P L D 2016 Peshawar 254 (PLP)

NISAR HUSSAIN KHAN, J.

Petitioners have assailed the judgment and decree of learned Additional District Judge-Ill, Peshawar, dated 29.6.2011 whereby accepting appeal of respondents, judgment and decree of the learned Civil Judge in Suit No.191/2001 dated 30.11.2010 dismissing suit of the plaintiffs/respondents, was set aside and suit of the plaintiffs/respondents was decreed.

2. Precisely stated facts of the case are that respondents/plaintiffs filed a suit in the court of learned Senior Civil Judge, Peshawar seeking declaration to the effect that they being Balmik Hindus are only entitled to perform their religious rituals and prayers in the Temple situated in R.A. Bazaar Peshawar. While defendants Nos.1 to 7, after their conversion from Hinduism to Sikhism, have no right to interfere with their right in the suit temple; that proceedings under section 145, Cr.P.C. initiated by the official defendants in collaboration with rest of the defendants are illegal, without jurisdiction, hence cannot legally be sustained. They also sought perpetual injunction.

3. Defendants controverted the stance of the plaintiffs in their written statements by raising variety of objections, factual as well as legal. The trial court after recording pro and contra evidence, dismissed the suit. However, appeal filed by the plaintiffs/respondents was accepted , vide impugned judgment, suit was decreed by setting aside the judgment of the trial court. Hence the instant revision petition.

4. Learned counsel for petitioners, after scanning record and taking the court through various pieces of documentary evidence, contended that the impugned judgment of the appellate court is result of misreading, non reading and wrong exercise of jurisdiction. He maintained that the impugned judgment is based on letters of authority whereby some amount has been sanctioned for renovation of Mander while record of GLR has not been taken into consideration nor the documents produced by the defendants were considered. He maintained that there are two properties adjacent to each other, one having a Mander and the other one is having a Gurdawara in it. He maintained that lease deed was executed with the representative of the Governor regarding Gurdawara. He pointed out that question of jurisdiction has already been settled by this court by deciding W.P. No. 1010/10 which has attained finality. He emphasized that oral evidence led by the plaintiffs cannot overweigh the documentary evidence in favour of the defendants in terms of Articles 103 and 104 of the Qanun-e-Shahadat Order, 1984. He lastly submitted that in view of the non-compliance of mandatory requirement of Order I, Rule 8 C.P.C., the suit is incompetent. To augment his arguments, he placed reliance on Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCMR 741) and Waqar Alam Saeed v. District Coordination Officer/Chairman and 3 others ( 2005 YLR -1742).

5. As against that learned counsel for respondents/plaintiffs argued that the trial court while dismissing the suit relied upon the sole statements of DW.4 without considering rest of the evidence. While the impugned judgment of the appellate court is well reasoned, based on proper appraisal of whole record and evidence of the parties. He maintained that defendants converted from Hinduism to Sikhism, so they had no religious place of their own to worship in and now are agitating against the interest of the plaintiffs to which they are not entitled. He maintained that all the civic and utility facilities are in the name of Mander and not Gurdawara which is ample proof of the stance of the plaintiffs. He submitted that record of GLR is regarding a platform while Dharmasala is maintained as rest house for pilgrims of Hindus. He lastly submitted that Order I, Rule 8, C.P.C. does not contain penal clause, hence contention is not tenable.

6. Learned counsel for respondents Nos.7 and 8/Chairman Evacuee Trust Properties and Evacuee Trust Board submitted that both are the trust properties and that they were going to partition the property which could not be effected because parties were at dagger drawn and entered into litigation.

