This writ petition is directed against the orders of the learned Custodian Evacuee Property passed on 21-6-1979 and 25-7-1981 whereby under the former, he, in an appeal, set aside the order of the Additional Deputy Custodian Muzaffarabad dated 22-1-1972, declaring certain property to be an evacuee and under the latter dismissed the application for review of the former aforesaid order.
2. The brief facts giving rise to this writ petition are that the land comprising Survey No. 32/26/2 measuring 34 Kanals 9 Marlas, situate in village Hassan Sari, Tehsil and District Muzaffarabad, after having been treated as an Evacuee Property, was allotted to respondents Nos. 2 to 5 by the competent Rehabilitation authority. The aforesaid respondents obtained the possession of the land allotted to them in the month of February, 1969 after ejecting the petitioner therefrom with the assistance of the police whereupon on 7-1-1970, the petitioner filed an application under section 22 of the Pakistan Administration of Evacuee Property Act, 1957 (hereinafter called as Act) as adapted in Azad Kashmir before the Additional Deputy Custodian, Muzaffarabad praying therein for the grant of declaration that the land in question belongs to the petitioner and is not an evacuee property. The Additional Deputy Custodian, vide his judgment, dated 22-1-1972 partly accepted the above application of the petitioner and made a declaration that the petitioner is the owner of 22 Kanals and 9 Marlas of land out of the suit land to which extent the same is not an evacuee property.
3. Aggrieved by the above judgment of the Additional Deputy Custodian, Muzaffarabd, both the petitioner as well as the respondents Nos. 2 to 5 filed separate appeals against it before the learned Custodian who vide his judgment, dated 28-9-1978, dismissed them and maintained the judgment of the Additional Deputy Custodian, Muzaffarabad.
4. Being dissatisfied with the above judgment, the aforesaid respondents, who were the allottee of the suit land, made an application for the review of the same before the learned Custodian who vide his judgment dated 21-6-1979 read with his order, dated 25-7-1981 made in an application for review, accepted it and set aside his judgment, dated 28-9-1978 and declared the land measuring 35 Kanals 1 Marla comprising Survey Nos. 31/26/2 and 32/26/2, situate in village Hassan Seri, Tehsil and District Muzaffarabad to be an evacuee property and consequently dismissed the application of the petitioner filed by him before the Additional Deputy Custodian, Muzaffarabad. Hence this writ petition wherein the above orders of the learned Custodian declaring the land in question to be an evacuee property and dismissing the petitioner's application before the Additional Deputy Custodian, Muzaffarabad, have been challenged.
5. I have heard the learned counsel for the parties and have also gone through the record of the case. It has been argued by the learned counsel for the petitioner that the powers of review vested in the learned Custodian are' limited and he in exercise of his power of review could not set aside his own order whereby he had dismissed the appeal of the respondents Nos. 2 to 5 against the order of the Additional Deputy Custodian Muzaffarabad declaring the suit land to be non-evacuee.
It is further argued by him that the land in question is village common land (Shamlat Deh) in which all the proprietors of the village have the rights of possession, enjoyment and assessment in proportion to their ownerships in the village i.e. 'Hasab-i-Nasab Khewat' and as the petitioner owned 40 Kanals of land while Jagat Singh and other evacuees only owned 28 Kanals 19 Marlas of land in the village, he possessed the same right and interest in the land in dispute as other proprietors including the evacuee and thus the evacuees' interest and right in it is only to the extent of their shares in the same which falls to them in proportion to their ownership in the village and that at the most they were entitled to the exclusive possession of only 6 Kanals out of it which is shown to be in their possession in the copies of 'Jamabandi' of the year, 2001-2002 B.K. And 'Khasra Girdawari' pertaining to the year, 1968 filed with the writ petition. It is also contended by the learned counsel for the petitioner that the learned Custodian has misread the evidence produced by the parties which mistake has resulted in his declaring the whole of the suit-land to be an evacuee property and as such his impugned orders are liable to be declared unlawful and of no legal effect.
