1. ' BASHARAT AHMAD SHAIKH, J.--Appellant before us Abdul Hamid as well as pro forma-respondents, Muhammad Bashir and Muhammad Sarfraz, all related inter se, migrated from Indian occupied Kashmir in 1947 and were jointly allotted House No,87 consisting of two buildings in Bhimber Town in June, 1964. It is claimed by Abdul Hamid that he alone entered into possession of the whole allotted, premises and continues to be in its occupation while the other allottees never entered into possession of the property. On 27th of April, 1975 an order which was to the effect that the President of Azad Jammu and Kashmir had cancelled the allotment mentioned above from Abdul Hamid's name was issued. Consequently respondent, Muhammad Zameer, secured an order from Revenue Assistant Mirpur in his capacity as Assistant Rehabilitation Commissioner by which the property cancelled from the appellant's name was allotted to the respondent. The permit issued by the Assistant Rehabilitation Commissioner is undated. To get rid of the effects of the aforesaid order Abdul Hamid filed a civil suit in the Court of Sub-Judge, Bhimber, on 1st of February, 1977.
2. Subsequently, he sought amendment in the plaint which was duly granted and he filed an amended plaint on 11th of December, 1980. In his plaint Abdul Hamid averred that he served in the Armed Forces from the year 1960 and, taking advantage of his absence Muhammad Zameer, who is his first cousin colluded with the concerned officials and thus secured cancellation of the plaintiffs allotment. He complained that no notice was given to him before issuing the cancellation order and that he never appeared before the Revenue/Rehabilitation Officers. He alleged that defendant in the suit Muhammad Zameer produced another person who personated for the plaintiff and made some false and concocted statements before the concerned officials.
3. ' The plaintiff raitd three grounds on the basis of which he sought quashment of the order of cancellation of his allotment. Firstly, that the order was violative of the principle of natural justice inasmuch as he had been condemned unheard as he was not afforded an opportunity of being heard either by the Revenue/Rehabilitation officials or by the President of Azad Jammu and Kashmir. Secondly, that the President of Azad Jammu and Kashmir had no power under law to order cancellation of allotment; and thirdly, that the proceedings leading up to the cancellation order were the result of malice and fraud committed by the Revenue/Rehabilitation officials. In light of these objections he prayed for issuance of a declaratory decree to the effect that the order of the President of Azad Jammu and Kashmir cancelling the allotment in favour of the plaintiff was illegal, without jurisdiction and thus void and that the permit subsequently issued by the Assistant Rehabilitation Commissioner allotting the suit property in favour of defendant, Muhammad Zameer, was consequently void and inoperative. As a consequential relief the plaintiff prayed that a decree be passed restraining defendant, Muhammad Zameer, from interfering in the plaintiffs possession over the suit property.
4. ' In his written statement defendant, Muhammad Zameer, averred that the plaintiff as well as pro forma-defendants, Muhammad Bashir and Muhammad Sarfraz, had relinquished their rights of allotment in his favour by executing an `iqrarnama' on 4-7-1964. He claimed that the three aforementioned persons later on executed a power of attorney in his favour. He further averred that on the basis of the aforementioned iqrarnama' he moved the Assistant Rehabilitation Commissioner Mirpur, that he may be allotted the suit property. The Assistant Rehabilitation Commissioner ordered Tehsildar Bhimber to prepare a file. The Tehsildar obtained report of the Patwari and sent the file to Deputy Rehabilitation Commissioner. In turn the file went to the President through the Rehabilitation Commissioner and the President accorded sanction on 12-8- 1979.
5. ' Muhammad Bashir and Muhammad Sarfraz, pro forma-defendants, in their written statement admitted the claim of the plaintiff and averred that they and plaintiff, Abdul Hamid, had on 4-7- 1964 surrendered their rights in favour of the defendant, Muhammad Zameer, and also gave their statements to the Additional Rehabilitation Commissioner Mirpur.
6. ' As many as thirteen issues were framed by the learned Sub-Judge, Bhimber. The most important of them was issue No,2 by which the plaintiff was to put to proof on the allegation that defendant, Zameer, had procured the impugned order of cancellation of allotment by misrepresenting facts and making fake statements. During the trial of the suit the plaintiff denied that he had surrendered allotment of the suit property by way of an iqrarnama' and also that he did not appear before the Revenue Assistant Commissioner/Assistant Revenue Commissioner, Mirpur, to make a statement that he consented to cancellation and that he had abandoned residence of the suit property.
7. ' During recording of evidence File No,85/R.A. Was summoned from the office of the Revenue Assistant/A.R.C. Mirpur in which the relevant proceedings had been taken. This file opens with an application filed by Muhammad Zameer, defendant in the case, on 23rd of December, 1973 in which he stated that Abdul Hamid, Muhammad Sarfraz and Muhammad Bashir, who were his cousins, had obtained allotment of agricultural land as well as residential houses at different places and they were ready to surrender their rights in the suit house in his favour and in fact had already executed an affidavit to that effect. He attached with his application an `iqrarnama', Ex.DC, which is written and executed on two non-judicial stamps of the value of Rs,2 and Annas 8 respectively and are purported to have been purchased by Abdul Hamid, the plaintiff in the case, as well as Sarfraz and Muhammad Bashir, the pro forma-defendants, on 2nd of July, 1964 for the purpose of executing an iqrarnama'. This document recites that House No,87 situated in Bhimber Town was allotted to them [Abdul Hamid, Sarfraz and Bashir] on 25th of June, 1964, but prior to this allotment this house stood allotted in the name of Col. Ali Bahadur Khan and there was a dispute, which went on for some time, in respect of the previous allotment in which Muhammad Zameer, defendant, incurred roughly Rs,600 on the legal expenses and in addition to that the three excitants had also obtained some money in cash from him which was also spent on the litigation relating to allotment of agricultural lands. It is further recorded that Muhammad Zameer was in possession of half of the suit property and that the three executants did not have the money to pay back to Muhammad Zameer, therefore, by that document they were transferring the allotment rights in his favour.
