MUHAMMAD YUNUS SURAKHVI, C.J.--- The above titled both the appeals have been directed against a consolidated judgment passed by the High Court on 20-4-2001, whereby the writ petitions filed by both the appellants herein were dismissed. The same are, therefore, disposed of through this single judgment.
2. The necessary facts, giving rise to both the appeals, are that on May 5, 1993 appellants Muhammad Afsar and Muhammad Shoaib moved applications before the Collector, District Mirpur for grant or proprietary rights under the Azad Jammu and Kashmir Regularizations of Nautor and Gram of Khalsa Land (Amendment) Act, 1989 (hereinafter to be referred as the Nautor Act). They claimed that the Crown land measuring 24 Kanals, comprising Survey No.2444 (Old), 2601 (New) and 2504 (New), situate in Village Har-do-Uchhi, Tehsil Mirpur, was in their possession since long and in 1983 the land was broken and made cultivable by them. After due process of law and inquiry the proprietary rights were granted in favour of appellants to the extent of 2 Kanals and 16 Marlas without any compensation and 21 Kanals and 4 Marlas on payment of Rs.2,000 per Kanal as compensation in favour or Muhammad Afsar and 27 Kanals in favour or Muhammad Shoaib. The requisite amount was deposited on May 5, 1994 and Mutations Nos. 90 and 91 were sanctioned in favour of appellants on 27-8-1994. Respondents Nos. 3 and 4, namely Muhammad Ashraf and Muhammad Iqbal, filed an appeal against the order of Collector, Mirpur dated May 4, 1994, before the Commissioner, Mirpur Division granting the proprietary rights and also challenged Mutation No. 91 dated 27-8-1994 which was accepted on 22-10-1996 on the sole ground that the land in dispute was situated within the limits of Town Committee, Islamgarh and under section 3, subsection (6) of the Regularisation of Nautor and Grant of Khalsa Land Act, 1983, the proprietary rights could not be granted in their favour. The appellants filed review petitions against the aforesaid order of Commissioner on 26-11-1996 on the ground that it .Was not correct that the land was situated within the limits of Town Committee, Islamgarh the review petitions were dismissed on- 11-6-1997.
However, respondent No.2 accepted the plea of appellants that the land was not situated within the limits of Town Committee, Islamgarh but the review petitions were dismissed on other grounds which were neither pleaded nor argued. The appellants then filed revision petitions before the Board of Revenue which were dismissed on 11-5-1998. Thereafter the appellants filed review petitions which were also dismissed on 18-1-2000. Against the aforesaid orders of respondents Nos.1 and 2 the appellants filed writ petitions before the High court on 12-2-2000 which were dismissed by a consolidated judgment of the High Court on April 20, 2001. It is the aforesaid judgment of the High Court dated 20-4-2001 which is the subject-matter of present appeals.
3. In support of appeals it was vehemently contended by Raja Hassan Akhtar, the learned counsel for both the appellants, that the impugned judgment passed by the High Court and the orders passed by respondents Nos.1 and 2 are patently illegal, erroneous and bad in law as such are not maintainable. The learned counsel contended that while deciding the point of limitation the High Court ignored the verdict given by the same Bench of the High Court in cases; (i) D.1 Muhammad v.
