MAULVI ANWARUL HAQ, J. ~ On 3.11.1985 the petitioners filed a suit against the respondents, In the plaint, it was Stated that suit land measuring 114 kanals, 13 marlas described therein constitutes Shalmat of village Chak Sadu Dakhali Ghari Afghanan and the petitioners, are owners thereof. This land was reserved for graveyard for Ahl-e-Islam of the village. The respondents acquired land for construction of Wah Ordnance Factory and in the process took over the possession of the suit land, It then stated that although in the revenue documents the land was reserved for graveyard.
However, there was only one grave of Sadu Baba and rest of the land was lying vacant and till today there is only a grave which is bounded by wall covering an area of 1 kanal. The petitioners complain that the respondents have not paid any compensation or compulsory acquisition charges. They had been filing applications but without any avail. They filed an application before Settlement Officer of District Attack, as revenue estate was under the settlement. The land was demarcated in the presence of all parties, It was found out of the suit land respondents Nos. 1 to 3 have included 76 kanals, 12 marlas within building of the factory, the remaining 37 kanals, 1 maria is outside the wall and being used for skating ground while 1 kanal is covered by the said grave and boundary wall around., The entries were made in the Revenue Record accordingly. They sought a declaration that they are owners of the suit and are entitled to compensation and in case the respondents have not acquired the land then they are entitled to its possession. The mesne profits were also claimed. Respondents 1, 2 and 3 filed separate written statements. Respondent No. 1 admitted that the land had not been acquired but is encompassed by land acquired and owned by respondent No. 1. Lt was also admitted that the land is within the boundary of POF Wah.
Respondent No. 2 objected that the suit is barred by time, It was admitted that there is only one grave and further that the land was not acquired. The possession of course was not denied.
Respondent No. 3 also filed a similar statement while Provincial Government filed a brief statement that the land was excluded from acquisition. Vide award dated 25.9.1950. Following issues were framed by the learned Trial Court:
(1) Whether the plaintiffs have no cause of action? OPD .
(2) Whether the suit is time-barred? OPD
(3) Whether the suit has not been correctly valued for the purposes of Court-fee and jurisdiction, if so, what is its correct valuation for both the purposes and with what effect? OPD
(4) Whether the suit land is a graveyard and as such the plaintiffs have no locus standi to bring the suit? OPD
(5) Whether - the suit is bad for misjoinder of parties? OPD
(6) Whether the plaintiffs are owners of the suit land as such are entitled to the decree prayed for OPP.
(7) Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 5.6.1997 the learned Trial Court dismissed the sui^. The learned Trial Court under issue No. 6 held that the land being shown as "Ghair Mumkin Graveyard" is a Waqt and the petitioners cannot claim ownership and similarly a decree for possession cannot be passed. Issue-1 was also answered against the petitioners. Under issue No. 2 the suit was found to be barred by time. Issue No. 4 was also answered with reference to findings on issue No. 1. Issues Nos-. 3 and 5 were answered against the respondents. First appeal filed by the petitioners was heard by a learned Additional District Judge, Rawalpindi, who dittoed all the findings and dismissed the appeal on 20.9.2000.
2. Learned counsel for the petitioners contends that evidence on record has been misread and law has been misconstrued by the learned Court below while holding that since the land is recorded to be graveyard, the petitioners have lost title. According to him in view of the admitted facts of the case there was no question of extinction of ownership rights of the petitioners. He relies on the case of Shahbaz Khan and others v. Haji Fazal Shah and others (PLD 1993 Peshawar 185.) affirmed by the Hon'ble Supreme Court in the case of Haji Fazal Shah and 2 others w Shahbaz Khan and 5 others (1995 SCM R 85). In the matter of limitation his plea is that dispossession having not been alleged there is no application of Article 142 of Limitation Act while plea of adverse possession was not even taken. Relies on the case of Mst. Barkat Bibi v. West Pakistan Province and others (1984 CLC 2314)
(DB) and'. Noor-ud-Din v. Pakistan and others (1997 CLC 1971). Learned Standing Counsel for Pakistan, on the other hand, assures that the acquisition took place as far back as in 1950 and it was because of entries in the Revenue Record that the land could not be acquired and Government will suffer loss in terms of money, if it is made to pay compensation for land. He accordingly supports the impugned judgments and decrees. Learned Additional A.G. Has not much to say in view of the said statement filed in the learned Trial Court.
3. I have gone through the copies of the records. The material contents of the plaint as. Well as written statements filed by all the respondents have already been stated above. ^It will be noted that there is no denial of the fact that in the suit land measuring 114 kanals, 13 marlas there is only one grave which is also surrounded by a wall covering 1 canal area, It is also stated, case of the respondents that the land had never been acquired. There is no denial that the land in fact is in possession of respondents Nos. 1 and 2. Amanat Khan one of the petitioners appeared as PW-1 and made a statement in accordance with the contents of the plaint. He stated that except one kanal bounded by wall around the single grave remaining 113 kanals, 13 marlas is in possession of POF Wah. They have constructed a boundary Wall around 76 kanals, 13 marlas and they have included it within the factory premises whereby the store ammunitions while the remaining 37 kanals is being used a skating ground and this portion is surrounded by barbed wire. This witness. Was cross examined by learned counsel for respondent No. 1 as well as respondent No. 3 and not a single suggestion was given him to challenge the statement that .The land is in possession. Of POF Wah and further that there are no graves other than the said single grave. Respondent No. 1 did not lead any evidence. Learned counsel for respondent No. 3 produced Sultan Ahmed, Girdwar who simply stated that a notice was not served upon the Cantonment Board before the suit. Respondent No. 3 also produced notifications dated 16.2.1949 as Ex. D1, 5.4.1949 as Ex. D2 and award dated 25.3.1950 as Ex. D3. Before proceeding further I may note here that no relief has been claimed against the Cantonment Board in the suit as would be evident from the contents of the plaint. The entire suit in fact proceeds against respondents Nos. 1 and 2.