7. I have heard learned counsel for the parties and have gone through the record with their valuable assistance.

8. Dispute between the two communities of Hindus and Sikhs arose about the premises situated in R.A. Bazaar, Peshawar, which is evacuee trust property controlled by the Evacuee Trust Property Board. It is also pertinent to mention that it is situated within the jurisdiction of the Cantonment Area, Peshawar. The Hindu community claims the whole building to be as Mander used by them since time immemorial, exclusively for the performance of their religious rituals and worship. On the other hand, Sikh community claims that that there are two parts of the building, one used as Mander by the Hindu community and the other one remained under their constant control as Gurdawara for performance of their religious rites. When the dispute went up to alarming situation, posing threat to law and order, local administration attached the whole premises under Section 145, Cr.P.C. and constituted a committee headed by Chairman Evacuee Trust Property Board with the concurrence of Military Estate Officer, Peshawar. The committee made certain proposals: the premises be equally divided amongst both the communities of Sikh and Hindu and if the proposal is not accepted, let premises be sealed and both communities be directed to go for their worship to other Manders and Gurdawaras situated in Peshawar City which are spacious enough to accommodate the whole population of their respective communities. The proposal was not accepted by the Hindu community though was acceded to by the Sikhs. As such Assistant Political Agent (FR)/MIC, Peshawar, asked the Deputy Commissioner, Peshawar to execute the alternate proposal of sealing of the premises, vide his letter No.102-07/APA, dated 25.1.2000. This is the letter which has been questioned by the plaintiffs/Hindus in the instant suit.

9. The Hindus/plaintiffs claimed declaration of right of exclusive performance of their worship in the suit temple with further prayer that the defendants have no right whatsoever to use the same as Gurdawara for performance of their religious rites. They also sought perpetual injunction.

10. Survey No.268/1 measuring 487 Sq. feet was leased out to Hindu community as old grant. While the other Survey No.257/1-A measuring 355 sq. feet per Schedule No.XI modified by CLA Rules 1937 was leased out to Managing Body of Gurdawara Sikh community of R.A. Bazaar, Peshawar and survey No.257/30 was kept on the old grant and Dharmasala No.221/Gurdawara is in the name of Hindu and Sikh communities. To prove their case, plaintiffs examined clerk Election office to bring on record Electoral list containing the names of the plaintiffs which has got no relevance with the issue in hand because it is undisputed that the plaintiffs are resident of Peshawar. PW.2 is the record keeper of Cantonment Board, Peshawar who tendered in evidence a letter of Deputy Administrator Evacuee Trust Property Peshawar to Military Estate Officer, Peshawar Ex.PW.2/2 wherein it is stated that their objection regarding area of Balmik Mander in RA Bazaar Peshawar is clarified which is 1829 Sq. feet and not 487 sq. feet belonging to Mander before partition, so it was requested that area of 1829 sq. feet be regularized in the site plan to enable them to start construction work as the Federal Government was pressing hard for construction of Mander in question. Prior to it, another letter was addressed by the Deputy Administrator, Evacuee Trust Properties, Peshawar, on 4.5.1983 to the Cantonment Executive Officer, Peshawar Ex.PW.2/3 regarding construction of the same Balmik Mander. It was stated in the letter that the Federal Government was very keen for construction of Mander on priority basis, hence necessary approval be solicited in the light of direction of Federal Government. Ex.PW.2/4 is an agreement executed by one Ram Chand S/O L. Uttan Chand with the Cantonment Magistrate and Secretary Cantonment Committee Peshawar for digging a well in the Temple RA Bazaar, Peshawar, on 8.12.20122. It is pertinent to mention that in this agreement there is no measurement of the Temple. Ex.PW.3/3 is a sanction order of the Executive Engineer dated 8.3.1983 about reconstruction of two rooms and one Hall in Balmik Mander with estimated cost of Rs.88300/-. There is another letter of Deputy Administrator, Evacuee Trust Properties, Peshawar addressed to Cantonment Executive Officer, Peshawar, dated 13.4.1983 Ex.PW.3/4 for construction of new rooms in Balmik Mander RA Bazaar, Peshawar, plan of which has been prepared by Evacuee Trust Property Board, Lahore. Ex.PW.3/11 is a building application/ plans addressed to Deputy Administrator, Evacuee Trust Properties, Peshawar, by Cantonment Executive Officer, Peshawar. In para-4 of this approval letter, it is explicitly provided that the sanction is granted purely from municipal point of view and it does not confer any ownership rights on any land, private or public, nor does it give any authority to the applicant to encroach upon any land beyond the area of building/plot. There is no reference of the measurement of the building or the site on which it was proposed to be constructed. In the letter dated 24.5.1983, Ex.PW.3/5 original proposed construction plan along with copy was sent by the Executive Engineer to Deputy Administrator, Evacuee Trust Properties, Peshawar. Vide letter dated 13.7.1983 Ex.PW.3/6 , latest position about construction work was enquired by Administrator from Deputy Administrator, Evacuee Trust Properties, Peshawar. Ex.PW.317 is the same letter which has already been exhibited as Ex.PW.2/2 from Deputy Administrator, Evacuee Trust Properties, Peshawar to Military Estate Officer, Peshawar, regarding measurement of the area of the Mander. Letter Ex.PW.3/8 dated 4.10.1983 addressed by Deputy Administrator, Evacuee Trust Properties, Peshawar to Military Estate Officer, Peshawar, is again regarding clarification of the measurement of the Mander and regularization thereof as a special case because the Federal Government was pressing hard for construction of the Mander in question, with the plea that the religious festival of "Pargat day of Maharishi Guru Balmik Sawami Gee" was scheduled for 21.10.1983 and the concerned minority community was keen for construction of the Mander . Ex.PW.3/10 is a letter dated 4.2.1985 relating to special repair of said Balmik Mander of RA Bazaar Peshawar. Ex.PW.4/1 is a copy of Meter Reader Book of the Electricity charges. Ex.PW.5/1 is once again a letter dated 13.4.1983 about preparation of construction plan of Balmik Mander which has already been exhibited as Ex.PW.3/4. Ex.PW.5/2 is a letter dated 1.10.1984 addressed by Assistant Director Lands to Military Estate Officer, Peshawar for clearance of the building plan for construction of Temple on Survey Nos.257/1-A and 268/A now being managed by Deputy Administrator, Evacuee Trust Properties, Peshawar. In Para-3 of the letter, the building plan was returned for clearance of the plan from the Land point of view. Vide letter dated 21.10.1984 Ex.PW.5/3, the plan was returned after its clearance. Ex.PW.5/5 is letter dated 6.11.1984 in corroboration of earlier letter Ex.PW.5/3. Ex.PW.5/7 is a letter containing information that the approved building plan has been received in the office of the addressee i.e. Deputy Administrator, Evacuee Trust Properties, Peshawar. Ex.PW.6/2 is a chart of consumers of SNGPL. Same is the case with Ex.PW.6/3 and Ex. PW. 6/4.

