1. ' NAIMUDDIN, J.-This appeal under Order XLIII, rule 1, clause (r), C. P. C. Read with section 3 of the Law Reforms Ordinance, 1973, is directed against the order of a learned Single Judge of. This Court dated 23rd December, 1981 whereby alongwith another application he dismissed the appellants/plaintiffs' application under Order XXXIX, rules 1 and 2, C. P. C. Seeking injunction against the respondents/defendants restraining them from trespassing, encroaching or taking over possession of a plot of land bearing Survey Nos. 255/1 and 255/2, which are said to have been further divided into plots of lands bearing Nos. 255/1/4, 255/1/5, 255/1/6, 255/1/15 and 255/1/16.
2. ' The appellants who claim to be the residents and old inhabitants of 'Tharo Lane', Karachi have brought a representative suit claiming that the open plot known as 'Kola Ground' is the only open space and source of recreation of the people of the said Lane. The said ground is being used by the people of the locality in particular and for other in general for sports and other social and religious functions since their inhabitance in the said locality.
3. ' They have further claimed that the said ground is in continuous use and occupation of the residents since before the creation . Of Pakistan. They have also claimed that the residents of the Lane and around have formed a football club since before partition in the name and style of Balouch Football Club and the said ground is also being used as a playground by the said club and for holding the general league matches, District Championship and other local and provincial tournaments organized by the District Football Association, Divisional Football Association and Sind Football Association, respectively from time to time for last several years. It is further averred that the old and new records of the City Deputy Collector and the plans prepared for "Katchi Abbadees' by Karachi Metropolitan Corporation also include and show the Kola Playground of Tharo Lane, and that the said ground is the only playground for the while area which is in possession and use of the people inhabiting therein. They have also averred that The said playground is a portion of the plots of land bearing Survey Nos. 255/1 and 255/2 which have further been divided as mentioned hereinbefore and which were originally owned by a Hindu Jawnadas Vishan Das and according to them during his lifetime the ground was in use of the people of the area. According to them in July, and then in September, 1980 some persons of Khoja Community tried to encroach upon the said playground for raising construction of Multi-storeyed buildings on the plea that the same has been purchased by Ismailia Platinum Co-operative Housing Society Ltd., from certain persons, or from the Settlement Department. The appellants have also challenged the sale, transfer and disposal by the Settlement Department and other persons to the Khoja Community on the ground that the same is mala fide, unjust and illegal and without any proper authority as the playground is in continuous occupation and use of the appellants and it is an amenity plot and that no notice was ever published or served on them for its auction or disposal from any quarter. They have also claimed that under the law no amenity plot and specially playground could be converted into residential building or for any other purpose. The appellants have claimed that they and other people of the area have vested right over the playground. They have also made a grievance that they moved the Martial Law Authorities but they were not heard or any action communicated to them.
4. ' They have, therefore, claimed mainly the following reliefs :- "(a) Permanent injunction against the defendants prohibiting and restraining them from trespassing encroaching on the abovesaid plot more fully described as Survey Nos. 255/1 and 255/2 which is further divided into 255/1/4, 255/1/5, 255/1/6, 255/1/15, and 255/1/16 or taking possession of the same, themselves or tnrough any other agency or in any manner/or process whatsoever or raising any construction thereon.
(b) Declare that the transfer, conveyance to the defendants is illegal and it does not confer any right, title and interest on defendants.
(c) Declare that the plaintiffs have peaceably enjoyed the possession for many a year and that plaintiffs are entitled to the transfer of the abovesaid plot.
(d) Declare that the abovesaid plot which plot which has remained as amenity plot from time immemorial should be retained as such and any coversion or transfer of the same is illegal."
5. ' In the counter-affidavit filed by the respondents/defend.Ants to the injunction application, they raised the following pleas..
(a) provisions of Co-operative Societies Act in regard to notice not observed ;
(b) suit for declaration in regard to title or rights of others which are denied and disputed does not lie
(c) claim is barred by time ;
(d) suit is bad for non-joinder of necessary parties namely ;
(i) the Government who are owners and lessors of the plots ;
(ii) the Settlement Authorities in whom the lands were vested ;
(iii) the previous Transferees of the plots ; .(iv) the Karachi Development Authority.; (v) the Town Planning Authority, and ; (v.i) the Building Control Authority.
