SYED YAQOOB SHAH Versus ISLAMIC REPUBLIC OF PAKISTAN
Syed Yaqub Shah and his two brothers, plaintiffs/petitioners instituted a suit against defendants/respondents for declaration to the effect that the vacant site measuring 4 Kanals, 17 Marlas which includes a shrine of Saint known as Mian Sahib Rasool Shah, out of, an area measuring 222 Kanals, 4 Marlas, comprised in Khasra No.24, Khata No.1/11, Peshawar Cantt. is the property of the said shrine and the defendants have no right therein whatsoever in any capacity to interfere or claim ownership. According to the plaint, the plaintiffs/petitioners are the descendants of Mian Sahib Rasool Shah who is buried in Khasra No.24 where a shrine and a mosque already exist. The shrine has been constructed since 1756 and the petitioners and their predecessor‑in‑interest used to stay and manage the Shrine alongwith vacant site. The defendants have started construction of a bungalow and certain other residential accommodation near the said shrine and are going to encroach upon the area of the suit property. The plaintiffs are in possession of the same for the last more than two centuries without any hindrance from the defendants. They also prayed for the grant of a permanent injunction restraining the defendants from making any construction over the area of the shrine.
2. The suit was contested by the defendants by filing their written statement and in view of the pleadings of the parties, the learned trial Judge framed as many as nine issues including the relief. Evidence was produced by both the parties in support of their respective contentions. After hearing counsel for the parties, the learned Senior Civil Judge, Peshawar vide his judgment and decree, dated 17‑7‑1990 passed a decree of an area measuring 3 Kanals, 10 Marlas (taking into consideration the report of the Local Commissioner) in. favour of the plaintiffs/petitioners with costs.
3. Dissatisfied with the above judgment and decree of the trial Court, the defendants/respondents preferred an appeal before the Appellate Court and the learned Additional District Judge, Peshawar vide his judgment and decree, dated 22‑5‑1995 accepted the appeal and passed the following order:
"In view of the above I accept the appeal, set aside the impugned order with observation that shrine, mosque graveyard on the suit land should not be demolished till permission from the Auqaf Department. "
4. Discontented with the above judgment and decree of the Appellate Court, dated 22‑5‑1995, the plaintiffs‑petitioners filed the instant revision petition in this Court.
5. The learned counsel for the plaintiffs/petitioners in support of his petition submitted that the plaintiffs‑petitioners had initially prayed for declaration and permanent injunction for an area of 4 Kanals and 17 Marlas out of total area of 222 Kanals and 4 Marlas available in Khasra No.24, Peshawar Cantt alleging to be a part and parcel of the shrine of Mian Sahib Rasool Shah ancestor of the petitioners; that the Revenue Record from the year 1895‑96 Old Khasra No. 1/155/Khasra No.292 measuring 15 Kanals, 17 Marlas out of which shrine in dispute shown on an area of 4 Kanals, 11 Marlas. These entries remained intact up to the year 1929‑30, whereafter new Khasra No.24 has been inserted instead of Khasra No.292 which is amply proved from the record Exh.P.W.3/1 to Exh.P.W.3/12 and Exh.P.W.4/1 to Exh.P.W.4/3 placed on record; that according to the documents Exh.D.W.I/1 to Exh.D.W.l/3 the extract from General Land Register produced by D.W.1 whereby the area of shrine/Ziyarat is mentioned as 990 sq. ft. He further argued that in order to ascertain the correct position the trial Court appointed a Local Commission who in his report, dated 22‑11‑1994 indicated the area of Ziyarat to be 3 Kanals, 10 Marlas instead of four Kanals, 17 Marlas as prayed for in the plaint. According to the learned counsel no evidence was produced on Issue No.4 regarding limitation. However, possession of the petitioners is proved as user since long, besides entries in the Fard Jamabandis which are still intact, therefore, the question of limitation does not arise. The findings of the Appellate Court are based on surmises and conjectures. The entitlement of the petitioners is supported from the entries in the Revenue Record of 1985‑86 coupled with the fact of being immemorial ‑ user which carries presumption of truth and under no circumstances entries of a public document could be ignored. He further contended that the report of the Local Commission confirming the stand of the petitioners and verdict by the trial Court is sufficient and substantial proof in support of the petitioners whereas G.L;R. produced by the respondents is not strictly a public document as compared to Revenue Record. It has lesser value in character for the solitary reason that it is prepared by the respondent‑Department. A Government Department could not be treated differently than an ordinary citizen so its record being disputed does not carry the presumption of truth. There is no reason to claim ownership through prescription especially when section 28 of the Limitation Act has been declared as un‑Islamic by the Honourable Federal Shariat Court 1992 SCMR 2093. Lastly the learned counsel for the petitioners laid stress upon the cross‑examination of D.W.1 whereby according to him he has admitted that there is vacant land and Baghicha around the shrine. However, he failed to give exact area of the said Baghicha being the official of Military Estate Office. Moreover., the Local Commission was appointed who had negated the version of the respondents and confirmed that the open area measuring 3 Kanals; 10 Marlas do exist around the shrine.
