' JAVED IQBAL, J.---These two appeals by leave of the Court are directed against judgment, dated 17-11-1994 of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the two RSAs preferred on behalf of appellants were dismissed.
2. Leave was granted by this Court vide order, dated 31-5-1995 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:- ' "The facts giving rise to Petitions No,111 of 1995 (Ali Ahmad and others v. Municipal Committee, Talagang and others and 112 of 1995 (Ali Ahmad and others v. Abdul Rashid and others) are that on 12-12-1964 the land under dispute was allotted to Umardin and Mehtab Din by Settlement Department. On 7-6-1966 they sold it to Muhammad Nawaz. On 17-9-1971, Muhammad Nawaz sold it to the petitioners. The petitioners intended to construct a building thereon. They got sanctioned/approved plan. The residents of the locality objected to it. The Municipal Committee recalled the sanction/approval. The petitioners filed suit for declaration and permanent injunction in the Court of Civil Judge, Campbellpur (now Attock) . Against Municipal Committee, Talagang.
Abdul Rashid and others also filed civil suit against the petitioners before the same Court. Both the suits were consolidated. Issues were framed. Parties led evidence. On 15-4-1977 the suit filed by the petitioners was dismissed but suit filed by Abdul Rashid was decreed. The petitioners filed appeal.
On 17-7-1978 the District Judge, Attock, dismissed appeal. The petitioners filed revision petitions before the Lahore High Court, Rawalpindi Bench, Rawalpndi. On 17-11-1994 a Judge in Chamber was pleased to dismiss the revision petitions. The petitioners have come before this Court and challenged the same through Petitions Nos.111 of 1995 and 112 of 1995. As in both the petitions the petitioners have assailed the same judgment we intend to dispose of the same by this single order.
2. Mr. Gul Zarin Kiani, Advocate Supreme Court, the learned counsel for the petitioners at the ouftet contended that after hearing the petitioners the learned Judge of High Court had reserved the judgment but surprisingly his clients came to know that judgment was said to have been announced on the same day. The learned counsel canvassed that after having come to know his clients immediately applied for copies of the judgment and then filed petitions before this Court.
The delay of 54 days as such be condoned. The learned counsel for the Caveator contended that the petitioner's counsel who hails from Lahore had left the Court and the judgment was announced thereafter. However, the learned counsel admitted that the judgment was not announced in his presence. In support of his contentions the learned counsel for the petitioners drew our attention to the cause list and daily report. The same indeed reflect that the judgment was ordered to be reserved. In such view of the fact we are inclined to condone the delay. Coming to the facts of the case it may be observed that the record indicates that the land in dispute was "Bun Rafah-e-Aam''.
The learned counsel for the petitioners contended that the land was originally an Evacuee Property and was acquired by the Central Government and transferred to Umar Din and Mehtab Din, the predecessor-in-interest of the petitioners free from all encumbrances. He emphasized that under section 16 of the Displaced Persons Act when land is permanently settled to a person it shall vest absolutely in him. Besides, he contended that while deciding Issue No,9, the Civil Judge held that the petitioners were the owner of the land and its finding on the issue has not been disturbed either by the appellate or the revisional Court. In such view of the fact the learned counsel emphasized that his client's suit was erroneously dismissed by the Civil Court and likewise by the Appellate Court and the revisional Court erroneously upheld the judgments and declined to decree the suit of the petitioners.
3. The learned counsel for the Caveator contended that no doubt the petitioners were owners of the land but they could use it for 'Rafahe-Aam' but not for any other purpose.
4. Lastly the learned counsel for the petitioners contended that the Municipal Committee intended to construct a Complex there and for that purpose it has got published advertisement in the newspapers. The learned counsel for the Caveator conceded that steps taken by the Municipal Committee were wrong and he would advise them to withdraw the same.
5. It may be observed that when petitioners have been declared to be owners of the land the condition of the Revenue Department that the land could be only used for the purpose of Rafah-e- Aam; how far would restrict petitioners' rights?
6. We are, therefore, inclined to grant leave to appeal in both the petitions, to examine the rights of the petitioners and the use of the land for 'Rafah-e-Aam' .
7. Till disposal of the appeals the status quo ordered earlier shall remain in force. The appeals be heard at an early date."
