2011 SCMR 235 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Through this appeal by leave of the Court, the judgment dated 18-12-2000 passed by the learned Single Judge of the Lahore High Court has been assailed vide which appellant's appeal (FAO No. 214 of 1985) was dismissed and the judgment of the learned District Judge dated 14-9-2005 was upheld. Vide the latter judgment, the learned District Judge had allowed the application of respondents under section 11 of the Punjab Waqf Properties Ordinance, 1979, and the notification dated 5-12-1978 issued under the afore-referred Ordinance was declared illegal and ineffective qua the rights of the respondents\applicants with reference to the property in their possession.

2. Learned counsel for the appellant-Department assailed the concurrent judgments of the courts below on the ground that the learned High Court has wrongly dismissed appellant's appeal merely because it was barred merely by 3 days; that it was not appreciated that the application of the respondents before the District Judge was barred by seven months; that the latter Court could not have condoned the delay as section 5 of the Limitation Act was inapplicable and that the concurrent judgments reflect misreading and non-reading of material evidence on record. In support of the submissions made, learned counsel relied on two judgments of this court i.e. Muhammad Ali v. Chief Administrator of Auqaf (1972 SCMR 297) and Elahi Bakhsh v. Chief Administrator Waqf, Property (1982 SCMR 160).

3. Learned counsel for the respondents/applicants defended the impugned judgments by submitting that the learned District Judge had rightly condoned the delay as the notification dated 5-12-1978 was not published in official Gazette; that the same had not been served on the respondents/applicants; that the application was within time if the time is computed from the date of service of the said notice; that service of notice is mandatory in view of the law laid down by this Court in Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab (PLD 1977 SC 639). He further submitted that the learned High Court had rightly dismissed appellant's appeal as time-barred because no ground tenable in law had been pleaded; that even otherwise this appeal merits to be dismissed qua Ibrahim respondent as the latter had died as far back as 30-12-1990 and even then the appellant filed Civil Petition No. 625-L of 2001 against a dead person. In support of this submission learned counsel relied on a judgment of this Court reported at Province of East Pakistan v. Hasan Askary (PLD 1971 SC 82). Coming to the merits of the case, learned counsel submitted that the respondents\applicants had led sufficient evidence to show that the property subject matter of the appeal i.e. 10 marlas house in possession of the respondents/applicants, was their ancestral property; that record of the municipal committee pertaining to the year 1948 was tendered in evidence which clearly indicated that the property was owned by the predecessor-in-interest of the respondents and that the concurrent findings are in accord with the evidence led.

4. Having heard learned counsel for the parties at some length, we find that the learned District Judge had allowed respondents' application primarily on issue Nos. 1 and 4 which are as follows: "

1. Whether the application of the petitioners is barred by time?

4. Whether the property in dispute is not a Waqf Property in terms of Muslim Waqf Properties Ordinance?

5. With regard to issue No. 1, the learned court found that the objection raised by the appellant/defendant that respondents' application under section 11 of the Ordinance` in question was time-barred, had not been proved by leading sufficient evidence. The Court observed as follows: "The objection of the learned counsel for the petitioners appears to have much force because in order to make out a case that the petitioners did have a notice of proceedings prior to this notification, it was necessary for the respondents to prove that Exh.R.1 to Exh.R.5 were in face moved by the petitioners R. W.2 has simply proved the notification Exh.R.7. He has not stated that any copy of this notification was ever sent to the petitioners."

6. In these circumstances, the court found that it was not time-barred and even if it was, it condoned the delay. In deciding the issue No. 1 in favour of the respondent, the learned Court was mainly persuaded by the fact that respondent had no notice, of the impugned notification' and repelled the contention that notice was not necessary. This finding is in accord with the law laid down by this Court in Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab (PLD 1977 SC 639) wherein it was held as follows: "To hold otherwise would be contrary to justice and good conscience as it would ascribe an intent to the Legislature to deprive a citizen of valuable property rights by merely printing a notification and not giving it proper publication. After printing the notification must be passed on to the sales depot and displayed prominently at suitable public places. We are further of the view that a notification under section 7 of the Ordinance must also be served on the person in possession of the property which the Chief Administrator of Auqaf has declared to be Waqf".

7. With regard to issue No. 4, the claim and the prayer of the respondents/applicants as reflected in their application under the Ordinance was that "two Havelis shown as residential House Nos. 437/1 and No. 437-A/R.H in the enclosed P.T.I Form Block No. XIII, Mohalla Muazzam Shah, Chiniot City, be declared as property of the petitioners". The notification issued by the appellant Department dated 5-12-1978 was impugned only to this extent. The learned District Judge found that the statement of P.W. 1 Talib Hussain, respondent himself as also the site plan Exh.PA indicated that the construction on the properties was raised in accord with the site plan sanctioned by the municipal committee as far back as 1948. The court further found that though in the record it was shown that the property was situated in Abadi Moazzam Shah but there was no reference that the property in question was attached with Khanqah Moazzam Shah. The Court also considered the documents of the Taxation Department i.e. Exh.PC, Exh.PD, Exh.PE, Exh.PF to Exh.PM which reflected that the property was owned and in possession of Bhakku (father of Talib Hussain, P.W. and Ibrahim and was never considered as attached with the said Khanqah. Repelling the appellant's contention that the suit property was attached with the Khanqah, .the learned District Judge- found that the appellant could not produce sufficient evidence to prove it and to rebut respondents\applicants claim except the statement of R.W. 1 Muhammad Yousaf, Patwari, which was based on the survey report submitted by him which was not found by Court to be credible. The learned High Court affirmed the afore-referred finding by observing that "there is no evidence on record that the property was dedicated or had been based for purposes of Waqf since the time immemorial. The possession of the respondents is admitted and they are occupying the same since several hundred years. The appellants has not been able to produce any evidence on record to show that the property in possession of the respondents had been a Waqf within the meaning of the said Ordinance and Law preceding it."

8. This Court itself has gone through the evidence led by the parties and note that the solitary statement of R.W. 1 Muhammad Yousaf Patwari who was the author of the survey report, was of no avail to dislodge the evidentiary value of the documents which have been relied by the Courts below to which reference has been made in the preceding paragraphs. Because the report was not based on any entries made in the revenue record and merely reflected the opinion of the author. During cross-examination even this witness admitted that respondents\applicants were in possession of the properties subject matter of the appeal since long and that he could not say as to whether the impugned notification had been sent to the respondents or not. The afore-referred testimony and the admissions made by R.W. 1 further lend credence to the concurrent findings on issues Nos. 1 and

4. Even otherwise the appeal was time-barred before the High Court and learned counsel for the appellant failed to persuade us to hold that the delay in filing the appeal before the High Court should have been condoned by the Court.

9. For what has been discussed above, the concurrent findings of fact are unexceptionable and not against the law declared by this Court. Consequently, the appeal lacking in merit is accordingly dismissed. M.A.K./C-11/SC Appeal dismissed.