' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against an order passed by the High Court on 4-7-1998, whereby the writ petition filed by respondent No,1 was partly accepted.
2. The necessary facts, culminating into the present appeal, are that land measuring 45 Kanals, comprising Survey No,605, situate in village Trar-Tarni, Tehsil. Rawalakot, was allotted in the name of one Walayat Khan, son of Nadir Khan, by A.R.C., Poonch at Rawalakot, on 22-94959. In the allotment permit the said allotment was shown in the name of six family members of Walayat Khan including the predecessor-in-interest of appellants, Said Muhammad Khan. Respondent No,1 claimed that original allottee Walayat Khan gifted away the land in question to him and under the guise of the said gift-deed the respondent succeeded in obtaining the proprietary rights transfer order in his favour on 8-5-1988. The predecessor in-interest of appellants considering himself adversely affected by the said proprietary rights/transfer order preferred a review petition before the Custodian which was dismissed on 18-5-1994. A subsequent review petition was also preferred against the order, dated 18-5-1994, which was accepted by the learned Custodian by issuing declaration that predecessor-in-interest of appellants was included in the family members of late Walayat Khan, vide order, dated 28-3-1995. Respondent No,1 Nazir Hussain, according to the appellants, without impleading the other allottees of the land in question filed a writ petition in the High Court against the order of Custodian, dated 28-3-1995. During the pendency of this writ petition it is claimed that the land in question was allotted in the name of predecessor of appellants and others by A.R.C., Poonch vide Annexures 'I' and 'I/1'. The writ petition filed by respondent No,1, as said earlier, was partly accepted by the High Court vide the impugned order, dated 4-7-1998, which is the subject of present appeal.
3. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants, vehemently contended that the learned Custodian in his judgment, dated 28-3-1995 observed that the predecessor-in-interest of appellants was included in the list of six family members in whose names the allotment was made on 22-9-1959, but the High Court in exercise of writ jurisdiction set aside the above finding without any justifiable reason as the question of fact determined by a special tribunal could not have been set at naught by the High Court. The learned counsel also pressed into service the submission that the High Court failed to point out any misreading or non-reading on the part of Custodian, hence no indulgence was warranted. Even otherwise according to the learned counsel the status of respondent No,1 as to whether he was a lawful allottee or otherwise was sub judice before the Custodian. Therefore, the respondent was not an aggrieved person within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel further submitted that the appellants by spending lacs of rupees had constructed a house upon the land in question which stood allotted to them but the respondent never raised objection upon such construction as such he was estopped by his conduct to file a writ petition. The learned counsel urged with vehemence that respondent failed to implead Mst. Gulab Begum and Mst.
Sawab Jan as parties in his writ petition as they were allottees along with the appellants and as such being necessary parties their non-impleadment entailed dismissal of the writ petition. The learned counsel further submitted that the allotment made in the name of predecessor of appellants vide Annexures 'I' and 'I/1' was not assailed by the respondent, as such the writ petition filed by respondent was liable to be dismissed.
4. Controverting the arguments raised by the learned counsel for the appellants, Mr. Imdad Ali Malik, the learned counsel for respondent No,1, vehemently contended that the writ petition was rightly accepted by the High Court by observing that in the earlier order passed by the Custodian, dated 18-5-1994 the review petition filed by Said Muhammad, the predecessor-in-interest of appellants, was dismissed on *count of the same being time-barred. -ire learned Custodian, according to the learned counsel, vide his subsequent order, dated 28-3-1995 without taking into consideration the fact that the first review petition filed by the predecessor-in-interest of appellants was dismissed, entertained the subsequent review petition and vide order, dated 28-3- 1995 accepting the review petition observed that six people were included in the allotment order of Walayat Khan, the original allottee, and Said Muhammad, the predecessor-in interest of appellants, was included in those six members. Thus, according to the learned counsel the High Court committed no illegality by partly accepting the writ petition filed by the respondents.
5. Mr. Farooq Hussain Kasluniri, the learned counsel for respondent No,2, supported the arguments raised by the learned counsel for respondent No, 1 .
6. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the suit land measuring 45 Kanals, comprising Survey No,605, situate in Village Trar Tarni, Tehsil Rawalakot, was allotted in the name of Walayat Khan, son of Nadir Khan, by A.R.C., Poonch at Rawalakot, on 22-9-1959. In the allotment permit the name of head of family Walayat Khan was entered as an allottee and his family members were shown as six in number vide Annexure 'A'. Similarly in Annexure 'B' the detail of six members of Walayat Khan is as under:-- (1)Faqir Muhammad, son of Nadir. (2)Walayat Khan.
(3)Said Muhammad, son of Phain (nephew).
(4)Gulab Begum, wife of Said Muhammad.
(5)Faqir, son of Phain. (6)(Nephew). Sawab Jan (niece).
