2001 PLP 628 (CLC)

Arshad Mehmood Chaudhry for Petitioner. Ch. Muhammad Rasheed for Respondents. Date of hearing: 4th October, 2000. The instant petition as also Civil Revision No. 1370 of 1987,1394 of 1998 and 1395 of 1998 are being disposed of together, as the questions involved in all these cases are identical.

2. The brief facts. of the instant petition as also C.R. No. 1370 of 1987 are, that the properties in dispute, which are quarters, were owned by one Mian Abdul Rehman, who died issueless before 1949. Malik Riaz Ahmed and Malik Fayyaz Ahmed being his successors sold the quarters in dispute, in favour of the petitioners through a registered sale‑deed in the year 1980. Respondents after acquiring the title to these quarters, filed suits for possession against the petitioners which were contested by the petitioners, claiming that the property in dispute was a Waqf, dedicated by Mian Abdul Rehman to the mosque, therefore, sale of the Waqf property by Malik Riaz Ahmed and Fayyaz Ahmed, is absolutely illegal and void. These suits were allowed on 22‑7‑1986. Appeals filed by the petitioners failed on 23‑5‑1987.

4. In other two revisions i.e. Civil Revision No. 1394 of 1998 and 1395 of 1998, the petitioners brought two suits, against the respondents, in these petitions, in the year 1987, claiming that the suit property is a Waqf created by Mian Abdul Rehman, thus, the sale made by respondents Nos.2 and 3, in favour of respondent No. 1, are illegal and void. These suits were dismissed on 29‑11‑1993. Appeal filed by the petitioners also failed on 27‑2 1998.

5. Both the learned counsel for the parties state that all these matters are connected and the issue involved in these cases is, whether the property in dispute is a "Waqf", and thus, could not be sold by Malik Riaz Ahmed and Fayyaz Ahmed to Muhammad Hanif.

6. Learned counsel for the petitioners has argued that Mian Abdul Rehman, was the original owner of the suit property and he by virtue of a will, had dedicated the same for the purpose of mosque. Abdul Rehman died issueless before 1949 and after is demise, a dispute arose between his successors, inter alia regarding the suit property. This culminated into civil suits, where a compromise was effected between all concerned and a compromise decree, dated 14‑7‑1949, was passed, whereby the quarters in dispute were acknowledged by the parties thereto, as a "Waqf" property. The father of Malik Riaz Ahmed and Fayyaz Ahmed, namely Abdul Hamid was also a party to this decree and thus, as he had acknowledged the suit property to be a "Waqf, therefore, Malik Riaz Ahmed and Fayyaz Ahmed, being his legal heirs were bound by the compromise deed and were not entitled to sell the disputed quarters in favour of Muhammad Hanif the Courts below have not considered the effects of the compromise decree and their decree and judgments are based upon misinterpretation and misconception in this behalf.

7. On the other hand, learned counsel for the respondent has submitted that as per terms of the compromise decree, the quarters in dispute were neither declared as "Waqf" nor any permanent dedication was made for any religious, charitable purpose to constitute a valid "Waqf". Subsequent conduct of the successors of Mian Abdul Rehman, also duly supports this position as Mian Shahnawaz, one of the successors of Mian Abdul Rehman, had sold 8 out of 13 quarters, which are alleged to be a part of the Waqf. This was never challenged by the petitioner or any other successors of Mian Abdul Rehman. In the year 1979, some of the successors of Mian Abdul Rehman, constituted a fresh Waqf of the remaining five quarters without joining the other successors of Mian Abdul Rehman, including Malik Riaz Ahmed and Fayyaz Ahmad. Thus, such Waqf has no validity in the eyes of law.

8. Arguments heard. The two key questions involved in the present matter are whether by virtue of the consent decree, dated 14‑7‑1949, declaration and permanent dedication of the disputed quarters was made by the successors of Mian Abdul Rehman and thus, property in dispute forms part of the Waqf; and/or if the Waqf of the disputed property was constituted by Mian Abdul Rehman himself. In this behalf, it would be pertinent to reproduce the relevant portion of the decree which reads as follows:‑‑

9. Analyzing the effects of the above decree and the question, if Waqf was created by Mian Abdul Rehman, during his lifetime, it is stated that in order to constitute a valid "Waqf" property dedicated by way of Waqf must belongs to the Waqf (dedicator at the time of dedication i.e. person who is in fact the owner of the property). However, in the instant case, Mian Abdul Rehman who was the original owner had died before 1949 and as postulated by the decree, he never made any permanent dedication but only made a will, to create a Waqf. This does not show, if any permanent dedication was made by the deceased himself, or the objects of the Waqf which are condition precedent for creating a valid Waqf were specified. Therefore, it can be safely held that no Waqf was created by Mian Abdul Rehman during his lifetime. The question, whether a Waqf can be constituted by way of a will, it may be held that, as declaration, dedication and the objects for which Waqf is created, must be made by the dedicator himself, therefore, through will, a Waqf cannot be constituted.

10. For the other question, if the successor of Mian Abdul Rehman, through the aforesaid decree, had constituted the Waqf of 13 quarters mentioned therein, suffice it to say that though they had acknowledged the will of Mian Abdul Rehman, and had also agreed to give effect to this, but for such purpose, it is clearly mentioned that they would execute a separate Waqfnama and would also specify the objects thereof. This document admittedly was never executed by all the successors of Mian Abdul Rehman. Besides, in view of section 179 of Mohammedan Law by Mulla, the objects of the Waqf are not indicated in this decree with reasonable certainty, the Waqf thus, would be void for uncertainty. Moreover, the subsequent conduct of the successors also shows that Mian Sarfraz Hussain, one of the successors of the deceased had sold eight out of thirteen quarters and no one including the petitioners in the two civil revisions i.e. 1394 and 1395 of 1998, had raised any objection in this behalf. It is only in the year 1979 that Waqf deed was executed by some of the successors of Mian Abdul Rehman regarding the remaining five quarters, but in this instrument, Malik Riaz Ahmed and Fayyaz Ahmed, were never a party, therefore, this Waqfnama in the year 1979, has no legal value, because five quarters were undoubtedly undivided l property and according to section 177 of the Mohammedan Law, Waqf of Mushaa (undivided property) is not permissible where the property is not capable of division, particularly in the cases where dedication is made for a mosque or burial ground as it is claimed by the petitioners in the instant case, that the object of Waqf of these quarters was for the benefit of a mosque. In the instant case, there is concurrent finding of fact recorded by the four Courts, which is not shown to be either illegal or infirm for any factual or legal error, therefore, these revisions have no force and the same are hereby dismissed. W Q.M.H./M.A.K./J‑18/L Revision dismissed.