P L D 2007 Lahore 286 (PLP)

SYED HAMID ALI SHAH, J.

This single judgment will dispose of Civil Revision No.1558 of 2002 titled "Anjuman Islamia (Registered) Sialkot v. Jawad etc. and Civil Revision No.1559 of 2002 titled Anjuman Islamia (Registered) Sialkot v. Jawad etc." as common questions of law and facts are involved, in these petitions and parties are also the same.

2. Concise facts of the case are that the petitioner instituted a suit for permanent injunction seeking restraint from interfering with its possession and abstaining the respondents from raising construction on the suit-land. It was asserted in the plaint that land measuring 4 Kanals, 9 Marlas bearing Khasra Nos. 658 and 659, Khatooni No.1370, in village Hajipura Sialkot, as per Jamabandi for the year 1965-66 vests in the ownership and possession of "Eidgah" under the supervision of Abdul Hameed son of Hamid Shah; that the respondents interfered in the possession of the plaintiff and threatened to raise construction and that the respondents were asked to refrain from interfering with the possession of the petitioner but they refused; which gave cause for institution of suit. Chaudhry Muhammad Khalid, Lamberdar of the village (predecessor of the respondents), contested the suit, filed written statement and controverted the assertion of the plaint by raising various preliminary objections. It was asserted in the written statement that the land forming part of Khasra No.659 was in the ownership of the defendants, while the petitioner was' in illegal occupation of land, forming part of Khasra No.658. Five issues, out of divergent pleadings of the parties, were framed. The parties led their respective evidence. The plaintiff examined its three witnesses and adduced in evidence Exh.P./1, copy of Register Haqdaran-e-Zamin for the year 1965-66, and Exh.P.2, resolution of the Anjuman. Two witnesses of respondent entered the witness box to dislodge the claim of the petitioner/plaintiff. These witnesses deposed that the suit property was Shamilat land and its ownership did not vest with Anjuman. Learned Trial Court decreed the suit vide judgment dated 9-5-2000. Learned Appellate Court, while accepting the appeal vide judgment and decree dated 3-4-2002 reversed the finding of learned trial Court, resultantly dismissed the suit, hence this petition.

3. Learned counsel for the petitioner has contended that the respondents have not denied the possession of the petitioner over suit land. They have admitted that they are not in possession of Khasra No.658 and claimed that the petitioner has illegally occupied it. Dismissal of suit by learned Appellate Court on mere technicalities is exceptionable and liable to be set aside. It was then contended that finding of learned Appellate Court on issues Nos. 1 and 2 are not in consonance with the evidence on record, while learned Trial Court has passed well-reasoned judgment. Learned counsel has contended that learned Appellate Court has failed to consider that property is being used for offering the Eid Prayers, since 1965-66 and it has attained the status of Wakf, impliedly and the Court has to safeguard it's object, which is being performed for Muslim community at large. Learned counsel has added that Anjuman-e-Islamia is running various charitable and welfare projects, likes schools, libraries, orphanage, and dispensaries. Management of the Eidgah is one of it's project. Learned Appellate Court discarded the claim of the petitioner without appreciating that purpose of filing the suit was to safeguard the property of trust from being wasted.

4. Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment. He has emphasized that land in dispute is Shamlat-e-Deh and the petitioner being owner of the village land, possessed the proprietary right in the land. Learned counsel has submitted that neither bye-laws nor the resolution of the Anjuman has been filed. The suit of the petitioner was not competent in view of the provisions of sections 6 and 16 of Societies Registration Act of 1860 and the learned Appellate Court has rightly dismissed the suit. While referring to resolution dated 17-3-1992 (Ex. P/2), learned counsel has contended that it was proceedings of Anjuman, whereby Chaudhry Bashir Ahmad Cheema, Senior Vice-President was appointed for interim period to perform duties of Acting President. No authority was given to the said Chaudhry Bashir Ahmad Cheema to file suit and initiate proceedings on behalf of the petitioner society. Learned counsel has then submitted that Abdul Flamed, had no link with the society .and the society has no right to occupy the property of Abdul Hameed.

5. I have heard the learned counsel for the parties and perused the material available on the record.

6. Anjuman-e-Islamia is a body registered under Act XXI of 1860, with the objects to manage various religious and social bodies, which include central Mosque, Eidgah, Jamia Islamia, Dar-ul-Shafqat, Dar-ul-Ulta, religious library and a wing for eradication of T.B. etc. Property, subject-matter of the suit, is Eidgah, which is being used as such since time immemorial. It is evident from Exh.P/1 that Eidgah, under the supervision of Abdul Hameed son of Hamid Shah, was in existence during 1965-66. There is no evidence on record to show whether this property was dedicated by it's owner to Anjuman-e-Islamia, nor any proof on record, to show that how this property came under the management of Anjuman-e-Islamia. The respondents have not brought on record any evidence to the effect that the property in dispute forms part of Shamlat-e-Deh and the respondents are it's lawful claimants. There is no evidence qua the land holding of the respondents and of other land owners of the village and their share in Shamilat. In the absence of necessary evidence or proof qua the land in dispute it's nature can only be determined by it's use and purpose. The property held and utilized for a religious purpose, from time immemorial, has been treated as "Wakf by user". Para/Section 188 of Mohammadan Law by D.F. Mulla can be referred, which is reproduced hereunder:-- "If land has been used from time immemorial for a religious purpose, e.g., for a Mosque or a burial ground or for maintenance of Mosque then the land is "by user Wakf", although there is no evidence of express dedication."

