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2005 C L C 1076

 

[Supreme Court (AJ&K)]

 

Present: Syed Manzoor Hussain Gillani and Chaudhary Muhammad Taj, JJ

 

Syed LAL HUSSAIN SHAH‑‑‑Appellant

 

Versus

 

LAL MUHAMMAD and 5 others‑‑‑Respondents

 

Civil Appeal No.99 of 2004, decided on 4th March, 2005.

 

(On appeal from the judgment of the High Court, dated 11‑3‑2004 in Writ Petition No.420 of 2002).

 

Syed Khalil Ahmed Bukhari, Advocate for Appellant.

 

M. Riaz Tabassum, Advocate for Respondents.

 

Date of hearing: 1st March, 2005.

 

JUDGMENT

 

SYED MANZOOR HUSSAIN GILANI, J.‑‑‑This appeal with leave of the Court, is directed against an order, dated 11‑3‑2004, passed by a learned Judge of the High Court in Writ Petition No.420 of 2002.

 

2. The facts giving rise to the filing of present appeal are that Teh Zamini of one Kanal of land, out of number Khasra 426, situated in Tehsil Fatehpur Thakyala, District Kotli, was sanctioned in favour of respondent No. 1, Lal Muhammad by the Collector District Kotli on 4‑11‑1996. The appeal against the order of Collector was dismissed by the Commissioner, Mirpur Division on 26‑10‑1999. The appellant filed a revision petition before the Board of Revenue, against the said order which was dismissed by the Member, Board of Revenue on 18‑1‑2001. A review petition against the order dated 18‑1‑2001 was also dismissed. The appellant filed a writ petition in the High Court against the order passed by Member, Board of Revenue which was also dismissed on 28‑11‑2002, but the order of High Court was vacated by this Court on 23‑10‑2003, in Civil Appeal No.20 of 2003 and the case was remanded to the High Court for fresh decision on all the points raised in the writ petition. After the remand order of the Supreme Court, the learned Judge of the High Court has passed the impugned judgment. Hence this appeal with leave of the Court.

 

3. Syed Khalil Ahmed Bukhari, the learned Advocate appearing on behalf of the appellant, contended that the High Court has in utter disregard of the findings of the Supreme Court on the point of law in cases reported as Muhammad Kabir Khan and 4 others v. Naseer Ahmed Khan and 3 others 2000 MLD 1600 and Ghulam Hussain v. Member, Board of Revenue and 2 others 1995 SCR 355, upheld the sanction of “Charand Ghair Mumkan Khalsa Land” which was reserved for village common purposes. According to him in view of the above‑referred law laid down by the Supreme Court, no authority in Azad Jammu and Kashmir, including the High Court, could’ validate the Teh Zamini from Charand Ghair Mumkan. He contended that the land allowed in favour of the respondent is entered in the Revenue Record as Charand Ghair Mumkan which is adjacent to the land of the appellant, and if at all, it was available for sanction on Teh Zamini, the appellant had a preferential right for it, who has not been heard in this matter. On the point of limitation he contended that the learned Judge of the High Court has misread the record in holding that the question of limitation is concurrently decided by the Revenue Authorities against the appellant.

 

He referred to the judgment of the Member, Board of. Revenue dated 18‑1‑2001, whereby the contention of the appellant is held as correct as far as the limitation was concerned, but the appeal was decided otherwise on merits. Dilating further upon this point the learned counsel contended that when the Member, Board of Revenue had accepted the contention of appellant regarding the condonation of delay and the appeal was decided on merits, it would be deemed that the limitation was condoned. He also contended that the Limitation Act is applicable to the proceedings under the Land Revenue Act in view of section 167 of the West Pakistan Land Revenue Act.

 

4. On the other hand, Mr. Muhammad Riaz Tabassum, the learned Advocate appearing on behalf of the respondents, contended that concurrent findings of fact recorded by all the Revenue Authorities as well as by the High Court, cannot be disturbed by this Court. He placed reliance upon cases reported as Fazal Karim v. Abdul Manaf and another 1997 MLD 2867 and Tanveer Hussain Shah v. Maqbool Begum and 23 others 2000 MLD 1618. He also contended that appeal filed before the subordinate Revenue Authorities by the appellant was hopelessly time- barred, Hence was rightly dismissed by all the authorities including the High Court. According to him as Land Revenue Act is a special law, hence the provisions of Limitation Act as far as the condonation of delay is concerned, do not apply in these cases. He placed reliance upon a case reported as Haq Nawaz and others v. Lt.‑Col. Muhammad Hanif Khan Malik and others PLD 1978 Revenue 441.

 

5. We have gone through the record of the case placed before the Court by the parties as well as the authorities of law; on which the reliance is placed.

 