Riasat and others and (ii) consolidated judgment recorded in Writ petitions Nos. 11, 12, 13 and 14 of 2001. These judgments were a pronounced on 6-11-2000 and 20-3-2001 respectively. The judgment under appeal runs counter to the above-referred judgments. It was also contended by the learned counsel that it was wrongly held by the High Court that the order of the District Collector was not a final order but it was the order of mutation which was final and as such the limitation for filing appeal shall run from the date of sanction of mutation and not from the order of District Collector, whereas the fact of the matter is that respondents Nos.3 and 4 filed an appeal against the order of Collector dated 4-5-1994. Mutation No.91 was sanctioned on the basis of said order of the Collector by the Assistant Collector Grade-I, as such the final order was the order of Collector sanctioning Nautors. Even if the reasoning advanced by the learned Judge in the High Court is accepted that the final order was the order of attestation of mutation, then the appeal should have been filed under section 161(1)(a) of the Land Revenue Act before the Collector and the limitation for the same was 30 days under section 162(a) of the said Act, whereas in the instant case the appeal was filed before the Commissioner. Therefore, the same was totally incompetent and liable to be dismissed on this sole ground. It is also pertinent to note that respondents Nos.3 and 4 filed the appeal against the order of Collector, District Mirpur before the Revenue Commissioner, Respondent No.2, and prayed for condonation of delay. If the appeal was against the order of mutation then there was no question of condonation of limitation. Therefore, the judgment of the High Court is against the settled principles of law. The learned counsel further contended that the orders of respondents Nos.1 and 2 were against the record of the case. The possession of the appellants over the land in question was proved by the documentary evidence and appeal was not filed within the period of limitation. The learned Commissioner accepted the appeal on the ground that the land was situated within the limits of Town Committee but in the order recorded in the review petition filed by the appellants the learned Revenue Commissioner admitted that the land was not falling within the limits of Town Committee. He dismissed the review petition on other baseless grounds. Similarly respondent No.1 dismissed the revisions as well as the review petitions on the grounds not agitated before him at the time of arguments. Thus, there had been gross misreading and non-reading of record on the part of respondents Nos. 1 and 2 and the High Court wrongly observed that the findings of fact being concurrent on questions of fact could not be disturbed in exercise of writ jurisdiction. The learned counsel also vehemently urged that respondents Nos. 3, and 4 had no locus standi to challenge the order of District Collector granting proprietary rights as they never applied for grant of proprietary rights of this land nor they claimed their possession over the aforesaid land. On the other hand before the Tehsildar who held inquiry, it was admitted by respondents Nos. 3 and 4 that the land in question was in possession of appellants. The learned counsel contended that respondents Nos.3 and 4 are not aggrieved persons as they are not in possession of land in dispute nor they have applied for the grant of Khalsa land. In these circumstances they were not competent to challenge the grant sanctioned in favour of the appellants. The learned counsel thus craved that the impugned judgment of the High Court be set aside.
4. On the other hand controverting the arguments raised by the learned counsel for the appellants, Ch. Muhammad Ashraf, respondent No.3, who is also an Advocate of this Court, submitted that the appellants were not entitled in any way for the grant of Khalsa land in their favour. The appellants had never been in possession of the land in dispute since January, 1985 onwards and their possession had not been continuous. He also pressed into service the submission that the appeal of respondents against the grant made by the Collector of District was not barred by limitation as under section 162 of the Land Revenue Act, the limitation prescribed for is 30 days when the appeal lies to the Collector and 60 days when the appeal lies to the Commissioner. Since the respondent filed the appeal against the mutation, therefore, the same was not barred by limitation. The respondent contended that the Record-keeper who appeared in the Court has categorically stated that the kind of land is Banjar Qadeem, therefore, by no stretch of imagination it could be said that the land was broken by the appellants. The respondent also contended that in the review petitions the point with regard to limitation was not raised, similarly the point that the respondents were not aggrieved persons was also not raised. The respondent in support of his contentions placed reliance on the reported cases of this Court titled Naeem Feroze v. Iqbal Rashid Minhas and others 2001 PLC (C.S.) 264, Muhammad Hayat Khan v. Board of Revenue AJ&K and others 1999 YLR 147 and Sadiq Khan and others v. Rehabilitation Department and others 1992 SCR 132.
2001 PLC (C.S.) 264, it was observed that the objection that respondent was not an aggrieved person therefore, could not file the writ, was not taken in the memo of appeal and also not included in the concise statement. A new point cannot be raised during the arguments.
1999 YLR 147 it was observed that Nautor Kunindah should have been recorded in continuous possession of Nautor land in the Revenue Record without which the sanction could not have been granted. Similarly, another point which was resolved in this authority is as follows:-- "A point which was not raised before any of the lower tribunals but has been raised for the first time before this Court, the same cannot be allowed to be agitated."
5. Ch. Muhammad Siddique, the learned counsel for respondent No.4, also owned the arguments of Ch. Muhammad Ashraf, however, he contended that all the Tribunals including the High Court in a misconception of law had been applying section 3, subsection (2) of the Nautor Act, instead of section 5 of the said Act which applies to the persons who are landless.