8. Muhammad Zameer was authorised to get the allotment from the name of the executants cancelled and have it made in his name. They undertook that when the allotment is cancelled from their name they would vacate the suit property and go and settle on their agricultural lands. As already noted the application moved by Muhammad Zameer, defendant, was filed before the Assistant Rehabilitation Commissioner on 23rd of December, 1973, after a period of nine years of which there is no explanation on the file. The application was marked to the Tehsildar by the Revenue Assistant. He passed it on to the Patwari who, on 12th of February 1974, wrote the report that Muhammad Zameer was in occupation of the suit property and that Abdul Hamid, Sarfraz and Bashir had already executed an affidavit and had handed over possession. The Patwari recommended that property may be cancelled from the name of the previous allottees Abdul Hamid and others and the same may be allotted to Muhammad Zameer. It may be noted that it is recorded in Ex.D.C. That the aforesaid three allottees were in occupation of the suit house while the Patwari stated in his report that they had handed over possession to Muhammad Zameer.
9. ' File No,85/RA also contains a statement said to have been jointly made by Sarfraz, Abdul Hamid and Muhammad Bashir before the said Tehsildar on 23rd of December, 1973, the date on which Muhammad Zameer's application was sent to the Patwari for his report. The statement recites that they had obtained lands and houses by way of allotment and had abandoned residence of the suit house. In view of this they had no objection if the allotment of the house is made in favour of Muhammad Zameer. On 16th of February, 1974, Tehsildar Bhimber recommended to the Deputy Rehabilitation Commissioner, Mirpur, that the suit house may be cancelled from the name of Abdul Hamid and others and may be allotted to Muhammad Zameer. This fact in due course of time led to the issuance of the order of cancellation impugned in the suit.
10. ' The case of the plaintiff is that he did not execute the `iqrarnama' and also that he did not get his statement recorded and in fact he did not appear before the Tehsildar. His plea was that in fact he was on duty in the army on the date when the statement is shown to have been recorded. In this connection he produced a certificate, Ex.PX, to prove that he was not on leave on that day. This certificate has been held to be inadmissible in evidence by the High Court as well as the Courts below.
11. ' The learned Sub-Judge, Bhimber, dismissed the suit on 23rd of December, 1985. On the crucial issue No,2 the learned Sub-Judge found that the `iqrarnama' Ex.DC had in fact been signed by the plaintiff as well as Sarfraz and Bashir and that its execution had been proved by independent witnesses, namely, the petition-writer Hassan Ali and Qazi Nazir Ahmad, Muharrar of Revenue Assistant's office. The learned Sub-Judge found that the attestation contained on the said document had been proved to be in the handwriting of Mr. Khalil Ahmad Qureshi, who was then the Assistant Commissioner. He also found that the statement of the three allottees, including Abdul Hamid, was also genuine as had been proved by the statement of Mir Manzoor Ahmad, who was Tehsildar at the time when the statement was recorded. So far as the legal aspect of the case is concerned the learned Sub-Judge recorded the view that a retrospective amendment in the Administration of Evacuee Property Act authorised the Government to cancel the allotment of any evacuee property when it is proved to the satisfaction of the Government on the basis of inquiry made by the Rehabilitation authorities that the allottees had abandoned the allotted property or had consented to the cancellation of allotment. On the question of possession the finding of the learned Sub-Judge was that the plaintiff was in occupation of a part of the suit house.
12. ' On appeal the learned Addl. District Judge upheld the findings of fact that `iqrarnama', Ex.DC, had been duly proved and also that the statement, Ex.PD, was also genuine. He also upheld the plea that certificate, Ex.PX, which purported to show that the plaintiff was not on leave on the day his statement had been recorded by the Tehsildar was inadmissible in evidence on the ground that the original record had not been produced and compared in the Court. However, it is significant that the finding that the plaintiff, Abdul Hamid, was in occupation of part of the suit house was affirmed.
13. ' In the High Court the learned Single Judge dismissed the plaintiff's appeal. However, the learned Judge found force in the contention of the learned counsel for Abdul Hamid that iqrarnama', Ex.DC, by which the three allottees had, as claimed, relinquished the allotment had not been legally proved inasmuch as the witness of this document had not stated in his evidence that it was signed by the excitants in his presence. The learned Judge, however, found that the appellant and the pro forma-respondents in their statement, Ex.DB, had admitted that they had executed this document.
