1988 PLP 348 (CLC)

(1) An area of 35 kanals 17 marlas 117 sq. ft. bearing Khasra No.7878/4291 situated in Mauza Baghbanpura Lahore; (2) Residential House No,l ‑Street No.19, Baghbanpura, Lahore and (3) Compensation Book of the sum of Rs.14,400 in respect of personal property left over by the petitioner at Amritsar. He claimed that property No.l was his ancestral property and the shrines of the two Saints, namely, Madho and Lal Hussain had been built over it, but his ancestors and then he himself became Mutawali of the said shrines and although the Government had given remissions‑ in land reveune it still remained as their personal property. Regarding property No.2 he alleged that it was built about 30 years before the filing of the petition and was likewise private and not a Waqf property. The third property consisted of compensation book for Rs.14,400 which was allowed to him as a claim for his property situated in Amritsar. The petition was contested by the respondent. The following issues were framed:‑ (1) Whether the property in dispute is not Waqf property? OPP (2) Whether this Court has jurisdiction to examine the validity of Ordinance XXI of 1959 promulgated by the Governor of West Pakistan? OPP (3) If issue No.2 is decided in the affirmative then whether the said Ordinance or any of the parts are invalid? OPP (4) Relief. The learned District Judge, Lahore vide judgment dated 31‑3‑1970, while deciding issue No.l held that properties No.l and 2 mentioned above were Waqf properties while property mentioned at No.3 was the personal property of Mubarik Ali Shah. Issues No.2 and 3 were not pressed and therefore, were decided against the appellant. The appellant has challenged the findings of the learned District Judge in respect of property No.l and 2 covered by issue No.l. The findings on issues No.2 and 3 are not challenged. No cross‑objections have been filed by the respondent in relation to property No.3. During the pendency of the appeal Mubarik Ali Shah died and his children, 4 sons and a daughter were brought on record as his legal representatives. During the pendency of the petition before the learned District Judge 4 of the said Children of Mubarik Ali Shah filed an application under Order I, rule 10 CPC for joining them as petitioners claiming that the house i.e.. property No.2 has been built by their parents but stood in their name. This application was rejected by the learned District Judge vide order dated 13‑7‑1962.Therefore, the said children of Mubarik Ali Shah are on the file not as original petitioners but as legal representatives of original petitioner Mubarik Ali Shah. I have perused the record and have heard the arguments.

2. The learned counsel for the respondent tendered 7 documents, contained in their list of documents, in evidence through his statement on 15‑9‑1969, and then closed the evidence. Somehow the documents were not assigned Ext. marks. The admissibility of the same was neither disputed before the learned District Judge nor is disputed before me. These documents have, therefore, to be assigned exhibit marks for the purpose of reference. The assignment of exhibit marks has not been disputed by the parties before me. Therefore, the said documents are assigned exhibit marks R.1 to R.7. Most of these Revenue papers have also been filed by the appellant and are on file as PW.5/17 to PW.5/19 and PW.5/21.

