Held Part of the State, as such, are relevant.The copies sought to be read in evidence are prepared as required by section 76 and 77 of the Evidence Act lay any distinction between the copies prepared by the authorities working under the recognized or unrecognized country and all that is required is that the entries in the public documents of which these copies are, should have been made by public servants in discharge of their public duties enjoined upon them by the law of that country which we think has been done, therefore, we hereby overrule this objections.
16. After having come to the conclusion that the copies of the, 'Jamabandis' for the year 1992 to 1996 Bk. And Mutation Orders Nos.252, 267 and 296 can be read into evidence, we think, it will not be just for us to place reliance on these documents unless the respondent No. 1 is provided with an opportunity of producing the evidence in rebuttal to it and this may require recording of evidence which, can be done by the trail Court, therefore, we hereby accept this revision petition, set aside the order, dated 15 April, 1984, passed by the Custodian Deputy Custodian RawlaKot with the direction to allow the respondent ---Plaintiff to produce the evidence in rebuttal if he so desires and proceed with case in accordance with. The copies of ---jamabandis--- for 1992 to 1996 Bk.
And Mutation Orders Nos. 252, 267 and 296 of Village Parat Tehsil Rawalakot, produced by the petitioner shall be sent to the trial Court after retaining the photostat copies of the same on the file of this Court.