6. Ch. Muhammad Ashraf as well as Ch. Muhammad Siddique both submitted that the Collector of District sanctioned the Khalsa land in favour of appellants without any legal and cogent reason and the same was rightly cancelled by the Revenue Commissioner, Board of Revenue and the High Court.
7. We have given our due consideration to the arguments advanced at the Bar and perused the relevant record with care. In the first instance it may be pointed out that the appellant, Muhammad Afsar, applied to the Collector of District for grant of Khalsa land on the ground that he has his personal holding of about 5 Kanals, 4 Marlas and the Khalsa land in village Har-do-Uchhi had been broken by him since long which is in his possession since 1983 till onwards. Similarly the other appellant, Muhammad Shoaib, also applied before the Collector District Mirpur for Crown land measuring 27 Kanals, comprising Survey No.2444 (Old), 2604 (New), situate in village Har-do-Uchhi and claimed that the land was in his possession since 1983 which was broken and made cultivable.
The Collector, District Mirpur granted sanction in favour of Muhammad Afsar on May 4, 1994 to the extent of 2 Kanals, 16 Marlas without any compensation and 21 Kanals, 4 Marlas, on payment of Rs.2,000 per Kanal as compensation. The requisite amount was deposited on May 5, 1994 and Mutation No.91 was sanctioned in favour of appellant, Muhammad Afsar, on 27-8-1994.
8. In the case of Muhammad Shoaib, as stated earlier, he applied for the sanction of Crown land, measuring 27 Kanals, comprising Survey No.2444 (Old) 2604 (New) situate in Village Har-do-Uchhi, Tehsil Mirpur, and it was claimed that the same was in possession of him since long and in 1983 the land was broken and made cultivable. On May 5, 1994, the proprietary rights of' the land after the inquiry and process were granted in his favour. After the fulfilment, of necessary requirements Mutation No.90 was sanctioned in favour of this appellant on 27-8-1994.
9. Both the above mentioned mutations were challenged by way of appeals before the Commissioner, Mirpur Division by respondents Nos.3 and 4 which were accepted on 22-10-1996 on the sole ground that the land in dispute was within the limits of Town Committee, Islamgarh and under section 3, subsection (6) of the Nautor Act the proprietary rights could not be granted. The appellants filed review petitions before the Commissioner on 26-11-1996 on the plea that it was not correct that the land was within the limits of Town Committee. The review petitions were dismissed on 11-6-1997. However, the fact remains that the Commissioner accepted the plea that the land in dispute was not within the limits of Town Committee, Islamgarh but on other grounds not pleaded or argued before him, he dismissed the review petitions. The appellants then filed revision petitions before the Member, Board of Revenue against the order of Revenue Commissioner which too met the same fate. The appellants then filed review petitions before the Board of Revenue which were also dismissed on January 18, 2000. The orders of Member, Board of Revenue and Revenue Commissioner were challenged through writ petitions filed before the High Court of Azad Jammu and Kashmir on 12-2-2000 which were dismissed on April 20, 2001 In our considered view, the learned Single Judge in the High Court was not right to hold that 'the order of District Collector granting sanction was not a final order but it was the order of mutation which was final. Therefore, the learned Judge in the High Court declared that the appeals before the Revenue Commissioner from the date of order of mutation were within limitation. The factual position is that respondents Nos.3 and 4 filed appeals against the order of Collector dated 4-5-1994, granting the sanction.
Mutations Nos.91 and 90 were sanctioned on the basis of order of Collector by the Assistant Collector. Grade-I, as such the final order was the order of Collector sanctioning the Nautors. For the sake of arguments if the reasoning, advanced by the learned Judge in the High Court be accepted that the final order was the order of attestation of mutation, then the appeal should have been filed under section 161(1)(a) of the Land Revenue Act before the Collector and in that case the limitation was 30 days under section 162(a) of the said Act, whereas in the instant case the appeals were filed before the Revenue Commissioner, Mirpur Division, therefore, the appeals were totally incompetent and liable to be dismissed on this sole ground. It is also worth-mentioning that respondents Nos.3 and 4 filed appeals against the order of Collector, District Mirpur before respondent No.2 (Revenue Commissioner) and requested him for condonation of delay. If the appeals were against the order of mutation, then there was no question of condonation of limitation. In these circumstances, the judgment of the learned Single Judge of the High Court is against the settled principles of law and the appeals filed by respondents Nos.3 and 4 against the order of Collector were incompetent and liable to be dismissed without entering into merits.