3. I will take up property No.l first. The statement of Mubarik Ali Shah PW.1 in this respect is very important. In the land in dispute there are two shrines, one of Madho and the other of Lal Hussain. There is a Mosque in the same called as Mohranwali Mosque. There is also a graveyard which exists in this land. Mubarik Ali Shah does not dispute the existence of the same therein. As a matter of fact he has admitted the same. In addition thereto he stated that he had not claimed the Mosque, the shrines and graveyard." although these were situated on the land in dispute. Therefore the most important question to be looked into is as to whether whole of the land is occupied by or is attached to or is used as shrines, the Mosque and the graveyard or whether there is any specific separation of some vacant or cultivated land from the same. A perusal of the said documents EXt.R,l to R.7 and PW.5, PW.5/17, PW.5/19 and PW.5/21 will show that whole of the land is described as occupied by "Khanqah Madho Lal Hussain". This starts from 1856 onwards and continued till the land was acquired as Waqf Property. It is correct that in column of ownership at first the name of Hassan Ali Shah father of the appellant stood entered and then the name of Mubarik Ali Shah contained in the column of ownership. However, whole of the land, as already said, has all along been described as Khanqah Madho Lal Hussain. Mubarik Ali Shah as PW.5 conceded that the Mosque known as Mohranwali was built by a lady named Mohran. He showed ignorance that the said Mohran was wife of Raja Ranjeet Singh. He has also stated that people of every type come to the Mosque and offer prayers and also visit the shrines and ‑ that every year Urses are held at the shrines. He stated that the shrines, the Mosque and the graveyard were in existence since long and since his forefathers. He also conceded "the people use this land when the Urses are held from time immemorial." This in itself is sufficient to prove factullay that whole of the land is~ occupied by the shrines, the :Mosque and the graveyard and is used as such. It is not necessary that the land adjacent to and around a Mosque, a shrine and a graveyard should be used as such every minute and for 24 hours or continuously round the year. The mosque is used at the time of prayers, a graveyard is used at the time of burial or for occasional A visits and a shrine is used mostly for Urses apart from the visits by some people for Fateha etc. But this use from time to time or occasional use does not mean that the use thereof is abandoned during the moments or hours or even months when the same is not utilized for prayers, burials, Urses or other visits. As a matter of fact the property remains in use constantly and continuously because it is always available for use for the purpose for which it is meant. Therefore, factualy whole of the land in dispute was occupied by and was used as shrines, a Mosque and a graveyard. Nobody will allow such shrines and Mosque and especially a graveyard over his land without making or treating it as a Waqf and especially so when he becomes its Mutawali.

4. The learned counsel for the respondent has referred to Haji Ghulam Rasul and others v. Chief Administrator of Auqaf, Lahore (PLD 1966 Lah. 978) which relates to the famous case of Hazrat Data Ganj Bakhsh (May his soul rest in peace). At its page 995 it has been laid down that: "Word Dargah itself includes a group of buildings of which the tomb forms the nucleus." Keeping in view the said ruling it is clear that a shrine‑ or Dargah is not related to the grave itself or the tomb around and over it but also consists of all the buildings and vacant places adjacent to and linked with it which are used from time to time alongwith the Dargah. may be for Urs or otherwise. He has also referred to Munshi Abdu Rahim Khan and others v. Fakir Muhammad Shah and another (AIR (33) 1946 Nagpur 401) and Noor Muhammad and another v. Ballabh Das and others (AIR 1931 Oudh 293). These rulings also provide that even if‑ the tomb is situated in two khasra numbers and only one of the plots of land contains some graves whole of the property will be taken to be a tomb, a Mosque or a graveyard, as the case may be. There is no reason to differ with the said views contained in the said cases of Nagpur and Oudh. Therefore, even legally it is 1 quite certain that whole of the land described as property No.l in which the said shrines, the Mosque and the graveyard are situated is as a whole meant for the said three things.

5. The question now arises whether in view of the incorporation of name of Hassan Ali Shah and Mabarik Ali Shah, the deceased appellant, as owner of the said land the whole land will be Waqf property or not. In this respect as reference to Muhammad Jan v. Suleman and others (PLD 1968 Pesh. 181), Said Maher Husein v. Haji Alimahomed Jalaludin and others (AIR 1934 Bombay 257) will be useful as also to the law laid down in Haji Ghulam Rasul and others v. Chief Administrator of Auqaf, Lahore (PLD 1966 (W.P) Lah. 978.) It has been held therein that when there is a graveyard the presumption is that that is Waqf property and where there is a Mosque or a tomb there is a presumption that the same is a Waqf property. Bombay ruling also adds that Waqf property will include every thing that is with the Mosque or a tomb. Therefore, whole of the land in dispute mentioned as property No.l was a Waqf property and was rightly taken over as such through the said notification.