6. On the other hand, it has been contended by the learned counsel for the respondents that the land in question has rightly been declared to be an evacuee property by the learned Custodian as the same had fallen to the shares of the evacuees owner in the village concerned and was in their possession at the time of their migration from the Azad Kashmir.
7. After giving my due consideration to the above arguments of the learned counsel for the parties` and going through the record of the case. I am of the opinion that the first contention of the learned counsel for the petitioner that the learned custodian was not competent to pass the impugned orders in exercise of his powers of review, is devoid of any force but the second contention that the same have been passed on account of his misreading the evidence on record, has much force in it.
8. As regards the powers of review of the learned Custodian, they, are in my view, unlimited in exercise of which he is empowered to review any order of his predecessor or of his own if the justice of the case so requires. However, it may be made clear that his powers of review does not extend to making an order in disregard of the clear provisions of law on the ground that the justice of the case demand it. It appears appropriate here to reproduce the provisions of section 43(6) of the Act which confers powers of review up on the learned Custodian. It reads as follow:- "Section 43(6).- The Custodian or Additional Custodian may on application made to them in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor-in-office on any ground whatsoever as the justice of the case may require. Provided that no final order passed on or before the seventeenth day of November, 1956, declaring any person to be not evacuee or any property to be evacuee property shall be reviewed."
9. As would appear from the provisions of law reproduced above, the learned Custodian has the powers to review any order either of his predecessor-in-office or of himself and substitute it for any order which in his view justice of the case require , subject, of course, to the condition that the order he has substituted does not offend against or contravene the law of the land under which it is made.
10. It may, however, be made clear here that the above unlimited powers of review were given to the learned Custodian under subsection (6) of section 43 of the Act as was applicable in the Pakistan at the time of adaptation of the said Act in Azad Kashmir by virtue of an enactment called the Azad Kashmir Adaptation of Laws Act. 1959. But in Pakistan the above provision of law was substituted by new one, by Ordinance No.LXVIII of 1962 according to which only clerical and arithmetical mistakes in any order passed by the learned custodian under the Act or errors arising therein from any accidental slips or omission made at any time can be corrected by the concerned Custodian or his successor-in-office. Thus subsection (6) of section 43 of the Act as is applicable in Pakistan confers only limited powers of review upon the Custodian but in Azad Kashmir the old aforesaid subsection continues to remain in force as neither any amendment was made in it nor it was substituted by new one as was done in Pakistan. So, in Azad Kashmir, the learned Custodian continues to enjoy the unlimited powers of review and can pass any order in exercise of his above powers which in his opinion justice of the case demand subject, of course, to the limitation mentioned earlier in this judgment.
11. Now, coming to the merits of the case, it may be said that the impugned orders of the learned Custodian are unlawful because they have proceeded on the misreading of the evidence available on the record before him at the time of passing the same.
12. From the perusal of the impugned judgment of the learned Custodian, dated 21-6-1979, it appears that he had based his finding, regarding the land in dispute being an evacuee in nature, on the entries of the copy of 'Jamabandil 2001-2002 Bk., and the statement of 'Patwari' recorded by him. But the entries of copy of the 'Jamabandi' 2001-2002 Bk. And the statements of the 'Patwari' and Office Qanoongo annexed with the writ petition do not support the above finding of the custodian to the effect that the land in question is an evacuee property.' According to the copy of the aforesaid 'Jamabandi', the land comprising Survey No 32/26/2 measuring 34 Kanals 9 Marlas is a village common land out of which 6 Kanals in the nature of 'Kap' is shown to be in possession of Jagat Singh while the remaining is shown to be in joint, possession of all the proprietors of the village.
13. The statement of the 'Patwari' is mostly confusing and inconsistent in which at one place he has deposed that out of the land comprising Survey No.32/26/2 measuring 28 Kanals .9 Marlas is shown to be in joint possession of the proprietors in the estate in 'Jamabandi 2001-2002 Bk.