14. The learned Judge held that even if this document was excluded from consideration there was sufficient evidence for holding that the appellant and the pro forma-respondents "had abandoned their allotment of the house in dispute and consented to its allotment in the name of the respondent". On the legal aspect of the case the learned Judge in the High Court expressed the view that the Government had been retrospectively authorised to cancel any allotment of evacuee property on being satisfied on the basis of inquiry made by the Revenue Authority that the allottee had abandoned it or had consented that it may be cancelled, therefore, the order impugned by the plaintiff had been competently issued. In this connection the learned Judge recorded the agreement of the learned counsel for Abdul Hamid on the point that the Government had the power to cancel an allotment if it had been abandoned by the allottee.
15. ' When we commenced hearing of the appeal Ch. Riaz Akhtar, the learned counsel for the respondent, raised a preliminary objection to the effect that a party which, according to the learned counsel, was a necessary party, namely, Azad Government of the State of Jammu and Kashmir, had not been arrayed as defendant in the suit and the suit was liable to be dismissed on this short ground. This objection was not raised by Muhammad Zameer at any earlier stage than the filing of the concise statement in which this objection was raised for the first time. The learned counsel for the appellant, Agha Ashiq Hussain, objected to the point being raised for the first time in this Court submitting that the objection relating to joinder or non-joinder of parties can in law be raised only in the preliminary stages of the suit and not in any case in appeal. Relying on rule 13 of Order 1 of the C.P.C. The learned counsel submitted that objection on the ground of misjoinder, if any, of parties had to be taken before the issues are settled in a civil suit and if it is not done law provides that objection shall be deemed to have been waived. He pleaded that this provision clearly implies total prohibition of any such objection being raised in the subsequent stages of the suit or later in appeal. Agha Ashiq Hussain also pleaded that the Azad Government of the State of Jammu and Kashmir was not a necessary party and, therefore, the objection raised by the learned counsel for the respondent had no validity. The learned counsel pleaded in the alternative that if the Court comes to the conclusion that the Government is a necessary party then the Government may be imploded as a party which authority is vested in the Court under rule 10, Order I C.P.C. In view of the importance of the point we heard the two counsel at some length and for that purpose adjourned the case to give them adequate time to study the point involved.
16. Agha Ashiq Hussain, the learned counsel for the appellant, is right in pointing out that it is not open to the respondent to raise the objection of non-joinder at this stage because this is the clear intent of law as contained in rule 13 of Order 1. But the intent of this provision is not that the Court should A continue with the hearing of a case even when it comes to its notice that there is misjoinder or non-joinder of parties. It is provided in rule 9 of Order I that no suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. But there may be a situation in which a Court becomes conscious that a person who ought to have been joined as a party and in whose absence no effective decree can be passed, commonly known in law as a necessary party, the Court cannot proceed with it. In such a situation the Court has been authorised under sub-rule (2) of Rule 10, that it may at any stage order that the name of any such person may be added as a party. This power however is limited as it is laid down that, subject to section 22 of the Limitation Act, the proceedings against such person shall be deemed to have begun only on the service of summons on him. The question then arises: would there be any useful purpose served by impleading a party if the period prescribed by laivrto file a suit against him has run out? Order I, rule 3, C.P.C. Provides that all persons against whom any right to relief is alleged to exist should be impleaded as defendants. It is elementary that no relief can be granted against a person who has not been impleaded as a defendant. If relief can be claimed against two persons jointly but only one is impleaded as party it would debar the Court from granting relief against not only the person who is not a party but also against the other who is present before the Court. Thus if a necessary party is not impleaded within time the suit has to fail. In the present case the impugned order was passed in 1975 and it cannot be disputed that a suit cannot be filed against the Government now in the year 1990. Therefore, if the Government is a necessary party the suit has to fail. The following case-law provides guidance on these points:- ' Chaudhry Bishunath Prasad v. Sarju Saran Tewari and others AIR 1942 Oudh 16; Muhammad Abdul Rehman v. Abdul Jabbar and others PLD 1962 Dacca 65; Naba Kumar Hazara and another v.
17. Radhashyam Mahish and others AIR 1931 P C 229; Girdhar Parashram Kirad v. Firm Motilal Champalal and others AIR 1941 Nagpur 5; Phani Bhusan Dhar v. Anukul Mukherjee and others AIR 1929 Cal. 590; Munawar Sultana v. Ahsanullah Khan and others PLD 1966 Kar. 359; Adiveppa Channappa Kittur v. Rachappa Balappa Hosmane AIR 1948 Born. 211; Amirchand Nagindas & Co.
18. And others v. Raoji Bhai Moti Bhai Patel and others AIR 1930 Mad. 714 and Jata Hadia v. Mylliem State and another AIR 1953 Assam 192.
19. ' We now pass on to the question whether the Government is a necessary party in the suit filed by Abdul Hamid. The question whether a person is a necessary party always depends on facts of that case. In support of their respective contentions on this point the learned counsel referred us to a large number of cases. Agha Ashiq Hussain relied on Abdul Aziz and others v. Chandra Kala Bairagini and others 7 DLR 435; Abdul Aziz and others v. Sardar Muhammad Latif Khan and others PLD 1968 AJ&K 7; Doraiswa mi Goundan v. Subramania Mudaliar AIR 1950 Mad. 659; Shitladin and others v. Board of Revenue Uttar Pradesh Allahabad and others AIR 1963 All. 549; Kuni Behari Lal v.
