MUHAMMAD RAZA KHAN, J.---There was a suit for declaration to the effect that the plaintiff was the co-owner in Khasra No.1172 measuring 1 Kanal, 16 Marlas situated in Mouza Shandev, Tehsil and District Bannu and that the defendants were not entitled to raise construction over a part of the said Khasra number without the total partition of the land. A prayer in the form of injunction as a consequential relief was also made to the effect that the defendants should restrain from raising construction or changing the nature of the land and any construction existing on the site be restored to the original position. This suit was contested and after recording evidence, the learned trial Judge vide his judgment and decree dated 3-11-2001 dismissed it with a special cost of Rs.5,000 and appeal filed thereagainst also met the same fate, hence this revision petition.
2. Arguments heard and record perused with the help and assistance of learned counsel for the parties as well as the learned Deputy Advocate-General representing the official respondents Nos.4 to 6.
3. This is a typical case where the land is donated by a Philanthropist to the Government for a public purpose. The concerned department of the Provincial Government starts construction over such site without ascertaining the location and boundaries of the area so donated. Thereafter various rounds of litigations commence where, on the one hand, the department is compelled to defend its position in different Courts and, on the other, there is an endless litigation between the private parties. In this case, respondent No.3 had transferred certain land measuring 19 Marlas through Mutation No.6243 attested on 28-10-1986 in favour of the Education Department, i.e. Respondent No.4 and the Works Department, i.e. Respondents Nos.5 and 6, raised construction of a school over the land identified by defendant/respondent No.3 in the year 1989. The present suit has been filed in 1995 and, so far as the merits of the case are concerned, the Courts below have held that the plaintiff was aware of the construction of school on the joint property but he did not raise objection in 1989 and seven years thereafter he could not ask for the demolition of school building.
Technically, the findings are correct but it will not resolve the issue relating to the parties, rather it will cause the multiplicity of litigation for the reasons recorded hereinafter.
4. Vide Mutation No.6243, respondent Gul Ahmad Shah had transferred 8 Marlas of land in Khasra No.457 and 11 Marlas in Khasra No.456 but the possession of such 19 Marlas was handed over to the department in Khasra No.1772. The said Khasra Nos.456 and 457 were later on changed into new Khasra Nos.1076 and 1072 but still Khasra No.1772 was entirely distinct and situated presumably at a considerable distance. Hence the land was transferred in another Khasra No. And the possession, for construction of building, was given somewhere else. The building of the school was constructed in 1989 in Khasra No.1772, and as per Revenue Record, not a single inch of land of the said Khasra number belongs to respondents Nos.4 to 6 and legally such construction is liable to be demolished.
It is an established principle of law that an agricultural property cannot be put to a use other than agriculture without its due partition. Even Khasra No.1772 was not partitioned and, therefore, the entire construction was illegal, notwithstanding the fact that the plaintiff being aware did not agitate the issue at the right moment. It is the policy in vogue that owners of a particular area are required to donate their land for public purpose whereon school, hospital, tubewell etc. Is constructed and in lieu thereof employment is provided to a family member of the donor in the said establishment. There is a judgment of the Honourable Supreme Court of Pakistan that such type of transactions amounts to the sale of public office which is not legally permissible. Although this is not a point in issue in this case but, being a law declared, it is binding on the Government and it is high time that the Government should amend the policies in true conformity with such decisions. In addition to the evil of sale of a public office, such a commitment deprives other eligible candidates to compete for such vacancies in the Government service, therefore, they are discriminated, in violation of the Constitution.
5. However, there is another wrong practice that normally the area transferred in the name of the department is different than the one identified for the construction of the project, like the situation in the present case, which creates a double complication. On the one hand the land beneath the construction does not belong to the Government and so the Government is implicated in a lot of litigations. On the other hand the donor suffers an irreparable loss of loosing possession of one area and title of the other. In this particular case, the donor, i.e. Respondent No.3 was entitled to 19 Marlas of land in Khasra No.1772. Had he transferred the said land through a mutation, the construction would have been justified after simply demarcating half of the Khasra number through the Revenue Officer. However, by not doing so, the respondent No.3 is deprived of his ownership in Khasra No.1772 (because of permanent construction over half of Khasra number falling in his entitlement) whereas he is deprived of his title in Khasra Nos.456 and 457 (i.e. 1076 and 1072 new) by transfer of title through the said mutation. There is another unfortunate aspect of this case. In Khasra No.1772, the plaintiff/petitioner Noor Ahmad Shah is entitled to 19 Marlas of land and his brother Gul Ahmad Shah, respondent No.3, to the remaining half of the said Khasra number, i.e. 19 Marlas of land. As per Jamabandi for the year 1994-95 Exh.P.W.1/3, the school has been constructed on the said 19 Marlas of land which means that respondent No.3 has donated his 19 Marlas of land to the Government and, therefore, he is not left with any land in the said Khasra number. However, simultaneously he had also transferred five Marlas of land in the said Khasra No.1772 to his two daughter-in-law, namely, Mst. Najma and Mst. Dilshad Bibi who, despite the title to five Marlas of land, will never get the possession of such property transferred to them because of the permanent construction of school aver their area. So they are deprived of their right without any fault on their part.
6. The Provincial Government may evolve the mechanism for raising constructions specifically over the area which is either purchased by, or donated to, it. Without partition of a common land, the agricultural property cannot be put to any other use, therefore, the construction over common agricultural land, without partition, is illegal. It has been noticed that wherever there is such a donation of land for a public purpose, normally the land located in the far-flung areas, being uncultivable, is transferred to complete the requirement of donation of land, whereas the possession is given of some `shamilat' or unclaimed property. Although, in the instant case, the transferred area was neither `shamilat' nor an unclaimed property but, this is being recorded for the consideration of the appropriate authorities, to devise a system of checking such donated land to avoid future litigations.
7. In this case, an application was also made at the appellate stage that the department has trespassed from Khasra No.1772 to the adjacent Khasra No.1773 and that the boundary wall has been constructed with the proposal of further extension of the building. The said application was not considered. This may also result in several suits in the future.
8. Thus to settle all the issues at rest, it will be appropriate if this controversy is resolved forever. The ownership of the Government in Khasra Nos.456 and 457 (new 1072 and 1076) has to be exchanged with the property under the school in Khasra No.1772 and respondents Nos.1 and 2 be given their shares, at least in the said two Khasra numbers. Simultaneously the entire Khasra No.1772 and the adjacent Khasra No.1773 be specified through the help of demarcation by a Local Commissioner consisting of a Revenue Officer to settle the issues for encroachment etc. Permanently.
9. Hence by accepting this revision petition, the judgments and decrees of both the Courts below are set aside and the matter is remanded to the learned Senior Civil Judge, Bannu for decision afresh in accordance with observations made above.
' The parties are directed to appear before the said Court on 6-7-2005 and record of the case be sent thereto forthwith.