1. This revision petition has been filed under Section 30-A of Evacuee Property Act for setting aside the order dated 20.5.2004 passed by Custodian Jammu, by which he allowed the revision filed before him by respondents 1 to 6 against the order dated 29.11.1996 passed by Deputy Custodian Jammu, allotting land comprising khasra Nos:914( 13 kanal 1 marlas) and 1006-min ( 6 kanals 3 marlas) situated at village Dagwar Tehsil Haveli District Poonch in favour of petitioner Mohd Sarwar Khan and proforma respondent No:8, Mohd Fazal Khan. 2. The facts of this case lie in narrow compass. Nanak Singh, husband of respondent No.1 and father of respondents 2 to 6 was residing in POK. In year 1947, he migrated to Indian Domain. Being displaced person he was allotted evacuee property land measuring 13 kanals 1 Marlas under number khasra 914 and 6 kanals 3 Marlas under khasra number 1006 in village Degwar District Poonch. On 11.12.2003, mutation No.320 under Section 3-A of Agrarian Reforms Act was attested conferring right of occupancy tenant upon him. 3. By an agreement dated 9.3.1984, Nanak Singh mortgaged 13 kanals 1 marlas in favour of Mohd Fazal Khan s/o Shah Mohd Khan and 6 kanals and house in favour of Shamas-ul-din s/o Dost Mohd for a consideration of Rs.45000/- with the condition to foreclose mortgage by payment of this amount at any time. 4. Nanak Singh died somewhere before 2001. By that time his mortgagee Shamas-ul-din had also died. The respondents No.1 to 6 requested mortgagees to hand over possession of land after accepting amount of mortgage. Instead of handing over the possession, petitioner No.1 managed allotment of 7 kanals of land out of number khasra 914 in his favour at the hands of Deputy Custodian Jammu by false misrepresentation of facts and sold 1 Marla of land to petitioner No:3. The order of allotment of land made by the Deputy Custodian Jammu, was challenged by respondents No: 1 to 6 by filing revision before Custodian Jammu. 5. The Custodian held that under Section 3-A of Ag. Ref. Act, when Nanak Singh was declared occupancy tenant, he had every right to mortgage the land and by doing so he had not committed any violation and set aside order of Deputy Custodian making allotment of land to petitioners No:1. This order has been assailed by petitioners on the following grounds. 6. Ref. Act, when Nanak Singh was declared occupancy tenant, he had every right to mortgage the land and by doing so he had not committed any violation and set aside order of Deputy Custodian making allotment of land to petitioners No:1. This order has been assailed by petitioners on the following grounds. 6. As the occupancy rights were conferred upon Nanak Singh under Section 3-A of Ag. Ref. Act, by virtue of which he sold occupancy rights, so it was an Authority under Ag. Ref. Act which had jurisdiction in the matter and not the Custodian Jammu. 7. The Custodian Jammu placed the petitioners exparte by an illegal order dated 30.4.2003. 8. Nanak Singh allottee in fact had sold the land measuring 7 kanals 1 Marla out of khasra No: 914 in consideration of Rs. 45000/- as he was competent to sell occupancy right. 7 kanals and 1 Marla of land was sold by Mohd Fazal s/o Ayub Khan to petitioners Mohd Server Khan. 9. Heirs of Shamus-ul-din are in lawful occupation of 6 kanals land and a house falling in khasra number 914 for the last 20 years. 10. All the heirs of Nanak Singh have left Poonch and one of his son Tajinder Singh is living in aboard. Under Cabinet Order No. 913-C allottees not in possession of land have to be dispossessed and as such respondents 1 to 6 have no right to claim the land. 11. Deputy Custodian has passed a proper order of allotment of 7 kanals 1 Marla of land out of khasra number 914 in favour of petitioner No:1 Mohd Server Khan as he is in lawful possession of land prior to 1995. 12. Out of 7 kanal 1 Marla, a shop was constructed by one Sadhu Singh, which was given to petitioner Prithvi Singh. He is entitled to allotment of same, as he is paying rent regularly. 13. Daughters of Nanak Singh have no right to inherit the occupancy right and otherwise in view of sale of occupancy right in the disguise of mortgage deed, they along with their mother and brothers have no right to claim back the land. 14. I have heard the learned counsel for the parties including the written arguments submitted by the learned counsel for the respondents and examined the record. 15. 14. I have heard the learned counsel for the parties including the written arguments submitted by the learned counsel for the respondents and examined the record. 