3. It is mainly contended by Mr. Gul Zarin Kiani, learned Senior Advocate Supreme Court on behalf of appellant that both the trial and first Appellate Court have categorically held that the appellants are owners of the property in dispute and accordingly they could not be denied the right to use it without any lawful justification in the matter as may be deemed fit and proper for the reason that the land in dispute was used for Rafah-e-Aam. It is urged with vehemence that the appellants could only be deprived of to utilize their property if it had been established that a trust was created for the benefit of the public but neither any trust was created nor the property in dispute was dedicated for Rafah-e-Aam for an indefinite period. It is next contended that the respondents should have sought a declaration from the Chief Settlement Commissioner in view of the provisions as contained in section 5(2) of the Displaced Persons (Land Settlement) Act, 1958, and Civil Courts could not have been approached due to bar of jurisdiction. It is also contended that the property being "evacuee property" could have been allotted without any encumbrance which had been allotted in favour of Umar Din and Mehtabuddin after the completion of all necessary formalities as it stood vested absolutely in the displaced persons (transferees) by virtue of section 16 of the Displaced Persons (Land Settlement) Act, 1958. It is urged emphatically that even if the non-Muslim evacuee stored water for animals of the inhabitants, or that the women of the town were allowed to wash clothes there, it did not mean that the appellant had ceased to be the owner of the property duly purchased from Umar Din and Mehtabuddin to whom it was allotted and the said allotment by now had attained finality hence the question of any interference on any score does not arise. It is pointed out that with the passage of time the property in dispute has totally lost its utility for the welfare of the public in general and thus it could have been used conveniently by the appellants. It is contended that the Municipal Committee has no right or locus standi whatsoever to deal with the property in dispute because if the appellant being owner cannot change its position of how the Municipal Committee would be competent to utilize it for any other purpose. It is contended in the alternate that Municipal Committee may be directed to convert the existing pond into a public park instead of constructing some commercial centre or plazas.
4. Mr. Ibrahim Satti, learned Advocate Supreme Court appeared on behalf of Municipal Committee, Talagang and contended that the property in dispute was got allotted fraudulently with the connivance of concerned functionaries and thus Umar Din and Mehtabuddin were not the bona fide owners of the property in dispute which was meant for Rafah-i-Aam in the Revenue Department and as such could not be made a part of compensation pool and hence the question of its allotment does not arise. It is also pointed out that the property in dispute being charitable, non-agricultural land and located in urban areas could not have been allotted to Umar Din and Mehtabuddin against their claim. The impugned judgment has been supported being free from any illegality or serious irregularity with further submission that the concurrent findings of fact may be reversed for which no lawful justifiable excuse is available.
5. We have carefully examined the respective contention as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. The judgments/decrees passed by learned Civil Judge and District Judge have been perused carefully. The impugned judgment has also been examined. It appears from the scrutiny of record that since the time immemorial the property had been dedicated as is apparent from Register Haqdaran pertaining to year 1923-24 wherein it has been shown as "Rafa-iAam Ghair Mumkin" meaning thereby that it was meant for the use of general public and accordingly the allottee or the purchaser, whoever, he may be, will have to accept the land alongwith its characteristics which cannot be extinguished merely on the ground of allotment or purchase. Exclusive ownership was vested in Babaik Singh by whom the property in dispute was dedicated for the welfare of the community and, therefore, the same had been mentioned as Rafah-i-Ghair Mumkin to be utilized by the public-at-large. It is worth- mentioning that Babaik Singh being the owner of the land in dispute was competent to utilize the property in any manner as deemed fit and proper who admittedly preferred the interest of the community at large by dedicating it for the use of general public instead of making any personal gain. In such view of the matter no one else except Babaik Singh had any locus standi to substitute the use of land meant for Rafah-i-Aam with that of "private or exclusive use". Admittedly the land was allotted in favour of Umar Din and Mehtabuddin but it remained as "Rafah-iAam Ghair Mumkin Ban" in the Revenue Record which was never got changed by the original allottees who had given a categoric assurance to the Chief Settlement Commissioner (Lands), Campbellpur in Suit No,2/II instituted on 19-12-1972 by one Allah Ditta that the nature of the land would not be changed. The learned Chief Settlement Commissioner while disposing of the said suit has observed as follows:-- ' "I have heard the learned counsel for the respondents and Allah Ditta, applicant, and carefully examined the record in similar application made by the applicant on 24-1-1971. During inquiry the said application it was revealed that the allotment made in favour of Umer Din was not properly processed. No proposal was made by the Tehsil Revenue Officer and the case was not put up before the Allotment Committee and the allotment order was passed by the S.D.O. Deputy Settlement Commissioner, Talagang, beyond the jurisdiction. According to the entries in the Revenue Record the land involved is shown as Ghair Mumkin Rafah-i-Aam and as such ordinarily it was not open to allotment. The land was owned by Babaik Singh but it was used for public purposes. By obtaining allotment Umer Din etc.- claimants rather stepped in the shoes of Babaik Singh. There is nothing wrong if the nature of land Ghair-Mumkin Ban-Rafah Aam, is not changed by the occupants. The learned counsel for the respondents has conceded to this arrangement and has admitted, that nature of land will not be changed neither the allottees nor the subsequent transferees can be allowed to construct shops or houses on the land reserved for Rifah-Aam. With these observations application is filed. Copy should be sent to the Administrator, Town Committee, Talagang for information." (Underlining is ours).