Whereas at other place he has stated that the said land is 'Shamlat Deh' falling to the share of Jagat Singh. However, his statement has no value and loses any significance in presence of the entries of the above 'Jamabandil itself according to which, as said earlier, out of the land in question only 6 Kanals of land is in possession of Jagat Singh while the remaining is in possession of all the proprietors in the estate. Even according to the statement of the said 'Petwari' the entries in the 'Khasra Girdawari' pertaining to the year, 1954 in respect of the possession of the land in question are similar to that of the aforesaid 'Jamabandi'. Thus, from the revenue record such as 'Jamabandil of the year, 2001-2002 Bk. To which the pre-sumption of truth attaches, it is proved that at the time of migration of the non-Muslim proprietors in the estate concerned from Azad Kashmir, the land bearing survey No.32/26/2 was a 'Shamlat Deh' and out of it only 6 kanals of the nature of pasture (Kap) was occupied by Jagat Singh non-Muslim proprietor while the remaining land measuring 28 Kanals 9 Marlas in the nature of ravine was in joint possession of all the proprietors in the estate. The findings of the learned Custodian that whole of the aforesaid land along with Survey No.32/26/1 was an evacuee property is, therefore, based on clear misreading of the evidence for which reason his impugned orders declaring the land in question, to be an evacuee cannot be maintained.
14. Now, 1 proceed to examine as to what is the nature and extent of the evacuees interest in the land which was the subject of the, litigation between the parties before the Additional Deputy Custodian;, Muzaffarabad. According to the revenue record, the land in quesion is, 'Shamlat Deh belonging to all the proprietors in the estate in proportion, to their respective ownership of cultivable land in the estate and that out of it 6 Kanals pasture was in exclusive possession of Jagat Singly evacuee and the remaining was occupied by all the proprietors in the' estate According to the statement of Bashir Hussain Office 'Qanoongo' recorded by the learned Custodian and copy of which is Annexure 'F'' with the writ petition, total cultivable land of the proprietors in the concerned village is 80 Kanals 4 Marlas while total 'Shamlat Deh' is 57 Kanals 7 Marlas. Thus, the share of the proprietor owning 1 Kanals cultivable land comes to 14 Marlas 3 Sersais in the 'Shamlat Deh'. The above-named witness has also stated that the petitioner owns 40 Kanals cultivable land in the village while the evacuee owned 28 Kanals 19 Marlas and thus the share of the petitioner and the non-Muslim evacuee in whole of the Shamlat Deh comes to 28 Kanals 12 Marlas and 20 Kanals 15 Marlas, respectively.
15. The result of the above discussion is that the land measuring 34 Kanals 9 Marlas in the village Hassan Seri, Tehsil and District Muzaffarabad is a 'Shamlat Deh' belonging to all the proprietors of the same including the non-Muslim evacuees and the share of each of the said proprietor is in proportion to his ownership of cultivable land in the said village and that Jagat Singh evacuee was in exclusive possession of 6 Kanals out of the land in dispute.
16. For the foregoing reasons, orders of both the learned Custodian's impugned in this writ petition as well as that of the Additional Deputy Custodian, Muzaffarabad, dated 22-1-1972 whereby he declared the land in question to be in the ownership of the petitioner are declared to be unlawful and of no legal effect and accordingly -set aside. The land measuring 34 Kanals 9 Marlas under Survey No.32/26/2 situate in village. Hassan Seri, Tehsil and District Muzaffarabad is declared to be 'Shamlat Deh' belonging to all the proprietors in the estate including the non-Muslim evacuee in which share of each of them is in proportion to his cultivable land owned by him in the said village and that all the proprietors jointly occupied and enjoyed the aforesaid land except 6 Kanals which was in exclusive possession of one Jagat Singh non-Muslim evacuee.
17. As regard land comprising Survey No.31/26/1, it was never a subject of litigation between the parties and as such the order of the learned Custodian in respect of it was uncalled for and superfluous. In the circumstances of the case, the parties shall bear their own costs.