15. The learned counsel for the petitioners submitted that Nanak Singh had sold the occupancy rights in the disguise of mortgage deed, which he was competent to do under proviso to Section 3-A of Ag. Ref. Act. According to him the petitioners and proforma respondents were placed exparte by Custodian without summoning them and as such on this score the impugned order is required to be set aside. He reiterated all others grounds adopted by him in the revision petition. 16. To the contrary, learned counsel for the contesting respondents while supporting the impugned order submitted that Deputy Custodian, by throwing all norms of law to wind, has given undue benefit to the deceased Shams-ul-din, by allotting 7 kanals and 1 Marla of land. Elaborating his arguments he submitted that land was mortgaged and not sold as claimed by the petitioners no; 1 and 2 and the mortgaged land can never be allotted to any person under law and on this account the order of Deputy Custodian is patently bad in the eyes of law and has been rightly set aside by the Custodian. 17. As the Custodian had submitted some record, which had been eaten by termite and the impugned order was in the shape of attested copy which too had been eaten by termites so original file was summoned by this Tribunal. 18. After going through the original record it is noticed that on 2.11.1996, petitioner Mohd Sarver Khan filed an application for allotment of 7 kanals 1 Marlas out of khasra number 914 to him, before Deputy Custodian Poonch, which was marked to Patwari for report. There is also copy of an affidavit sworn by Fazal Khan S/O Mohd Ayub Khan dated 30.3.1995, in which it has been admitted by him that 7 kanals and 1 Marla of land out of number khasra 914, was in his possession as mortgagee. Then there is copy of an agreement executed between said Fazal Khan and Mohd Server Khan, dated 30.3.1995. 19. Then there is copy of an agreement executed between said Fazal Khan and Mohd Server Khan, dated 30.3.1995. 19. It is recited in the agreement that Fazal Khan was in possession of 7 kanals and 1 Marla of land under khasra number 914 as mortgagee, in which he had constructed a house and shops, is mortgaging same to Mohd Sarver Khan in lieu of Rs. 2 lac. 20. Then there is statement of Mohd Server Khan, in which he has stated that land in question was already in his possession as a tenant, in which he has constructed a house. There is a shop in 1 Marla. He obtained the land on mortgage from Fazal Khan s/o Ayub Khan, which may be allotted to him. 21. There are two statements of Sardar Amar Singh and Mohd Ayub Khan s/o Shah Mohd Khan. They have stated that land in question being in possession of Mohd Server Khan since long be allotted to him. One Wali Mohd s/o Faquir Mohd has also made statement that land in question was obtained on mortgage by Mohd Server Khan from Fazal Khan s/o Ayub Khan. 22. Finally there is report made by one K. Bala clerk in English vernacular and is to the following effect. 23. Mohd Server Khan has sought the allotment of land measuring 7 kanals 1 Marla out of khasra number 914 on the ground that same is under his cultivation but is recorded in revenue record in the name of Mohd Fazal Khan. This land was purchased by him from Fazal Khan by an agreement and affidavit dated 30.3.1995. However, Patwari has reported that land has been mortgaged to Mohd Server Khan by Fazal Khan, who had taken land on mortgage from Nank Singh occupancy tenant. On spot land is in possession of Mohd Server Khan and in one Marla one shop has been constructed which is in possession of some person. If approved possession of land be regularized and case of shop decided after summoning the person who is running the same. 24. This report was submitted to Deputy Custodian who passed an order on 29.11.1996. The recording of this order makes mockery of facts and legal position. It will be worth to note the gist of this order which is to the following effect. 25. 24. This report was submitted to Deputy Custodian who passed an order on 29.11.1996. The recording of this order makes mockery of facts and legal position. It will be worth to note the gist of this order which is to the following effect. 25. The Deputy Custodian writes that on the application for allotment of land in question made by Mohd Server Khan detailed report after spot inspection was called from Patwari Halqa who has reported that Nanak Singh had sold the occupancy rights to Fazal Khan s/o Mohd Ayub Khan, who thereafter mortgaged the land to Mohd Server Khan. There is one shop constructed by some person. As per khasra girdawari of Rabi 1996, number khasra 914 is evacuee land and recorded the possession of Mohd Fazal s/o Ayub Khan, as mortgagee. 