6. On the other hand learned counsel for the defendants/respondents vehemently opposed the above contentions of the learned counsel for the plaintiffs/petitioners and submitted that he would confine .his submissions to the legal aspect of the case in the light of the evidence available on record. The plaintiffs/petitioners mainly relied upon the Revenue Record Exh.P.W.3/1 to Exh.P.W.3/12 and Khasra Girdawari Exh.P.W.3/13. It would be relevant to point out that in Exh.P.W.3/1 to Exh.P.W.3/13, i.e. Jamabandis of 1929‑30, 1932‑33 and 1936‑37, in the column of ownership as well as cultivation/ possession, the entry to the effect has been recorded excluding 'any private individual in the column of ownership. In the year 1936 the General Land Register for the entries of the property situate at Peshawar Cantt prepared under the management and administration of the Ministry of Defence. The ownership of property described therein in different Survey numbers. He further argued that it is in the year 1940‑41, the ownership column would show ? as owner and column of cultivation would also show. However, subsequently the name of the predecessor of the plaintiffs? petitioners has been added in the column of cultivation. Learned counsel for the respondents contended that it is an established principle of law that a person who claims ownership of any property, he shall stand upon his own legs whereas in the instant case the plaintiffs are claiming ownership on the basis of entries in the column of cultivation which is not all conducive of their stand, moreso the title of ownership pertains to an area of Ziyarat where only the grave is situated which does get support from any document i.e. Fard Jamabandis, mutation or any other Revenue Record showing the mode/acquisition of the property situated in the Cantonment area belongs , to Government of Pakistan and no allottee/occupant in any capacity can become the owner of the said property. The ownership belongs to the Government of Pakistan whereas ,the occupant thereof is lessee. The lease is of two types, one is old grant (free lease) and the other is on lease rent. The record in this behalf is silent about the plaintiffs‑petitioners as to their status in the property. In the circumstances, the defendants/respondents are established owners of the property vide Exh. D. W ,1 /4 to Exh. D. W .1 / 12. "Notes on Tenure Held on Old Grant Terms" at pages 232‑33 of Military Land Manual would further fortify the paid' claim. As far as the claim of possession is concerned that has been preferred by relying on documents Exh.P.W.3/13 i.e. the Khasra Girdawari showing the plaintiff which too does not create title of adverse possession of the plaintiffs? petitioners. Once G.L.R. having been prepared in the year 1936, the Revenue Record becomes irrelevant. Learned counsel for the respondents further submitted that under section 115 of the Qanun‑e‑Shahadat Order, 1984 there would be an estoppel for the plaintiffs/petitioners as held by the superior Courts and even if they have been shown in possession in the Revenue Record subsequently as "Ghair Dakhal Karan". Their possession shown in the same Revenue Record Exh.P.W.3/13 in the years 1968‑69, 1969‑70, 1970‑71 and 1971‑72 would testify that the claim is manoeuvred and bogus one. In the circumstances" the plaintiffs‑petitioners having been miserably failed to produce an iota of evidence to establish their claim, the revision petition merits dismissal. Placed his reliance on 1968 SCMR 213.
7. I have heard the learned counsel for the parties and have also gone through the written arguments furnished by them and also studied the relevant Rules i.e. Cantonment Land Administration Rules, 1937.
