' SARDAR SAID MUHAMMAD KHAN, ,C.J.---This appeal has been directed against the judgment of the High Court, dated 5-10-2000, whereby two writ petitions filed by Tariq Mahmood Butt, respondent, were accepted through a consolidated judgment and the order passed by the Custodian cancelling the allotment of evacuee land made in favour of respondent was set aside.
2. The brief fact of the case are that land measuring 20 kanals entered in old Survey No,678, new Survey No,1191 was acquired for .The construction of building for the Government College for Women. According to the appellants, Tariq Mahmood Butt, respondent, with the permission of concerned authority dug a well and constructed a room for storage over the land measuring 1 kanal and 13 marlas. However, subsequently, according to the appellants, without the knowledge of the College Authorities, he got the said piece of land allotted in his name. When the Education Department came to know about the aforesaid allotment, A favour of respondent, it moved the Government and the Custodian of Evacuee Property for the cancellation of the allotment of the aforesaid piece of land. The Custodian wrote a letter to the Rehabilitation Department on 24-12- 1986 to cancel the allotment made in favour of Tariq Mahmood, _respondent, and, thus, the Rehabilitation 'Commissioner cancelled the allotment made in favour of Tariq Mahmood.
Consequently, Tariq Mahmood, respondent, challenged the orders of Custodian and the Rehabilitation Commissioner by filing a writ petition before the High Court on 24-12-1987 which was accepted and the allotment of Tariq Mahmood, respondent, was restored mainly on the ground that the order of cancellation was made without hearing him. According to the appellants, during the litigation between the College Authorities and respondent, an offer was made by Tariq Mahmood, respondent, that if he was given Khalsa' land for the construction of his house, he would forego the allotment of the land in dispute. Consequently, at the instance of Principal of the Women College, the Government land measuring 2 Kanlas, 15 Marlas, comprising Survey Nos.1004 and 652, situate in Bhimber, was allotted in favour of respondent and mutations were also attested in his favour. According to the appellants, after getting alternate land, the respondent without the knowledge of the appellants, obtained the proprietary rights of the land measuring 1 Kanal 13, Marlas over which he had constructed well and a room for storage. When the Principal of the College came to know about the fact that respondent had obtained the proprietary rights of the aforesaid piece of land, he filed a review petition before the Custodian which was accepted and the allotment and the Proprietary Rights Transfer Order made in favour of Tariq Mahmood, respondent, were cancelled. The respondent filed two writ petitions before the High Court challenging the proceedings before the Rehabilitation Commissioner and the order of the Custodian. The High Court accepted the writ petitions, inter alia, on the ground that in view of the earlier dictum of the High Court, the proceedings for the acquisition of land in dispute had started but thereafter, the Custodian and the Education Authorities turned round and came up with a case that respondent had surrendered his rights in the property in lieu of Government -land which was granted to him. The learned Judge in the High Court also observed in the impugned judgment that 2 Kanals, 15 Marlas of Government land was granted to respondent and that he had also stated in his application that if Government land was granted to him he would forego the possession of the land in dispute and would take away the material of the construction made over the same.
However, according to the learned Judge in the High Court, the aforesaid statement made in the application of the respondent, cannot be interpreted to mean that respondent, in fact, surrendered his rights in the land in dispute.
3. Ch. Shah Wali, Advocate, the learned counsel for appellant No,1, has argued that respondent was estopped to get the proprietary rights of the land in dispute after obtaining the Government land, measuring 2 Kanals, 15 Marlas and also getting mutations of the said land attested in his favour. He has argued that a party cannot be permitted to blow both hot and cold in the same breath. The learned counsel has argued that a person who does not come to the Court with clean hands, cannot be given any relief in exercise of writ jurisdiction. The learned counsel has also submitted that the High Court was not correct in holdmg that previous judgment of the High Court was a bar to the Custodian for cancelling the allotment and Proprietary Rights Transfer Order which were earlier made in favour of respondent and that the High Court has also committed an error in holding that the statement made by the respondent in his application that he would forego the rights of land in dispute if he was allotted Government land in lieu of the land in dispute, had not debarred him to obtain the proprietary rights of the land in dispute. The learned counsel has also referred to a letter written by the Deputy Commissioner which appears at page 78 of the Writ Petition No,2 of 1998 to support his contention that in fact the application submitted by the respondent was that if the Government land was sanctioned inlieu of the land in dispute, he would forego his interests in the allotment. The learned counsel for the appellants has also cited a case reported as Bashir Ahmad Khan v. Custodian of Evacuee Property, Muzaffarabad (PLD 1992 SC (AJ&K) 49), wherein it has beer held that a person who does not come to the Court with clean hands is not entitled to any relief in exercise of writ jurisdiction. The learned counsel has maintained that as the respondent has been guilty of both playing hot and cold in the same breath, the writ petitions should have been dismissed on this sole ground.