11. As against that defendants, apart from the oral evidence, examined record clerk MEO Office, Peshawar as DW.4 who tendered extract from the General Land Register as Ex.DW.4/1 which contains description of the site as platform, measuring 335 sq. feet having B-III class managed by a body of Gurdawara Community R.A. Bazaar, Peshawar. In column No.10 with the caption of nature of occupancy rights, it is noted: the Lease in Sch:XI (Modified) of the CLA Rules, 1937, executed on 28.4.1944 and registered on 29.7.1944 in Book-1 Vol.817, Page-151. At S. No.

13. In the column of remarks, it is mentioned as follows:- "This S.No. is comprised of following:- 48 Sq.ft. part of Sy.No.257/1, 287 sq.ft. Part of Sy.No.268. The total area of 345 sq.ft transferred from class 'C' to B-4 vide Def.Deptt: ltr No.18/14/UC&L/44, dt. 22.1.1944." Ex.DW.4/2 is another page of General Land Register which contains in the column of "Description" at S.No.5 as Dharmasala No. 221 with additional hand writing as Gurdawara. With reference to this entry both the counsel strenuously canvassed their respective views. Counsel for petitioners stated that Dharmasala is a building reserved by Sikh community for rest of their guests while respondent contends that Dharamasala only belongs to Hindus. This aspect of the case shall be dilated upon later on. At S.No.9 about holder of occupancy rights, it is entered in both Hindu and Sikh communities, favour and at S.No.10 it has been denoted as an old grant in column of nature of occupancy rights. In the column of remarks, it is noted that "Dewan chand stated on 17.4.1923 that the site was given over by his father for erection of Dharmasala and it belonged to Government. Ex.DW.4/3 is another copy of General Land Register which contains an entry of Hindu Temple at S.No.5 about description, measuring 487 sq. feet and Hindu community has been shown as holder of occupancy rights being the old grant. Ex.DW.4/4 is a sketch denoting Survey No. 257/1-A, survey No.268/A and survey No.257/30 which are adjacent to each other. Ex.DW.4/7 is a lease deed executed between the then Governor General in Council called as Lessor and Gurdawara Community Peshawar through their President, Secretary and others, called as Lessee, executed on 28.4.1944 by virtue of which survey No.257/1-A in the Royal Artillery Bazaar, Peshawar, in the Cantonment of Peshawar, pursuant to letter of Government of India in the Defence Depart No. 18-14-L-C&L/44, dated 22.1.1944, was leased out to the Gurdawara Community on receipt of Rs.20/- as consideration of the premium with effect from 22.1.1944. The schedule of property was also attached with the lease agreement.

