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Civil Appeal No.11 of 1987, decided on 25th April., 1989.

(On appeal from the Order of the High Court dated 11 7 1986, in Writ. Petition No.71 of 1985).

Ss. 22 & 23 Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42 Property left by non Muslim owners Muslim heir of non Muslim owner "claiming right to inherit Deputy Custodian dismissed Muslim claimant"s application to inherit on grounds of res judicata and estoppel without going into merits of case Parties had not led any evidence before Deputy Custodian on factual aspects of case which had been dismissed on technical grounds Custodian"s order on merits of case could not be legally passed without recording evidence Finding of Custodian as also of the High Court on factual aspects of the case was thus not sustainable Case was remanded to Deputy Custodian with direction to take evidence of both the parties and decide the issues which were left undecided by him in his order, passed on technical grounds.

Ss. 11 & 141 Principle of res judicata also applicable to proceedings other than suits.

Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore PLD 1971 SC 779; Atta Shabir and another v. Muhammad Tufail and 4 others PLD 1977 SC 220; The Commissioner of Income Tax, Lahore v. Messrs Lucky Store and Zubair Medical Stores, Lahore Cantt. 1981 SCMR 656; Muhammad Sharif and others v. Settlement Commissioner, Bahawalpur and others 1981 SCNIR 1048; Divisional Evacuee Trust Committee v. Muhammad Idress Qureshi and others 1984 SCMR 851; Atiq ur Rehman and others v. Muhammad Ibrahim and others 1984 SCMR 1469; Syed Mir Ahmad Shah v. Pakistan and others 1986 SCMR 1200; Zoyab v. Hakeem Muhammad Fazal Haque 1986 SCMR 1964; Mazhar Saeed Qureshi v. Government of the Punjab through Secretary, Irrigation and Power Department; Lahore and 49 others 1986 SCMR 12 ref.

Ss.22 & 23 Civil Procedure Code (V of 1908), S.11 Res judicata, principle of Application Plaintiff claiming to be son of non Muslim owner and as such entitled to his property Issue framed by Trial Court about entitlement of plaintiff was composite in nature, including several matters, one of which being whether plaintiff was son of non Muslim owner Deputy Custodian while deciding such composite issue had not given any definite finding that plaintiff was not the son of non Muslim owner Such question having not been specifically decided, principle ores judicata would be stretched too far if plaintiff was debarred from claiming to be the son of non Muslim owner Dismissal of plaintiff"s previous application under S.22 of Azad Kashmir Protection of Evacuee Property Act, would have the effect of debarring plaintiff from proving in and subsequent proceeding those matters which were contained it that application Plaintiff in his subsequent application under S.23 of the Azad Kashmir Protection of Evacuee Property Act, was, "however, following and not contesting earlier finding That being so. High Court"s order on the point was vacated.

Principle of Question whether property in dispute was evacuee or not was subject matter of previous litigation between the parties wherein property was declared to be evacuee in nature Eva3cuee nature of property being direct, and substantially in issue Point previous litigation, between the same parties, finding thereon that such property was evacuee in nature was binding on both the parties and could not be re opened.

Principle of estoppel connotes that a party cannot be allowed to up a position inconsistent with that on which he had succeeded n in a previous proceeding.

Sardar Rafique Mahmood for Appellant.

Abdul Rashid Abbasi for Respondent No.1.

Nemo for Respondents Nos. 2, 3 and 4.

