1. These are three applications for hearing. The first is an application under Order XXXIX, rules 1 and 2, C. P. C. Seeking injunction against the defendants restraining them from trespassing, encroaching or taking over possession of Plot Bearing Survey No. 255/1 & 2 which is further sub-divided into 255- 1/4, 1/5, 1/6, 1/15 and 255-1/6 GRW. After the ad interim injunction was granted the second application was filed by defendant No. 2 under Order XXXIX, rule 4, C. P. C. For vacating the interim order dated 13-10--1981. Third application is by defendant No. 2 seeking temporary injunction against the plaintiffs restraining them from using the said property.
2. Briefly the facts are that the plaintiffs are residents of Tharo Lane which is alleged to be a century old locality and is densely populated. The disputed plot is an open plot which according to the plaintiffs is being used by the people of the locality in particular and others in general for sports and others sacral and religious functions since their inhabitance in the said locality. The residents of the locality have formed a football club which existed even before Partition under the name and style of Pak Baluch Football Club which is affiliated to the District Football Association. The said disputed land is commonly known as Pak, Baluch Football Ground and is being used for holding tournaments. The Kutchi Abadi known as Tharo-Lane is within the Municipal Limits and the playground which is the subject-matter of dispute is a part and parcel of Survey No. 25511 and 255/2 which was originally owned by a Hindu damnadas Vishindas and it is alleged that in his lifetime this ground was being used by people of the area and no objection was raised by him. In July/September, 1980, some persons from Khoja Community tried to encroach upon the playground raising construction for multi-storeyed building on the plea that defendant No. 1 has purchased the said land from certain persons or the Settlement Depart--ment. The plaintiffs have challenged the sale by the Settlement Department as illegal, unjust and collusive. It is further alleged that no notice of auction or disposal was issued by any authority and further that this being an amenity plot in a backward area which is a Kutchi abadi cannot be converted into a residential plot. In para. 10 of the plaint it is specifically stated that the plaintiffs and other people of the area have vested right over the said playground. It seems that the matter was agitated by the plaintiffs before the Martial Law Authorities without any success. They have, therefore, filed this suit for permanent injunction and declaration that the transfer of the disputed plot to defendants Nos. 1 and 2 is illegal and that the plaintiffs are entitled to the possession of the said plot without any interruption.
3. The defendant No. 2 has filed counter-affidavit and has taken several preliminary objections which inter alia include that the suit is not representa--tive suit as it does not fulfil the condition laid down by law. The allegations made by the plaintiffs regarding user of the plot has been denied. As regards auction it has been stated that the Settlement Authorities advertised and disposed of the plots by public auction in 1960 and upon completion of formalities final transfers were made to the purchasers between 1960-62. The defendant No. 2 purchased the said plots from the transferee after public advertisements, inviting claims or objections copies of which have been filed, through a registered sale deed and the plot were mutated in the name of the defendant No. 2. It has been asserted that at no stage any objection was received from any quarter by the Settlement Authorities or by the transferees before the registration. The defendant No. 2 therefore claims to be a bona fide transferee for valuable consideration without notice of the plaintiff's claim. The defendant No. 2 has paid conversion charges and ground rent for constructing a multi-storeyed building. It is alleged that originally the plots were only sikni plots and not amenity plots and the defendant No. 2 has got the plan approved for construction of boundary wall of the plot and intends to raise a community centre and Jamat Khana. It has been alleged that the defendant No. 2 owns and is possessed of the said plot without any objection and the claim of the plaintiffs is vague and mala fide.
4. Mr. Muhammad Sharif the learned counsel for the plaintiffs has contended that the disputed plot is being used as a playground by the residents of the locality from time immemorial and, therefore, the residents of the locality have perfected their title over this land. The plaintiffs are thus claiming adverse possession by user of the ground as a playground by the residents of the locality. The learned counsel further contended that there is no evidence to show that Jamnadas was treated as evacuee before 1-1-1957 and, therefore, any sale of the property through the Settlement Authorities in 1960, was obviously illegal. The plaintiff have farther contended that for the first time the defendants raised objection in the year 1980 although all along they were aware of the fact that the plaintiffs were using the said plot of land.