6. It goes without saying that the land in dispute is Khalsa which is entered in the Revenue Record as Charand Ghair Mumkan. The Charand Ghair Mumkan is the land which is reserved for village common purposes and it has been the consistent view of this Court that the land reserved for village common purposes cannot be regularized in favour of anybody. Reference may be made to the cases reported as Ghulam Hussain v. Member, Board of Revenue and 2 others 1995 SCR 355 and Muhammad Kabir Khan and 4 others v. Naseer Ahmed Khan and 3 others 2000 MLD 1600. The Revenue Record placed on the file of the Court unequivocally reveals that the land is Charand Ghair Mumkan which is reserved for village common purposes. Any report contrary to it by any Revenue Officer cannot be given any credence until the entries in the Revenue Record, which alone are authentic under law, are corrected in accordance with law. As. long as the entries in the Revenue Record remain there, these have to be read in the same spirit otherwise a chaotic situation will be created by escort free reporting of the Revenue Officers, howsoever, correct it may be. The law specifically regulates the entries and correction in the Revenue Record which cannot be overlooked simply on the reports of Revenue Officers. In the absence of having resort to mode of entry and correction in the Revenue Record, the off hand reports made contrary to it cannot be accepted. This point having been Conclusively decided by this Court earlier under the same circumstances became the law of the land, and no authority, be it the High Court, could bypass the law laid down by the Supreme Court. Perusal of the judgment of learned Judge of the High Court at pages 5 and 6 reveals that “the contention of the learned Advocate for the petitioner, though is supported from the record and is also backed by the judgment of the apex Court referred to hereinabove, but in view of the earlier part of the judgment it would not be proper to disturb the allotment‑in exercise of discretionary jurisdiction”. It is surprising that the judgment of the Supreme Court having been brought to the notice of the learned Judge of the High Court and he after recording his opinion, that the contention relating to Charand Ghair Mumkan is supported by the record and judgment of the Supreme. Court still upheld the allotment. The hierarchy of the Courts and supremacy of the Constitution demands that it has to be accepted as it is in view of section 42‑B of the Interim Constitution Act, 1974, which is reproduced as follows:‑‑

 

Decision of Supreme Court binding on other Courts.‑– Any decision of the Supreme Court shall to the extent it decides a principle of law, be binding on all other Courts in Azad Jammu and Kashmir. “

 

We believe that this lapse must have happened due to some oversight or took place due to inadvertence of the typing branch.

 

7. As far the question of limitation is concerned, the learned Judge of the High Court appears having misread the judgment of the member, Board of Revenue, dated 18‑1‑2001, wherein the point regarding the condonation of delay in limitation is accepted by him to be correct and thereafter has decided the appeal on merits. The learned Advocate appearing for the appellant is right in contending that when the case is decided on merits, the limitation shall be deemed to have been condoned, irrespective of the fact that in this case, the limitation is in fact condoned, when the learned Member, Board of Revenue accepted the contention of the appellant for condonation of delay in his order. The attention of the learned Judge of the High Court appears not to have been invited towards the finding recorded by the Member, Board of Revenue on this point which lead the learned Judge to, hold that the findings of the Revenue Authorities were concurrent on this point. In a case titled Sardar Aftab Muhammad v. Sardar Khurshid Hussain 1999 PLC (C.S.) 40 where the authority was conscious of the proceedings being out of time, but keeping in view the facts and circumstances of the case, affidavit filed by the appellant and comments submitted by the department, it decided the controversy on merits. It was held having impliedly condoned the delay. Similar view was expressed in three consolidated cases reported as Shah Muhammad Khan and another v. Muhammad Haleem and 3 others 2000 YLR 1901. However, in the case in hand, the Member, Board of Revenue had specifically accepted the contention of the learned Advocate for the appellant as correct, hence it for all practical purposes operates as condonation of delay.

 

8. We are unable to agree with the contention of the learned Advocate for the respondents, that the concurrent findings of fact recorded by all the Courts below has to be accepted by the High Court and cannot be disturbed by it on any ground whatsoever. Reliance by him on the authorities reported as Fazal Karim v. Abdul Manaf and another 1997 MLD 2867 and Tanveer Hussain Shah v. Maqbool Begum and 23 others 2000 MLD 1618 is misconstrued. This principle of law is rightly and correctly laid down by the Supreme Court in view of the facts involved in those cases. It is correct that concurrent findings on fact has to be upheld and not disturbed. However, if any finding is recorded on the basis of some misreading or non‑reading of record or misconstruing the record, that cannot be deemed as concurrent and the principle of authenticity of the concurrent findings of fact is not attracted in such cases. The concurrent finding is that when on a point of fact, all the Courts below are one, and there appears no circumstance or reason to believe that finding is against the record. But in a case, where it is pointed out that anyone or more of the Courts have not read the record and the record also speaks otherwise, finding of fact in that case cannot be said to be concurrent. In the absence of pointing out any misreading or non‑reading by the person who challenges the concurrent findings, it shall be deemed as a conclusive and final, but once it is challenged and substantial misreading is pointed out and accordingly found, that has to be rectified by the Court competent to do it and the principle or concurrence does not apply.

 

9. As stated above, the Member, Board of Revenue has accepted the contention on the point of condonation as correct, hence the finding of the High Court is perverse on the point and the spirit of law laid down in cases referred by the learned Advocate for the respondents does not apply.

 

10. The learned Advocate for the respondents is equally incorrect in contending that the Limitation Act does not apply in the matters arising under the West Pakistan Land Revenue Act, 1967. Section 167 of the Act unequivocally provides that “in the computation of the period for an appeal from, or an application for the review or revision of an order under this Act, the limitation therefore shall be governed by the provisions of the Limitation Act, 1908 (Act IX of 1908)”. There is no specific exclusion of any of the provisions of Limitation Act, hence, it applies in its totality.

 

11. The High Court of Azad Jammu and Kashmir has also held the same principle after discussing a plethora of authorities on this point in relation to the same law in the case reported as Muhammad Hanif Khan and 6 others v. Government of AJ&K through its Chief Secretary and 15 others PLJ 2004 AJ&K 93. The authority of law referred by the learned Advocate for the respondents on this point i.e. Haq Nawaz and others v. Lt.‑Col. Muhammad Hanif Khan Malik and others PLD 1978 Revenue 441 is, therefore, inapplicable.

 

In view of above, this appeal is accepted with costs. The order passed by the High Court and the Revenue Authorities subordinate to it, are declared as without lawful authority and sanction of Charand Ghair Mumkan Khalsa Land allowed in favour of respondent No. 1 is hereby declared as without lawful authority and in utter disregard of the law laid down by the Supreme Court.

 

H.B.T./145/SC(AJ&K) Appeal accepted.

 

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