6. Before parting with the aspect of the land it will be useful to refer to the evidence of Dr. Muhammad Abdullah Chughtai RW.1 and his article EXt.RW.l/1. He has given the history of the said shrines and of the Mosque. He is an expert in the line and holds a Doctorate from Paris University in History, Art and Culture. He has been a Reader in the Deccan University, Poona in History. He had been delivering lectures in the Punjab University in the Department of History and Fine Arts. He had been teaching the subjects of History and Architecture at the Engineering University of Mughalpura. He has done a lot of research and published articles of historical and ancient monuments. One of the same‑relates to the said shrines which as already said, is on the file as Ext. RW. 1/1. The shrines of Madho and Lal Hussain are popularly taken as one shrine of one person known as Madho Lal Hussain. Dr. Muhammad Abdullah Chughtai has made it clear and there is no dispute about it because of the admission of Mubarik Ali Shah PW that these are in fact two shrines of two persons. Dr. Muhammad Abdullah Chughtai has stated that shrine of Lal Hussain is the shrine of Sheikh Hussain Dehdah now known as Lal Hussain. He has stated that the shrine of Sheikh Hussain Dehdah existed before Emperor Shah Jahan ordered the laying out of Shalimar Garden. He has stated that Mela Charaghan is held at that place since before the time of Maharaja Ranjeet Singh. He has also stated that another Mosque known as Masjid Zakriya Khan was built by Zakriya Khan and it bears its name plate and gives the date of building of 1144‑AH. This Mosque was also built in honour of Lal Hussain. Mohranwali Masjid was built by a prostitute Mohran who was then the wife of Ranjeet Singh. He stated that Sheikh Hussain Dehdah lived and died in the times of Emperor Akbar the Great, till 1008 AH. Sheikh Dehdah was at first buried near Shahdara but his body was brought to the present place by Madho who died in 1056‑AH much after the death of Sheikh Hussain Dehdah. He has added that on account of the tomb of Sheikh Hussain Dehdah the place has become a religious place. This would show that the tombs of Madho and Lal Hussain are not at the present place for over a century but are at the said place for centuries and since before the time of Emperor Shah Jahan and to be particular since before 1056‑AH when Madho himself died and was buried there. It is also clear from the evidence of RW.1 read with the said Revenue record particularly EXt.R.l to 7 that whole of the land in suit was meant for and was used for religious purposes as shrines and a Mosque and graveyard. As already' discussed in the foregoing paragraphs legally such places are to be taken as Waqf properties and not personal property of the Waqif or Mutawalli or Sajjadah Nasheen. Therefore in spite of the mention of L the names of Hassan Ali Shah and then of Mubarik Ali Shah in the column of ownership in the revenue record. It is quite clear that whole of the land in dispute alongwith structures existing thereon was a Waqf property within the meaning of clause (d) of section 2 of the said Ordinance of 1959 and was rightly taken over as Waqf property by the respondent through the said notification dated 13‑3‑1961 published on 17‑3‑1961. The findings on issue No. 1 relating to the said land are, therefore, confirmed.

7. Property No.2 consists of a residential house. It has come on record that the property stood in the name of Mukhtar, Shaukat, Inayat Hussain, sons and Mst. Aziz Begum daughter of the saidl Mubarik All Shah deceased. The site plans Ext.P.W 2/1 and PW.2/21 are sufficient to prove that the site plan for the house in dispute E was sanctioned in favour of the said 4 children of Mubarik Ali Shah on 2‑7‑1932. These site plans also show that the site plan was sanctioned in their favour because they were owners of the land on which the construction of the house was raised. The said site plans also establish that the house is a new one and was constructed after 2‑7‑1932. Therefore, the said house has no historical background and is not as old as the said shrines, Mosque and the graveyard are. There are receipts.PW.5/1 to 16 to show that the construction material mentioned therein was purchased for the said house on the dates mentioned therein. There is nothing on record to show that the house was built with the proceeds of any income of the Waqf property. The house is situated at a distant place from the said shrine and its situation at such a place also suggests that it has no link with the Waqf property consisting of shrines, Mosque and graveyard. Therefore, I have no hesitation in holding that the house in dispute was not a Waqf property and could not be taken over through the said notification dated 13‑3‑1961 published on 17‑3‑1961.

