' BASHARAT AHMAD SHAIKH, J.---Appellant Muhammad Azad Khan filed a writ petition in the High Court on 4th April 1990, to challenge the order passed by the learned Custodian of Evacuee Property on 25th March, 1990. The writ petition was still, pending when the learned Custodian issued Provisional Proprietary Rights Transfer Order in favour of respondents Muhammad Razzaque and others. The writ petition was therefore, suitably amended but was dismissed on 3rd April, 1998. The High Court inter alia held that since in respect of the land in dispute an earlier allotment already existed in the name of Hassan Muhammad, now represented by respondents 16 to 18, the appellant was not entitled to allotment of the land in dispute. The appellant was also found to be not an aggrieved person because he had previously compromised the matter. The appellant has now filed this appeal with leave of the Court.
2. Averments made in the writ petition were that on 5th May, 1974 appellant Muhammad Azad Khan was allotted evacuee land bearing survey Nos.103-min and 104-min respectively measuring seventeen Kanals, fifteen Marlas and nine Kanals and nineteen Marlas as a local destitute. Survey.
Nos.103 and 104 respectively measured fifteen Kanals nineteen Marlas and nineteen Kanals sixteen Marlas. Out of this land the appellant was already in possession of land measuring five Kanals fifteen Marlas out of survey No,103-min. He secured possession of rest of the land through Assistant Rehabilitation Commissioner (Possession) on 16th October, 1975. The allotment order was challenged by Muhammad Razzaque and others by filing appeal before the Deputy Rehabilitation Commissioner (Poonch) stating therein that the land in dispute already stood allotted to father of Muhammad Razzaque, Hassan Muhammad, to whom the allotment order was issued on 11th April, 1956. It was also stated that two of the appellants before the Deputy Rehabilitation Commissioner, Muhammad Ayub Khan and Jannat Hussain sons of Safdar Ali were also in possession of part of the suit land as dependents of a 'Shaheed'. It was further stated in the memorandum of appeal that Muhammad Azad Khan, appellant, herein, who was a Subedar in the Army, had obtained allotment of the land in dispute by showing that he was a destitute. The appeal was accepted and the case remanded to the Assistant Rehabilitation Commissioner, Rawalakot on 17th March, 1967 for fresh decision in light of as many as eight points which were formulated. The order of remand was challenged by the appellant before the Rehabilitation Commissioner but the order was upheld.
Consequently Assistant Rehabilitation Commissioner Rawalakot carried out a detailed inquiry and upheld the allotment made in favour of the appellant. The Assistant Rehabilitation Commissioner found that Muhammad Razzaque was not in possession of the land in dispute but his possession was illegal because there was no allotment in his favour or in favour of his father Hassan Muhammad. The order was challenged by filing a revision petition before the Rehabilitation Commissioner who dismissed it on 26th March, 1985. However, the learned Custodian of Evacuee Property accepted the revision petition on 25th March, 1990 and cancelled . The allotment in favour of the present appellant. The Custodian held that Hassan Muhammad was in the Army and that he had embraced 'Shahadat' which was the basis of the allotment in favour of his heirs. The learned Custodian held that the original file of allotment in favour of Hassan Muhammad's heirs was not available but allotment was proved from the order passed by the Deputy Rehabilitation Commissioner on 8th April, 1957. It was also observed by the learned Custodian that Subedar Muhammad Azad Khan may also be allotted some land as he was legally entitled to it in light of a report of the Rehabilitation Authorities which showed that he was also entitled to allotment.
3. It was urged in the writ petition by the appellant that he was a local destitute while Muhammad Razzaque Khan and others, who were also locals were owners of more than thirty Kanals of land which disentitled them from seeking any allotment. It was further submitted that Hassan Muhammad was not a 'Shaheed' but the fact of the matter was that he was murdered in the year, 1968 copy of the judgment of the Sessions Judge Poonch in respect of the murder trial of Hassan Muhammad was attached with the writ petition. It was also averred in the writ petition that the order of Deputy Rehabilitation Commissioner, dated 8th April, 1957 did not relate to survey No,104 but related to 103 as was evident from the order itself. It was therefore, contended that land under survey No,104 measuring nine Kanals nineteen Marlas was in any case available for allotment. It was also averred that the findings recorded by the learned Custodian that Government Order No,25/60 is subsequent in time to the allotment made in favour of the writ petition was also factually incorrect because allotment was made on 5th May, 1974 while the said Government order was passed in 1960.
4. The High Court, by holding that the Custodian of Evacuee Property is a Tribunal of exclusive jurisdiction, decided to vacate the finding recorded by the learned Custodian that the land allotted to the writ petitioner was already allotted to Hassan Muhammad. The High Court did not advert to the view expressed by the learned Custodian that Hassan Muhammad was a 'Shaheed'. It may be mentioned here that this finding is totally against the record. In fact it is clear from the record that Hassan Muhammad died in 1968 when he was murdered as proved by the judgment of the Sessions Judge Poonch by which the murderers of Hassan Muhammad were convicted. The learned counsel for the respondents did not controvert this clear factual position in his arguments before this Court. While dismissing the writ petition, the High Court also relied on a statement made before the Custodian of Evacuee Property by the appellant herein that he would have no objection if the allotment in favour of Muhammad Ayub. Khan was maintained.
