1. Anjuman Khadamul Massajid, Kot Rukan Din, Kasur filed this writ petition challenging the order of allotment made by the Border Area Committee, respondent No.1, in favour of Brigadier Iqbal Muhammad respondent No.5.
2. The facts forming background of the controversy subject-matter of the petition that land measuring 14 kanals and 1 marla comprising khasra numbers 6563 and 6564 situate in Mauza Kot Rukan Din, Distt. Kasur was allotted to respondent No. 5. The allotment was incorporated in the Revenue Record and in pursuance to the order dated 12th August, 1971 of the Collector, Kasur Mutation No. 2513 regarding acquisition of proprietary rights in the land by respondent allottee was sanctioned on 21st August, 1971. The allottee respondent on 3-1-1978 sold 2 kanals and 10 marlas of land out of the allotted land to Mehar Shaukat Ali, respondent No.2, and the sale was also incorporated in the Revenue Record vide Mutation dated 6-2-1978. This respondent partitioned the land in two parts. One part was then sold by him to Sh. Muhammad Islam respondent No.3, vide sale--deed dated 20-2-1979 and the other was sold to Sh. Abdul Majid respondent No.4 vide sale- deed dated 10-3-1979. It is pertinent to note at this stage that Mutation No. 2513 regarding acquisition of proprietary rights by the allottee respondent was reviewed by the Collector vide order dated 25-10-1977 whereby instead of whole khasra No. 6563, a part of it measuring 2 kanals and 10 marlas was separated treating the same as not of the nature of Graveyard, relying on the report submitted by the field staff. The petitioner, on coming to know of the aforesaid allotment made in favour of respondent No.5, submitted application to Martial Law Authorities in April and June, 1978. On these applications report dated 30th September 1978 was submitted by Tehsildar and a letter dated 8-11-1978 was addressed by the Assistant Commissioner to the Dy.
2. Commissioner pointing out the alleged irregularity in the allotment made by the Border Area Committee. The petitioner asserts that despite the above report and the letter of the Assistant Commissioner, no action was taken to retrieve the land of the Graveyard and then the petitioner approached this Court by filing the present Constitution petition.
3. I have heard Kh. Muhammad Farooq, Advocate for the petitioner, Syed Munir Hussain, Advocate for the allottee and the vendees respondents Nos.3 to 5 and Ch. Muhammad Rafiq Khan, Advocate for Border Area Committee. Meher Shaukat Ali respondent did not enter appearance and as such did not contest the petition. The case of the petitioner is that the land of khasras numbers 6563 and 6564, old number 6298 measuring 14 kanals and 1 marla as per jamabandi for the year 1938-39, 1965-66 and 1969-70 is Ghair Mumkin Kabarastan and is in possession of Ahl-e-Islam and as such the same could not be allotted under the Border Area Scheme to the respondent even on the recommendations of General Headquarters. In support of the fact that the entire 14 kanals and 1 marla of the said khasra is Graveyard in possession of Muslims it is argued that Anjuman as is managing and administering this very Graveyard and is also looking after the mosques possesses the necessary locus standi to challenge the allotment obtained by the allottee respondent.
4. Learned counsel for respondents Nos.3 to 5 in reply submitted that though the land of these khasras is shown as Graveyard and in possession of Muslims yet in the ownership column of the jamabandi, Provincial Government is recorded as owner of the land in question and it thus being State land, was rightly allotted by the Border Area Committee to an Army Officer. He stated that in any case in the land measuring 2 kanals and 10 marlas, grave were not found and as such the Mutation No. 2513 respecting the acquisition of proprietary rights in the entire land measuring 14 kanals and 1 marla was reviewed and a part of it measuring 2 kanals and 10 marlas was separated as not the land of the nature of Graveyard. This land was so separated by the Asstt. Commissioner vide order dated 25-10-1977. A copy of this order dated 25-10-1977, has, however, not been placed on record. Nothing, therefore, can be said as to the merits of the order on the basis of which the land measuring 2 kanals and 10 marlas was held to be not of the nature of Graveyard. This declaration respecting 2 kanals and 10 marlas of land made in the year 1977 has no bearing on the question of validity of the impugned order of allotment as the nature of the land at the time of allotment is to be seen and determined. The learned counsel for the parties agree that change in the nature of the land if any brought subsequent to the date of allotment would be inconsequential. The perusal of the jamabandis on record establish that since 1938-39 till 1970 when the allotment was made the land measuring 14 kanals and 1 marla, khasra numbers 6563 and 6564 stood recorded as Ghair Mumkin Kabarastan in possession of Ahl-e-Islam though Provincial Government is recorded as owner in the ownership column. Even the copy of khasra girdawari pertaining to period from kharif 1962 to Rabi, 1966 (Annex. R8) produced by the respondetits shows the land as in possession of the Muslims. It further shows that in 1962, 11 kanals and 11 marlas was graveyard while 3 kanals were under the Brick-Kiln. In the other years only 14 marlas was shown under Graveyard. These entries of khasra girdawari showing land measuring 14 marlas only under graveyard stand contradicted by the order dated 25-10-1977 of the Assistant Commissioner whereby only 2 kanals and 10 marlas was treated not to be graveyard while the remaining land measuring 11 kanals and 11 marlas was shown as graveyard. The entries of khasra girdawari showing graveyard on 14 marlas only cannot be relied upon. Even otherwise no presumption of truth is attached to the entries of khasra girdawari.
5. The plea of the learned counsel for the respondent that the land was rightly allotted to the allottee respondent as land in dispute was State land and as per record was in the ownership of Provincial Government is without merit. The use of the land as graveyard and in possession of Ahl-e-Islam since 1938-39 till allotment was not disputed. It is not uncommon to find graveyards on the State land. The long users of the land for religious purposes and specially as graveyard would give rise to the presumption as to creation of Waqf It is well-established A that where divestiture has been established the encroachments made and user of an insignificant part for some other purpose unauthorisedly would not destroy trust/waqf. It was in view of these principles that the learned counsel for the Border Area Committee fairly conceded that the land under the graveyards though owned by the State cannot be allotted by the Border Area Committee. The allotment of khasras numbers 6563 and 6564, measuring 14 kanals and 1 marla which allotment was reduced to only 2 kanals and 10 marlas under order dated 25-10-1977 without any objection from the said respondent cannot be sustained in law.
6. As regards the objection as to locus standi of the petitioner, it will be seen that the claim that the petitioner Society is managing the Graveyard and the Mosque was not refuted before me. The plea on the other hand was that the petitioner-Society wants to have the land for constructing shops and as such it will also change the character of the land. The question whether such a user is permitted by law or not is not relevant. Any unauthorised user of the land by the Society or any one else can be stopped by initiating proper proceedings as and when such a situation arises. The Society in order to preserve the land of the Graveyard can maintain the petition. The objection as such is repelled.
7. For the reasons given above, the allotment of land measuring 14 kanals and 1 marla of khasra numbers 6563 and 6564, Mauza Kot Rukan Din, Kasur made in favour of respondent No.5 is hereby declared to have been made without lawful authority and hence of no legal effect. The writ petition, therefore, succeeds and is hereby accepted with costs.