10. The orders of Board of Revenue and Revenue Commissioner were against the record of the case before them, i.e. (i) possession of land; and (ii) proprietorship of the appellants in the village.
Respondent No.2 while deciding the appeal observed that possession of appellant over the land in dispute was proved and that the appeal was not within limitation. He accepted the appeal on the ground that the land was situated within the limits of Town Committee, but in the order recorded in the review petitions filed by the appellants, gave a categorical finding subsequently that the land was not falling within the limits of Town Committee; however, he dismissed the review petition on other baseless grounds which were against the facts and law, as such there has been a grave misreading and non-reading of facts on behalf of respondents Nos. 1 and 2.
11. Another aspect of the case is that when the file of appellants was under process, respondents Nos.3 and 4 moved an application before the Collector, District Mirpur praying therein that they were not heard before granting the sanction in favour of Muhammad Afsar and that Muhammad Afsar and Muhammad Shoaib who were also not in possession of Khalsa land but they with the connivance of officials of Revenue Department, got the sanction of Khals2i land. The said application was marked to Tehsildar, Mirpur and the relevant file was also sent to the office of Tehsildar for taking necessary action. The Tehsildar vide his order dated 20-3-1994 which is appended with the paper book at page 47, observed as follows:- "Muhammad Iqbal and another have moved an application that the land in dispute is not in possession of Muhammad Afsar instead the land is in their possession. In compliance of the order of Collector. I visited the spot in presence of panties and notables of the locality. The land in dispute on the spot has been bulldozed, since long has been broken and has become Nautor which is in possession of Muhammad Afsar. Muhammad Iqbal etc. Have also conceded and admitted that the land in dispute is in possession of Muhammad Afsar. They have been mistaken that probably the land in their possession has been suggested for grant of sanction, but when on the spot they were told about the land which was suggested for grant, they conceded that this land is in possession of Muhammad Afsar. It is recommended that: the land on spot has been cultivated and is in possession of Muhammad Afsar. The owners of the village or anybody else has no objection if the grant is sanctioned. In the land in dispute there is no way, pond etc. And the same is recommended for grant of proprietary rights in favour of appellants."
This report of Tehsildar is appended with the paper book as well as with the writ petitions but the same has not been controverted by respondents Nos.3 and 4 nor they have filed their affidavits to controvert the said findings recorded by the Tehsildar. These findings go a long way to strengthen the case of the appellants as the same show that following important aspects of the case--
(i) a thorough inquiry and scrutiny was made before granting the sanction;
(ii) the respondents herein were heard at the spot by Tehsildar before granting the sanction; (i.e) it was found by Tehsildar that the land in dispute has been bulldozed and had been made Nautor by the appellants since long;
(iv) the respondents have do objection if the grant is sanctioned in favour of appellants as they were in a misunderstanding that perhaps the land in their possession might have been sanctioned in favour of appellants; and
(v) the presumption of truth is attached to the official acts unless the same are rebutted by a strong and cogent evidence.
12. On behalf of respondents it was vehemently argued that Muhammad Afsar, one of the appellants, has no personal holding; similarly the other appellant is a landless person, therefore, in favour of both of them the Khalsa land could not be sanctioned. It may be stated that when the inquiry was conducted by Tehsildar, Muhammad Afsar categorically stated in his statement, which is at page 41 of the paper book, that his personal holding in the village Har-do-Uchhi is 5 Kanals, 4 Marlas. He has also placed on record a copy of Misl-e-Haqiat which shows his personal holding as 5 Kanals, 4 Marlas. The Tehsildar also recorded the statements of owners of village namely; Sufi Muhammad Bostan, Arshad Mehmood, Zahid Mehmood, Moazzam Khan, Muhammad Suleman, Muhammad Afsar, Raja Sarwar Khan, Sufi Barkatullah and Muhammad Nazir, who all stated unanimously that from the Khalsa land Muhammad Afsar has made cultivable the land in dispute since 15/16 years. It has been provided under section 3, subsections (2) and (3) of the Nautor Act as follows:--
(2) Proprietary rights for Nautors made out of Khalsa land after Rabi, 1957 A.D. And before 17th June, 1985 shall be granted by the Collector of the District, in the name of Nautor Kunindah--
(a) whose entire holdings including Nautor do not exceed eight Kanals, without payment; or
(b) whose entire holdings including Nautor exceed eight Kanals but do not exceed thirty Kanals, on payment of market price or at the rate of Rs.2,000 per Kanal whichever is less.
