' BASHARAT AHMAD SHAIKH, J.---Events of this case are spread over about half a century but we would like to mention barely those facts which are essential for resolving the controversy. We have heard the elaborate arguments of Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, Ch. Muhammad Azam Khan, the learned counsel for respondents Nos.1 to 3, Sardar Ghulam Ahmad Khan, Sardar Muhammad Samar Khan and Sardar Mahmood Khan, sons of Sardar Feroze Khan, and Ch. Shah Wali, the learned counsel for the Custodian of Evacuee Property who is respondent No,4. There are as many as thirty-six pro forma-respondents but they have no practical interest in the dispute and were arrayed in the High Court as pro forma-respondents because their lands are stated to be in the same Khewat in which the land in dispute is situated.
2. Land under Surveys Nos.1321, 1322 (now numbered as 2069, 2070 and 2071-min) measuring ninety-seven Kanals, seventeen Marlas is situated in Village Karela Majhan which was before 1947 a part of Poonch but since then is a, part of Kotli Tehsil Sardar Feroze Khan, the predecessor-in- interest of respondents Sardar Ghulam Ahmad Khan and others, was owner of the land mentioned above. However in Poonch ownership rights of land formally vested in the Dogra Ruler and what is generally known as owner was called 'Haq-i-Aasamidar'. Practically it does not make any substantial difference. Some non-Muslims, Mst. Waziran and others, were 'Mazarian-i-Mustaqil '
(permanent tenants). This term again was peculiar to Poonch and had the same meaning and states as attached with the term "occupancy tenant" in other parts of the State. Mst. Waziran and others left Karela Majhan and migrated to Indian held Kashmir. It appears that Sardar Ghulam Ahmad Khan and others, finding the land unoccupied, brought it under their possession. Many.
Years later, on 28th February, 1967, Sardar Ghulam Ahmad Khan and others filed a suit before the Deputy Custodian of Evacuee Property in which they sought a declaration that Mst. Waziran and others had abandoned their tenancy two years before War of Liberation of 1947 and the tenancy had extinguished with the result that they were owners in possession of land under reference. The suit was decreed but the learned Custodian set 'it aside when it was sent to him for confirmation.
3. On 1st January, 1976 land measuring sixty-four Kanals out of land under Survey Nos.1321 and 1322 was allotted to appellant No,1 Abdul Hamid Khan. During the-intervening period Sardar Ghulam Ahmad Khan and others had handed over the possession of the entire land under the two survey numbers under reference to Habibullah and others. It is said that Habibullah was father-in-law of Sardar Ghulam Ahmad Khan. Habibullah and others challenged the allotment made in favour of Abdul Hamid Khan by filing revision petition before the Rehabilitation Commissioner but failed.
They then moved the Custodial) of Evacuee Property but he found no force in their revision petition which was dismissed on 28th January,.1980. It was stated at Bar by Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, that Habibullah and others accepted the judgment of the Custodian and handed over the possession of sixty-four Kanals of land to Abdul Hamid Khan. Ch. Muhammad Sharif Tariq further stated that possession of most of the land was retaken by Sardar Ghulam Ahmad Khan and others and the appellants have now possession over twenty-five Kanals only.
4. Appellant Abdul Hamid Khan applied for ownership rights and the Custodian of Evacuee Property issued Proprietary Rights Transfer Order in his favour on 29th January, 1997. This action gave rise to a fresh dispute. Sardar Ghulam Ahmad Khan and others filed a review petition on 29th August, 1997 before the learned Custodian of Evacuee Property who dismissed it on 11th December, 1997 as being barred by time. The case of Sardar Ghulam Ahmad Khan and others before the learned Custodian was that they continued to be the owners of the land in dispute and as long as the ownership subsisted there was no question of granting proprietary rights to any other person. They raised this plea before the High Court by filing a writ petition. The High Court has agreed with them and has passed the following order:--- "19. In view of the above discussion, the writ petition is accepted. It is -declared that the petitioners along with pro forma-respondents are landlords of the land in dispute and respondent No,2 shall hold the allotment but his rights would be that of occupancy tenant. The order of issuance of proprietary rights certificate is held to be of no legal effect. The transfer of the aforesaid land, through gift-deed in favour of respondents Nos.3 to 5 and mutation attested on its basis, is also declared illegal and inoperative against the rights of the petitioners which are cancelled accordingly."
5. We have examined the elaborate judgment of the High Court which is subject-matter of this appeal with the help of the learned counsel for the parties. The learned counsel have brought to our notice various provisions of law which are relevant in resolving the point in dispute.
6. In the first place we may determine whether the original status of Sardar Ghulam Ahmad Khan is as owner and the status of Mst. Waziran etc. Has undergone any change since after 1947. When the Azad Jammu and Kashmir Land Reforms Act was enforced it was provided that occupancy tenants occupying land at the time of promulgation of the said Act would become owners in the manner prescribed under subsection (2) of section 25 of the Act. The scheme of the law was that compensation was to be paid by an occupancy tenant to the landlord whereupon the occupancy tenant would become a full owner. It was also provided in subsection (4) of the said section that if a tenant fails to pay compensation to the landlord tenancy shall stand extinguished upon payment of compensation by the landlord to the tenant. Thereupon, the landlord was to become entitle to possession of the land under occupation of the occupancy tenant free from any encumbrance. Like Mst. Waziran there was a large number of persons who were owners of lands over which occupancy tenants were non-Muslims who migrated from Azad Jammu and Kashmir.
