- (1.) D. P. Singh, J. Heard learned counsel for the parties.
(2.) PLEADINGS have been exchanged between the parties and they agree that the writ petition itself may be finally disposed off under the Rules of the Court. This writ petition is directed against an order dated 12th January, 1995, allowing a revision filed by the respondent No. 3 and remanding the matter back for decision afresh. The facts as stated in the writ petition are that one Manzoor Ahmad held Zamindari rights over the disputed land, expired in 1947 leaving behind his heirs. Out of the heirs two migrated to Pakistan in 1947, thus their shares in the land vested in the custodian. The petitioner moved an application on 23rd May, 1981 before the Assistant Custodian that since she was a co-sharer with her evacuee sisters and was in possession of their shares in plot No. 169 it should be transferred to her. The said share, it appears, was transferred to the petitioner and a sale certificate dated 16-4-1982 was issued. It appears that on 8-2-1990 the contesting respondent No. 3 filed a revision petition under Section 27 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act), inter alia, on the ground that he was a co-sharer in the disputed plot and the consolidation authorities have wrongly prepared a chak without including his name thereon and in fact no right or title could be passed on to the petitioner and he had a preferential right. It was also alleged that prior approval of sale by the Custodian General under Section 10 of the Act has not been obtained and neither any notice was issued to him before the transfer of the land, thus, the sale be set aside. The petitioner filed detailed objections, inter alia, claiming that the respondent had no right to file the revision. It was also contended that the requirement of Section 10 was complied with. The revisional Court after considering the case of both the parties came to the conclusion that the contesting respondents had a prima facie case and he should be given an opportunity to prove the same before the Custodian, which could examine the matter again and thus by the impugned order he set aside the sale certificate and remanded the matter for decision afresh.
(3.) THE main contention of the learned counsel for the petitioner is that the order was without jurisdiction, inasmuch as, the Judge Small Causes, who had passed the revisional order had been divested of the power of Assistant Custodian General by different Government orders. In support of his contention, the learned counsel for the petitioner has relied upon three Government orders which are annexed as Annexures-9, 10 and 11 to the writ petition. However, learned counsel for the contesting respondent has urged that this ground was never raised before the revisional authority and thus, it cannot be raised here for the first time. However, he also urged that an identical challenge was raised in another matter before the revisional Court. After a detailed judgment and relying upon different Government orders, the authority came to the conclusion that in fact Judge Small Causes had been authorized to act as Assistant Custodian. In support the learned counsel for the respondent has relied upon two decisions which are annexed as Annexures-C. A. 1 & 2 to the counter affidavit. Having considered the argument of learned counsel for the petitioner and also those raised before the revisional Court, it is apparent that this point was never raised by the petitioner before the Courts below. At this belated stage, he should not be allowed to raise a new technical plea, especially so when the order is only an order of remand and the petitioner would be given full opportunity to establish his case.;