This appeal by leave of this Court arises out of an order passed by a learned Single Judge of the High Court on 11 7 1986 whereby a writ petition filed by respondents Mirza and Baz Gul was accepted and the impugned order of the learned Custodian Evacuee Property was set aside. This case has a somewhat chequered history which may be summarised thus. Land bearing survey Nos.126, 345, 357, 358, 368, 377, 383, 418 and 201 measuring 133 kanals 19 marlas situated in village Pattika of Muzaffarabad tehsil was allotted to Mirza and Baz Gul, respondents herein, as evacuee property in the year 1950. Since then they have been in possession of the land and are stated to have constructed three residential houses thereon. The land was originally owned by Bachan Singh who was succeeded" by four sons Rowail Singh, Madan Singh, Sadoo Singh and Abdullah Shaikh. Prior to the present litigation, Abdullah Shaikh brought a suit for the restoration of the aforesaid property on the basis that he was its owner to the extent of 1/4^th share and being the survivor of his brothers Rowail Singh, Madan Singh and Sadoo Singh to the extent of rest of 3/4th share. His suit was dismissed by the Deputy Custodian but the learned Custodian of Evacuee Property partly accepted his appeal on 4 10 1956 and restored 1/4th share to him. Subsequently. on 29 4 1960 Abdul, Aziz, present appellant, brought a suit before the Deputy Custodian and claimed that he was Rowail Singh"s son and heir of Madan Singh and Sadoo Singh. The suit was dismissed on 17 3 1962 because, according to the Deputy Custodian, the present appellant had failed to prove his case. This suit was under section 22 of the Administration of Evacuee Property Act. After the dismissal of the suit Abdul Aziz moved an application under section 23 of the Administration of Evacuee Property Act in the year 1979 for restoration of the same land claiming that he was the sole heir of the owners of the land in dispute excepting the share of Abdullah Shaikh. He stated iii his application that the land in dispute originally belonged to Bachan Singh who had four sons, namely, Abdullah Shaikh, Rowail Singh, Madan Singh and Sadoo Singh. Out of them Abdullah Shaikh had been restored his share in the land and his sons were in possession thereof. It was further stated by Abdul Aziz that Rowail, Madan and Sadoo were killed here during the 1947 revolution and that Madan"s sons and daughters were also killed likewise. He thus claimed that he was entitled to restoration of the land as their sole surviving heir. His application was dismissed on 30-11-1980 on the technical ground that the application could not proceed on account of res judicata and estoppel. Thereupon, Abdul Aziz went up in appeal before the learned Custodian who partly accepted the appeal and remanded the case to the Deputy Custodian directing him to hold an inquiry as to whether or not Abdul Aziz had been deprived of the said land on account of the fact that he had embraced Islam. The Deputy Custodian on 13 1 1985 reported to the Custodian that Abdul Aziz was not the sole survivor of the original owners of the suit land and also that he had not been deprived of the land on account of his conversion to Islam. The learned Custodian then heard the case on merits and on 7 7 1985 restored the land to Abdul Aziz subject to the conditions laid down under section 23 of the Administration of Evacuee Property Act and the rules made thereunder. Mirza and Baz Gul, who are allottees of the land in dispute, filed a writ petition in the Azad Jammu and High Court on 8 9 1985 challenging the order passed by the learned Custodian. The learned Single Judge accepted the writ petition by his order recorded on 11^th of July, 1986, which is now under appeal.

The High Court has set aside the order of the learned Custodian grounds:

(a) Abdul Aziz has stated in his application under section 23 of the Administration of Evacuee Property Act that Rowail Singh, Madan Singh and Sadoo Singh, non Muslim owners of the suit land, had been killed during the War of Liberation at their village which means that they had hot migrated from Azad Jammu and Kashmir, while according to the law only that person would fall under the category of evacuee who had migrated from Azad Jammu and Kashmir.

(b) The claim of Abdul Aziz that he was the heir of evacuees was hit by the principle of res judicata because in the earlier application moved by him under section 22 of the Act his claim was that the property was not evacuee property and this claim had been dismissed.

(c) The main basis of the order passed by the learned Custodian in favour of Abdul Aziz was that:

"In the present case Shaikh Abdul Aziz has sought restoration of the property as survivor of the evacuee and this part of the factual aspect of the case is not seriously, disputed."

This observation was found contrary to the facts by the High Court because in the written statement filed before the learned Custodian it had been categorically denied that Abdul Aziz was the heir of the non Muslim owners and issue No.1 which related to this aspect of the case was decided against the appellant. It is therefore that the High Court found that the case was hit by the principle of res judicata.

(d) The High Court was of the opinion that even if it was assumed for the sake of arguments that Abdul Aziz was son of Rowail Singh even then he could not claim to be the heir of the other co owners, namely, Madan Singh and Sadoo Singh because one Abdullah Shaikh was alive at the time of their death and in his presence the property of his brothers could not devolve on Abdul Aziz. The share of his father comes to about 34 kanals while he is already .in possession of 40 kanals as stated in his application under section 23 of the Act. The High Court was of the opinion that his contention that aforementioned possession was. a result of a sale which had been concluded between him And Abdullah Shaikh was not substantiated by any .evidence. He was therefore found to be already in possession of more land than the share of Rowail Singh.

