ZAITOON AKHTAR Versus ADDITIONAL COMMISSIONER REHABILITATION AZAD JAMMU AND KASHMIR, MUZAFFARABAD
M. TABASSUM AFTAB ALVI, C.J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is made by petitioner:-
"In matrix of the above stated facts, it is, therefore, very humbly prayed that by accepting the instant writ petition the following directions may kindly be given to the respondents:- a. Declaring the decision dated 05.06.2013, as well as 19.08.2014, passed by the Additional Commissioner Rehabilitation and DRC Poonch respectively without lawful authority, without jurisdiction, arbitrary, violative of the decisions of the superior Courts and accordingly set aside. b. Directing the Assistant Rehabilitation Commissioner Poonch to decide/dispose of the application of the petitioner quo delivery of possession expeditiously and redress the grievance of petitioner."
2. The summary of case is that petitioner is 1st class State Subject of Azad Jammu and Kashmir, hails from village Chattra Tehsil Abbaspur, District Poonch. It is stated that petitioner is owner of land, measuring 06 Kanals 18 marlas, out of land measuring 23 Kanals comprising survey Nos. 572, 498, 503 and 504, situated at Village Abbaspur town, whereas the same is under illegal possession of predecessor-in-interest of respondents Nos.3 to 3-g and 4. It is maintained that private respondents for mala-fide reasons got a death certificate of petitioner in order to grab her property, on the basis of which, Proprietary Rights Transfer Order was issued by Custodian of Evacuee Property in favour of predecessor-in-interest of respondent No.3 to 3-g and 4, on 31.10.1990 and 19.05.1991 respectively. The petitioner, when came to know, she forthwith moved an application before the Custodian of Evacuee Property against the aforesaid Proprietary Rights Transfer Orders on 16.05.1999. The application of petitioner was accepted by the learned Custodian vide order dated 11.10.2000. Ultimately, the matter was decided in favour of petitioner up to the apex Court of the country. In light of the aforesaid judgments, petitioner moved an application to ARC (possession)/Tehsildar Abbaspur, for issuance of warrant and delivery of possession of landed property on 29.03.2010, who accepted application and issued warrant of possession in her favour on 13.01.2011. However, predecessor-in-interest of respondents Nos.3 to 3-g and 4, filed an appeal against the aforesaid order on 15.01.2011, before Collector District Poonch, who rejected the same vide order dated 22.02.2012. The aforesaid order was challenged by predecessor of private respondents before Additional Rehabilitation Commissioner Azad Jammu and Kashmir, who while brushing aside judgments of the Apex Court, as well as, of this Court set-aside concurrent findings of Assistant Rehabilitation Commissioner (possession) Abbaspur and Collector District Poonch, vide the impugned order dated 05.06.2013. Against the aforesaid order, petitioner filed a revision petition, before Custodian of Evacuee Property, which was dismissed on technical ground, vide order dated 12.11.2013. Against the aforesaid orders writ petition was filed on 07.12.2013. During pendency of writ petition on the basis of order dated 05.06.2013, of Additional Rehabilitation Commissioner, DRC Poonch, remanded the lis to ARC (possession) Abbaspur, vide the impugned order dated 19.08.2014, by re-opening dispute of title, hence, the instant amended constitutional petition.
3. The writ petition has been resisted by respondents Nos.3 to 5, through written statement, wherein, it is stated that order passed by Additional Rehabilitation Commissioner was in accordance with law. It is further stated that in previous litigation during whole litigation, the fact regarding share in property situated in Pakistan belonged to Feroz Muhammad Bhatti and granted to petitioner, was neither agitated nor resolved thus, Additional Rehabilitation Commissioner rightly passed the impugned order for inquiry as required by law. It is further alleged that father of petitioner executed will deed dated 24.10.1977, and petitioner in continuation of the said will deed transferred the land to someone else without bifurcating the share of answering respondents. In this perspective, she had abandoned her right regarding disputed property and Additional Rehabilitation Commissioner rightly remanded the case for fresh inquiry to the fact as whether the said will amount to abandonment of legal share of petitioner with regard to disputed property. It is further maintained that under rehabilitation law, the instant writ petition is not maintainable especially at the verge when inquiry is yet to be held. The other contents of petition have also been controverted who submitted for dismissal of writ petition.
4. Syed Shahid Bahar, the learned counsel for petitioner, confined his arguments on the issue that as per judgment of this Court dated 19.04.2002, up-held by judgment of the apex Court dated 01.07.2005, the controversial point of title was authoritatively resolved, hence, the impugned decision of Additional Rehabilitation Commissioner dated 05.06.2013, and decision of DRC Poonch dated 19.08.2014, are against doctrine of res-judicata, which are clearly violative of the aforesaid judgments. He further contended that all points reopened by Additional Rehabilitation Commissioner and DRC, Poonch, were already decided by this Court, as well as, by the Apex Court, therefore, submitted for acceptance of writ petition.
