' BASHARAT AHMAD SHAIKH, J.---The appellants filed a writ petition in the High Court on 28th April, 1998 to challenge orders passed by the learned Custodian of Evacuee Property on 6th October, 1975, 25th October, 1975, 9th June, 1984, 1st October, 1990 and 30th December, 1997. The High Court has dismissed the writ petition in limine mainly on two grounds. Firstly, the High Court has held that findings of fact recorded by the learned Custodian relate to complicated questions of fact which have not been negated by evidence. Secondly, the High Court has held that a review petition was filed before the learned Custodian in 1997 against the order passed on 1st October, 1990 which ought to have been dismissed as being barred by time
2. History of the case is lengthy and begins from 1952 but briefly stated the facts are that land under survey numbers 260, 261, .261/1, 296 and 529 situate in village Naluchi measuring twenty six Kanals fourteen Marlas was jointly allotted to Mushtaq Ahmad Butt son of Abdul Ramzan Butt and Muhammad Rasheed son of Samad Joo on 23rd August, 1952. Original allotment order is not available. Proof of the above allotment is a certified copy of the order passed by the Assistant Rehabilitation Commissioner on'7th September, 1964 by which a duplicate allotment chit was ordered to be issued. The duplicate allotment chit issued as a consequence of the above order is also available. On 22nd May, 1975 an application was moved before the Custodian of Evacuee Property to respondent No,.1, Ghulam Ahmad son of Russal Joo, in which he stated that allotment in favour of Mushtaq Ahmad son of .Abdul Ramzan was fake because Mushtaq Ahmad was an infant child of Abdul Rainzart and was born in Azad Jammu and Kashmir after migration of his father's family. He was alive only for a few months and was already dead when the allotment in his favour was made on 23rd August, 1952. It was stated in the application that the real facts could be found out after inquiry and even the co-allottee of the land in dispute would state the true facts. It was prayed in the application that allotment in favour of Mushtaq Ahmad may be cancelled and the land covered by the said allotment may be allotted to him. He stated that he was a refugee and had family of his own which was dependent on his salary. On 6th October, 1975 an order was addressed by the learned Custodian of Evacuee Property to the Rehabilitation Commissioner in which it was stated that it had been proved from application, supported by an affidavit, of Ghulam Ahmad respondent No,4, as well as from the inquiry conducted by Naib-Tehsildar Custodian that Mushtaq Ahmad was born in 1950 and died soon after. It was further stated, therefore, that the allotment in his favour had been cancelled and it was directed that the land cancelled from the name of Mushtaq Ahmad may be allotted to Ghulam Ahmad on the basis of his entitlement. The Rehabilitation Authorities accordingly cancelled the allotment standing in the name of Mushtaq Ahmad and ordered the allotment in favour of respondent No,4 on 6th October, 1975. Fifteen years later, Proprietary Rights Transfer Order was issued in the name of respondent No,4 on 1st October, 1990.
3. Tire present appellants, Manzoor Ahmad Butt and others, are five brothers and three sisters of Mushtaq Ahmad Butt. They filed an application on 23rd June, 1997 before the. Custodian of Evacuee Property praying that the order passed by the learned Custodian on 6th October, 1975 by which allotment was cancelled from the name of Mushtaq Ahmad and the order by: which Proprietary Rights Transfer Order was issued in favour of respondent No,4 on lst October, 1990 may be recalled by exercising the power of review. As well as the powers vested in the Custodian under section 18-B of Administration of Evacuee Property Act, 1957. They also impleaded as a respondent Javed Iqbal, son of respondent No,4, to whom part of the allotted land had been meanwhile transferred. It was stated yin the application that the order of cancellation of allotment from the name of Mushtaq Ahmad was passed on 6th October, 1975 behind the back of Mushtaq Ahmad and was also kept secret from the present appellants, the petitioners before the Custodian. It was stated that they had acquired knowledge about cancellation order about a month before the filing of the application before the learned Custodian. The application was rejected by the learned Custodian on 30th December, 1997.
4. Various grounds were raised in the application moved by the appellants to attack the order of the learned Custodian passed on 6th October, 1975, including the following points:--
(i) the learned Custodian did not possess the power to pass the cancellation order;
(ii) the learned Custodian did not summon the allottee and condemned him unheard; and
(iii) the learned Custodian did not have the power to direct the Rehabilitation authorities to make allotment in favour of respondent No,4.
' Before the learned Custodian, the following points inter alia were raised in reply to the application by respondents_Nos.4 and 5:
(i) Father of appellants Manzoor Ahmad Butt and others, Abdul Ramzan, was the husband of sister of Russal Joo, the father of respondent No,4. The marriage took place in 1950 at Muzaffarabad and Mushtaq Ahmad was born on 27th January, 1951. He died on 8th August, 1952. The allotment order in his favour was issued on 23rd August, 1952 when Mushtaq Ahmad had already passed away.
Allotment in favour of a dead person was void.
(ii) Appellants Manzoor Ahmad Butt and others and their father Abdul Ramzan challenged the cancellation of allotment by filing appeal before the Deputy Rehabilitation Commissioner Muzaffarabad who dismissed the appeal in so far as it related to cancellation of allotment made in favour of respondent No,4. Respondent No,4 as well as Abdul Ramzan both filed revision petitions before the Rehabilitation Commissioner which were decided on 31st August, 1982. Thus, it was being wrongly claimed that Manzoor Ahmad Butt and others were ignorant about the cancellation order.