7. The claim of respondent No,1 had been that the original allottee Walayat Khan ilifteti away the land in question to him in 471 and he obtained proprietary rights transfer order in his favour on 8-5- 1988. The predecessor-in-interest of appellants being adversely affected by the said proprietary tights transfer order preferred a review petition before the Custodian which was dismissed, as said earlier, mainly on the ground that the same was time-barred. However, it was observed by the learned Custodian that from the record produced before him it could not be concluded whether in the allotment made in the name of Walayat Said Muhammad, the predecessor-in of appellants, was entered in the list of those six persons who were included in the ranent. The learned Custodian further discrved that the claim of respondent Nazir Hussain had been that the original allottee, Walayat Khan, being his relative gifted away the land to him on the basis of an oral gift-deed on the basis of which he secured proprietary rights transfer order in his favour. This claim of respondent was rejected by the learned. Custodian on the ground that no proof with regard to the gift-deed has been brought on record. Moreover, it was observed by the learned Custodian that along with the file an attested copy of Jamabandi pertaining to year 1968-1969 was attached which shows the entry of disputed land in the name of Walayat Khan as an Donee. Thus, the inevitable conclusion is that before the allotment in the name of respondent Nazir Hussain the land already stood allotted in the name of Walayat Khan and his other family members. In this view of the matter the learned Custodian observed that it is yet to be seen as to whether Nazir Hussain respondent was entitled to the said allotment or not. In order to determine the aforesaid purpose, the learned Custodian ordered for conducting an inquiry against respondent Nazir Hussain and his father Faiz Muhammad that they should produce positive proof of their allotment and also with regard to their entitlement. Both Nazir Hussain and his father Faiz Muhammad were directed to appear before the Reader of the Custodian for, the said explanation. The learned Custodian vide the same order observed that as it had come to his knowledge that Faiz Muhammad, the father of respondent Nazir Hussain, at the time of allotment in the name of Nazir Hussain was alive, he had also obtained an allotment in his name, wherein the name of Nazir Hussain respondent as his family member was included. So, if Nazir Hussain was included in the family of his father, how did he manage to get an allotment in his own name. This factor, according to the learned Custodian, needed an inquiry for which it was ordered by the- learned Custodian that both Nazir Hussain and his father Faiz Muhammad shall produce the relevant record before him and would satisfy the Custodian with regard to their entitlement. These findings recorded by the Custodian attained finality as they were not challenged by respondent before any appropriate forum. In the subsequent decision on a subsequent review petition filed by Said Muhammad, the predecessor- in-interest of appellants, the learned Custodian opined that after careful appraisal of the record and in accordance with register of Rashan Card of 1947 he reached the conclusion that the suit land measuring 45 Kanals was allotted by A.R.Cs., Poonch on 22-9-1959 to Walayat Khan son of Nadir Khan, head of family, and his family included the following members:--
(1) Faqir Muhammad, son of Nadir.
(2) Walayat Khan.
(3) Said Muhammad, son of Phain (Nephew).
(4) Gulab Begum, wife of Said Muhammad.
(5) Faqir, son of Phain (Nephew).
(6) Sawab Jan (niece).
8. Thus in view of the aforesaid, the order, dated 18-5-1994 was partly set aside and it was observed that in accordance with the allotment order, dated 22-9-1959 and the register of Rashan Card of 1947 the above-mentioned six persons shall be deemed to be the allottees of the disputed land.
Against this order of Custodian, a writ petition was filed by Nazir Hussain, which was partly accepted and the finding recorded by the Custodian that Said Muhammad, the predecessor-in interest of appellants, was treated to be the member of family of Walayat Khan was set aside.
9. The first question that needs determination is as to whether the learned Custodian after disposing of the first review petition vide his order, dated 18-5-1994 could subsequently entertain a review petition against his order, dated 18-5-1994. In order to elaborate the factual position as we have already observed that the first review petition was dismissed by the learned Custodian on the basis of same being time-barred. It was also observed by the learned Custodian that in Rashan Card of 1947 with the name of Walayat Khan the name of Said Muhammad, the predecessor-in- interest of appellants, was entered, yet from the copy of Rashan Card it was not clear whether the allotment made in the name of Walayat Khan was same and was made in the name of six persons including Said Muhammad. With regard to Nazir Hussain it was observed that Nazir Hussain's claim was based on the fact that Walayat Khan, original allottee, transferred the land to him through an oral gift-deed on the basis of which he obtained proprietary rights transfer order but this fact, according to the learned Custodian, was not proved from the material placed on record. Therefore, this review petition was dismissed. In a subsequent review petition on the basis of material placed on record the learned Custodian reached The conclusion that on 22-9-1959 land measuring 45 Kanals was allotted to Walayat Khan and in accordance with the register of Rashan Card of 1947 his family members were six in number. Therefore, by accepting the subsequent review petition the previous order of Custodian, dated 18-5-1994 was partly set aside and it was observed that in the allotment order, dated 22-9-1959 six persons were included in the allotment in accordance with the register of Rashan Card under No,850. Thus the review petition was accepted. However, the order of conducting inquiry remained intact.