5. Ch. Amjad Ali, the learned counsel appearing on behalf of private respondents, however, submitted that, no illegality was committed by Additional Rehabilitation Commissioner and DRC, Poonch, while passing the impugned orders dated 05.06.2013 and 19.08.2014, on the ground that law on the subject empowered Rehabilitation Commissioner to inquire into the matter on application of any party or suo motu. He further contended that during previous litigation, fact regarding share in property of petitioner situated in Pakistan belonged to Feroz Muhammad Bhatti, was neither agitated nor resolved, therefore, Additional Rehabilitation Commissioner, rightly passed the impugned order. The learned counsel pressed into service, that father of petitioner executed a will deed dated 24.10.1977, and in continuation of that will, petitioner transferred her land in Pakistan to someone else without bifurcating share of answering respondents, hence, she abandoned her right regarding disputed property, therefore, Additional Rehabilitation Commissioner rightly remanded the case for fresh inquiry, who submitted for dismissal of writ petition.
6. We have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. A contemplate perusal of record reveals that predecessor-in-interest of private respondents Nos.3 to 4, obtained Proprietary Rights Transfer Order regarding an evacuee piece of land comprising survey Nos.138 min, 12 Kanals, 139 min, 5 marlas, measuring (12 Kanals 5 marlas) situated at village Chhattara, whereas, survey No.77 min, 2 Kanals 8-1/2 marlas, 78 min 18 Kanals 5-1/2 marlas, measuring 20 Kanals 14 marlas at Abbaspur, from Custodian of Evacuee Property, on 31.10.1990. Likewise, the aforesaid predecessor-in-interest of the private respondents obtained Proprietary Rights Transfer Order regarding land comprising survey Nos.1362 and 1363 min measuring 01 Kanal 5 marlas situated at village Kathiara, Tehsil Hajira, on 19.05.1991. Against the aforesaid Proprietary Rights Transfer Orders, petitioner, herein, along with others filed two review petitions before Custodian of Evacuee Property on 16.05.1999 and 10.05.1999, respectively, which after due process of law were accepted and issue of title was resolved, vide order dated 11.10.2000. The relevant findings recorded by the learned Custodian of Evacuee Property in the aforesaid order are reproduced as follows:-
8. Against the aforesaid order, predecessor-in-interest of aforesaid respondents, filed Writ Petition No.571/2000 titled Mst. Imtiaz Akhtar v. Custodian of Evacuee Property and others, which after hearing was dismissed by this Court vide judgment dated 19.04.2002. The operative part of the aforesaid judgment is reproduced as follows:-
"After careful perusal of the record, I am of the view that no irregularity or illegality has been committed by the learned Custodian while passing the impugned order. The petitioner also admits that Mst. Zaitoon Akhter, respondent is a daughter of Feroze Muhammad, allottee and Mst. Zaitoon Akhter had proved that she is still alive, therefore, finding no force in this writ petition, it is hereby dismissed."
9. The aforesaid judgment of this Court was challenged by predecessor-in-interest of private respondents before the Apex Court through Civil Appeal No.202/2002, titled Mst. Imtiaz Akhtar v. Custodian of Evacuee Property and others, which too was dismissed, vide judgment dated 01.07.2005. The relevant paragraph No.3 of the aforesaid judgment is as follows:-
"We are sorry to agree with the learned Advocate, for the appellant. The Custodian of Evacuee Property has in his order dated 11.10.2000, at page 4 recorded that "Mst. Zaitoon Akhtar, appeared personally before the Court and her statement was recorded on 15.08.2000. Her Statement was recorded in the presence of the Advocate, for the respondent and her attorney and it was not objected. She was identified by one Saeed Sabir son of Qamar Zaman." In view of the above, observation/ declarations by the Custodian, it cannot be assumed that it was not Mst. Zaitoon Akhtar, who appeared before the Custodian. Presumption of correctness and regularity is attached to the orders passed by the official functionaries. Moreover this is a disputed question of fact which has been concluded by the Custodian who is a tribunal of exclusive jurisdiction of facts. This fact cannot be opened in the High Court, neither can this Court substitute its view for the declaration made on fact by the Custodian and accepted by the High Court.
In view of above, finding no force in this appeal, it is hereby dismissed with costs."