8. Before reaching any conclusion, perusal of relevant rules is very much expedient in the matter which for ready reference is quoted below:‑‑
"Chapter I
(i) The commentary of the Cantonment Land Administration Rules, 1937 is intended to be primarily and essentially a guide to the interpretation of those Rules, the notes supplement but in no way override, the provisions of the statutory rules. They are endorsed by the Government of India and will be acted upon accordingly.
(ii) The salient features of the Cantonment Administration Rules are as follows:‑‑
(a) They seek to secure all possible military requirements and to prevent encroachment on Government rights, by providing, a detailed procedure for the management of all Cantonment lands based upon a scientific classification and a complete record of every piece of land in a Cantonment.
(b) They are designed to safeguard the financial interests of the Government of India and incidentally of Cantonment Funds ‑by ensuring that whenever land is disposed of in future to private persons or associations it shall be leased on terms which will secure an adequate return to the lessor and adequate security of tenure to the lessee.
(c) They have been deliberately so framed as to secure for the military authorities, with the generous consent of the Provincial Governments, the benefit of the advice of the local civil authorities, and relief, so far as possible, from administrative duties of a non‑military character.
(v) Military Estate Officers.‑‑‑ Military Estates Officers appointed under rule 2(e) are the agents of the Government of India for the administration of certain lands the property of that Government, and perform the functions prescribed by these rules and the rules for the Acquisition, Custody and Relinquishment of Lands (hereinafter referred to as the A.C.R., Rules). They hold a position of official independence from the Military Authorities or and are also officially independent of the Cantonment Boards and are subject to the orders of the Government of India alone. Official correspondence between the Military Estate Officer and the Government of India and vice versa will be carried on through the Deputy Directors and the Directors, Military Lands and Cantonments, and not through the Military Authorities.
Military Estates Officers will not be appointed as members of Station Boards. In certain cases, information may be required from them before the recommendations of a Station Board are made, and in most cases they will be requited to take action when the recommendations have been approved, but Station Boards themselves are purely military and advisory in character.
Such information as is required should, therefore, be obtained independently from the Military Estate Officers.
Chapter II
General Land Register.‑‑‑ (1) The Military Estates Officer shall prepare, in the form prescribed in Schedule I, a General Land Register of all land in the Cantonment‑‑‑
(a) inside Bazars, and
(b) outside Bazars.
(2) No addition or alteration shall be made in the General Land Register except with the previous sanction of the Central Government or such other authority as the Central Government may appoint for this purpose or in accordance with the provisions of rules 10 and 45.
(i) Preparation and Maintenance of the General Land Register.
(f) Every piece of land which is in separate occupation or use of any kind shall be given a separate survey number in the register. Where a military holding is spread over large areas, each of which is separated by a well‑defined boundary, each portion should receive a separate number; roads which traverse a holding and over, which the public has a right of way should be excluded from the holding. 'Separate survey number .includes Survey numbers as weld as subsidiary survey numbers. In the case of mutations the plot should be described by subsidiary survey numbers.
(i) Private lands should be given a survey number and the area entered in column 4. The entries in columns 6, 7, 8, "9 and 10 will be 'private'.
(iv) Inspection and supply of extracts of the General Land Register.‑‑‑The General Land Register is a public document within the meaning of section 74, Indian Evidence Act, 1872, as being the record of acts of a Public Officer, namely the Military Estates Officer on whom is cast the duty of preparing and, maintaining the register. There is no statutory right in the public to inspect public documents as such. When the right to inspect or take a copy is expressly conferred by statute the limit of the right depends on the true construction of the statute. When the right to inspect or take a copy is not expressly conferred, the extent of such right depends on the interest which the applicant has in what he wants to copy and in what is reasonably, necessary for the protection of such interest. (Woodroffe and Amir Ali's Evidence Act, page 574)."
9. The record of land situated in the Cantonment area comprised of private land and Government land which is maintained and prepared under Cantonment Land Administration Rules, 1937 by making entries in the Register called General Land Register wherein complete record of every inch and piece of land within the area of Cantonment is entered and maintained accordingly in the said Register. According to the Cantonment Land Administration Rules, 1937 which extend to whole of Pakistan, the General Land Register is a public document within the meaning of section 74 of Evidence Act, 1872. After the promulgation and enforcement of Cantonments Act, 1924 and Cantonment Land Administration Rules, 1937, the land situated in the Cantonment areas acquired by the Government of Pakistan which is to be managed and controlled by the Ministry of Defence. The Revenue Record previously maintained by the Revenue Department after the acquisition of land by the Ministry of Defence regarding Cantonment areas become redundant and the ownership column or entries whatsoever regarding the occupancy of the land made by the Revenue Department is of no value and the land record prepared by the Military Estate Office has preferential value.