6. ' The respondents have further claimed that the Settlement Authorities had advertised and disposed of the said plot by 'public auction in or about 1960, and in support of the claim they have annexed a photostat copy of the public auction which may be reproduced hereinbelow {{URDU TEXT}} ' According to the respondents they have purchased the, plot from the transferee who had purchased the same from the Settlement Department after public advertisement inviting claims or objection, copies of some of which have been annexed to the counter-affidavit. One of them reads as follows :- "This is to inform all concerned that one Mst: Khairunnisa Ismail, Muslim, lady, adult, residing at New Town, Karachi, has agreed to sell to one of our clients her immovable ' property namely plot No, 255/12/6, Sheet C. R. W. Measuring 1229. 16 sq. Yards or thereabouts, situated in the Garden West Quarter of the City of Karachi, free from all encumbrances and claims. Any person having any right, title, interest or claim of any nature whatsoever over the said property is hereby requested to notify the same to us within one week from the publication hereof failing which the transaction shall be completed and the property conveyed in favour of our client in disregard of any claim or objection, which, in that event, shall be deemed to have been waived.
7. ' JAN MUHAMMAD DAWOOD ADVOCATE AL-YUSUF CHAMBERS FRERE ROAD, NEW CHALLI KARACHI .
8. PHONE 218345."
9. ' They further stated that they have paid conversion charges and ground rent as claimed by the Government. It may be stated here that according to the extract from the City Survey Records a copy whereof is annexed to the counter-affidavit the plot was leased out initially in the year 1915 to the father of Jamnadas Vishandas on 80 years lease.
10. ' Before the learned Single Judge it was contended that the disputed plot is being used as playground. By the residents of the locality from time immemorial and, therefore, the residents of the locality have perfected their title to the playground.
11. ' From this contention it appears that it was inferred by the learned Single Judge that the appellants were claiming adverse possession by user of the ground as playground residents of the locality.
12. ' It was further contended before the learned Single Judge that there was no evidence to show that Jamnadas Vishandas was treated as evacuee before 1st 'January, 1957 and, therefore, any sale of the property by the Settlement Department in the year 1960 was illegal.
13. ' It was also contended before the learned Single Judge that for the first time the respondent had in the year 1980 raised objections though all along they were aware of the fact that the appellants were using the plot of land.
14. ' The learned-Single Judge with regard to the first contention mainly relying on Noor All Pir Muhammad Parsala v. Mrs. Particia Dinshaw, and considering the letters of Quaid-e-Millat Government College, Nabi Bagh School and District Football Association to show that the land is being used as playground. After discussing the contents of the letter, he came to the conclusion that these letters prima facie establish that the disputed plot of land had not been in the exclusive use and possession of the plaintiff and in fact it was being used by the students of different Schools and Colleges and members of several clubs and that the Schools and Colleges 'did not necessarily include the students from the same locality of Tharo Lane and would be having students from all over the. City. Therefore, the learned Single Judge concluded that the plaintiff had failed to establish their exclusive right of user to the plot of land and he in the alternative held that even if it was considered that the plaintiffs have had a right of user they had not been able to establish the right of prescription on the plot of land. In the order he also dealt with the contention of Mr. Muhammad Sharif that since the respondents/owners have allowed the appellants or the residents of the locality to use the land unhindered and uninterrupted without any objection for more than 20 years, the defendants were estopped from claiming any right. Before him the following passage from the Law of Endowments (Hindus and Muhammadan) by Ghosh, 1938, page 134 was quoted, which reads as :- "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 he conveys land to a Municipality or to trustees to hold1 for the use of the public, the dedication 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."
15. ' With regard to the above-quoted passage the learned Judge observed that the observations in the above-quoted passage were in respect of user of public place for religious purposes and that the principles governing the ,user of place for religious purposes are quite different. He reasoned that of any place was used for religious purposes I e. For burial or prayers 'without any objections by the owner for long then right of public is created but where the user was only by using the land as a playground or a grazing ground, prima facie it could not be treated to create any right.