12. The impugned judgment of the learned Appellate Court is solely based on the letters tendered in evidence regarding re-construction of the Mander and conversion of the defendants to Sikh religion. Indeed there are bulk of letters repeatedly produced by the plaintiffs through different PWs but regarding construction, reparation or re-construction of the Mander. Bare recital of the letters reflects that these were addressed by different authorities under the compulsion of the Federal Government for construction or re-construction of Mander, the reason best known to the then people at the helm of affairs. However, keen interest shown by the Government in re-construction or reparation of the Mander and making no reference of the Sikh community or Gurdawara does not ipso facto establish exclusive rights of Hindu community, on both parts of the suit premises. Had it been vice versa and the government of the time would have been interested for construction or reparation of the worship place of Sikh community, it would have not been considered as exclusion of the Hindu community from their premises. The interest of the government in one community does not make it the sole proprietor of a specific right or the property, by depriving the other. A blue eyed may be blessed but to the extent of one's own right, not at the cost of others. In the instant case, the learned Appellate Court swayed with the stream of letters addressed from different authorities with persistent continuity in small intervals and did not consider the evidence led by the defendants, particularly, lease agreement entered by the then Governor General with the Sikh Community about survey No.257/1-A in 1944, containing the measurement as well as schedule of description. Beside that there is General Land Register (GLR) of the Cantonment which has also been tendered in evidence containing Mander as well as Gurdawara and Dharmasala which too has lost sight of the learned Appellate Court. These documents have been discarded by the learned Appellate Court simply for the reason that original thereof were not produced by DW.4, without taking notice that in his examination-in-chief on 22.3.2010 at the end of the statement, it is specifically mentioned that original file returned after inspection. At this stage there was no such objection by the defence. The right of cross was reserved and the case was adjourned without cross- examining. Next time, when witness appeared on 16.6.2010, he was posed question that original is not with him and he rightly replied that it was not. Because original record was produced on preceding date when copies were exhibited and no such objection was raised. In such scenario findings of the appellate court are the result of glaring misreading and non- consideration of the evidence.

13. It is the stance of plaintiffs that the whole premises is part of Balmik Mander and their exclusive place of ownership with which Sikh community has got no concern nor they ever performed their religious services or rites in the same. However, cross-examination of DW.1, which admittedly is the evidence of the plaintiffs, belies their stance because a positive suggestion was put to the defence witness that there is a wall between Gurdawara and Mander and both the communities used to enter in this building. However, oral evidence need not be discussed in detail because in terms of Articles 103 and 104 of the Qanun-e-Shahadat Order, 1984, oral evidence cannot outweigh the documentary evidence, particularly, when it consists of official record. Though letters relied upon by the plaintiffs are also official documents but these are not documents of title. It is mere official correspondence for re-construction of Mander which has not been disputed by the defendants. Rather they claim that they have their Gurdawara, adjacent to it, which is being usurped by the plaintiffs. The defendants have produced documents of their rights qua Survey No.257/1-A from the office of Cantonment, Register of General Land Register and the lease agreement entered between Sikh community and the then Governor. The official record undoubtedly in terms of Article 129(e) of Qanun-e-Shahadat Order, 1984 carries presumption of truth. The official documentary evidence, which was not objected at its tendering in evidence, would prevail against oral evidence, how much in abundance it may be. It is the quality not the quantity of evidence which is to be given preference while determining the rights of the parties.

14. There is a letter containing measurement of 1829 sqft of suit premises. Suffice it to say that such measurement is not supported by any record or document of GLR maintained by the Cantonment or office of the custodian of Evacuee Trust Property. Even if, for sake of assumption, the measurement available on record is combined and jointly counted, it hardly exceeds 1000 Sqft, which is irreconcilable with the measurement shown in the letter. The letter is not supported by any cogent evidence which may be relied upon. However, measurement of Mandir is not an issue in the instant case.

