' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, w:11-1 the leave of the Court, is directed against an order passed by the High Court on 18-6-1998, whereby the writ petition filed by the appellant, herein, was dismissed.
2. The precise facts, giving rise to the present appeal, are that land measuring 1 Kanal, 15 Marlas, comprising survey Nos.208, 891 and 881, situate in village Dhirkot, was sanctioned in favour of respondent No,4, by Collector Bagh on 11-7-1990. In the light. Of said sanction order, Mutation No, 1284 was attested on 13-8-1991.
3. The legality and validity of the aforesaid sanction order was challenged by the appellant before the Commissioner through a revision petition filed on 1-9-1991. The revision petition was made over to Settlement Commissioner, who vide his order, dated 2-9-1995, dismissed the same. The appellant filed a subsequent revision petition before the Board of Revenue on 17-9-1995, which was dismissed by a learned Member of the Board of Revenue vide his order, dated 31-10-1996. A review petition filed before the Board of Revenue was also dismissed on 11-2-1997. In the ultimate analysis the appellant filed a writ petition in the High Court which too was dismissed vide the impugned order, dated 18-6-1998, which is the subject of present appeal.
4. In support of appeal it was vehemently contended by Sardar Muhammad Yaseen Khan, the learned counsel for the appellant, that the procedure prescribed under the Azad Jammu and Kashmir Regularisation of Nautors and Grant of Khalsa Land (Amendment) Act, 1989 (hereinafter to be referred as Khalsa Land (Amendment) Act), was not followed by the subordinate revenue authorities. The learned counsel made a special reference to sections 3, 4, its proviso, sections 5 and 8 of Khalsa Land (Amendment) Act, by contending that under section 3, subsection (2) proprietary rights shall be granted only when it is proved before the Collector of the District concerned that the Nautor Kunindah has been in continuous possession of the Nautor and recorded as such in the revenue record, provided that for this purpose where revenue record does not exist the Collector shall satisfy himself through an enquiry to be conducted by a revenue officer not below the rank of 'Tehsildar'.
5. Referring to section 4 of the Khalsa Land (Amendment) Act the learned counsel maintained that this section provides as follows:--- "(4) All sanctions of Nautor shall be incorporated in the revenue record through mutation to be attested by revenue officer not below the rank of Assistant Collector 2nd grade; ' Provided that the Nautor which is likely to be required for any Government purpose or common village purpose shall not be regularised."
' Section 5 of the said. Act provides that:--- "(5) A land owner in possession of Nautor exceeding thirty Kanals including his own holdings, shall be liable to summary ejectment by an officer not below the Rank of Naib Tehsildar."
' Section 8 of the said Act provides that:- "(8) No Nautor exceeding 30 Kanals including the holding of a Nautor Kunindah shall be regularised in any case and the said Nautor Kunindah shall be summarily ejected by a revenue officer not below the rank of Naib Tehsildar."
6. By the above mandatory provision according to the learned counsel, it was necessary that Nautor Kunindah should have been in continuous possession of Nautor and recorded in the Revenue record as such after Rabbi 1957 A.D. And before 17th June, 1985, and if the same record does not exist then through an inquiry conducted not below the rank of Tehsildar and under section 4 proviso 5, if the land is reserved for common village purpose it shall not be regularised and if the owner has more than 30 Kanals of holding including the Nautor land, Nautor Kunindah shall not be regularised any land and shall be liable to be summarily ejected. According to the learned counsel for the appellant the respondent is the owner of 33 Kanals and 9 Marlas of land, including the Nautor land and is neither in possession nor recorded as such in any revenue record. The learned counsel also contended that the main plea of respondent No,4 throughout before the lower Tribunals had been that the revenue record appended with the file was ablazed on account of fire but at the same time none of the below revenue Tribunals, nor the High Court observed in their findings that original record having been destroyed was reconstructed in accordance with the provisions of law or not. In this perspective of the matter, according to the learned .Counsel for the appellant, the Khalsa land was sanctioned in favour of respondent No,4 not only in violation of relevant law but also without reconstructing the record which was an essential requirement under law. The learned counsel for the appellant also maintained that the Khalsa land sanctioned in favour of respondent No,4 is entered in the revenue record as " which is reserved for common village purpose and the same could not have been sanctioned in favour of respondent. In the alternative the learned counsel prayed that if at all the same could have been sanctioned, the appellant having applied first in time, should have been given preference.
