P L D 1973 Lahore 327 (PLP)

KARAM ELAHEE CHAUHAN, J.‑

One Nikka son of Ghaus filed a claim form No. 86 for land left in village Soora, Tehsil and District Jullundur. This claim was verified for two types of land. One type of land was measuring 65 kanals 7 marlas which was verified in the name of Masjid Imam Din Wall, Baithamam Nikka. The other type of land verified was 65 kanals 17 marlas in the name of Nikka personally. In the instant case, we are concerned with the former type of claim of land.

2. As against the aforesaid claim verified in the name of Masjid Imam Din Wall, the land in dispute was initially proposed on 13‑4‑1956 in the name of the mosque. This proposal was cancelled on 17‑4‑1956 against which an appeal was filed which was accepted by the Deputy Rehabilitation Commis sioner on 10‑5‑1956, in compliance whereof the land was confirmed in the name of the mosque on 5‑10‑1956.

3. Against the aforesaid final confirmation, respondents Nos. 2 to 4 filed an appeal on 23‑10‑1967 but without any success as the same was dismissed by the Deputy Settlement and Rehabilitation Commissioner on 27‑4‑1970.

4. The respondents then filed a revision petition which was accepted by the Settlement and Rehabilitation Commissioner on 25‑7‑1970 and he directed the Additional Settlement and Rehabilitation Commissioner in exercise of his powers as delegatee of the Chief Settlement Commissioner to proceed in this case under section 11 of the Displaced Persons (Land Settlement) Act, XLVII of 1958 (hereinafter called the Act).

5. Thereafter the delegatee Chief Settlement Commissioner took up the matter and by means of his order dated the 29th September 1971, cancelled allotment from the name of the mosque and directed that it should be given to the respondents Nos. 2 to 4 herein.

6. The present revision petition has been filed by the successors‑in‑interest of Nikka against the aforesaid proceedings and orders.

7. The sole ground, on which the land has been cancelled from the name of the mosque as recorded by the learned delegate Chief Settlement Commissioner is that in the District of Montgomery (Sahiwal), no claim could be registered for mosque under paragraph 56 of the West Pakistan Rehabilitation Settlement Scheme. The learned counsel for the petitioners has challenged this view of the learned delegate Chief Settlement Commissioner and has raised a further ground that actually the claim which was verified in the name of the mosque (or in the name of Nikka as Manager of the mosque), should have been verified in the name of Nikka in his personal capacity. Similarly, the allotment which was made In the name of mosque, it is contended, should have been in the name of Nikka individually. If this claim of the petitioner is accepted, it is argued, then the allotment which wits in District Sahiwal would not be suffering from any defect sad should be considered to entire for the benefit of Nikka personally and for his heirs as such. In the alternative, it is argued that allotment made in the name of the mosque could not have been cancelled in view of sub paragraph (3) of paragraph 56 of the West Pakistan Rehabili tation Settlement Scheme which authorised allotment of land In District. Montgomery (now Sahiwal) in case of minor Waqf.

8. We sent for Mr. Razi Haider, Naib‑Tehsildar, Central Record Office, who produced the Special Jamabandi received from India on the basis of which the claim form No. 86, filed by Nikka had been verified. The entries in the Special Jamabandi indicate that the claim for the area in dispute was rightly verified in the name of Mosque Imam Din Wali Haithamam Nikka as the corresponding area in India did exist in this form in the name of the said mosque. No doubt in Paragraph 56 of the West Pakistan Rehabilitation Settlement Scheme there exists a prohibition for registration of claims in Montgomery (Sahiwal) District for religious institutions etc. But sub‑pare. (3) of the said para. contains an exception. Paragraph 56 reads as follows :‑ "Refugee charitable, religious and educational trusts will be compensated under the Scheme for the Agricultural land attached to such trusts in the prescribed area. Managers of trustees of such refugees trusts may register their claims on the prescribed forms. No claim form will be accepted for registration in the congested districts of Lyallpur, Montgomery Multan and Colony areas of Shahpur District. (Reference former Punjab Government endorsement No. 5102‑R(L), dated 26th May 1950).