The Land Reforms Act did not address itself to such cases. Thus, for practical purposes the situation as it existed before War of Liberation and before coming into force of the said Act was given continuity by enacting section 28 in which it was provided that sections 25, 26 and 27 of the Land Reforms Act would not be applied to cases where occupancy tenants were evacuees and landlords were non-evacuees. Section 28 may be usefully reproduced below:--- "28.-- (1) Nothing contained in sections 25, 26 and 27 of this Act shall apply to cases---
(a) where the occupancy tenants and evacuees and the landlords are non-evacuees under the law relating to the administration of evacuee property; or
(b) where both the occupancy tenants and landlords are evacuees.
(2) In cases where the landlords are evacuees and the occupancy tenants are non-evacuees and compensation is payable in case the amount of such compensation shall be credited to the Government in the name of the Custodian within the prescribed period of one year."
' Section 25 has been summarised above. Section 26 deals with arrears of rent while section 27 deals with "Haq-i-Assamidars" of Poonch to which we have already made a reference.
7. The result is that the position as it existed in 1947 remains unchanged. Sardar Feroze Khan was the owner of the land in dispute. After his death private respondents have stepped into his shoes and they are owners of the land. Mst. Waziran etc. Were occupancy tenants under Sardar Feroze Khan. They, or their successors-in-interest, continue as occupancy tenants. This position will ' continue till fresh legislation is made, if so advised. In our opinion no order can be passed in contravention of this position.
8. We are conscious of the definition of evacuee property as given under section 2(3) of the Administration of Evacuee Property Act, 1957. The definition is as follows:--- "Evacuee Property means any property in which an evacuee has any right or interest (whether personal or as a trustee or a beneficiary or in any other capacity), and includes,--7 (a)
(b) .............................
' It is clear from the definition that even if an evacuee had only possessory title before migration, the property would be deemed to be an evacuee property. However, in our view this definition itself does not have the effect of terminating the ownership rights of a non-evacuee which remain unaffected in spite of the fact that the property is decided as evacuee property. There is no other provision in any law that ownership rights of a non-evacuee shall extinguish where an evacuee is occupancy tenant and has migrated from Jammu and Kashmir. Custodian of Evacuee Property or the Rehabilitation Authorities have acquired control over such property but is only up to the extent of the rights of the evacuees. The ownership rights of non-evacuees remain unchanged.
9. In Civil Appeal No,46 of 1998 titled Muhammad Ramzan and others v. Custodian of Evacuee Property and others (decided on 3-12-1998) it was held that Custodian of Evacuee Property cannot transfer any interest which the evacuee and the Custodian did not enjoy. It will be useful to reproduce the relevant portion of the judgment:--- "7. So far as the apprehension of the learned counsel for the respondents that the respondents would be adversely affected if the provisional proprietary rights order granted to the allottee remains intact is Concerned, it may be observed that the said order could not transfer any, interest in the property which an evacuee or for that matter the Custodian did not enjoy; as has already been pointed out, Mohar Singh, evacuee, was an occupancy tenant in the aforesaid two survey numbers only to the extent of one-half and on the remaining other one-half his title was merely that of possessory nature under the private partition. Thus, the transfer of proprietary rights order would transfer only possessory titers to the extent of one-half of the disputed land in the said survey numbers to the allottee and nothing more. Thus, the apprehensions of the respondents-co- sharers that their interest in the aforesaid survey numbers would be adversely affected, are misplaced and have no substance."
10. In reaching the conclusion that proprietary rights cannot be granted to an allottee of a land which continues to be in the ownership of a non-evacuee, the learned Judge in the High Court brought under consideration the laws mentioned above and also sought support from the fact that under section 18-A of the Administration of Evacuee Property Act, 1957 the Custodian tan grant proprietary rights to the allottees on the condition that if the owner of the such property returns to Azad Jammu and Kashmir at the time when a plebiscite is about to be held in accordance with the UNCIP Resolutions, the holder of proprietary rights shall surrender the property to the original owner.
The learned Judge took the view that the condition mentioned above implies that proprietary rights can only be conferred in respect of the land whose owners are evacuees and have the vested right to return and take back the property belonging to them. In our view the reasoning adopted by the learned Judge is weighty. We may add to it that the ownership rights of a person who has left Azad Jammu and Kashmir have been protected by law and his right to take back the property belonging to him is guaranteed by section 18-A mentioned above. In these circumstances how it can be assumed that proprietary rights of a person who is non-evacuee and continues to live in Azad Jammu and Kashmir have been taken away. Yet another reason which militates against a different interpretation is that proprietary rights have sanctity and cannot be taken sway except in accordance with law and that too only in lieu of compensation therefor.
11. We, therefore, reach the conclusion that the learned Judge in the High Court was right in holding that proprietary rights transfer order cannot be issued in favour of the respondents. It is, however, clarified that allotment of sixty-four Kanals of land made in favour of the respondents is valid and they are. Entitled to its possession which will continue as long as the present laws are in operation.
12. We have made a reference to Muhammad Rartuan's case above. The principle that Custodian cannot transfer proprietary rights of a land to which the owners are non-evacuee has been followed above. However, for reasons stated in this judgment. Operative part of this judgment is different from the precedent judgment in so far as it was held in the precedent case that proprietary rights can be issued in respect of a land which continues to be in the ownership of a non-evacuee.
' Consequently we find no force in this appeal. It is, therefore, dismissed without any order as to costs.