26. It is further recorded that Fazal Khan vide an agreement dated 30.3.1995, mortgaged the land in question to Mohd Server Khan for six months, with the condition that in case of non liquidation of consideration money, the land will remain with Server Khan. 27. It is further observed that Nanak Singh had sold land in question to Mohd Fazal Khan and thereafter Fazal Khan sold same to Server Khan in disguise of mortgage deed. On spot only 7 kanal of land is in possession of Server Khan and remaining 1 Marla is in possession of petitioner Prithvi Singh. Nanak Singh had mortgaged land for specific period and only after the expiry of that period, Fazal Khan mortgaged land to Server Khan. As such Nanak Singh had no right or title in the land after expiry of said period. Server Khan was already in possession of land in question and was not taken into confidence by Nanak Singh and Fazal Khan at the time of mortgaging of land, which resulted into dispute between Fazal Khan and Server Khan. 28. It has been further observed that on the intervention of respectable persons of village, Fazal Khan made an agreement and affidavit on 30.3.1995, which are contrary to law, as Fazal Khan was not competent to dispose of same. 29. Concluding the order Dy. 28. It has been further observed that on the intervention of respectable persons of village, Fazal Khan made an agreement and affidavit on 30.3.1995, which are contrary to law, as Fazal Khan was not competent to dispose of same. 29. Concluding the order Dy. Custodian has held that as for Server Khan is concerned, he is in long possession of land, but contrary entry has been made in revenue record in the name of Fazal Khan so it will not be proper to dispossess Server Khan as he has spent huge amount in making the land productive one and is wholly and solely dependent on the same. Accordingly the entry of Mohd Fazal Khan over 7 kanal of land in khasra number 914 as mortgagee of land in pursuant to mortgage agreement dated 30.3.1995 is treated useless and same is allotted to Server Khan. 30. The facts of case in depth have been recorded in order to show that how the Deputy Custodian by bending law has given undue benefit to Server Khan. The revisional court is not precluded from appreciating facts with the object of finding illegalities or mis-reading of facts made by concerned subordinate courts. The Deputy Custodian has not in fact studied the facts of case in depth and neither examined the relevant record and documents himself. He has blindly relied upon the report of Patwari, without verification of same at his own end. Even he has not bothered to see the mortgage deed executed by Nanak Singh and returned findings on surmises that Nanak Singh had sold occupancy rights to Fazal Khan. He appears to be confused or unaware about the facts of case. On one hand he expresses an opinion that Nanak Singh had sold occupancy rights and in the same breath he says that specific period for resumption of mortgage was prescribed by Nanak Singh. It is on account of non application of his mind that an illegal order has come into existence. 31. Any how, I have adopted following reasons for holding order of Deputy Custodian as illegal one. 32. First of all I will take up the question of jurisdiction of Custodian in deciding the revision petition filed before him. Obviously the Deputy Custodian has made allotment of evacuee land in favour of petitioner No: 1. This power can be exercised by him under Evacuee (Administration of property) Act. 32. First of all I will take up the question of jurisdiction of Custodian in deciding the revision petition filed before him. Obviously the Deputy Custodian has made allotment of evacuee land in favour of petitioner No: 1. This power can be exercised by him under Evacuee (Administration of property) Act. Had the mutation under Section 3-A of Agrarian Reforms Act challenged before him, the situation would have been otherwise. As such Custodian was well within his jurisdiction to hear and dispose the revision petition. 33. Coming to the facts of case, the status of Nanak Singh is not disputed as displaced person nor allotment of evacuee land to him or subsequent attestation of mutation under Section 3-A of Ag. Ref. Act in his favour. These all facts establish that it was Nanak Singh who was in possession of land from the date of allotment till the attestation of mutation in the year 1983. Petitioner, his brothers or for that purpose, his father Shams-ul-din, even did not ever challenged the mutation in question, which can be attested only when a person is in possession of evacuee land in Kharif 1971. Even the allotment of land made earlier to Nanak Singh has never been challenged by the petitioners. 