' MUHAMMAD YUNUS SURAKHVI, J.---This appeal has been directed against an order passed by the High Court on February 26, 1996, whereby a writ petition filed by the appellants herein was dismissed.
2. The subject of dispute is a land measuring 41 Kanals, 17 Marlas, comprising Survey Nos.10, 11 and 16, situate in village Samlotha, Tehsil Dadyal, District Mirpur. The disputed land is claimed by the appellants to be in their continuous possession since the time of their ancestors from Dogra Regime. According to the appellants this land was initially allotted to one Alam Shah s/o Muhammad Din but during the subsistence of the said allotment it was subsequently allotted to one Muhammad Nazam, the predecessor-in-interest of respondents 3 to 13 on August 28, 1959. The said allotment was alleged to have been made in favour of allottee in collaboration with the Rehabilitation Authorities. The order of allotment was challenged by the appellants before the D.R.C. But their appeal was dismissed on July 7, 1964. This order of D.R.C. Was assailed in revision before the Rehabilitation Commissioner but it was claimed to be dismissed for want of prosecution in absence of the appellants and the outcome of the same was not conveyed to them. However on October 31, 1991, respondents 3 to 13 secured the provisional proprietary rights transfer order from the Custodian. The appellants challenged the aforesaid order through a review petition before the Custodian of Azad Jammu and Kashmir which was dismissed on October 4, 1994. The aforesaid order of Custodian alongwith orders of allotment, D.R.C., and the Rehabilitation Commissioner and proprietary rights transfer in favour of appellants were challenged by the appellants by filing a writ petition in the High Court but the same was dismissed vide the order impugned which is the subject of present controversy.
3. It was vehemently contended by Mr. Abdul Majid Mallick, the learned counsel for the appellants, that the impugned order was violative of law and as such liable to be set aside. According to the learned counsel the Custodian failed to apply his independent mind to the allotment in question in compliance with the provisions of law as the appellants were admittedly old tenants in the land in dispute as such the failure on the part of the learned Custodian to examine the allotment in the light of sections 18-A(1) and 18-B of the Amended Administration of the Evacuee Property Act was tantamount to failure of exercise of jurisdiction. According to the learned counsel it was wrong to suggest that the points raised before the learned Custodian and the High Court were purely questions of fact needing detailed enquiry, as such not within the purview of High Court in exercise of its writ jurisdiction. The learned counsel pointed out that the learned Judge in the High Court failed to examine the copies of record of rights appended with the writ petition showing that the appellants were the old tenants in the land as they continuously occupied the same since the Dogra Regime through their ancestors. It also escaped the attention of the learned Judge in the High Court that the status of appellants as old tenants was admitted by respondents in their written statement. Thus, according to the learned counsel the Custodian and the learned Judge in the High Court misdirected themselves in not attending to the point of determining the status of appellants as old tenants and its effect on the allotment in question.
4. In reply it was contended by Ch. Shah Wali, the learned counsel representing the respondents that finding of facts finally concluded by the Rehabilitation Authorities on the basis of material placed before them were open to no exception by challenging the same through a constitutional petition The learned counsel submitted that the proprietary rights transfer order was passed in favour of respondents on the basis of a valid allotment as such the review petition before the Custodian did not merit any consideration. According to the learned counsel the matter was finally determined by the Rehabilitation Authorities on all forums who were vested with the jurisdiction to determine the same and the High Court had no jurisdiction to interfere in the findings arrived at by the competent authorities. The learned counsel maintained that the appellants never applied for the allotment of the land till the same was allotted in favour of allottee and all the proceedings initiated for its cancellation ended, upholding the allotment of the allottee as genuine. According to the learned counsel for respondents the claim of appellants as being old tenants was also disallowed by the Rehabilitation Authorities.
5. After hearing the respective contentions of the learned counsel for the parties and going through the record, it may be stated that the land in dispute was admittedly allotted in favour of Muhammad Nazam, the predecessor-in-interest of respondents 3 to 13 on August 28, 1959. This order was challenged by way of appeal but the same was dismissed by D.R.C. On July 7, 1964.
Revision petition filed before the Rehabilitation Commissioner against the order of D.R.C. Was also dismissed on February 25, 1967. On the basis of entitlement certificate issued by the Rehabilitation Commissioner the provisional proprietary rights transfer order was issued on October 31, 1991, which was challenged through a review petition before the Custodian but it was disallowed vide order, dated October 4, 1994. It is pertinent to point out that at the time of challenging the allotment order it was categorically averred by the appellants that they were the old tenants and the land in question was in their continuous possession since Dogra Regime. In the alternative it was also averred that land be allotted to the appellants. The question of allotment in favour of respondents was concurrently resolved by the Rehabilitation Authorities on all the forums to be genuine and it was also opined that the appellants in presence of allotment in favour of respondents were not entitled to the allotment of the land in dispute. Nevertheless the fact remains that none of the Rehabilitation Authorities determine the question of status of appellants in the land in question as old tenants. The D.R.C. Formed the view that since the plea of appellants being old tenants was not raised before Tehsildar Custodian so the same could not be raised before him. It is, however, an undenying fact that point was raised before D.R.C., Rehabilitation Commissioner, the Custodian and then before the High Court but all of them failed to advert to the above point. Instead all of them adverted only to the point that allotment in favour of respondents had attained finality as the same was conclusively determined by the Rehabilitation Authorities. We also concur with the aforesaid view that the allotment in favour of respondents indeed attained the finality as none of the Rehabilitation Authorities was persuaded to annul the same. But we may observe that the question with regard to the status of appellants as being old tenants in the land in question, as said earlier, was, though raised, specifically, but not resolved which has resulted into miscarriage of justice. The first proviso of section 18-A(1) of Administration of Evacuee Property Act as amended in Azad Jammu and Kashmir on January 14, 1987, under No,119-123/LD/LEG(A)/1987 reads as under:-- "Provided that in the case where the Evacuee Property is held by any old tenant as defined in Government Order 25/60, then, notwithstanding the grant of proprietary rights to the allottees in respect of such Evacuee Property, the old tenant shall have the protection against the ejectment to the extent indicated in para. 1(e) of the Government Order No,25/60 and he shall be liable to pay the rent to the allottee as provided therein."
