Ali Akbar Qureshi, J:- This civil revision is directed against the judgment and decree dated 22.01.2018, passed by the learned appellate Court/Additional District Judge, Rawalpindi, whereby the appeal filed by the respondent No.1 was allowed and the suit for declaration, permanent and mandatory injunction , filed by the petitioners, was dismissed in the following terms: "21. It is clear from above discussion that plaintiffs may not be declared as owner in possession of the land of Khasra No.395 which is reserved for the benefit of inhabitants of the village. A decree may not be extended in their favour to legalize their possession over the land and it is clear that the impugned judgment and decree is not in accordance with law and facts which is reversed and suit of the respondents is dismissed with cost throughout by accepting this appeal."
2. As per record, the petitioners (plaintif fs) instituted a suit for declaration, permanent and mandatory injunction contending therein, that the petitioner No.2 acquired/purchased land alongwith rights in Shamlat Deh in Moza Morgah, Tehsil & District Rawalpindi; that the petitioner No.2 also purchased Shamlat rights alongwith the land measuring 1838 Kanal 09 Marla 04 Sarsai and presently , the petitioner No.1, who is successor of petitioner No.2, holds total land measuring 2022 Kanal 06 Marla 04 Sarsai including Shamlat of Moza Morgah; that the land was purchased by the petitioner No.2 for the establishment of a housing scheme; that the development work was started and also the petitioner construct ed the streets, roads and other amenities in the scheme; that on the creation of petitioner No.1, the petitioner No.2 alongwith its all assets, merged into petitioner No.1 and presently the petitioner No.1 is managing the affairs of the housing scheme; that the entire area including Shamlat Deh is under the control of petitioner No.1 who has allotted the plots to different persons; that the respondent No.2 who had no concern whatsoever with the land in question, filed an application to the City Distri ct Government through DCO for the demarcation of the land for the exclusion of land of Shamlat Deh of Moza Morgah from the holding of petitioners; that the respondent No.1 has no authority in law to take action or to initiate any proceedings against the petitioners, and lastly prayed, that while decreeing the suit, the proceedings initiated by the respondent No.1 be declared illegal, unlawful and inef fective qua the rights of the petitioners.
3. The suit was vehemently contested by the respondents through written statement wherein it was asserted, that the land measuring 12 Kanal 07 Marla bearing Khasra No.395 is Ghair Mumkin Talab and is indivisible and the Ghair Mumkin T alab is not the ownership of one person rather the same is reserved for Rafah-i-Aam .
4. The learned trial Court, after recording evidence of the parties and hearing the arguments, decreed the suit vide judgment and decree dated 13.06.2014. Against which an appeal was filed by the respondent No.1 which was allowed and the suit for declaration filed by the petitioners was dismissed with cost throughout vide judgment and decree dated 22.01.2018. Hence, this civil revision.
5. Learned counsel for the petitioners mostly reiterated the grounds of instant civil revision in his arguments and repeatedly argued, that the land of Shamlat Deh of Moza Morgah was validly purchased by the petitioners, therefore, the respondents have no authority in law to initiate any proceedings under the Punjab Land Revenue Act, 1967, as the Act ibid is not applicable. Further submitted, that the land is not agricultural neither subservient to the agricultural purpose, therefore, any proceedings initiated by the respondents under the Land Revenue Act are illegal and unlawful. Anyhow, learned counsel for the petitioners submitted, that the petitioners have constructed the amenities for the welfare of the society like park, mosque etc. and if the residents of the Moza Morgah are intended to take the benefits of the facilities, the petitioners will not stop them rather facilitate them by opening a door towards to their side. Learned counsel also submitted, that the judgments referred by the learned appellate Court have wrongly been interpreted, therefore, the judgment and decree passed by the learned appellate Court be set aside.
6. In response thereof, learned Assistant Advocate General, under instructions of the Deputy Commissioner and other revenue staff, submitted, that the land, which is being claimed by the petitioners, is Ghair Mumkin Talab according to the revenue record which is for the benefits of the residents of Moza Morgah, Tehsil & District Rawalpindi and no one can claim ownership of the said land. The Deputy Commissioner alongwith revenue staff was summoned to ascertain the true facts and ground realities, who submitted the relevant record.
7. Heard. Record perused.
8. It is not denied by learned counsel for the petitioners, that the land measuring 12 Kanal 07 Marla bearing Khasra No.395 is of Shamlat Deh and as per the revenue record, the status of the land is mentioned as Ghair Mumkin Talab. It is also not denied, that the petitioners, on the ground of purchasing/acquiring the land alongwith the land of Shamlat Deh, have included the land of Shamlat Deh in the housing society which is against the revenue record and violative of the provisions of the Punjab Land Revenue Act, 1967. It is settled principle of law, that the land of Shamlat Deh can only be used by the inhabitants of the Moza and is not ownership of one inhabitant of the Moza, therefore, the claim of the petitioners, that the land was purchased through sale deed is totally incorrect and having no ef fect upon the rights of inhabitants of the Moza Morgah, Tehsil & District Rawalpindi.