20. Smt. Jamna Kunwar and another AIR 1939 All. 235; Chenthipernumal Pillai Chanthanamuthu Pillai v. D.M. Devasahayam 1956 TRA Co. 181 (FB); Upendra Kumar Saha v. Tara Prasanna Roy and others AIR 1956 Tri. 22; East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 and National Bank of Pakistan v. Syed Muzammal Hussain PLD 1965 Kar.
21. 633.
22. ' On the other hand Ch. Muhammad Riaz Akhtar relied on Muhammad Ashraf and others v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K) 102; Muhammad Suleman v.
23. Abdul Rashid and others PLD 1987 Lah. 387; Mst. Salima Abbasi and another v. Ahmed Suleman and 2 others 1981 CLC 462 and Zeenat Begum v. Fazal Dad Civil Appeal No, 18 of 1980 SC (AJ&K).
24. After going through the judgments cited at the Bar it is clear that there are two categories, broadly speaking, of situations in which the question can arise whether the Government or one of its functionaries is a necessary party in a suit or not. In one category fall the cases in which the Government and its functionaries are vested with the power of deciding certain rights of the citizens but so far as the subject-matter of the dispute is concerned the Government itself has no interest in it. In the other category would be cases where. a Government functionary not only takes an action or passes an order but also the Government has an interest in the subject-matter. The first category can comprise instances where a revenue official incorporates an entry in a revenue record of lands belonging to private citizens, a Government functionary registers a document evidencing transaction of sale between two persons etc. These are the cases in which though the authority to decide or act has been exercised by the C Government or the Government functionary no interest of the Government itself is involved. In the second category fall cases in which the interests of the Government are involved for instance a Government functionary forfeits land in favour of the Government, a public officer passes an order for the confinement of a person in civil prison for non-payment of land revenue or any other revenue claimable by the Government, the Government or a person acting on its behalf passes an order in the interests of law and order that a person shall be detained in preventive detention etc. ' We are of the view that in the first category of cases the Government is not a necessary party while in the second category the Government is a necessary party in whose absence a suit cannot proceed. We may point out that the principles on this subject are different in writ jurisdiction ,where by its concept a writ only lies against a person performing functions in connection with the affairs of the State and not otherwise. It is, therefore, that in writ jurisdiction whether the Government or the Government functionary has any interest in the subject-matter or not, a writ cannot be said to be properly constituted unless there is a public functionary or the Government as a party.
25. In the case before us the President passed an order cancelling the allotment of the present appellant and the Government itself has no interest in the property itself. The evacuee property is not vested in ownership or control in the Government. The administration of evacuee property is vested in the Custodian while the power of cancellation in case of abandonment or relinquishment has been given by a special provision to the Government. The provision only authorises the Government to take a decision in respect of the property and in making that decision the Government neither acquires any interest in the property nor suffers any loss. It, therefore, cannot be said that without the Government being before the Court the suit could not proceed or in other words it was a misjoinder.
26. ' The learned counsel for the appellant, Agha Ashiq Hussain, next raised the plea that the power of cancellation of allotment was not available to the President of Azad Jammu and Kashmir under the Pakistan [Administration of Evacuee Property] Act, 1957, when the order of cancellation impugned in the civil Court was passed in 1975. He submitted that reliance on the Pakistan [Administration of Evacuee Property (Amendment)] Ordinance, 1983, which inserted the following subsection in section 18 of the Act was misconceived: "(7) The Government may, cancel the allotment of an evacuee property made in favour of any allottee, where it is proved, to the satisfaction of the Government, on the basis of inquiry made by the Rehabilitation Authority that the allottee has abandoned the allotted property or has consented to the cancellation of allotment."
27. ' He submitted that the power given to the Government for cancellation of the allotment by the above-quoted provision was introduced as an amendment and would be effective only from the date of the promulgation of the aforementioned Ordinance, i,e,, 2nd June, 1983, notwithstanding the fact that the amending Ordinance lays down that the above-quoted provision shall be deemed always to have been added to the Act. The learned counsel in this connection strongly relied on a case decided by this Court Referring Authority v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K)
28. 112.
29. ' Ch. Muhammad Riaz Akhtar, the learned counsel for respondent -Muhammad Zameer, vehemently contested the argument that retrospective effect given to subsection (7) was invalid.