5. We have heard the learned counsel for the parties at some length. The learned counsel for the appellant. Mr. Abdul Rashid Abbasi, submitted that the High Court mentioned in para. 3 that as many as six points had been urged in support of the writ petition but while disposing of the writ petition only two points were decided. It was also submitted by Mr. Abdul Rashid Abbasi that the statement made by the appellant before the learned Custodian that he had no objection if the allotment in favour of Muhammad Ayub Khan was left undisturbed was not acted upon and the Custodian did not decide the case on-this point. It was, therefore, contended that the High Court was not legally correct in making the aforesaid point as the basis of dismissal of the writ petition against -the heirs of Muhammad Ayub Khan. Another point taken in support of appeal is that Hassan Muhammad owned sixty eight Kanals of land and, therefore, was not entitled under any law to claim allotment of evacuee land. The learned counsel relied on Bashir Ahmad Khan v.
Custodian, Evacuee Property Azad Jammu and Kashmir, Muzaffarabad (PLD 1981 SC (AJ&K 118) and Muhammad Asim Zia v. The Custodian, Evacuee Property and 7 others (1987 M LD 2068).
6. Raja Muhammad Hand Khan, the learned counsel for respondents Nos.3 to 12, who are the legal representatives of Hassan Muhammad, defended the order passed by the High Court by submitting -that the learned Custodian of Evacuee Property rightly upheld the allotment made in favour of Hassan Muhammad and others because at the relevant time Rehabilitation Act, 1952 was in force under which evacuee property could be allotted to any State national whether a refugee or not. It was contended that not only the allotment in favour of appellant Muhammad Azad Khan was illegal as it was made during the subsistence of an earlier order of allotment but also that the appellant was Subedar in the Army and was not a cultivator to whom evacuee property could be allotted. He relied on Mir Alam Khan v. Mst Afsar Jan and another (PLD 1982 SC (AJ&K) 107 (110) that only a cultivator could be treated as a destitute. He also relied on Khani Zaman and another v.
Custodian of Evacuee Property, Azad Jammu and Kashmir Government Muzaffarabad and another (1997 CLC 707) in support of his contention that the appellant's father was alive when he secured the allotment in his favour and for that reason he could not be treated as head of a separate family.
7. Mr. Siddique Shah Bukhari, the learned counsel for the legal representatives of Muhammad Ayub Khan, respondents Nos.13 to 22, defended the order of the High Court particularly on the point that Muhammad Azad Khan made a statement before the Custodian of Evacuee Property that the allotment in favour of Muhammad Ayub Khan measuring nineteen Kanals sixteen Marlas from survey No,105 may not be disturbed but subsequently in his appeal in this Court also impleaded his clients as respondents. He relied on Muhammad Yusuf v. The Additional Deputy Commissioner (Collector), Peshawar and others (1972 SCM R 613) and submitted that this was not legally permissible.
7-A. This finding is against the record. The original allotment chit is not traceable and in so far as allotment in favour of the heirs of Hassan Muhammad is concerned reliance has been placed on a certified copy of appellate order passed by the Deputy Rehabilitation Commissioner, Poonch on 8th April, 1957 in case titled Hassan Muhammad and others v. Muhammad Sarwar Khan in proof of the allotment in favour of legal heirs of Hassan Muhammad. The order shows that land out of survey No,103 was allotted in favour of Hassan Muhammad son of Bahadur Khan, Muhammad Afsar son of Safdar Ali and Said Khan son of Jawan Khan but subsequently Assistant Rehabilitation Commissioner cancelled the allotment and passed another order of allotment in favour of Muhammad Sarwar Khan son of Ali Bahadar Khan on 11th April, 1956. Hassan Muhammad and others filed appeal before the Deputy Rehabilitation Commissioner who accepted it and restored the allotment of previous allottees. Land measuring nine Kanals nineteen Marlas under survey No,104-min was allotted to the appellant. The total land under survey Nos.103 and 104 was seventy nine Kanals fifteen Marlas. It is not case of the appellant that the land allotted to him was different from the land allotted to Hassan Muhammad and others. The settled legal position is that if a land has already been allotted it could not be allotted to another person without setting aside or recalling the earlier allotment order. The appellate Order of the Deputy Rehabilitation Commissioner of 28th June, 1956 has been rightly treated as sufficient proof shows that allotment in favour of Hassan Muhammad and others was restored to them. No proof has been adduced to show that it was subsequently cancelled from the names of Hassan Muhammad and others from which it can be concluded that the allotment still subsisted when the appellant secured its allotment in 1974. This is the reason on which the learned Custodian of Evacuee Property dismissed the revision petition filed by appellant Muhammad Azad Khan. It is true that the learned Custodian of Evacuee Property wrongly mentioned that Hassan Muhammad was a 'Shaheed' and allotment was made in favour of his heirs but this factual error does not vitiate the judgment of the learned Custodian. The learned Custodian was not called upon to decide the question as to why the allotment was made in favour of Hassan Muhammad and others. He mentioned about Hassan Muhammad being a 'Shaheed' only as a passing reference but the ground on which the case was decided against the appellant was that allotment in his favour has been made in respect of land which already stood allotted. This reflects the settled legal position.
8. However, from the order of the Deputy Rehabilitation Commissioner mentioned above it is clear that the allotment in favour of Hassan Muhammad was from survey No,103 and no part of survey No,104 was allotted to him So far as land under survey No,104 is concerned, the appellant made a statement before the Custodian of Evacuee Property that allotment of land under survey No,104 measuring nineteen Kanals sixteen Marlas may be maintained in the name of Muhammad Ayub Khan. It may be mentioned that total land under survey No,104 is nineteen Kanals sixteen Marlas which means that the statement of the appellant is in respect of the whole of survey No,
104. We uphold the view taken by the learned Judge in the High Court that after making a statement before the Custodian the appellant could not turn round to file the writ petition so far as Muhammad Ayub Khan is concerned.
' As a result it turns out that the appeal has no merit and we dismiss it without making any order as to costs.