6. A bare perusal of the above reproduced order would reveal that the applicant namely Allah Ditta had moved an application under sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958, and challenged the allotment to the original allottees being illegal. The above application is complete answer of the main objection as raised by Mr. Gul Zarin Kiani, learned Senior Advocate Supreme Court on behalf of the appellants that instead of approaching the Civil Courts action could have only been initiated by invoking the relevant provisions of Displaced Persons (Land Settlement) Act, 1958. We are, therefore, of the considered opinion that it was beyond the competency of Umar Din and Mehtabuddin to transfer better title in favour of appellants who might have seen the Revenue Record pertaining to land in question prior to finalizing the deal which defined its nature in a crystal clear manner. The sale-deed is also indicative of the fact that at the time of sale land was "Moqbuza Rafah-i-Aam" and they must be sure that what was being purchased. It is worth-mentioning that the learned counsel for the appellant had conceded before the learned trial Court that the characteristic of the property in question could not have been changed and it was observed by the learned trial Court as follows:-- ' "When this legal proposition was confronted to the learned counsel for the plaintiffs Ch. Muhammad Abdullah, Advocate, he frankly admitted at bar that a property which is reserved for public welfare and coming into use as such for a long period, cannot be used otherwise by the owners. In view of this situation, I have no hesitation to agree with the arguments advanced by the learned counsel for the defendants. So, it is decided on Issue No,10, that the disputed land is reserved for public purpose and is used as a 'Bun' Rafah-e-Aam."
7. It is, however, an admitted reality that the land in dispute was "Ban Rafah-i-Aam" but at present cannot be used for the purpose it was meant but certainly it can be used for any other purpose for the welfare of general public. The land in dispute was visited by learned District Judge himself and relevant portion of his report is reproduced herein below to appreciate the prevalent position:-- ' "The disputed property is land situate in the main Bazar, Talagang, on Mianwali-Chakwal Road adjacent to Bus Stand and in front of Faran Hotel. It is a sort of a big pit, 5 ft, lower than the road level. A Nala coming from the southern side opens in this land, due to which there was stagnant water one to three feet deep on this land. The residents of the surrounding houses stated that it was a nuisance for them and therefore, some arrangement be made for connecting this Nala from its end on the northern side of the road with the drain towards the north-eastern side of this land. In my opinion, the stagnant dirty water emitting obnoxious smell in the disputed land was a cause of nuisance to the residents of the locality. I noticed that . This water had damaged some of the walls of the houses towards north. In any case such an ugly and unhealthy spot must cease to exist in he heart of the town. This plot of land which is located on the side of the busiest road of Talagang is very valuable and it should not be allowed to be used for the present purpose. Diversion of this water can be easily managed to the north-eastern drain fromwhere it can flow to the agricultural land and thus can serve a useful purpose."
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 the doctrine of cypress whereby if the formal or 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.
9. In the light of foregoing discussion the Municipal Committee, Talagang is directed that the land in dispute which has assumed a filthy and ugly look and has become threat to human health and is nothing short of a filth depot should only be utilized for public park without any reflection on the proprietary rights pertaining to the appellants which in our view would be in the interest of public- at-large. The needful be done without further loss of time to save the inhabitants of the vicinity from a loathsome situation. The abovementioned appeals being devoid of merits are dismissed subject to modification as mentioned hereinabove.