30. He contended that legislature had undoubted authority to legislate retrospectively.
31. ' The facts of Sardar Sikandar Hayat's case were that in a proceeding under the Holders of Representative Offices (Disqualification) Ordinance the Disqualification Tribunal could not agree on the finding of fact involved in the case and the members of the two-man Tribunal differed. The matter, therefore, became the subject of a reference which, according to subsection (9) of section 6 of the aforementioned Ordinance, was to be heard by the Chief Justice of the Azad Jammu and Kashmir, whose decision was to be final. When the reference was pending before the learned Chief Justice of this Court an amendment was effected in the above-quoted subsection (9) and for the words 'Chief Justice' the words 'Supreme Court' were substituted. Thus, the question which fell for determination before this Court was whether the reference was to be heard and decided by the learned Chief Justice in accordance with the unattended provision or by the Supreme Court in light of the amendment brought about during the pendency of the reference. After elaborate arguments and after going through a large number of decided cases of different jurisdictions the Court came to the conclusion that the amendment mentioned above purported to destroy the object and deprive the parties of their vested right of appeal against the order passed by the Disqualification Tribunal. The Court, therefore, came to the conclusion that repeal or amendment could not be made to take away the vested right of the parties which in that case was a right of appeal. We are of the view that the point involved in Sardar Sikandar Hayat Khan's case was entirely different from the one which is being argued by Agha Ashiq Hussain. As already noted the learned counsel advanced the argument that the law as existing on the day on which a proceeding was initiated is to be applied and not the law which comes into effect by way of an amendment during the pendency of a list while in the precedent case the point involved was whether the right of appeal could be taken away or interfered with after it had come to vest in a party. Apart from that the argument advanced by the learned counsel for the appellant loses sight of the fact that in the precedent case the amendment brought about during the pendency of the case had not given retrospective effect while in the case before us effect has been given to the amendment with retrospective effect from a date which is prior and not subsequent to the date on which the order of the President impugned in the civil suit was passed. The difference in the two situations, in our view, is crucial because it is well-settled that the legislature has the power to make laws prospectively or retrospectively, unless it is specifically forbidden to do so, as for instance is the prohibition contained in Fundamental Right No,4 that no law can be made to authorise retrospective punishment. If an authority is needed we may refer to a judgment of this Court in a case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1978 SC (AJ&K) 42, which is a leading judgment of this Court on the subject. In that case an amendment in the Azad Jammu and Kashmir Interim Constitution Act, 1974, brought about during the pendency of the appeal in this Court was held to be applicable to the cases because it carried retrospective effect. The Court held that an invalid legislation stood validated through retrospective legislation. The Court also held that since the amendment was retrospective it had the effect of nullifying the judgments of the High Court which had been recorded in light of the unattended provision of the Constitution. In this view of the matter we hold that the objection regarding the retrospectively of the amending Ordinance raised by the learned counsel for the appellant is without force.
32. ' Adverting to the merits of the case, the argument of the learned counsel for the respondent, as already noted, is that the questions of fact stand concluded by the concurrent findings recorded by the Courts below and affirmed by the High Court in the judgment under appeal. On the other hand the learned counsel for the appellant has taken pains to submit that there is gross misreading and non-reading of evidence in the case which has led to miscarriage of justice.
33. However, before adverting to the evidence on the record we have to advert to an observation made in the judgment under appeal that inquiry on which the impugned order of cancellation is based was conducted by the Revenue authorities. In the newly-inserted subsection (7), which has been reproduced above, the inquiry on the basis of which the Government has to order that the allottee has abandoned the allotted property or consented to the cancellation of its allotment is to be conducted by the Rehabilitation authorities and not Revenue authority, as recorded in the judgment of the High Court. Apart from that the learned Judge in the High Court has referred the Tehsildar as the Assistant Rehabilitation Commissioner and as has been noted by the learned Judge that the statement evidencing that three allottees have consented to cancellation was recorded by the Assistant Rehabilitation Commissioner which is not factually correct, as would be seen during our analysis of the evidence.
34. ' During recording of evidence in the suit the file in which the inquiry was conducted in connection with the abandonment or consent to cancellation was got summoned and its relevant contents were properly exhibited. Contents of the file show the manner in which the proceedings have been conducted and, to say the least, they are most unsatisfactory. The proceedings started with an application on behalf of Muhammad Zameer, the present respondent. The application is dated 30- 9-1973, but there is obvious overwriting so far as the date is concerned. It was addressed to the Assistant Revenue Commissioner (Revenue Assistant) Mirpur, who passed on the application without showing the date on which he did so to the Tehsildar Bhimber for processing it in accordance with rules. The Tehsildar, which post at that time was held by Mir Manzoor Ahmad, who appeared in the case as a witness, marked the application on 23rd of December, 1973, to Patwari `Flalqa' calling report from him. On 12-2-1974 the Patwari reported that three allottees had already executed an affidavit in favour of Muhammad Zameer and had also handed over the possession to him as a consequence of which he was how in possession of the property. He recommended that the cancellation, as prayed for, may be ordered and the property may be allotted to Muhammad Zameer. Patwari sent the file to Tehsildar Bhimber who on 16th of February, 1974, wrote that he had seen the report of the Patwari, the statements of the parties had been duly recorded, the papers were, therefore, sent to the Deputy Rehabilitation Commissioner, Mirpur, for cancellation of the allotment and subsequent allotment in favour of Muhammad Zameer. This is the only inquiry which has been held. Apart from a statement of the three allottees, which is also on the file and would be adverted to later, it may be seen that the application was submitted to the Revenue Assistant, who was the Assistant Rehabilitation Commissioner, but he did not hold any inquiry or write an note.
35. Although the file had been marked by the Revenue Assistant to the Tehsildar it was not sent back to him and was sent directly to the Deputy Rehabilitation Commissioner bypassing the Revenue Assistant/Assistant Revenue Commissioner. The Deputy Rehabilitation Commissioner is reported to have passed on the file to the higher authorities and it was after a year or so that the order of cancellation was issued. It means that the Assistant Rehabilitation Commissioner, Deputy Rehabilitation Commissioner or any higher authority did not conduct any inquiry in the matter and the cancellation is based on the report of Patwari and the endorsement of the Tehsildar. Neither the Tehsildar nor the Patwari `I-lalqa' is the official of the Rehabilitation authority. The Rehabilitation authority is defined in the Pakistan [Administration of Evacuee Property] Act, 1957. It means any Rehabilitation Board, Rehabilitation Commissioner or Additional, Deputy or Assistant Commissioner appointed under the Rehabilitation Act or any other Officer under any law for the time being in force relating to the rehabilitation of the displaced persons or social and economic rehabilitation.