9. The learned trial Court also appointed a local commission who inspected the land in the presence of the parties and finally concluded in his report, that the land in question is Shamlat Deh (Ghair Mumkin Talab) and cannot be sold or used by any other person except the inhabitants of the Moza Morgah.
10. Learned counsel for the petitioners, on one hand, is claiming the ownership of the land which is in fact Ghair Mumkin Talab and Shamlat Deh whereas on the other hand, during the course of arguments, offered, that the residents/inhabitants of Moza Morgah can use and enjoy the amenities constructed over the land in question by the petitioner-housing society and the petitioners are ready to facilitate them by opening a gate to their side.
11. It is a very ambiguous stance of the petitioners and is sufficient to understand, that the petitioners are still admitting, that the land in question is owned by the residents of Moza Morga h, Tehsil & District Rawalpindi, otherwise learned counsel for the petitioners would have not made such type of the of fer.
12. As regard the offer made by learned counsel for the petitioner to facilitate and allow the residents of Morgah, Tehsil and District Rawalpindi to take benefit and enjoy the facilities like mosque and park etc. on the land of the Shamlat Deh, it is difficult rather impossible for a common man to enter into a Gated housing society like DHA and even otherwise, it can hardly be a ground to grab or illegally possess the land of Shamlat Deh.
13. The petitioner-DHA is created under a Statute but the authority is not consisted of duly elected public representatives, therefore, it cannot be expected from them to provide the facilities, as offered by the learned counsel for the petitioners, to the residents of Moza Morgah. The Hon'ble Supreme Court of Pakistan has ruled in a judgment cited as Ali Ahmed and others v. Municipal Committee, Talagang through Administrator and others (2001 SCMR 585), that although the ownership of the land reserved for Maqbuza Rafah-i-Aam shell vest in the holder of the sale deed but anyhow the characteristics of the property cannot be changed which shall remain as Maqbuza Rafah-i-Aam. The Hon'ble Supreme Court of Pakistan in the judgment (supra ) finally directed the concerned Municipal Committee to convert the disputed land into a public park, as the Municipal Committee consisted of elected representatives. Relevant part of the judgment ( supra ) is reproduced as under: "8. It is, however, significant to note that the ownership of the appellants has been admitted by the learned trial and Appellate Courts which also finds support from Revenue Record and sale deed duly got executed and proved by the appellants. We are, therefore, inclined to hold that the ownership of the land in dispute vests in the appellants but the characteristics of the property in dispute cannot be changed which shall remain as "Maqbuza Rafah-i Aam". The alternate plea as agitated on behalf of appellants that Municipal Committee may be directed to convert the land in dispute into a public park seems more plausible and must be appreciated. Mr. Ibrahim Satti, learned Advocate Supreme Court on behalf of the Municipal Committee has assured that the needful will be done by the Municipal Committee, Talagang. While accepting the alternate plea and pressing into service of the doctrine of cypress whereby if the formal and particular purpose cannot be carried out the Court may approve scheme which is in consonance with the general intention of the donor. Babaik Singh wanted to serve the public- at-large and by converting the land in dispute into a public park the objective could be achieved by utilizing the land for the public-at-large."
Reliance is also placed on Municipal Committee, Chakwal v . Ch. Fateh Khan and others (2006 SCMR 688 ).
14. As regard the proceedings initiated by the respondent revenue authorities, it is held, that the respondent- revenue authority rightly initiated the proceedings under Section 173 of the Act ibid against the encroacher/petitioners who have included the land into its society without any lawful authority and violated the law declared by the Hon'ble Supreme Court of Pakistan in the judgments ( supra ).
15. The Hon'ble Supreme Court of Pakistan has observed in a judgment cited as Muhammad Hanif and another v.
Muhammad Jamil Turk and 5 others (2002 SCMR 429), that the findings of the Appellate Courts are to be given weightage at the time of deciding the case by the higher forums.
16. In view of above, this civil revision is dismissed with special cost of Rs.100,00 0/- (Rupees one lac only) which shall be deposited by the petitioners in the Government Treasury .
17. Parting with the judgment, a copy of this judgment shall forthwith be transmitted to the Chief Secretary Punjab, Senior Member , Board of Revenue and District Collector , Rawalpindi with the direction, that the land of Shamlat Deh (Ghair Mumkin Talab) , encroached upon by the petitioners, shall be retrieved forthwith, within fifteen days, under an intimation to the Deputy Registrar (Judicial) of this Court. The Deputy Registrar (Judicial) of this Court shall place the report, submitted by the revenue authorities, before the learned Senior Judge of this Bench.