4. Ex. P1 is an application for demarcation of Khasra No. 1 of Chak Sadu Dhakli Ghair Afghanan.
There is a report on the back of this document stating that Tehsildar had conducted demarcation proceedings in the presence of an S.D.O, and Senior Superintendent Cantonment Board Wah and it has been found that Khasra No. 1 is within the boundary of Wah Ordnance Factory and the petitioners were directed to produce Aks Maswi for the year 1924-25 and Maswi Ishtanat for the year' 1965-66. The matter was adjourned. Thereafter requisite documents were produced and the.
Tehsildar reported that, out of 114 kanals, 13 marlas of land of-khasra number in question 70 kanals, 12 marlas is in possession of Ordnance Factory, out of remaining land 1 kanal and Ghair Mumkin Qabristan while 3 kanals, 13 marlas Is under road and remaining land is Ghair Mumkin Ground. Ex.
P2 is copy of the field book and Ex.PS is Aks Shajra Kantrwar and Ex. P4 is copy of Khasra Girdwari for Kharif 1988 and Rabi 1989 showing that 1 kanal is Ghair Mumkin Graveyard and 113 kanals, 13 marlas in possession of POF Wah. Ex. P5 is Register Haqdaran Zamin for the year 1987- 88 recording the petitioners to be owners of the suit land while POF Wah to be in possession to the extent of 113 Kanals, 12 marlas while 1 kanal Ghair Mumkin Graveyard. Ex. P6 is the copy of Register Haqdaran Zamin for the. Year 1991-92 containing the same entries. Ex.PT is the copy of Register Haqdaran Zamin . For the . Year 1981-82 which records the petitioners to owner while the entire land is described as Ghair Mumkin graveyard is in possession of Ahl-i-Islam, Ex. P8 is Khasra Girdwari from Rabi, 1991 to Rabi, 1996 containing entries as in Ex.PS. Ex. D1 is notification in terms of Section 7(1) of the Land Acquisition Act, 1894 published on 16.2.1949 Ex. D2 is preliminary notification under Section 4 of the said Act while Ex. D3 is the copy of the award dated 25.3.1950 which shows that, inter alia, 650 acre of land was acquired in village Ghari Afghanan. Lt further clarifies that land measuring 114 kanals 13 marlas comprising Khasra No. 139 of Ghari Afghanan stand excluded being a graveyard.
5. The said evidence does not find mention in both the impugned judgments, It is an admitted, position on record that although entry Ghair Mumkin graveyard was there yet in fact there was only one grave which is bounded by a wall over an area of one kanal and the remaining land is not graveyard rather is in possession of respondents Nos. 1 and 2 and as such entries reflected in the copies of registers Haqdaran Zamin Ex. P5 and Ex. P6 are correct and according to the ground position existing on record. The respondents Nos. 1 and 2 did not even lead any evidence in rebuttal.
The evidence led by respondent No. '3 Cantonment Board is meaningless because upon plain reading of the plaint no relief stands claimed against the said Cantonment Board. Admittedly respondents Nos. 1 and 2 are in possession of the said land in the manner reflected in the Revenue Record. Admittedly the suit land has not been acquired and, of course, no compensation has been paid. The said judgment in the case of Haji Fazal Shah and 2 others affirming the judgment of the learned Peshawar High Court is fully attracted. There is no question of any limitation involved as there is no plea of dispossession of the petitioners or adverse possession taken by respondents Nos. 1 and 2, of course, there is no evidence of any adverse possession. The learned Courts below without examining the evidence as also pleadings have simply knocked out the petitioners by observing that since at one time land was recorded as graveyard once it -became Waqf. The established rather admitted position is otherwise. Revision petition is accordingly allowed. The impugned judgments and decrees, by both the learned Courts below. Are set aside. The suit filed by the petitioners is decree. However, in view of the peculiar circumstances of the case and plea raised by the learned Standing Council for Pakistan the suit is decreed in a manner that defendants/respondents Nos. 1 and 2 and 4 are directed to initiate acquisition proceedings and to assess compensation of the land with reference to its market value in the year 1985 when suit was filed and to pay the assessed compensation with compulsory acquisition charges to the petitioners. This exercise to be undertaken and concluded on or before 31.12.2009, in case respondents Nos. 1 and 2 fail to do the needful within said period of time the decree for possession of the suit land shall be deemed to have been passed in favour of the plaintiffs/petitioners and against defendants/respondents Nos. 1 and 2 which will be executed in accordance with law. No order as to costs.