36. Mir Manzoor Ahmed, Tehsildar, appeared in the Court as a witness on behalf of the defendant Muhammad Zameer. He did not claim in his statement that he was a Rehabilitation authority. We are conscious that Tehsildars stand designated as Assistant Rehabilitation Commissioners (possession) but the functions entrusted to them only relate to possession and they do not enjoy other powers of an Assistant Rehabilitation Commissioner. Therefore, the inquiry held by Mir Manzoor Ahmed was beyond his powers. Sc far as the Patwari is concerned he admittedly is Tatwari and has nothing to do with the Rehabilitation work. It is his report which is the main stay in the case file. Both these officials were strangers so far as the Rehabilitation authority is concerned.
37. Therefore, we are of the view that the order of the President being passed on the report of the officials who were not the part of the Rehabilitation authority stands vitiated on the ground.
38. Subsection (7) reproduced above postulates the inquiry conducted by the Rehabilitation authority as the foundation on which the order of cancellation is to be based and when foundation loses ground the whole structure crumbles down to the ground and we have no hesitation in holding that the order passed in the name of the President has no legal sanctity. The suit, therefore, has to be decreed on that ground alone.
39. Even otherwise, examination of the record of the case has brought us to the conclusion that findings of fact recorded by the Courts below cannot be sustained because there is flagrant misreading and non-reading of evidence. Before dealing with other evidence we want to deal with an aspect of the case which has struck us as basic to the whole issue. The aspect relates to the question whether plaintiff-appellant, Abdul Hamid, is in possession of the suit house. He claims that he is. In (amended) written statement filed by Muhammad Zameer, defendant, the part of the averment relating to the claim that a portion of the house was in possession of plaintiff, Abdul Hamid, was not denied. Thus it stood admitted that the plaintiff and his family were residing in the house and had always been in postion of a portion of the house.
40. ' Another important fact in relation to the question of possession is the finding of the learned Sub- Judge on issue No,3. The issue was worded as follows:-- "Is defendant No,1 (Muhammad Zameer) trying to raise a construction in the plaintiff's courtyard by interfering in his possession?"
41. ' The finding of the learned Sub-Judge on this issue was to the following effect:-- "In light of the evidence adduced by the parties it stands proved that the plaintiff is in possession of a portion of the suit house and defendant No,1 has fixed an iron gate on the part which is in plaintiff's possession and he also wants to interfere in the remaining part.
42. ' The above extracted finding was affirmed by the learned Additional District Judge and has not been set aside by the learned Judge in the High Court. Apart from that in the record of the trial Court there are many applications, objections and affidavits filed by Muhammad Zameer and Abdul Hamid and many orders passed by the Court which clearly demonstrate that the plaintiff is in possession of the part of the property. Firstly a stay order was issued by the trial Court that defendant, Muhammad Zameer, may not interfere in the possession of Abdul Hamid so far as the house in his possession was concerned. The stay order continued in force till the decision of the suit. Then there was a dispute regarding the use of water from a well which is situated in the suit house. Abdul Hamid, plaintiff, moved an application that Muhammad Zameer was making some alteration in the structure of the well after which he (plaintiff) would not be able to make use of the water from the common well. In his reply, Muhammad Zameer denied that he ever wanted to deprive Abdul Hamid from the use of the water. At a subsequent stage Abdul Hamid applied to the Court that the wooden roof of the portion in his possession was giving way, therefore, he may be permitted to make necessary replacements. Objections were called and an affidavit was taken on this application. Ultimately Abdul Hamid's application was allowed. An appeal was also taken to the learned District Judge. From the foregoing it is evident that Abdul Hamid was, and still continues to be in possession of the portion of his house. This basic fact has to be kept in view when evidence in the case is brought under consideration.
43. ' Subsection (7) of section 18, reproduced above, lays down that cancellation can be ordered by the Government if the Rehabilitation Authority comes to the conclusion, after conducting inquiry, that the allottee has--
(a) abandoned the allotted property; or
(b) Has consented to cancellation of allotment.
44. ' So far as the ground of abandonment is concerned it stands discarded in light of the fact that Abdul Hamid admittedly has been in possession of his portion of the house. The finding of the learned Judge in the High Court that abandonment had been proved is contrary to the record of the case and is, therefore, vacated.