5. As regards the first contention. Mr. J. H. Rahimtoola the learned counsel for the defendant No. 2 contended that the plaintiff's claim for adverse possession is not maintainable as a fluctuating and indefinite body cannot acquire title by prescription. In support of this contention the learned counsel has relied upon AIR 1942 All. 1 and AIR 1919 Lab. 156, He has further referred to PLD 1974 Kar. 235; in which all the authorities relating to this aspect of the case have been thoroughly discussed and the following authoritative dictum has been laid down at page 243:------- "Thus, a very onerous burden is placed on the person who claims title by' adverse possession to open and waste land. Such person must give clear, full and definite evidence relating to different points of time for the whole of the statutory period requisite for completing title by adverse possession. The evidence must be of acts which must establish that such person was, in fact in adverse possession of the land. Further, acts which are sufficient to constitute posses--sion in the real owner may not be sufficient to constitute possession in the trespasser. Mere user of the land cannot be taken as definite assertion of proprietary rights and does not constitute adverse possession."
6. Mr. Muhammad Sharif the learned counsel' for the plaintiffs relying on a passage from the Law of Endowments (Hindu and Muhammadan) By Ghosh, 1938 Edn. At p. 134 has contended that as the defendants or owners have allowed the plaintiffs or the residence of that locality to use that land unhindered and uninterrupted without any objection for more than 20 years the defendants are estopped from claiming any right. Reliance has been placed on the following observation:---- "A dedication of land for public purposes need not necessarily be express, but may be implied from the conduct of the owner. When the owner sets apart land for the use of the public and formally declares that such is his intention, or where be conveys land to a Municipality or to trustees to hold for the use of the public the dedications is an express one. An implied dedication arises by operation of law from the acts of the owner and is really founded upon the principle of estoppel; it proceeds not upon the principle that a grant has actually been made, but rather on the principle that the owner having allowed the public to enjoy the user for, any particular purpose, is estopped from denying the right of the public to the enjoyment of such user. Exclusive and continuous user by the public with the owner's knowledge and acquiescence for the prescriptive period will raise the presumption of a grant of dedication of the public."
7. It seems that reliance has been misplaced. The entire observation is in respect of user of public places for religious purposes. The principle governing user of places for religious purposes are quite different. If any place is used for religious purposes e. g. For burial or prayers without an objection by the owner for long then right of public is created but where the user is only by using the land as a playground or a grazing ground prima facie it cannot be treated to create any right.
8. Mr. Shareef being conscious of this difficulty has pleaded that the disputed plot of land was being used for religious purposes also. However neither in the plaint nor in the letter annexed with the plaint in support of the allegations made therein nor in the affidavit it has been specified what was that religious purpose for which this land was being used. In the absence of any material on record to support his contention, on mere allegation it cannot be presumed that the land is being used for religious purposes also.
9. As PTD was issued by the Settlement Authority, prima facie the transfer shall be presumed to be valid and at this stage it will not be proper to enquire into this controversy.
10. The next point for consideration is whether the balance of convenience is in favour of the plaintiffs.
11. Mr. Rahimtoolla the learned counsel for the defendants has pointed out in the sketch plan produced by the plaintiffs that there are open plots of land lying vacant within the Kutchi abadi locality and, therefore, the learned counsel for the defendants has contended that alternate grounds for use as playgrounds are available and can be developed by the plaintiffs or the residents of the locality. The defendants have stated that they will use this land for raising a multi- storeyed building and for establishing a Jamat Khana and community centre for the welfare work of the community. In the face of these facts the balance of convenience does not seem to be in favour of the plaintiff. The land is being used by various persons of indefinite identity. As playground and in view of the fact that other open space is available in the locality no irreparable injury will be caused to the plaintiff. In view of the aforestated reason I find no merit in the plaintiff application which is dismissed with no order as to costs.
12. The second application has now become redundant and is also dismissed. The third application filed by the defendant No. 2 was not pressed which is accordingly dismissed.
13. M. Y. M. Injunction refused.