7. Controverting the arguments raised by the learned counsel for the appellant, Mr. Abdul Rashid Abbasi, the learned counsel for respondent No,4, strenuously argued that the land was sanctioned in favour of respondent in accordance with law and there is a concurrent finding of fact recorded by all the Tribunals below including the Collector District and the High Court. According to the learned counsel the appellant could not substantiate his claim that respondent was having more than 30 Kanals of holding including the Nautor land. The learned counsel submitted that the appellant for the first time raised the objection that after the original record being ablazed the same was not reconstructed in accordance with law as such the same could not have been allowed to be raised at this stage.
8. After hearing the respective contentions of the learned counsel for the parties, it may be stated that so far as the objection of appellant that respondent's own holding including the Nautor land was more than 30 Kanals as such he was not entitled to be sanctioned any Nautor land is concerned, cannot be considered at this stage especially so when the Tribunals below have concurrently held that respondent's own holding including the Nautor land does not exceed 30 KanaIs. Moreover this being a question of tact could not have been resolved in exercise of writ jurisdiction by the High Court. So the objection raised by the learned counsel for the appellant having no substance in it, merits no consideration.
9. The next point to be resolved in the present case is as to whether any of the revenue authorities at the time of grant of sanction of Nautor in favour of respondent No,4 considered the fact of the NautorKunindah being in continuous possession of Nautor before 17th of June, 1985 and recorded as such as is the requirement of section 3, subsection (2) of Khalsa Land (Amendment) Act. The perusal of the order of sanction granted in favour of respondent No,4 by the Collector District Bagh, does not reveal that the learned Collector adhered to this important aspect of the matter as to whether respondent No,4 was in continuous possession of the Nautor land and recorded as such in the revenue record. Thus, by ignoring the requirement of law, the Nautor was sanctioned in favour of respondent No,4. When a revision petition was filed against the aforesaid order before the Commissioner Settlement, the same plea was raised by the appellant but the learned Settlement Commissioner also failed to make any observation in this regard. On the other hand the Khasra- girdawaries Annexures 'G' and 'H' appended with the paper book at pages 37 and 38, and in another copy of Khasragirdawari, the year of which is not legible, show the possession of the sanctioned land in favour of appellant since 1968 to 1971. Be that as it may, the fact remains that respondent No,4 is not recorded in possession of Nautor land in the revenue record without which the sanction could not have been granted in his favour.
10. The other point urged by the learned counsel for the respondent is that the original record having been destroyed has not been reconstructed is a point which was not raised before any of the lower Tribunals but has been raised for the first time before this Court so the same cannot be allowed to be agitated at this stage. On careful perusal of record we are unable to subscribe to the view of the learned counsel for the respondent. In the writ petition in para.No,9, sub-para.(b), it has been categorically mentioned by the appellant that if the contention of respondent with regard to destruction of record is presumed to be true then unless the reconstruction of record is ordered, the judgments recorded by all the Revenue Tribunals in absence of revenue record are not maintainable but the High Court failed to resolve this point. Both the learned counsel for the parties have cited certain authorities which may not be discussed as they relate to general principles of reconstruction of record in civil and criminal matters.
For the reasons recorded above, we have reached the conclusion that the Nautor land has been sanctioned in favour of respondent No,4 by the Collector District Bagh without looking into the continuous possession of respondent No,4 on the Nautor land and recorded as such in the revenue record on the relevant date and as such the same is not sustainable. Therefore, the case is remanded to the Collector District Bagh who on the basis of entries in Khasra-Girdawaries shall decide the matter afresh in accordance with law keeping in view the stands of both the respondent and the appellant. In case the Khasra-Girdawaries of the relevant period like the other revenue record are also destroyed by fire, the Collector District shall satisfy himself about the possession on the basis of enquiry to be conducted as envisaged by law. Thus, by accepting the appeal, the orders passed by Collector District Bagh, Commissioner/Settlement Commissioner, Member, Board of Revenue, Board of Revenue and the High Court are set aside with no order as to costs. The matter stands remanded for fresh enquiry and orders as indicated above