45. ' The other ground relating to consent may be taken up now. As already noted consent has been sought to be proved by the iqramama, Ex.DC, purported to have been executed by the three allottees, including Abdul Hamid and a statement claimed to have been made by the aforesaid three allottees before the Tehsildar during the inquiry. The iqrarnama', Ex.DC, has been excluded from consideration by the learned Judge in the High Court on the ground that witness to this document has not stated in his deposition that it had been signed by the executants in his presence. We have noticed some other facts which also warrant its rejection. The stamp papers for the iqrarnama' were purchased on 2-7-1964. The writing on the reverse of one of them is that the stamp was being purchased by Abdul Hamid, Sarfraz Khan and Muhammad Bashir through Muhammad Bashir but contains the 'signatures' of all the three. This creates great doubts as there is obvious inconsistency. Then there is an identification of these signatures by some unknown person and it is dated 22-2-1966 while the stamp papers were purchased on 2-7-1964. This iqrarnama' carries attestation of Assistant Commissioner. The date of attestation reads as 22-2- 1962 but even if it is read as 22-2-1966 the date creates doubts about its authenticity because no reason is shown as to why a document executed on 4-7-1964 was got attested on 22-2-1966. In short this document has been rightly ruled out from consideration by the High Court.
46. ' There remains the statement, Ex.DB, about which it has been held proved by the High Court and the Courts below that it was made by the three allottees before the Tehsildar. It is recorded in the statement that they had abandoned residence of the house, therefore, they had no objection if it is allotted to Muhammad Zameer Khan. It is further recorded in the statement that the deponents had already executed an affidavit to that effect. The statement is shown to have been recorded on 23rd of December, 1973. As already seen it is the date on which the application moved by Muhammad Zameer was marked by the Tehsildar to the Patwari. It is not recorded by the Patwari in his report which he wrote on 12th of February, 1974, that statement of allottees was also on the file, although he makes a reference to an affidavit said to have been executed by the three allottees, which is a reference to an `iqrarnama' Ex.DC, already mentioned. If the statement of the allottees had been recorded on 23rd of December, 1973, how is it that it does not fmd mention in the report of the Patwari? In any case when the application moved by Muhammad Zameer had been sent down to the Patwari by the Tehsildar on 23rd of December, how is it possible that the statement of the allottees could have been recorded on that date? It is significant that no notice or summons was issued to the allottees. How then they appeared all of a sudden to make the statement. If they were present they should have moved the application themselves. The statement, Ex.DB, as is admitted by Mir Manzoor Ahmad as a witness, is not in the hand of Mir Manzoor Ahmad himself. However, Mir Manzoor Ahmad has countersigned the statement and the words.
47. ' R.O.A.C.' are also found on the statement, but the words `R.OA.C.' are clearly overwritten causing serious doubts.
48. ' When Mir Manzoor Ahmad appeared in the Court he stated that he had not been summoned by the Court. When he was asked as to why identification of the persons who are said to have made the statement was not obtained by him he made a vague statement saying "since he knew he did not think it was necessary" and that he had been Tehsildar for four years. What he knew he did not state. He did not specifically say that he knew Abdul Hamid personally. It may be pointed out that Abdul Hamid admittedly is an employee of the Pakistan Army since 1960 and he was still serving when statement under reference was recorded on 23rd of December, 1973. We think that it will be against the course of nature to believe without strong proof that a Tehsildar should know a person who is serving as Naik in Pakistan Army solely on the ground that he was posted in Bhimber for four years. It is needless to emphasise that an Army Naik is supposed to be in the unit and not living in Bhimber if at all just residence within the Tehsil is a sufficient factor that a person may be known by Tehsildar. Mir Manzoor Ahmad stated in, his cross-examination that he had not been summoned by the Court as a witness. This does not depict him as disinterested witness.
49. ' Coming to the statement itself it says that the deponents had abandoned the property and, therefore, they were consenting to cancellation of allotment standing in their names. It has already been noticed that Abdul Hamid has not abandoned the house, therefore, the statement to that extent on the face of it stands falsified. If the fundamental part of the statement is incorrect it does not appeal to reason that the other part which is consequential to the first may be believed. In short the statement does not inspire confidence. When seen in this context the Certificate, Ex.PX, showing that the plaintiff was not on leave on the date on which he is said to have made the statement mentioned above assumes great importance. It is true that this certificate is not of much evidentiary value in itself but seen in the context, as referred to above, the certificate cannot be brushed aside. The High Court and the Courts below have held that this certificate was not admissible in evidence because the original record had not been produced. The document was produced in the Court and was exhibited without objection. When a document is admitted without objection the question of its inadmissibility loses all importance.
50. The findings of facts recorded by the lower Courts, as upheld by the High Court, were based on serious misreading and non-reading of evidence as is evident from the foregoing discussion. It is the duty of the Court to examine and evaluate the record after proper examination. If proper examination of record is not carried out miscarriage of justice cannot be avoided. In this view of the facts, in our view, it is an eminently fit case in which findings of fact have to be set aside.
51. ' We may also point out that the High Court did not become conscious of the fact that Abdul Hamid is said to have executed the `iqrarnama', Ex.DC,-which has been excluded from consideration by the High Court, on 4th July, 1964. He is alleged to have made the statement before the Tehsildar on 23rd of December, 1973, which is more than 9 years after the alleged execution of `iqrarnama'. Then the order of the President was issued two years later in 1975. Leaving aside all the factors the very dates and the time intervening between them casts suspicion on the whole matter. If Abdul Hamid had executed iqrarnama' in 1964 why is it that this document, which is of great value to Muhammad Zameer, was kept back by him till 1973. It is in evidence that Muhammad Zameer is an official of the Civil Supplies Department and it cannot be said that he did not have the sense that this document had to be produced before some authority so that the action could be taken on it. It seems to us curious aspect of the case and it would be difficult to uphold the cancellation based on a document claimed to be executed eleven years back, even if other factors did not exist. If the law provides that a person may consent to cancellation and such consent can be given effect to it postulates free consent while the facts of the case show that Abdul Hamid throughout repudiated that he had ever consented to cancellation of the allotment.