(3) Proprietary rights under subsection (2) 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: "A landless resident/tenant of a village who is himself a head of the family and whose main means of livelihood is agriculture will be eligible to get Khalsa land sanctioned in his favour to the extent of 30 Kanals subject to the conditions as may be prescribed. "
Under this section the Khalsa land can be given to Muhammad Shoaib. We are not aware as to whether the conditions have been prescribed in Azad Jammu and Kashmir as mentioned in this section or not; nor those conditions have been pointed out by the respondents. Therefore, the Khalsa land granted to Muhammad Shoaib does not suffer from any illegality or infirmity as pointed out by the learned counsel for the respondents as imposition of no condition or violation of the same has been pointed out.
13. The Tribunals below have been rejecting the case of appellants on the basis that they have not procured the relevant. No---Objection Certificates from the concerned authorities, whereas the fact of the matter is that all the relevant No-Objection Certificates are part of the file of the appellants. This shows that there has been gross misreading and non-reading of material evidence on the record by the tribunals below.
14. After hearing the arguments in this case at some length, we sent for the Office Qanungo to appear in the Court alongwith the relevant record and to get his statement recorded as entry in the Khasra Girdawari, 1983 and account of Nautor was not clearly legible who on 30-5-2002, as a Court-- witness, appeared and stated that since 1983 till 1992, the land in dispute is in continuous possession of Muhammad Afsar and Muhammad Shoaib and no change whatsoever has taken place. The change of possession took place for the first time in 1991-92 in Misl-e-Haqiat which was not ordered by any authorized officer nor there is any mutation to this effect, whereas in 1983 the change of possession in favour of Muhammad Afsar and Muhammad Shoaib has been duly entered in Roznamcha Waqiati. At the end of his cross---examination, the witness told that the kind of land is entered as Banjar Qadeem but this refers to the entries in Misl-e-Haqiat of 1991-92.
This witness has stated that in Misl--e-Haqiat of 1991-92 the entry of possession of Revenue Department continues up to 1994. By these conflicting entries some confusion has been tried to be created by the learned counsel for the respondents but we are satisfied from the study of the relevant copies of the Revenue Record and the statement of Record-keeper that he is clear on the point that since 1983 till 1992 Muhammad Afsar and Muhammad Shoaib are shown in possession of the disputed land and no change till then took place. For the first time possession of Revenue Department was entered in 1991-92 but this change of entry was not made by the order of any competent Revenue Officer nor on the basis of this change some mutation was sanctioned.
Similarly this entry of change does not find place in Roznamcha Waqiati. This shows beyond any manner of doubt that the entry in the first instance relates to Misl-e-Haqiat 1991-92 but the same is against facts because it did not take place in accordance with the relevant law; neither it finds mention in the Roznamcha Waqiati nor the same was made on the basis of order of any competent Revenue Officer, therefore, this entry of Maqbooza Revenue Department in 1991-92 is of no legal effect. Similarly the kind of land shown as Banjar Qadeem is also of no consequence.
15. In the light of what has been stated above, we accept the appeal and set aside all the orders of Revenue Commissioner except the order that the land in dispute is situated outside the limits of Town Committee, Islamgarh, Board of Revenue and the impugned order passed by the High Court on 20-4-2001 and restore the orders passed by the Collector of District granting sanction of Nautor in favour of appellants, the order of Commissioner to the extent it declared that the land in dispute was outside the limits of Town Committee. In the circumstances of the case we pass no order as to costs.