16. ' It was pleaded before him that the disputed plot was being used for religious purposes also. But he repelled the plea by pointing out that neither in the plaint nor in the letter annexed to the plaint in support of the allegations made therein nor in the affidavit it has been specified that what was religious purposes for which the land was being used and in the absence of any material on record to support the plea on some allegations it could not be presumed that the land was being used for religious . Purposes. He finally came to the conclusion that as Final Transfer Deed was issued by the Settlement. Authorities, prima facie the transfer should be preshmed to be valid and at that stage it would not be proper' to enquire into that controversy. On the question of balance of convenience also he found against the appellants, and therefore, dismissed the application.. In this regard he was influenced by the submission of the Counsel for the defendant that there are open place/land within the locality, therefore, the same could be used as playground.
17. ' We have heard Mr. Muhammad Sharif, learned counsel for the appellants who raised the following grounds in support of this appeal.
18. "(1) The learned Judge has mis-interpreted and misconstrued the passage quoted from Ghosh. He submitted that the principle of presumed grant extended to all purposes including sports and recreation.
(2) That the learned Single Judge erred in holding that issuing of P. T. D. Raises a presumption that the property was evacuee property.
(3) That the reasons given by the learned Single Judge that the balance of convenience was not in favour of the appellant are not cogent.
(4) The finding that the. Other open places were available is not tenable from the record."
19. Relating to the point whether the appellants have had made out a prima facie case and whether the balance of convenience was in their favour, before us, it was submitted by Mr. Muhammad Sharif that since the owner namely Jamnadas Vishandas had allowed the residents of the locality to use the plot as playground and for all other purposes, therefore, there was implied grant and accordingly the appellants have a right to the plot. We regret we cannot accept this proposition for more than one reasons. Firstly, the appellants have not pleaded in the plaint that there was any express or implied grant by Jamnadas. Secondly, the appellants have stated in paragraph 5 of the plaint that the playground is a portion of the plots in question which were originally owned by Jamnadas and the same was being used by the people of the area even during his lifetime but they have not stated therein when and where Jamnadas died. These allegations by themselves, in our opinion. Do not lead to the conclusion that there was any implied grant for the alleged purposes. The appellants have stated in the plaint that the ground is in continuous use and occupation of the residents from pre-partition i,e, prior to the creation of Pakistan. They have not again specified the date since when the playground is in their use and occupation. The prima facie finding of the learned Judge is that the playground is being used not only by the residents of the locality but by the students of other colleges, schools and clubs.
20. ' Thirdly, as would appear from the auction notice published in the newspaper and quoted hereinabove that this property was entered in the records of the Custodian as evacuee property for the custodian's number for this property is clearly mentioned in the notice. Further, it was auctioned by the Settlement Department in the year 1960 and was purchased by the predecessor- in-interest of the respondent. If the appellants had acquired any right, title or interest in the property they should have applied under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 or under the corresponding provisions of the earlier Enactments for declaration of such right. Not only that they failed to do so but they at no stage, came forward to claim any right, title or interest in the land by implied grant or by prescription or otherwise in spite of notice of auction in the year 1960 and further public notices when respondent No, 1 purchased the land from the predecessor-in-interest in the year. Further, in any case, we are of the view that the reliefs claimed could not be granted in the absence of the Settlement authorities and the Government, for, it appears the lease granted to Jamnadas was for a limited period of 80 years only which would expire on 1985.
21. ' As regards the question of balance of convenience it was submitted that Courts always see that the property is preserved in the state in which B it is, so that the plaintiff may not suffer if he ultimately succeeds. But grant of relief always depends on the facts of each case and subject t making out a prima facie case. Since we are of the opinion that the appellants have failed to make out any prima facie case as to title to the land it would be unjust to the other side to stop them from raising constructions when they have purchased the property after public notices from persons and whose predecessor-in-interest had purchased the same from the Settlement Department in public auction. However, they would do so at their own risks.
22. Before we part with the case we may record that all or any observations made herein are of tentative nature and be deemed to have been made in relation to the question of prima facie case and for the purposes of interim relief only. The suit, of course, would be decided on the evidence produced or to be produced.
23. ' We accordingly dismiss this appeal in limine. P D 19-74 Kar. 235