7. Privy Council in the case of Makhdum Hassan Buksh [48 Punj. Rec., 83 (1913)], has held that the land in suit, on facts was found as a part of graveyard, set apart for Mohammadan Community and that by user, if not by dedication, the land was wakf. It was held in the case of "Miru and others v. Ram Gopal" (AIR 1935 Allahabad 891) that where the Court finds that a mosque or a temple has stood for a long time and worship has been performed in it by the public, it is open to the Court to infer that the building does not stand there merely by the leave and licence of the owner of the site, but that the land itself is a dedicated property and the site is a consecrated land, and is no longer the private property of the original owner. It was observed in the case of "Munshi Abdur Rahim Khan and others vs. Fakir Muhammad Shah and others" (AIR (33) 1946 Nagpur 401) that in order to determine that the property is a wakf property when express dedication is not available, the decision can be based on the evidence, how public regarded such property.

8. From what has been discussed above, no room is left to depart from the notion that a property, though not dedicated expressly for charitable purpose, can be treated as wakf property, on the basis of it's use for immemorial period for that purpose. Applying the same principle to the land in dispute, it is a wakf property, having been used as Eidgah for a long period. Ex.P/I sufficiently proves the same and there is no evidence to the contrary.

9. Adverting to the question of non-compliance of the provisions of section 6 of Societies Registration Act (Act XXI of 1860), which was made the basis for non-suiting of the petitioner. Learned Appellate Court while passing the impugned judgment has observed that the petitioner being a society registered, under the Societies Registration Act, 1860, is legal entity and under section 6 of the Act (ibid) a suit on it's behalf is required to be filed by a person authorized by resolution of governing body. The resolution (Ex. P.2) filed with the plaint pertains to the appointment of Chaudhry Muhammad Bashir as Acting President. The same did not confer, through express authority, the power to any person to file suit and represent society. Learned Appellate Court noticed that list of members, copy of bye-laws of the society and articles of association have not been filed and concluded that suit was not competently filed. The conclusions drawn by the court arc not well founded.

10. Perusal of written statement reveals that objection regarding filing of a suit through unauthorized person was not raised either in the preliminary objection or in parawise reply on merit. D. W. 1 and D. W.2 have not stated a single word in this respect. Competence of Khawaja Mehmood Anwar to represent the society was not questioned before the trial court. Such objection was, therefore, not entertainable before the Appellate Court. Learned Appellate Court decided the objection without affording adequate opportunity to successful party (petitioner herein). Such order, in the identical circumstances, was set aside in the case of "A.P. Kuruwa Sangham Society v. Mirza Anayatullah Baig" (AIR 1982 Andhra Pardesh 138).

11. There is another aspect of the instant controversy. The land in dispute is place of worship, being used and dedicated as Eidgah, every Muslim in the community, who offers prayers or perform worship at such place, has the right to safeguard such property and is equally entitled to maintain an action or institute a suit. Section 344 of Anglo Mohammadan Law by Sir Ronald Knyvet Wilson (revised by A. Yousuf Ali) can be referred, which is re-produced hereunder:-- "Where a person interested in a public mosque, simply as an habitual worshipper, has a complaint to make which cannot be met by any of the modes of redress specified in section 342 (S.92 of the Civil Procedure Code 1908), whether or not it is provided for by section 343 (Act XX of 1863, sections 14 and 18), he may sue the alleged wrong-doer in any Court of competent jurisdiction without reference to the requirements of either of those sections; and he can do so in his individual capacity without first obtaining leave, under Rule 8 of Order 1 of the first Schedule of the Civil Procedure Code, to represent all other persons similarly interested, and without giving notice to all such persons as required by that Rule, but in such a case, the decision will only be binding as between the actual parties, and not on the Mohammadan community in general." Further, Allahabad High Court in the case of Ram Chander and others v. Khawaja Ali Mohammad and others (35 All; 197 (1913), has laid down that every Muhaimnadan, who has a right to use a mosque for purpose of devotion, is entitled to exercise such right without hindrance and is competent to maintain a suit against anyone, who interferes with it's exercise. A similar view was taken in the case of "Jawahra v. Ibrar Hussain" (7.A. 178; AWN (1884) 324).

12. It is clear from the above, that a place of worship like mosque or Eidgah if faced with the threat of illegal occupation or misuse, any member of the society, who offers prayer or perform religious rites at such place, can maintain suit. Having said so, I have no hesitation to hold that non-suiting the petitioner for want of resolution is legally not sustainable. Learn ed Appellate Court has over looked the legal proposition that an objection with regard to filing of suit by an authorized person was not raised before learned trial court and secondly, any Muslim is competent to sue to safeguard the property of mosque or Eidgah, in his individual capacity.

13. For what has been discussed above, it is established that the impugned judgment of the Appellate Court suffers from legal infirmity and calls for interference by this Court in the exercise of revisional jurisdiction. Resultantly, the instant revision petition is allowed, the impugned judgment of the Appellate Court dated 3-4-2002 is set aside and that of the learned Trial Court dated 9-5-2000 is restored. There is no order as to the costs. S.M.B./A-224/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.