15. Both parties are at variance on interpretation and ownership of expression "Dharmasala". The plaintiffs contend that Dharamshala is a term denoting a rest house established only by Hindus for Hindu pilgrims. Whereas Sikhs claim that it is meant for Sikh travellers. The divergent opinion on interpretation and connotations of Dharmasala stem out of record of GLR Ex.DW.4/2, wherein survey No.257/30 has been described as Dharmasala No.221, as well as Gurdawara. In column of holder of occupancy rights too, it is entered in the names of both the communities. The entry of description of GLR No.221 corresponds with the record of office of custodian at Page-190 of the trial court file which denotes it as CB-221 as Gurdawara and head of the family is shown as Amarnath. While CB No.222 denotes temple in the record of custodian office at Page-191, in R.A. Bazar, Peshawar. Admittedly, the suit building is an evacuee trust property, declared as such by the enactment and promulgation of evacuee laws, in aftermath of partition of the sub-continent. The record is suggestive that Temple and Gurdawara, both are in existence since partition, as per record of custodian office which is original record prepared and maintained on establishment of a new State, as such carries presumption of truth, being initial official record. The evidentiary value of such record, qualitatively, is at par with a first settlement record, carrying strong presumption of correctness.

16. The question as to whether Dharmasala is meant for the rest house of the Hindu travellers or of the Sikh, may be resolved by entering into the history of both the religions. There had been three major religions; Islam, Hinduism and Sikhism, practised in Sub-Continent, since its known history. Pages of the history reveal that all the three communities have their respective laws regarding succession, matrimonial disputes and for management, control and succession of their properties and worship places. Gurdawara being the place of worship of Sikhs was managed, controlled and succeeded through different provisions of the Sikh Gurdawara Act 1922 followed by Act of 1925 (Punjab Act VIII of 1925). Later on it was also replaced by Delhi Sikh Gurdawara Act 1971. The provisions of these enactments cater with different situations of establishment, management and resolution of disputes.

17. A cursory look of the different provisions of Sikh Gurdawara Act, demonstrates that the worship place of the Sikhism was managed under the ibid Act. Since above quoted enactments are not applicable in Pakistan, so this court is to decide the case in accordance with the law of the land. The object of refering the ibid Act is to appreciate the issue in light of their origin. Section 2 of the Act-VIII of 1925 defines different terms. However, term Dharmasala is not part of the defining clause. In absence of any definition of Dharmasala or temple, one has to revert to general dictionary meaning. The New Encyclopaedia Britannica explains the term Dharmasala as: "a city administrative headquarters of Kangra district, Himachal Pradesh State, north-western India, located on a lower slope of the Himalyas. It succeeded Kangra town as the district headquarters in 1855. Besides its administrative functions, Dharmasala is a scenic health resort, aerated water is bottled there, and slate is quarried nearby, Dharmasala was virtually destroyed by an earthquake in 1905, but it was then rebuilt. The Dalai Lama took up residence in Dharmasala when he was forced into exile from Tibet in 1959.

18. As per Encyclopaedia of Wikipedia, Dharmasala is a building or inn or rest house for religious pilgrims, for town in Kangra District Hiachal Pradesh, India. Dharmasala in Hindi is an Indian religious rest house. Dharam means religion and shala means sanctuary, hence Dharmasala is a religious sanctuary or rest-house for pilgrims, that is primarily created for religious pilgrims or as a religious endowment. Creating Dharmasala is a tradition common in Hinduism, Jainism and also Tibetan Buddhism. Just as Sarai are for travellers and caravans, Dharmasalas are specifically meant for religious travellers and built at pilgrimage sites, A Dharmasala, etymologically, means a religious school. However, the word is generally used in a different context. Most of Hindus and Buddhist temples in India offer lodging and / or dining facilities for interested individuals or small parties. They are either free or for a very nominal rate. Such a facility is called a Dharmasala. There may be a school under the temple administration in the same locality dispensing Hindu teachings. Dharmasala is essentially a Sanskrit/Hindi word.