10. There is no provision in the Pakistan Administration of Evacuee Property Act that a second review petition is not permissible. We are fortified in our view by a case reported as Sardar Ali and others v. Karamat Ali Khan and others (1993 SCR 226), the relevant 'observation appears at page 229 which is reproduced below:-- "We may take note of the fact that in the Supreme Court Rules it is provided that no second review would lie. It is also provided in rule 9 of Order XLVII of the C.P.C. That a second review does not lie.
There is no such provision in section 43(6) of the Pakistan Administration of Evacuee Property Act and upon construction of the phraseology of that subsection the Lahore High Court in Ghazi Muhammad's case mentioned above formed the view that succeeding review petition was allowed by law. As noted above in spite of the provisions of Rule 9 of Order XLVII, C.P.C. In the two aforementioned cases of Dr. Fazil Zahir and Hari Singh it was held that a second review would lie on fresh ground. There is no bar in Rule 11 of the Land Reforms Rules that a second reivew or succeeding review does not lie. In this view of the matter it cannot be said that a successive review petition does not lie . "
' Therefore, the contention of the learned counsel for respondent is hereby repelled.
11. The Rehabilitation Authorities and the. Custodian being Special Tribunals were still seized with the matter as to whether the allotment in the name of respondent Nazir Hussain was genuine or not and whether he in the presence of allotment in favour of his father Faiz Muhammad could claim an independent allotment needless to say that he also obtained the proprietary rights transfer order.
This aspect of the matter was to be enquired into by the Custodian, who was not satisfied with the genuineness of his allotment and the obtaining of entitlement certificate in pursuance thereof, as such the High Court was not justified to set aside the order of Custodian in exercise of its writ jurisdiction when the matter was already sub judice before the learned Custodian. The main argument advanced by the learned Judge in the High Court by partly accepting the writ petition of respondent Nazir Hussain seems to be that as in the previous round of litigation the Custodian vide order, dated 18-5-1994 dismissed the review petition filed by the predecessor-in-interest of appellants on the ground of limitation, but in a subsequent review petition vide his order, dated 28- 3-1995 he believed the assertion of Said Muhammad, the predecessor-in-interest of appellants, that his name was included in the names of six family members of Walayat Khan, the original allottee. It may be clarified that in the order, dated 18-5-1994 no definite finding was given by the learned Custodian that Said Muhammad was not included in the family members of Walayat Khan as the same was not ascertainable from the record produced at that time but subsequently on the production of the relevant material the Custodian reached the conclusion that in fact Said Muhammad was included in the six members of family of Walayat Khan who were the allottees of the land in dispute. This finding of fact, in our view, should not have been set aside by the High Court unless there would have been some other material on the record which would have negated this assertion.
12. The learned Judge in the High Court on the one hand observed whether Said Muhammad was the member of family of Walayat Khan at the time of allotment is a question of fact which requires detailed inquiry by the Rehabilitation Authorities and similarly observed whether the land in dispute was transferred by Walayat Khan in favour of-respondent Nazir Hussain through a gift-deed and what is the effect of that gift-deed, if proved, is also a question of fact which also requires inquiry.
But all the same when the question of fact that Said Muhammad was member of family of Walayat Khan was determined by the Custodian vide his order, dated 23-9-1995 this portion of the order was declared as being without any lawful authority and effect.
13. So far the objection of the learned counsel for the appellants with regard to the non- impleadment of the necessary parties' in the writ petition is concerned, in our view, the same is of little importance. Gulab Jan had been impleaded as one of the respondents, in the writ petition.
However, it does not transpire from record as to why one Sawab Jan was not impleaded as one of the respondents. The fact of the matter-is that this objection was raised for the first time in this Court. In the written statement no such plea was raised by the appellants. We are also not aware of the fact as to whether Sawab Jan at the time, of filing of writ petition was alive or dead. Therefore, we do not advert to the question whether in absence of non impleadment of Sawab Jan the writ petition was maintainable in view of our ultimate conclusion of dismissal of writ petition on other grounds.
14. Another objection of the learned counsel for the appellants is that the land in dispute along with some other land had been allotted to the predecessor-in-interest of appellants vide Annexures 'I' and 'I/1' and this allotment having not been challenged by the respondent, the writ petition was liable to be dismissed. In this regard it may be stated that these allotments are not under challenge before us, therefore, we refrain to make any observation on these allotments.
15. For the afore stated reasons, by accepting the appeal and setting aside the impugned judgment of the High Court, we order the dismissal of writ petition filed by respondent No,1 and vacate the proprietary rights transfer order passed in his favour till the inquiry is conducted by the Custodian in accordance with the order, dated 23-5-1995, who shall proceed with the matter in accordance with law.