52. Our conclusions, therefore, are that there has been no inquiry within the meaning of subsection (7) of section 18 of the Administration of Evacuee Property Act by Rehabilitation Authority. Therefore, there was no valid satisfaction on which the Government could base this order of cancellation. We also find that the findings of fact in this case are even otherwise based on misreading and non- reading of evidence and are contrary to the record.
53. ' Out of the three allottees from whose name allotment was cancelled by the impugned order of the President of Azad Jammu and Kashmir only Abdul Hamid has appealed. The conduct of Sarfraz and Bashir, the other two, has throughout been unusual. When Abdul Hamid filed the present suit the plaint was rejected by the learned Sub-Judge on the ground that since the matter involved evacuee property Civil Court had no jurisdiction. Abdul Hamid filed a revision petition before the High Court to challenge the rejection of the plaint. Before the High Court Sarfraz and Bashir, who were impleaded as pro forma-respondents, sided with Zameer -- present respondent, submitting that they had already surrendered their rights in favour of Muhammad Zameer alongwith the plaintiff, Abdul Hamid. When the High Court accepted the revision holding that the Civil Court had the necessary jurisdiction, an appeal was brought to this Court by Muhammad Zameer. Bashir and Sarfraz again supported the claim of Abdul Hamid and submitted in their concise statement that they and Abdul Hamid had surrendered their rights in favour of Muhammad Zameer. This Court affirmed the order of the High Court and the case was sent back to the trial Court for adjudication on merits. Bashir and Sarfraz this time took a contradictory stand and moved an application that they may be transposed as plaintiffs jointly with Abdul Hamid. This prayer was granted but a revision petition taken to the High Court was accepted on 17-3-1981 and was ordered that Bashir and Sarfraz would remain arrayed as pro forma-defendants because their interests conflicted with those of Abdul Hamid. Subsequently, Bashir and Sarfraz filed written statement in which they supported the case of defendant, Muhammad Zameer, and averred that they as well as the plaintiff had surrendered their rights in favour of defendant, Zaineer. These two pro forma- defendants took as U-turn during the subsequent stages of the trial and entered as witnesses on behalf of plaintiff, Abdul Hamid, and supported his claim. They disclaimed filing of written statement in favour of defendant -- Muhammad Zameer, and denied that they had taken the opposite stand at earlier stages of which the details have been summarised above. When the suit was dismissed they did not appeal. They also did not file an appeal in the High Court and before this Court they are the pro forma-respondents while the appeal has been filed by Abdul Hamid alone. The learned Judge in the High Court has commented upon the conduct of Sarfraz and Bashir in some detail and we- are satisfied that the learned Judge has rightly found against them.
54. We have accepted the appeal of Abdul Hamid but in the circumstances narrated above we find that Sarfraz and Bashir are not entitled to any relief. This Court undoubtedly has the power to grant relief to persons before it even if they have not appealed but this power cannot be exercised in favour of Sarfraz and Bashir. Apart from the diabolical stand taken by them the main consideration for holding this view is that a party is bound by its pleadings and cannot be allowed to set up a case different from the one which has been taken up in the pleadings. Since these two averred in the written statement that they had surrendered their rights in favour of Muhammad Zameer they should suffer the consequences. As rightly found by the learned Judge in the High Court they have failed to prove that the written statement had not been validly filed on their behalf.
55. ' Since no relief is being given to Muhammad Sarfraz and Muhammad Bashir the cancellation of allotment to the extent of their share will stand and so would the subsequent allotment in favour of Muhammad Zameer to the extent of the shares of Muhammad Bashir and Muhammad Sarfraz.
56. Having thus entered into the shoes of the aforementioned previous allottees Muhammad Zameer shall be deemed to have become a co-allottee of the suit house alongwith Abdul Hamid.
57. ' During the pendency of the suit Muhammad Zameer raised some construction over vacant land in the suit house and, therefore, plaintiff Abdul Hamid through an amendment added in the plaint a prayer that the construction so raised may be ordered to be demolished. Since Muhammad Zameer has been found to have become a co-allottee from a prior date we are of the view that this prayer has to be refused. Muhammad Zameer will continue to remain in possession of that portion subject to partition, if and when it takes place after proprietary rights have been obtained by the parties.
58. ' In the result the decree passed by the High Court is set aside and the appellant Abdul Hamid's suit is decreed in the following terms:--
(i) he is granted a declaration that the order of the President dated 23-4-1975 being against law and inoperative does not have the effect of cancelling the allotment of the plaintiff; however, the allotment in favour of Muhammad Bashir and Sarfraz shall remain cancelled;
(ii) he is also granted a declaration that the subsequent permit of allotment which was issued in favour of Muhammad Zameer after the order of President does not exist in the eye of law to the extent of plaintiffs share but would continue to be valid to the extent of the remaining shares;
(iii) defendant, Muhammad Zameer, is restrained from interfering in the possession of the plaintiff; and
(iv) the respondent will bear the costs of this appeal.