8. Learned counsel for the respondent has argued that Mubarik Ali Shah deceased had no locus standi to dispute the acquisition of the house as a Waqf property because the house did not belong to him. The learned counsel for the appellant has referred to section 7 of the Waqf Properties Ordinance, 1959 under which the petition by Mubarik Ali Shah was filed. Subsection (1) of the same provides that "any person claiming any interest in any Waqf property in respect of which a notification has been issued" can file a petition to challenge such a notification. He argues that Mubarik Ali Shah as father and legal guardian of his children who were then minors had an interest within the meaning of the said subsection (1) to challenge the said notification. A perusal of sub‑para (e) of Para 3 of the petition under section 7 ibid will show that Mubarik Ali Shah had alleged that he was living in the said house, alongwith his family. Therefore, if the property belonged to his children, he in addition to living therein as a guardian of the minors and as a head of the family, was living there as their licensee. The question, therefore, is whether a licensee or such a guardian or the Head of the family is included within the meaning of "any person" as understood in section 7 ibid. The learned counsel for the appellant has referred to Mian Fazal Din v. Lahore Improvement Trust Lahore and another (PLD 1969 SC 223) in which the definition and scope of aggrieved person under Article 98 of the Constitution of 1962 was considered and decided. It was held "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. A corporation entrusted with the task of formulating town improvement scheme had appropriated a particular site for the use of the public as a market place, and this induced one to purchase a piece of land just opposite to the proposed market place in the hope of opening a shop there. Subsequently however, the scheme was altered and M was deprived of the facility he had hoped for. The Supreme Court held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ petition." It will be seen from the dictum of the Honourable Supreme Court laid therein that an aggrieved person should not be a directly hit person and that it could be any person whose right has been infringed or is proposed to be infringed in any manner. He has also referred to Dr. A.N.M. Mahmood v. The Syndicate of the University of Dacca and others (PLD 1970 Dacca 85) to show that the definition of "any person" or "any aggrieved person" is wide enough to cover many persons and he argues that this would include a tenant or a licensee who is in possession of the property so acquired. He has also referred to the definition of "any" contained in Stroud's Judicial Dictionary (Vo1.I‑1952 Edition). This also shows that the word "any!" and the words "any person" have quite a wide scope. Although the said rulings relate to writ petitions and although the words used in the relevant Articles of the Constitution are "any aggrieved person" yet the principle for interpretting the words "any person claiming any interest" contained in section 7 of the said Ordinance of 1959 is to be the same. In the Constitution the words are "any aggrieved person" while in section 7 the words used are "any person claiming any interest" in any Waqf property. Therefore, the said words in section 7 ibid are quite wide like the words used in Article 98 of the Constitution of 1962 as also in the corresponding Article 199 of the present Constitution of 1973 and admit of a tenant a licensee and a mortgagee. A licensee has a right to live in the house and a father as a guardian of his children or even simply as a member and a head of the family has a stronger right and stronger interest to live on in the house in which he is so residing. If he anticipates his ouster along with his children or without his children it is his personal interest which is injured and he has a right to protect it. In other words he is a person interested and entitled to challenge the notification which will operate to oust him and as such is a person interested within the meaning of section 7 of the said Ordinance of 1959. Therefore, Mubarik Ali Shah as a guardian and as a licensee and as also as a family member and especially as a head of the family had an interest within the meaning of section 7 ibid to challenge the notification in dispute. Therefore, Mubarik Ali Shah had a locus standi to file the petition out of which the present appeal has arisen even in respect of the house in dispute.

9. I have held above that the house in dispute was not a Waqf property or a part of any Waqf property and therefore could not be taken over as a Waqf property. The Notification dated 13‑3‑1961 is illegal to the extent of the house also. The findings of the learned District Judge in respect of the said house are, therefore, reversed and this part of issue No.l (in respect of the house) is answered in favour of the appellant.

10. As a result the appeal is partly accepted. In addition to the declaration in respect of the Compensation Book for Rs.14,400 a declaration in respect of residential House No.l, Street No.49, Baghbanpura, Lahore is also granted in favour of the appellant that the said house is not a Waqf property and the said Notification dated 13‑3‑1961 published on 17‑3‑1961 is illegal to that extent. The appeal is dismissed to the extent of the land in suit, measuring 35 kanals, 7 marlas and 117 sq. ft. alongwith the structure thereon, is dismissed.

11. The parties are left to bear their own costs throughout. A . A . / M‑470/ L Appeal partly accepted