Sardar Rafique Mahmood Khan, the learned counsel for the appellant Abdul Aziz, argued that the judgment of the High Court has upset an order passed by a tribunal of exclusive jurisdiction, namely, the Custodian of Evacuee Property for insubstantial reasons. According to him, the order of a tribunal of exclusive jurisdiction can be set aside only if it is found that it had exercised a jurisdiction, which had not vested in it which was not the situation in the present case. He also attacked the finding of the High Court that there was res judicata, actual or constructive. The learned counsel submitted that in the previous proceedings under section 22 of the Administration of Evacuee Property Act it had been the case of Abdul Aziz that the disputed property was not evacuee property. The application under section 22 was dismissed and the result which flowed from the order of the Deputy Custodian was that the property was found to be evacuee. According to the learned counsel the principle of res judicata would be attracted only if a party makes an attempt to reopen a matter which has attained finality once while no such eventuality exists in. the case. According to him, Abdul Aziz while moving application under section 23 of the Evacuee Act was attempting to get the evacuee property restored to him and was thus following the earlier finding and not challenging it. The learned counsel also contended that the learned Judge in the High Court did not notice that it had never been in contest that Sh. Abdul Aziz was son of Rowail Singh and in fact what was averred in the earlier proceedings was that he was not an heir of the non Muslim owners. 8ardar Rafique Mahmood Khan similarly disputed the finding of the High Court that in any case Abdul Aziz was not entitled to any relief because he could not substantiate his claim that his possession on 40 kanals of land out of Survey ho.345 min was as a result of purchase. The learned counsel contended that in fact "Jamabandi" of 1986 BK. contained an entry to the effect that the land had come in his possession as a result of decree of a Civil Court.

Mr. Abdul Rashid Abbasi, Advocate, who represented the contesting respondent, supported the order of the High Court. He submitted that it has already been settled in the previous proceeding that Abdul Aziz is not an. heir of the non Muslim owners, therefore, the present application under section 23 of the Act could not proceed. He further contended that according to the case put up by Abdul Aziz the non Muslim owners of the, property in dispute had been killed in their home village and had not migrated. The learned counsel relied on the phraseology used, by the Legislature while defining the word "Evacuee" which runs as follows:

"Evacuee" means any person,

(a) who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Azad Jammu and Kashmir for any place outside those territories; or

(b) who acquires or has acquired, on or after the aforesaid date, by way of allotment or lease or by means of unlawful occupation or other illegal means, any right to, interest in or benefit from any property which is treated as Evacuee Property under any law for the time being in force in India or in any area occupied by India; or.

(c) who is resident in any place in the territories now comprising India or in any area occupied by India and:

(i) is unable to occupy, supervise or manage in person his property in Pakistan; or

(ii) whose property in Pakistan has ceased to be occupied, supervised or .managed by any person or is being occupied, supervised or managed by a person (whether duly empowered in this behalf by him or otherwise) whose authority or right so to do on or after the aforesaid date has not been accepted or approved by the Custodian; or

(d) whose business or undertaking in Pakistan, in the case of a Corporation, has on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances, or the fear of such disturbances, ceased to function, wholly or partially, or is being carried on by persons (whether duly empowered in this behalf by the Corporation or its management. or otherwise) whose authority to do so on or after the first day of March, 1947, has not been accepted, or approved by the Custodian; or

(e) being a joint stock company, more than fifty per cent of the shares of which are held by persons who are evacuees;

He submitted that sub clauses" (b), (c), (d) and (e) reproduced above were, not applicable to the facts in hand, therefore, the non- Muslim-owner had to come within the mischief of clause (a) if they were to be treated as evacuees. According to him the key words in this clause are "leaves or has left any place in the territories now comprising Azad Jammu and Kashmir for any place outside those territories". He submitted that it was nobody"s case that non Muslim owners had migrated from Azad Jammu arid Kashmir therefore they were not evacuees in the meaning of the law.