10. After finalizing the issue of title up to the apex Court, petitioner filed an application to ARC (possession) Abbaspur, for issuance of warrant and delivery of possession on 29.03.2010. The aforesaid application was allowed and warrant of possession was issued in favour of petitioner vide order dated 13.01.2011. Against the aforesaid order, an appeal was filed by Mst. Imtiaz Akhtar, predecessor-in-interest of private respondents, on 13.01.2011, before Collector District Poonch, which too was dismissed vide order dated 22.02.2012. Feeling dissatisfied from the aforesaid orders predecessor-in-interest of private respondents filed a revision petition before Additional Rehabilitation Commissioner on 27.02.2012. The learned Additional Commissioner without examining earlier judgments passed by this Court, as well as, by the Hon'ble Supreme Court, accepted revision petition and remanded the case to DRC, Poonch, vide the impugned order dated 05.06.2013. It appears that DRC, Poonch, by brushing aside all the judgments again remanded the matter to ARC (possession) Abbaspur, vide the impugned order dated 19.08.2014. The aforesaid order was also called in question through amended writ petition. As matter in issue pertaining to title of property in question had already been resolved by the learned Custodian of Evacuee Property through order dated 11.10.2000, upheld by this Court through judgment dated 19.04.2002, as well as, by the apex Court vide judgment dated 01.07.2005, therefore, due to principle of res judicata the same could not be reopened. An identical proposition came under consideration before the apex Court of Azad Jammu and Kashmir in case Abdul Rauf Khan v. Muhammad Hanif and 14 others [2013 CLC 219]. At pages 226, 227 of the report, it was held as under:-
"The subsequent suit has been filed on the same cause of action. It is not maintainable and liable to be dismissed on this sole ground. Since the sale deed dated 10th March 1955, has been declared valid by the High Court and Noor Mai was declared owner, the plaintiffs have no cause of action against decree dated 17th February, 1959 because Noor Mai was owner of the land the suit of the plaintiff was liable to be dismissed on the sole ground of res-judicata."
The same point came under consideration before the Apex Court of Pakistan in case title Muhammad Saleem and others v. Rashid Ahmed and others [2004 SCMR 1144], wherein at page 1145 of the report, it was opined as under:-
"We have heard learned counsel for the petitioners. There are concurrent findings of fact that the issue raised by the petitioners in relation to the suit land had been finally heard and decided by a competent Court of law and, thus issue raised in the subsequent suit was hit by the principle of res judicata within the contemplation of section 11, C.P.C. on the face of the record, we are unable to find any legal infirmity, misreading or non-reading of evidence, misconstruction of any material on record or misconception of law on the part of the High Court. In the impugned judgment, High Court has dealt with the entire aspects of the case, which are not open to an exception."
Similar view was expressed by the Peshawar High Court, in case titled Saif Ur Rehamn and 5 others v. Muhammad Saleem and 25 others [2017 CLC Note 43]. At page 237 of the precedent case, it was opined as under:-
"Whereas controversy competently be decided by the trial Court, then the subsequent suit arising all the questions previously agitated and decided would be barred under the provisions of Order IX, Rule 9, Civil Procedure Code, 1908 as well as on the Principle of res judicata."
The aforesaid aspect of the matter was, however, neither considered by the learned Additional Rehabilitation Commissioner, nor by DRC, Poonch, warranting interference of this Court while exercising constitutional jurisdiction. The stance of the learned counsel for private respondents that issue of will deed dated 24.10.1977, and share of property of petitioner situated in Pakistan, transferred by her father Feroz Din Bhatti, was neither agitated nor resolved earlier belied from order of Custodian dated 11.10.2000, judgment of this Court dated 19.04.2002 and judgment of the apex Court dated 01.07.2005, discussed in Paragraphs Nos.7 to 10, supra, hence, contention is overruled.
11. The crux of above discussion is that by accepting the instant writ petition, the impugned order dated 05.06.2013, of Additional Commissioner Rehabilitation, order dated 12.11.2013, passed by Custodian of Evacuee Property, as well as, order dated 19.08.2014, recorded by DRC, Poonch, are hereby set at naught as having been passed without lawful authority, hence, having no legal effect. Consequently, warrant of possession issued by ARC (Possession)/ Tehsildar, Abbaspur, dated 13.01.2011, is restored, who is directed to finalize execution proceedings within two months period from the receipt of the instant judgment. A copy of the instant judgment shall be transmitted to ARC (possession), Abbaspur, forthwith for compliance. The private respondents Nos.3 to 3-g and 4, shall pay a sum of Rs.20,000/- to petitioner as special costs.
ZC/25/HC(AJ&K) Petition allowed.