19. In view of brief survey of dictionary meaning and etymologically, Dharmasala is an institute maintained as a rest house or Sarai. It finds no mention in any statute. In case titled Ram Kishan Das v. Shiromani Gurdawara Farbandhak Committee, Amritsar and another (AIR 1937 Lahore 290), the status of Sikh Gurdawara, was determined. For convenience and to understand the issue, relevant part of the report is reproduced as follows :- "Udasis were commonly managers of Sikh shrines and it is proved that in this Dharmasla it was the Sikh Jagirdars who controlled the appointment of the managers. Much has been made by appellants counsel of the evidence that the first endowment was in favour of one Maya Ram who was presumably not a Sikh, but that there existed a Makan Granth Sahib when the endowment was made there is not doubt, and the conclusion is justified that this Makan was an important, if not the principal feature of the institution from the time of its foundation and that the institution was established for public worship by Sikhs.'

20. On the other hand, in case titled Kuldipchand and another v. Advocate General to Govt. of Himachal Pardesh and others (AIR 2003 SC 1685), Indian Supreme Court dealt with the issue under H.P. Hindu Religious Institutions and charitable Endowments Act (18 of 1984), that whether by mere use of a premises as a "Dharmashala" for about 125 years would lead to an inference that same belongs to a public trust? The ultimate fate of the case is of little importance. What makes the report relevant is, that the subject matter was Dharamshala and was undisputedly resolved under H.P. Hindu Religious Institution and Charitable Endowments Act (18 of 1984), the enactment dealing with tenets of Hinduism.

21. The excerpt of the reports referred herein above vividly enunciate that Dharmasala is not and cannot be confined to any of the community. Rather it is a rest house/sarai maintained by each of them in their respective domains. In view of the finding of the Lahore High Court in Ram Kishan Das case and of Indian Supreme Court in Kuldipchand case, it can conveniently be concluded that the word "Dharmasala" be taken in etymological sense and not in the religious premises. It denotes a general term of a building, established preserved and maintained for religious travellers for provision of free boarding, lodging and food or charging but nominally. In view of the above discussion it is held that the Dharmasala cannot exclusively be claimed by either of the communities of Hindus or Sikhs. Hence stance of both the parties on this issue is unfounded.

22. Learned counsel for petitioner raised objection that suit, for non-compliance of mandatory provision of Order 1, Rule 8, C.P.C. is not maintainable. There is a letter No.6002/AG dated 11.9.2000 addressed to Javed alias Papu plaintiff No.1 by the Advocate General, whereby sanction under Section 92, C.P.C., for filing suit was accorded. Copy of the sanction was also forwarded to District Magistrate, Peshawar. The letter was tendered in evidence as Ex.PW.11/2. Section 92, C.P.C. contemplates that any person interested in a trust created for charitable or religious purpose may file suit after obtaining consent in writing of the Advocate General. Since the subject matter of the instant suit is Gurdawara and Mander, a trust for religious purpose, so consent of the Advocate General accorded by virtue of Section 92, C.P.C. is sufficient enough legal compliance, to maintain the suit. Order I, Rule 8, C.P.C. deals with the suit between the private individuals. When private persons are numerous, having common interest in the suit, anyone or more with permission of the court, may sue or defend the suit on behalf of all to protect the interest of interested parties, subject to give a notice to all the interested persons on the expense of such persons, regarding institution or for defence of the suit. Both the provisions of section 92 and Order I, Rule 8, C.P.C. are mutually exclusive in different domains of facts. Each applies to particular circumstances of the case. These are not complementary or supplementary to each other. When the circumstances of the case mandate compliance of one provision of law, there shall be no need of simultaneously invoking the other. Since the subject matter of the suit is a religious trust property, hence consent of the Advocate General is proper compliance of the law for institution of the suit. The objection raised by the defence counsel is not sustainable which is accordingly repelled.

23. For what has been discussed above, this court is constrained to hold that the learned appellate court has fallen in error in decreeing the suit by gross misreading and non-reading of evidence, and by wrong exercise of jurisdiction so vested in it. Hence the impugned judgment and decree of the appellate court stands set aside and that of the trial court, dismissing the plaintiffs' suit, is restored. In peculiar circumstances of the case, parties are to bear their own cost. ZC/432/P Revision allowed.