Mr. Abdul Rashid Abbasi drew our attention to another aspect of the order of the learned Custodian which, according to him, vitiated it. He rightly pointed out that the Deputy Custodian had dismissed the application under section 22 of the Act on the grounds of res judicata and estoppel and had not gone into the merits of the case. The parties had not led any evidence before the Deputy Custodian on factual aspects of the case, which had been dismissed on technical grounds. After upsetting this order of Deputy Custodian, the learned Custodian passed an order on merits of the case which could not be, legally done without recording evidence. According to him the learned Custodian assumed as if Abdul Aziz had been proved to be the son of the non Muslim owner while in fact this claim of Abdul Aziz had been contested in the written statement filed before the Deputy Custodian. The learned counsel relied on "Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore (PLD 1971 SC 779), Atta Shabir and another v. Muhammad Tufail and 4 others (PLD 1977 SC 220); The Commissioner of Income Tax, Lahore v. Messrs. Lucky Store and Zubair Medical Stores, Lahore Cantt. (1981 SCMR 656), Muhammad Sharif and others v. Settlement Commissioner, Bahawalpur and others (1981 SCMR"1048), Divisional Evacuee Trust Committee v. Muhammad Idress Qureshi and others (1984 SCMR 851), Atiq ur Rehman and others v. Muhammad Ibrahim and others (1984 SCMR 1469), Syed Mir Ahmad Shah v. Pakistan and others (1986 S C M R 1200), Zoyab v. Hakeem Muhammad Fazal Haque (1986 S C M R 1964), Mazhar Saeed Qureshi v. Government of the Punjab through Secretary, Irrigation and Power Department, Lahore and 49 others (1986 SCMR 12") in order to support his contention that the doctrine of res judicata is not restricted to the civil suits or to Courts set up under the Civil Procedure Code.

The fundamental question which needs to be decided is whether res judicata would create a bar in filing of the second application on behalf of Abdul Aziz. We are in agreement with the learned counsel for the respondent Mirza that principle of res judicata is also applicable to proceedings other than suits. Section 11 of the Civil Procedure Code when read with section 141 of the Code and the case law cited by him fully support the contention of the learned counsel. But the question is whether it is attracted to the present situation.

In his order passed on 7 7 1985, which was impugned before the High Court in the writ petition, the learned Custodian dealt with this question and repelled the objection. He recorded the opinion that section 22 and section 23 of the Act are independent of each other and thus there was no question of res judicata being applicable. As for the factual aspect of the case the learned Custodian was of the view that it was not seriously disputed that Abdul Aziz .was a survivor of the evacuee. While setting aside the order passed by the learned Custodian the learned Judge in the High Court dealt with the question of res judicata and held that it was applicable to the facts of the case and that Abdul Aziz was debarred from making the second application under section 23 of the Act. The learned Judge was of the view that it had been disproved in the earlier proceeding that Abdul Aziz was an heir of non Muslim owners of the suit land therefore, this point could not be re agitated. While dealing with this point the learned Judge observed as follows:

"As would appear from the copy of the judgment of the Deputy Custodian which is Annexure "B" to the writ petition, the following issue was framed in the said suit:

The above issue was decided against the respondent No.1 and it was held that he had no right in the suit land and his suit was accordingly dismissed for want of proof. In view of the above findings of the Court of competent jurisdiction in a case between the parties that the respondent No.1 is not an heir of the non Muslim owners of the suit land, he was not entitled to the restoration of the same on the ground of his being an heir of its non Muslim owners inasmuch as it is only an heir of an evacuee who has the right to claim restoration of the property left by such an evacuee under section 23 of the Administration of Evacuee Property Act."

We have perused the order of the Deputy Custodian which is attached with the writ petition as Annexure "E" and find that aforementioned issue was decided as a whole and it was observed by the learned Deputy Custodian in the operative part dealing with this issue that the witnesses were not reliable, therefore, the issue was decided against the plaintiff /applicant. The issue was composite in nature and several matters had been included in it, one of them being whether appellant was son of Rowail Singh. The learned Deputy Custodian while deciding this composite issue has not given any definite finding that Abdul Aziz was not Rowail Singh"s son but decided the issue as a whole mainly emphasising that the witnesses were unreliable and the copy of the "Jamabandi" had not been properly exhibited. He also observed that the evidence about death of non Muslim owners was also not reliable. We are of the opinion that the question, whether Abdul Aziz is a son of Rowail Singh has not been specifically decided by the Deputy Custodian and it would be stretching the principle of res judicata too far if he is debarred from claiming to be Rowail"s son. Similarly our view is that the result of the dismissal of the previous applications under section 22 would be that Abdul Aziz would be debarred from making another application under section 22 of the Act or from attempting to prove in any subsequent proceeding that the property was not evacuee property and the first order of the Deputy Custodian under section 22 does not debar the application under section 23 of the Administration of Evacuee Property Act. In his application under section 23 of the Act Abdul Aziz was following and not contesting the earlier finding as contended by his counsel. That being so the order of the High Court on this point is vacated.