10. In view of the above situation, the record of Survey No.731 i.e. Ziyarat Mian Sahib as per Revenue documents showing 4 Kanals, 17 Marlas and. 3 Kanals, 10 Marlas subsequently as per report of the Local Commissioner cannot be taken into account and according to G.L.R. maintained by Military Estates Officer Khasra No.24 in respect of Ziyarat Mian Sahib was converted into Survey No.732 where the area of Z, iyarat prescribed in G.L.R. is 990 sq. ft. the entry of 990 sq. fit is already available in the G.L.R. since 1928. Survey No.731 is also situated adjacent to Ziyarat Mian Shaib which was bungalow on old grant occupied by a private party later on acquired and resumed by Pakistan Air Force, the area of which is recorded in the G.L.R. as 2.170 acres which in the present situation as alleged by the petitioner is much less and in case the area of alleged Baghicha around the Holy shrine is included of then the area of 2.170 acres of Survey No.731 comes to correct measurement in consonance with G.L.R. In view of Cantonment Laws the land in Cantonment areas except superstructure vested and owned by the Government of Pakistan after the promulgation and enforcement of Cantonments Act, 1924 and Cantonment Land Administration Rules, 1937 all land and property in such area had taken over and acquired by the Ministry of Defence, Government of Pakistan so any previous title holder having right in the property had automatically been vanished and it had become under the purview of the Government of Pakistan for fresh disposal.
11. It was tip to the Ministry to dispose of the property .according to Cantonment Land Administration Rules, 1937 whether for Military purpose or residential purpose or allot to a private person on lease but with exception in respect of mosque, temples, shrines and only, religious places of respective believers i.e. Muslims, Hindus, Sikhs etc. to defend the spiritual and religious feeling of such believers. For this very purpose the area of Ziyarat Mian Sahib was given independent and separate entity in the G.L.R. maintained by Military Estate Officer, Peshawar which area of shrine, as given by the Military Estates Officer is described as 990 sq. ft. However, it is noteworthy that on the spot the covered area of shrine is about 14 Marlas including mosque, graveyard beside shrine. This structure is properly covered and bounded by wall since decade which very fact is even confirmed and admitted by the official of the Military Estates Office.
12. In the circumstances the covered area of Ziyarat Mian Sahib, whatever it is whether 14 Marlas or above or less the respondents shall not interfere in the covered structure already exists of the said shrine, so the G.L.R. is required to be corrected and amended accordingly however, petitioners can move application in this respect to M.E.O. for proper adjudication and entries.
13. So for the Baghicha around the Holy shrine is concerned, it is lying vacant and it could not be proved that it is under the use of Matwalis of the Holy shrine nor by the owner of the bungalow in Survey No.731. The record is quite silent about the said vacant place. However, both claim the vacant area in question as part and parcel of their survey number. The petitioners accepted revenue papers which after the preparation of the Cantonment Record by the Ministry of Defence have lost its value even in the Revenue Record the petitioners are shown as cultivators which otherwise do not confer any title on any person with the entry in the column of cultivation.
14. 3 Kanals, 10 Marlas around the Holy shrine is coming vacant since decade. The bungalows around the Holy shrine and the vacant area are comprised of sufficient covered area/open area with Survey No.732. The adjacent bungalows are complete in all respect covering lawn, garrage, servant quarters and living accommodation, therefore, it will be the fitness of things that the open left over area measuring 3 Kanals, 10 Marlas be brought into use for welfare purpose. As a mark of respect and to keep and maintain the .sanctity of Holy shrine, therefore, the respondents are directed to convert the area in question for the purpose of welfare project preferably for the Dispensary for the convenience of the inhabitants of the area. This will be charitable and philanthropic step strictly for the larger interest of the community and will be continuing and everlasting charity on the part of the respondents whereby the defence personnel, civilians, needy persons/passersby etc. can be treated in the event of emergency or in odd hours.
Q.M.H./M.A.K./352/P ?????????????????????????????????????????????????????????????????????? Order accordingly.