The above provision shows that an old tenant shall have the protection against the ejectment to the extent of land provided in the Government Order No,25/60 para. 1(e). For the sake of convenience para. 1(e) of Government Order 25/60 is reproduced below:-- "(e) 'Old tenant' would mean such tenants as are recorded to have been tenants of evacuee property immediately before the War of Liberation started: Provided that the total land in possession of such tennats in whatever capacity does not exceed 24 Kanals in all: Provided further, that the land shall be allotted to the refugees and the tenants shall be liable to pay the same rent to the allottees as they paid to the evacuee landowners."
The above-referred provision of law makes it abundantly clear that while granting proprietary rights to the allottees it was also enjoined upon the Custodian to resolve the question of status of appellants in the land in question as old tenants and to protect their rights at the time of ejectment to the extent provided in the relevant law. But the learned Custodian has adverted to the point of status of the appellants as old tenants as under:-- {{URDU TEXT}} ' The question as to whether the appellants enjoy the status of old tenants and are entitled to enjoy the protection under Order 25/60 were not resolved at all.
6. Even a question of fact which could have been determined on the basis of perusal of record without adverting to making a detailed inquiry is u permissible under law to be resolved in exercise of writ jurisdiction. In the instant case the status of appellants being old tenants in the land in question is admitted by the respondents in their written statement as they did not repudiate the said assertion rather it was alleged that the appellants failed to pay the share of the produce of the land to the evacuee owners. Besides, there was a bulk of evidence existing on the record which purports to show that the land in question was in continuous possession of the appellants since Dogra Regime. In Jamabandi 1957-1958 B.K. The forefathers of the appellants are shown in the possession of the land in question on payment of fixed revenue. In Jamabandi 1992-1993 B.K.
Muhammad Hussain, one of the appellants and Abdur Rehman and Muhammad Nawaz the ancestors of appellants, are shown in possession of the land in question on the payment of share of produce. In Jamabandi 2000-2001 B.K. Muhammad Bakhsh, the ancestor of appellants, is entered in the possession of the land on the payment of share of produce. In Jamabandis 1957- 1958, 1981-1982 A.D. The appellants are entered in possession of the land on payment of fixed revenue in some portion of it and share of produce in the other portion of the land. Thus, there remains no manner of doubt that the land in question is shown in continuous possession of the appellants since the time of their ancestors from Dogra Regime up to the present time and the learned D.R.C., Rehabilitation Commissioner, Custodian and the High Court failed to determine the status of appellants as being old tenants which could have been very easily determined on perusal of the relevant record available. We, therefore, have no hesitation to hold that the appellants are old tenants in the land in question and their status as such remains undisputed by the respondents.
7. In the review petition before the Custodian it has been specifically alleged in the memo. Of review petition by the appellants that they belong to three different families but their total holding is only 44 Kanals. However, the learned Custodian in his judgment in the review petition has mentioned that the counsel for the appellant argued before him that their holding measures 34 Kanals. The question whether they belong to one family or three families and whether their other holding measures 44 Kanals or 34 Kanals have not been adverted to at all. During the course of arguments the learned counsel for the appellants contended that limit of 24 Kanals under Government Order 25/60, per family has been changed through an amendment. While considering the question of benefit to the appellants as old tenants all these questions are relevant and need resolution. The learned Custodian has expressed the view that as there was nothing on the record to show that the appellants-tenants paid any rent to evacuee-Hinuds, they are not entitled to the benefit envisaged under Order 25/60. The aforesaid observation of the Custodian is contradictory to his observation that question of benefit of Government Order 25/60 may be raised and resolved at the time when the appellants are ejected. Even otherwise, the observation is also unsustainable because no such objection appears to have been taken by the respondents at any stage previously nor the same was resolved. Thus there being no finding as to whether the appellants are entitled to benefit under Order 25/60, the question of application of res judicata does not arise.
8. In light of what has been stated above, we partly accept the appeal, set aside the impugned orders of the Custodian and the High Court. The case is remanded to the Custodian with the direction to enquire into the matter as to whether the appellants are entitled to take the benefit of Order 25/60 and if so to what extent. The Custodian while dealing with the matter may strike issues in the light of above observations and decide the question of protection to the appellants under Order 25/60 according to law.
' Before parting with the case we may observe that under the first proviso of section 18-A(1) of the Administration of Evacuee Property Act, it is desirable that the question of protection to an old tenant, if raised before Custodian is decided at the time of issuing of Proprietary Rights Transfer Order. The appeal is accepted as indicated above.