We have noticed that in the application filed under section 23 Abdul Aziz had averred in para 2 as follows:

In the written statement filed by the present respondents their reply to this paragraph is as follows:

A reading of the above would show that the respondents had not specifically denied the part of the averments that Abdul Aziz was the only surviving son of Rowail Singh and they contended that he was not an heir of Rowail Singh and others. We will not make any further observation on this point and would leave it to be decided in accordance with law in the light of the operative part of this order.

As already noted, the High Court also found that Abdul Aziz was in possession of more than 40 kanals of land while, if at all, he could inherit 34 kanals of land as inheritance of his father even if, for the sake of arguments, he is considered to be son of Rowail Singh. It is recorded in the order of the High Court that even according to para 6 of Abdul Aziz"s application tinder section 23 he was in possession of 40 kanals of land as he had purchased the same from one Abdullah Shaikh is not substantiated from the record. The learned Judge in the High Court noted that in "Jamabandi" of 1986 which is attached as Annexure A/I with the writ petition Abdul Aziz is shown to have obtained a decree of 40 kanals 2 marlas land from the Court of Sub Judge on 17 3 1962. It was observed by the High Court that thus he was in possession of more than the share of Rowail Singh and cannot claim restoration of any more land. We find that the document relied upon by the High Court was produced by Mirza and others. This does not show that the possession of Abdul Aziz is on account of being an heir of the non Muslim owners. There is, therefore, no justification for raising a presumption against him, as has been done by the High Court.

There is also a finding of the High Court that the property is not evacuee property because even according to the application of Abdul Aziz non Muslim owners did not become evacuee as they were killed in Muzaffarabad and had not migrated. As already observed, the question whether the property in dispute was evacuee or not was subject matter of previous litigation between the parties in which it was decided that the property in dispute is evacuee in nature. This finding is binding on both the parties and cannot be re opened. If this point is allowed to be raised in this proceeding it would lead to anomalous situation. When Abdul Aziz moved an application that the property in dispute was not evacuee the other party successfully raised the plea that the property was evacuee and now when he has made an application under section 23 of the Act that the property, being evacuee, may be restored to him the same party has come up with the plea that the property is not evacuee. This is not allowed by law. The issue whether the property in dispute is evacuee or otherwise directly and substantially was in issue in the former: proceedings and the parties were also the same. Finding on this point has resulted in a particular order. Thus, all the conditions; necessary for the applicability of principle of res judicata are present in the situation and the finding of evacuee nature of the property has the force of res judicata. Apart from that, the principle of estoppel also debars the respondents from pleading to the contrary. It is well settled that according to the principle of estoppel a party l cannot be allowed to take up a position inconsistent with that on which he had succeeded in defeating a claim in a previous proceeding. That being so application under section 23 has to be decided in light of the finding that the property in dispute is evacuee in nature and the view taken by the High Court is not sustainable.

In light of the view, which we have formed of the judgment of the High Court, we have no option but to set aside the order under appeal. However, the order of the Custodian cannot be restored fully. The learned Custodian, after setting aside the order of the Deputy Custodian, accepted the appeal on merits, as already noted. The Deputy Custodian had not decided the case on merits and in fact he had not yet recorded the evidence of the parties without which there is no manner of doubt that a verdict on merits could not have been returned. We notice that the Deputy Custodian had framed as many as 13 issues as is evident from copy of the order (Annexure I). It is recorded in that order that the counsel for the parties agreed that evidence on the merits of the case will be led after the decision of issues Nos.1 and 2 which were purely legal in nature and were decided in light of the arguments addressed on two sides and the documents already on record without recording evidence. We, therefore, agree with the learned counsel for the appellants that after setting aside the order of the Deputy Custodian by which he had dismissed the application on legal grounds, namely, that the application was hit by res judicata and estoppel, there was no justification for the learned Custodian to decide the case on merits. We are of the view that before other issues framed by the Deputy Custodian could be decided it was necessary that the parties should have been asked to lead evidence and we hold that the observation of the learned Custodian about the factual aspect of the case is not sustainable.

The upshot of the above is that we accept the appeal and set aside the order of the High Court. We partly restore the order of the learned Custodian so far as he vacated the order of the Deputy Custodian that the application under section 23 could not proceed on account of res judicata and estoppel. The case shall go back to the Deputy Custodian Muzaffarabad who will proceed to take the evidence of both the parties and decide the issues which were left undecided by him in his order passed on 30 11 1980. In view of the points involved in the case we shall make no order as to costs.

A.A./257/AJK

Appeal accepted.

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