4. In reply, Ch. Muhammad Riaz Alam, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that as the limitation for filing a review petition before the Custodian was thirty days, the same should have been dismissed on this sole ground. He has further argued that the respondent- allottee had merely agreed to hand over the possession of evacuee land to the ameerned authorities if the needful was done; he did ndf agree to forego his allotment. He has stressed that the interpretation placed by the High Court on the contents of the letter written by the respondent to the Principal of the College is correct and does not call for any interference. He has further contended that as the matter regarding the entitlement to the allotment of the respondent was upheld by the High Court in a writ petition entitled Tariq Mahmood Butt v. Custodian (Writ Petition No, 75 of 1987, decided on 30-9-1989), the same cannot be re-opened in view of the principle of resjudicata as has been held by the High Court. The learned counsel for the respondent has referred to an unreported case of this Court entitled Nawab Bibi v. Shamshad Begufti (Civil P.L.A.No,183 of 1998, decided on 27-5-1999) in support of his contention that the limitation for filing review petition was thirty days and the same was time-barred.
5. We have given due consideration to the arguments raised at Bar. The moot point in this case is as to whether the respondent intended only to depart with the possession of the land allotted to him if he was provided alternate land for the construction of his house or he intended to forego all this rights in the disputed land as an allottee. It may be observed here that the Custodian has held that in fact the respondent had agreed to forego all his rights as an allottee. It may be observed that the findings of the Custodian are supported not only by the aforesaid letter, referred to by the High Court in its judgment, but also by paragraph 3 of the replication filed by the respondent in the High Court. He did not deny that in fact he was given two Kanals and 15 Marlas of land in lieu of the allotment in question and he had also shifted the debris of his house from the evacuee land to the new site. However, he has pleaded that the Government land was allotted to him because he had the right to obtain 'such allotment. The respondent could not wriggle out from the predicament that in fact his conduct amounted to forego his right of allotment. The High Court has overlooked the important aspect of the natter that this had never been the case of the respondent either before the Custodian or in his pleadings before the High Court that he had agreed merely to hand over the possession of the land allotted to him and not right of his allotment. It is well-settled principle of law that a point which is not taken in the pleadings by a party cannot be made basis for giving him the relief. Thus, we have no hesitation in holding that the High Court was not legally justified to annul the findings of the Custodian that the respondent had surrendered his right of allotment after obtaining the Government land in lieu of the same.
6. There is yet another important aspect of the matter. It may be observed that an aggrieved person is not permitted to invoke the writ jurisdiction for the perpetuation of injustice or to save his ill-gotten gains. Thus, the respondent, after having got the land at his own instance in lieu of the land allotted to him, cannot turn round and say that he was still entitled to receive the compensation of the evacuee land which was allotted to him. A reference may be made to the cases reported as Saif Ali v. Custodian Evacuee Property (1993 SCR 39), Abid Hussain Jafri v. Azad Government 1998 PLC (CS) 141, Bashir Ahmad v. Addit. Custodian of Evacuee Property 1998 CLC 692, Bashir Ahmad Khan v. Custodian (1992 SCR 149) and Kashmir Mining and Development Works v.
AJK Government 1997 CLC 1771 in support of the aforesaid view.
7. The, next point which needs resolution is as to whether the High Court was justified in observing that the question as to whether the respondent was entitled to the allotment of evacuee land as a refugee (sic) be re-opened after the judgment of the High Court, dated 24-12-1987. The perusal of paragrpah 8 of the said judgment would show that it was contended on behalf of the appellants, herein, in that case that Tariq Mahmood Butt, respondent, herein, was not a 'refugee' because he was born after the migration of his parents in the territory of Azad Khasmir and, thus, prayed that the writ petitions filed by him should be dismissed for misstating the fact; the question as to whether a child born after migration to Azad Kashmir would be entitled to a separate allotment from his ,'family' or not was not resolved by the High Court. The High Court merely observed that as Tariq Mahmood Butt, respondent, who was petitioner in that case, was born from the wedlock of the refugee parents, he could not call himself a refugee in the general sense of the word; the point as to whether he was entitled to the allotment of evacuee land as a refugee was neither subject-in issue nor any findings were given by the High Court in that regard. Even if it is assumed for the sake of argument that the said point was raised before the High Court in the earlier round of litigation, the same would not constitute resjudicata because no~ findings were giving by the High Court on that point. It is_well-settled principle of law that if a point is not decided C on merits in the earlier litigation, that would not constitute res judicata. In support of the aforesaid view, a reference may be made to the cases reported as Adalat. Khan v. Mst. Begum Bibi 1991 SCMR 1381, Muhammad Jamiruddin Ahmed v. Muhammad Nurul Islam PLD 1967 Dacca 441. Phulawa v. Laxmachand Sitabrai AIR 1960 Madhya Pradesh 138, Abdul Ghafoor v Chief Settlement Commissioner (1985. SCMR 464) and Messrs Alpha Insurance Co. Ltd. Karachi v. Messrs M.A. Nawaz & Co. (PLD 1972 Karachi 265.
18. Next,/ the contention of the learned counsel for the respondent that the review petition filed by the appellant, herein, before the Custodian was time-barred and, as such, the order of the Custodian was not sustainable, cannot be raised at this stage. It may be observed that no such point was raised or decided in the High Court nor any leave was granted by this Court . Therefore, it is too late in the day to raise a point which was not subject of controversy either before the Custodian or the High Court.
' In the light of what has been stated above, we accept the appeal, set aside the impugned judgment of the High Court and dismiss the writ petitions filed by the respondent, herein, with costs.