2010 PLP 1714 (MLD)

CH. MUHAMMAD TARIQ, J.

The instant civil revision has been directed against the judgment and decree dated 23-2-2010 passed by the learned Additional District Judge, Chakwal who dismissed the appeal of the petitioner-plaintiff and upheld the judgment and decree dated 28-9-2007 passed by the learned trial Court.

2. Brief facts of the case are that the petitioner-plaintiff filed a suit for declaration to the effect that the suit property is a waqf property and the respondents have no title, right or authority, whatsoever, to change its present nature.

3. The suit was resisted by the respondents-defendants by filing written statement. The petitioner raised a legal objection that since the suit property is a public waqf property, the suit is not maintainable unless, adequate permission under section 92, C.P.C. is obtained from the Advocate-General Punjab. After hearing the parties, the learned trial Court vide judgment and decree dated 28-9-2007 dismissed the suit.

4. The petitioner-plaintiff filed an appeal which met the same fate and the learned Additional District Judge Chakwal vide judgment and decree dated 23-10-2010, dismissed the appeal. Hence this civil revision.

5. Learned counsel for the petitioner contends that the finding of the learned lower appellate Court that matter in hand is of public interest is against the law and facts. He points out that during the proceedings of the case at the lower courts, the respondents have never indicated that the suit property is a public trust, however, both the learned courts below have not adverted to this aspect of the matter. He avers that the suit property is an Imam Bargah and under Mohammedan Law, an Imam Bargah is not a public trust as contemplated under section 92, C.P.C., therefore, the civil revision be allowed, the impugned judgments and decrees passed by both the learned courts below be set aside and the suit of the petitioner- plaintiff be decreed.

6. On the contrary, the learned counsel for the respondents has vehemently controverted this civil revision. He contends that the suit property is a public trust because it comprises of shrines, there are so many graves which are located in the suit property and other public interests are also attached. He avers that the suit property is not simple Imam Bargah but is also a shrine. He prays that the civil revision be dismissed and the judgments and decrees passed by the learned Courts below be maintained.

7. I have heard the arguments put forth by the learned counsel for the parties and have also gone through the record with their able assistance.

8. The perusal of record shows that out of divergent pleadings of the parties, Issue No. 11(a) "Whether suit is barred by section 92, C.P.C." was framed. The onus to prove this issue was on respondents-defendants and the learned trial Court directed the parties to adduce their evidence. The record transpires that none of the parties produced oral evidence. However, the respondents-defendants merely produced documentary evidence Exh.D1 to Exh. D4.

9. In para. 3 of the plaint, it is mentioned that:

10. Thereafter it is again conceded that:

11. Admittedly, the suit-land is an Imam Bargah and according to the Mohammedan Law by Syed Amer Ali, an Imam Bargah means that: "An Imambara literally means the house of the Imam. It is a building consecrated to services held in honour of the martyrdom of Hussain, and is generally a Shiah institution, though many Sunnis also erect and maintain Imambaras." "According to the Multeka, the performance of prayer is equivalent to consignment. But in the Zakhira, it is stated that the prayer must be congregational, salat-bi'l-jamaat, which is unanimously regarded as tantamount to delivery. So that when a person erects a building with the object of dedicating it as a mosque/Imambargah and permits people to offer prayers therein, without declaring that he has constituted it 'into a mosque/ Imambargah, and prayers are offered there bi'l-jamat (congregationally), it becomes irrevocably dedicated. When a 'religious place is erected or set up inside a dwelling house of residence (dar), and permission is granted to the public to come and pray, and a pathway is also made or set apart for their egress and ingress, the dedication is good by general consensus. If a pathway is not indicated, in that case, according to Abu Hanfia, the dedication is not sufficient. But according to Abu Yusuf and Muhammed, it is good, and the pathway will be implied by the permission to pray, and this is correct. Accordingly, if a man builds a religious place inside his house, it will not become a public mosque, subject to the rules governing a public religious institution, unless permission has been once granted to outsiders to come and pray. It is not necessary that such permission should be given in express terms, but, without an actual or constructive permission, a mosque created within a private building will not become a public mosque so as to entitle the public, or any section of the public, to claim the use of it. At the same time, though the public may have no right in a private place of worship, it may constitute a good wakf so as to exclude the rights of the heirs over it. Where, prayers have been once offered it is not necessary to prove an express dedication..The very fact of the prayers being offered in it will imply a valid and good dedication." "Frequently, rooms are reserved in private residence for family prayers, or for the performance of the Moharram ceremonies. Such rooms cannot be regarded as specifically consecrated so as to constitute a wakf to exclude the rights of the heirs. In many cases, however, distinct apartments are set apart for the performance of the religious ceremonies, like Kerbelai Mohammed's Imambara. Often, they have an entrance separate from that of the private residence, and in all respects fulfil the conditions of public waqf where the mosque was so intermixed with the private property or residence of the wakf as to render differentiation necessary, the wakf premises should be distinctly indicated. In these cases, there can be no question as to the apartments constituting a valid wakf. As a matter of principle, however, the law disfavours the dedication by way of wakf of one portion of a private residence, whilst the other portion is in the occupation of the wakf. For example, the dedication of the upper or lower storey of a building as a mosque/Imambargah is not considered valid, unless owing to the crowded condition of the locality, it has become customary to constitute as such. The rule is, that unless certain conditions are complied with, the apartments will not be subject to the law of wakf and will continue to form the private property of the individual, the one condition chiefly requiring attention being that the portion dedicated is capable of being differentiated from the rest of the residence; when such can be done, the wakf is valid. But where the whole building is constituted wakf for a mosque, imambara or madrassa, and a portion of the building is used for the specific purpose of the wakf, and the remainder for the use of the servitors of the institution, or for letting out to people as a source of income to the wakf, the dedication is valid. The mere fact of the wakf occupying some portion of the building as mutwalli will not affect the validity of the wakf."

12. Relying on the law laid down in case Faqir Shah and others v. Mehtab Shah Pir Bokhari, Masjid Committee and others reported as PLD 1989 SC 283, for filing of the suit under section 92, C.P.C., contents of the plaint will determine the maintainability of the suit and the attraction of the bar contained in section 92, C.P.C. In order to file the suit under section 92, C.P.C., the following conditions must be fulfilled: "(1) There must exist a trust for a public purpose of a charitable or religious nature. (2) The plaint must either allege that there is a breach of trust or that the directions of the Court are necessary for the administration of the trust. (3) The suit must be a representative one on behalf of the public and not for the assertion of the personal rights of the plaintiffs. ?(4) The relief claimed must be one of the reliefs enumerated in section 92."

13. Shrines and properties attached to them are public waqf and therefore, the pre-conditions laid sown in section 92, C.P.C. duly exist for trusts of public purposes of religious nature.

14. Perusal of record reveals that the suit property is a public waqf and section 92, C.P.C, fully attracts in the matter in hand. Proceedings before a competent court of law are not maintainable unless adequate permission under section 92, C.P.C. is obtained from Advocate-General.

15. In the light of the above discussion, this civil revision is without any merit and both the learned lower courts have rightly dismissed the suit of the petitioner-plaintiff. No interference is called for. Hence, the civil revision is dismissed. A.R.K./Q-12/L??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.