1. S. USMAN ALI SHAH, J.--Leave to appeal has been sought by the petitioner against the judgment of the Peshawar High Court, Abbottabad Bench, dated 30-11-1988, whereby, writ petition of the petitioner against the order of the Addl. Settlement Commissioner (Lands) Abbottabad, dated 28- 7-1980, was dismissed.
2. The disputed land bearing Khasra Nos.20-21 and 22 had its previous Khasra No.3571, measuring 21 kanals 8 marlas, situate in village Nawan Shahr Janoobi, according to `Jamabandis' for the year 1935-36 in ownership column is entered as under :-- Ittar Chand s/o Kishan Kor 1/6share Bhagwan Das son of Tirath Ram 1/6"
3. Lakhmi Chand s/o Sukhraj 1/6 "
4. Devi Sahai s/o Lodha 1/6 "
5. Kishan Das, Karam Chand, Jai Ram s/o Harichand. "
6. Mst. Khiran Devi widow of Thakar Das and Parma Nand s/o Nchal Chand and Ganga Ram s/o Diwan Chand.1/6 " 1/6 "
7. Vide Mutation No.13141 attested on 9-11-1942 Jai Ram and Kishan Das and similarly Karam Chand sold their joint 1/6th share of land in favour of the respondents Nos.1-2 and 0alandar Khali predecessor of respondents Nos.3-7. Vide Mutation No.14710/1 attested on 6-2-1944 Attar Chand at S.No.1 of the Jamabandi, sold his share in favour of Mst. Jaswant Devi and thereafter she sold her land to Haji Nizam Din, predecessor of respondents Nos.8-20 vide Mutation 14710 attested on 14-2- 19-i4. So through these Mutations the respondents became the owner of 1/3rd share in the ownership column. The remaining 2/3rd left as Hindu property equal to 13 kanals 18 marlas which was mutated in the name of the Central Government vide Mutation No.13291 attested on 10-5-1967 and Talib Hussain a refugee from Azad Jammu and Kashmir got it against his verified claim, who subsequently sold the same to the petitioner, vide Mutation No.4237 which was not yet attested.
8. The respondents gave an application under section 10/11 of the Displaced Persons (Rehabilitation and Settlement) Act, 1958 before the Addl. Settlement Commissioner, praying that the disputed property be declared as evacuee property. The Addl. Settlement Commissioner vide his order dated 29-7-1950 allowed the application and declared the disputed property as evacuee. The petitioner filed a writ petition against this order. Which was dismissed vide impugned order dated 30-11-1988.
9. The learned counsel for the petitioner contended that the respondents could not invoke the jurisdiction of the High Court as sections 10 and 11 of the Rehabilitation and Settlement Act, 1958 had no application to the facts of this case and the Court ha, no jurisdiction to entertain the same but it was only the Deputy Custodian who could declare the property as an evacuee or non-evacuee.
10. The learned counsel further contends that the judgment of the High Court is based on misreading of Revenue Record inasmuch if a co-sharer in hissadari possession sells more than his share in the proprietary column, it is always adjustable at the time of partition. The respondents Nos.1-30 were never in hissadari possession of the whole of Khasra number because the co-sharers were jointly recorded in possession of the Khasra number to retain it till the partition take place.
11. After hearing the learned counsel for the petitioner, we arc of the view, that the contentions raised by him, need further consideration of this Court. Leave to appeal, accordingly, is granted.
12. Security Rs.2,500.
13. Appeal is to be made ready on the present record with permission to parties to file additional documents if any. Status quo is to be maintained till the final disposal of the appeal.