34. As such the case of petitioner No:1, findings of Deputy Custodian that petitioner server was in possession of 7 kanals 1 marlas of land even prior to attestation of mutation or execution of mortgage deed in the year 1984 carries no weight. The petitioner cannot also take any stand in derogation or somersault of his father, who obtained the land on mortgage from Nanak Singh. During his life time Shams-ul-din, never challenged the status of Nanak Singh as allotee or conferment of occupancy rights upon him pursuant to mutation under Section 3-A supra. Moreover, till the death of his father, Server Khan petitioner could never be presumed even to be in possession of land in question, in his independent capacity. Even if presuming that Server Khan was in continuous possession of land, same could not be allotted to him, without setting aside the order of allotment made in favour of Nanak Singh or mutation under Section 3-A . This preposition of law has not been considered by Deputy Custodian which has resulted in the passing of an illegal order. Even if presuming that Server Khan was in continuous possession of land, same could not be allotted to him, without setting aside the order of allotment made in favour of Nanak Singh or mutation under Section 3-A . This preposition of law has not been considered by Deputy Custodian which has resulted in the passing of an illegal order. Even he has not bothered to summon the heirs of Nanak Singh i.e. respondents 1 to 6, before making an order of allotment, in favour of Server Khan Petitioner. On this count the order of Deputy Custodian is illegal also. 35. But the important question for consideration before this Tribunal is different one, in view of some un-disputed facts. In the facts and circumstances of the case question arises, as to whether land in question could be allotted to Server Khan or not. The answer apparently is no for the following reasons. 36. As per mortgage deed, 13 kanals 1 marlas from khasra No:914 and 3 marlas total 13 kanals 4 Marla was mortgaged to Fazal Khan and 6 kanals to Shamus-ul-din father of petitioner Server Khan. After the death of Shams-ul-din, his sons and widow, stepped into his shoes. They are thus to be treated as mortgagees. Shamus-ul-din had come into possession of land as mortgage and not in his own independent position. So his heirs cannot claim any right in the land contrary to the right of their predecessor. 37. As per facts of the case, Fazal Khan, further mortgaged 7 kanals and 1 Marlas of land to petitioner Server Khan. He was not competent to mortgage the land to any person, in view of the terms and conditions laid down in the mortgage deed executed with Nanak Singh. It was provided by this deed that Fazal Khan will restore possession of land after receiving consideration of Rs.45000/- at any time. Time was not the essence of that mortgage deed. Even otherwise Deputy Custodian has not acted upon the mortgage deed, allegedly executed by Fazal Khan. So for all purposes Fazal Khan and heirs of Shams-ul-din are the mortgagee of respondents No: 1 to 6. They claimed restoration of land from the mortgagees. But to the contrary the petitioner managed allotment of the land measuring 7 Kls. 1 Marla from the Deputy Custodian, which forced them to approach the Custodian. 38. So for all purposes Fazal Khan and heirs of Shams-ul-din are the mortgagee of respondents No: 1 to 6. They claimed restoration of land from the mortgagees. But to the contrary the petitioner managed allotment of the land measuring 7 Kls. 1 Marla from the Deputy Custodian, which forced them to approach the Custodian. 38. It is pertinent to note that petitioners have complained that they were not properly served. I find no force to this complaint. 39. As per record of court below, revision petition was filed on 2. 2. 2001. On 23.8.2001, petitioner Atranbi, her sons Araf Khan and Allaf Khan besides proforma respondent No.8 Fazal Khan were present in person. As per summon for 22.9.2001, petitioner Mohd Server Khan was reported to be in aboard, whereupon service was affected upon his adult family members. Service upon any family members is as good a service as upon the person itself as per provision of law governing service of parties. So far Prithvi Singh petitioner is concerned, the above said summon was served upon him on 12.9.2001. Accordingly the present petitioners cannot make any complaint of having not been served upon by the court below. 40. In the light of the discussion rendered above, it is manifest that order of Deputy Custodian being totally un-warranted and illegal, has been properly set aside by the Custodian Jammu. As such this revision is dismissed and order of Custodian is upheld. The contesting respondents are at liberty to seek restoration of land from Fazal Khan, heirs of Shams-ul-din and Prithvi Singh if so advised. No cost. 41. Record of the court below be sent back along with copy of this order and file of this Tribunal be consigned to record after due compilation.