5. While dismissing the application filed by Manzoor Ahmad Butt and others, the learned Custodian recorded the following findings:--
(i) Allotment in favour of Mushtaq Ahmad was made when he had already died.
(ii) Abdul Ramzan as well as other petitioners before the Custodian duly challenged the order of cancellation of allotment, mentioned above, therefore, there is no question that they come to know about cancellation order in 1997.
(iii) No fights flows from an made in favour of dead person, but even if it is assumed that any right was inherited, it was inherited by Abdul Rahmzan, the father of. Mushtaq Ahmad, who duly challenged the order of cancellation and failed. After the death of Abdul. Ramzan no new cause of action atose to Abdul Ramzan's sons" and daughters, the present appellants.
6. After the judgment of .The learned Custodian, the appellants, filed a writ petition which was dismissed giving rise to this appeal.
7. Lengthy arguments have been addressed behalf of the appellants by their learned counsel .Syed Nazir Hussain Shah Kazmi which were controverted by the learned counsel for the respondents, Kh.
Shahad Ahmad; Mr. Abdul Rashid Abbasi and Mr.. Farooq Hussain Kashmiri. In light of their arguments we first advert to the crucial question as to whether Mushtaq Ahmad was dead when allotment was made in his favour.. In our view this question is of fundamental importance.
8. The learned Custodian has given the finding that when the allotment in favour of Mushtaq Ahmad was made he had already .Passed away. This finding is based on affidavit produced before the learned Custodian as well as on the writing on the stone affixed on the grave. Of Mushtaq Ahmad. Its photo was filed in the High Court 'also. It clearly- contains writing that Mushtaq Ahmad Butt son of Abdul Ramzan Butt was born on 27th January, 1951 and died on 8th August, 1952. This is a finding of fact recorded by a tribunal of exclusive jurisdiction which was approached by the present appellants for seeking relief from him. A finding of fact recorded by a tribunal of exclusive jurisdiction is ordinarily 'sacrosanct and can only be set aside in exceptional circumstances, such as in cases of non-evidence or if finding ,is based on gross misreading of evidence leading to miscarriage of justice. The question in this case is as to what defect was pointed out by the appellants in their writ petition about this finding of fact under reference. No such defect was pointed out by Syed Nazir Hussain Shah Kazmi, the learned counsel f6r the appellants, to show that the finding was wrong. On the other hand, Kh. Shahad Ahmad, the learned counsel for respondents Nos.4 and 5, pointed out that appellants di# not in fact challenge this finding in their writ petitioner filed in the High Court. We have gone through the contents of the writ petition and we' also sought assistance of Syed Nazir Hussain Shah Kazmi but we find that there is not even a bare assertion in the writ petition, which is spread over six pages, that Mushtaq Ahmad was alive when the allotment was made in his favour. It follows that there is no question that we may pi into this question of fact.
Therefore, the finding of fact that Mushtaq Ahmad Butt was dead when allotment in his favour was made is unexceptionable and it has to be assumed as a fact that the allotment was made in favour of a dead person. No laboured argument is needed to record the view that the order of allotment in favour of .Mushtaq Ahmad was a void order from which no rights flowed in favour of any person. Even if all the arguments advanced to attack the order of the learned Custodian, dated 6th October, 1975 be accepted, the order still cannot be set challenged within time, because it had cancelled a void order.
9. The learned Custodian also rejected the plea raised by the appellants with regard to date of knowledge about cancellation of Mushtaq Ahmad Butt's allotment and subsequent allotment in favour of respondent No,4 Ghulam Ahmad. Copies of appeal filed before the Deputy Rehabilitation Commissioner and subsequently the revision petition before the Rehabilitation Commissioner have been relied upon by the learned Custodian to record the finding that the order of the Rehabilitation authorities by , which allotment from the name of Mushtaq Ahmad was cancelled in pursuance of the. Direction given by the learned Custodian of Evacuee Property in 1975 was duly challenged by Abdul Ramzan, the father of the present . Appellants, as well as the appellants themselves. All what Syed Nazir Hussain Shah Kazmi had to submit on this subject was that the of the appellants were subsequently interpolated in the relevant record to show that they were also, apart from Abdul Ramzan, party before the Deputy Rehabilitation Commissioner. This argument has no merit because this is also a finding of fact which cannot be set aside without legal proof. In fact the settled law is that finding of interpolation and forgery cannot normally be recorded in exercise of writ jurisdiction. Even otherwise this argument does not advance the case of the appellants because as rightly held by the learned Custodian in his judgment of 30th December, 1997, right to sue, if at all, accrued to Abdul Ramzan and not to the appellants and since Abdul Ramzan exhausted his remedies no cause of action accrued to the present appellants after the death of Abdul Ramzan. From the above discussion it is also clear that the finding given by the learned Custodian of Evacuee Property that the petition filed by the present appellants was hopelessly time-buried, having been filed after twenty two years, is also well-founded.
9. Many other points were raised by Syed Nazir Hussain Shah Kazmi on behalf of the appellants and some case law was also cited but we need not discuss those points because the finding given above conclude the case irrespective of the merit of the other arguments advanced by the learned counsel for the appellants.
Having reached the conclusion as aforesaid, the High Court was right in dismissing the writ petition filed by the appellants and we uphold the judgment of the High Court.