2. The allotments made to refugee Managers of Trust should not exceed a maximum of 1,000 produce indices. The claims above this limit will be ignored except in deserving cases e.g., educational trusts or trusts for specific purposes which can be justified. The Deputy Rehabilitation Commissioner will refer such cases to the Rehabilitation Commissioner, West Pakistan, for orders stating the original conditions of the Trusts, the purpose for which the trust was established and the total claim in produce index units. The allotments made in accordance with the previous orders prior to 26th October 1953, will be revised accordingly. (Reference former Punjab Government memorandum No. 8716‑R(L), dated 26th October 1953).

3. Such of the minor religious institutions which are not of the nature of trusts will also be allotted land, after due verification, under the Rehabilitation Settlement Scheme, provided regular claims have been filed by the managers of such institutions. (Reference former Punjab Government memorandum No. 678(RL) dated 30th January 1952)."

9. It is well settled as laid down by their Lordships of the Supreme Court in Jubendra Kishore Achharyya Chowdhury and others v. The Province of East Pakistan and others (P L D 1957 S C (Pak.) 9) that Wakf in Muhammadan Law is a religious institution. It is to be noticed that a Wakf in Muhammadan Law differs from a Trust in the manner as is shown is the following table :‑

1. No particular motive is. necessary.

1. It is generally made with a pious, charitable or religious motive.

2. The founder may himself be a beneficiary.

2. The Wakif cannot reserve benefit for himself except to some extent under Hanafi Law.

3. It may be for any lawful object.

3. The ultimate object must be some benefit of mankind.

4. The property vests in the trustee.

4. The property vests in God.

5. A trustee has got a larger power than a Mutawali.

5. A Mutawali is only a Manager or superintendent.

6. It is not necessary that a perpetual, irrevocable or inalienable.

6. A Wakf is perpetual, Trust must be irrevocable and inalienable.

7. It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted.

7. The cypress doctrine is applied and the property may be applied to some other object.

8. It is regulated by Trust Act.

8. Rules regulating Trusts cannot be applied to Wakfs., Muhammadan Wakfs are governed by special provisions of Muhammadan law applic able to it.

10. In the instant case since the property in the revenue records received from India is shown to belong to mosque‑(which is a well‑known form of Well under Muhammadan Law)‑and evidently, the underlying idea to attach land to a mosque was to achieve an object recognised by Islam as religious, pious or charit able and no benefit is shown to be reserved by any founder for himself, and ultimate object is of benefit to mankind and also because the property did not vest in any trustee but Nikka was simply shown as its Manager, therefore, it satisfied all the ingredients of a Muhammadan Wakf rather than a Trust in the light of the points of distinction between these two concepts noted above. Again the area in dispute not being much, therefore, the Wakf here was a minor religious institution and allotment in its name in Montgomery (Sahiwal) District would be well within the four‑corners of sub‑pare. (3) of Paragraph 56, reproduced above and no exception could have been taken to It by the delegatee Chief Settlement Commissioner in the exercise of jurisdiction under section 11 of the Act. It appears from Fard‑I-Haqfat issued by the Central Record Office that the claim for the particular area in dispute was filed by Nikka in his capacity as Manager of the Waqf and it was verified in the name of Waqf, namely, Mosque. The proposal also was subsequently made in the name of the Mosque, and was confirmed accordingly. In these circumstances, there was nothing wrong with the allotment made in the name of the Mosque, which was fully protected by sub‑pare. (3) of Paragraph 56 of the Scheme ibid.

11. What has been written above is sufficient to set aside the order of the delegate Chief Settlement Commissioner which we hereby do. No doubt, before us, the petitioners have tried to raise their individual claims as heirs of Nikka adverse to Waqf, but those claims cannot be accepted and the land will stand allotted in the name of the Mosque, and the status of the petitioners will simply be that of the Managers which can further be regulated by relevant law on the subject. The revision petition is accepted with these modifications and in these terms. There shall be no order as to costs. S.A.H. Revision accepted.