2004 PLP 657 (YLR)

Aurangzeb Ch. for Appellant. Nauman Qureshi for Respondent No.

1. Dates of hearing: 7th and 15th October, 2003. On 21-12-1994, a petition under section 11 of the Punjab Waqf Properties Ordinance, 1979, was filed by Nizam-ul -Haq respondent qua notification dated 26/31-10-1994 (published on 22-3-1995) issued by the Chief Administrator of Auqaf, Punjab, Lahore under section 7 of the Punjab Waqf Properties Ordinance, 1979 which petition was contested by the appellant and after due trial has been accepted by the learned Additional District Judge, Jhang, vide judgment dated 3-8-1999. That has been assailed through this appeal.

2. Findings on Issues Nos. 1 and 3 have been challenged pleading' that the petition was time-barred and that property subject-matter of the notification has wrongly been held to, be privately owned property of the respondent. The learned counsel for respondent No. 1 while supporting the judgment of the learned Additional District Judge has laid a great stress upon a judgment and decree of the Civil Court, Karnal dated 13-8-1934 to highlight that the property which was allotted to the respondent was in lieu of the property abandoned in India which was privately owned by the family. With reference to the pedigree-table it is contended that the finding recorded by the learned Additional. District Judge are fully supported by the evidence on the record and that the petition has rightly been found within limitation by the Court.

3. The respective contentions of the learned counsel for the parties have been considered and material on the record perused. The case pleaded by the respondent was that, it was his privately owned property which could not be taken over under the Ordinance and that the notification came to their knowledge only when the Patwari visited the spot and apprised them of such a notification. Alongwith the petition an application for condonation of delay was also filed. A copy of the notification purported to have been issued under section 7 of the Punjab Waqf Properties Ordinance, 1979, concerning the property in dispute (Exh.P.3) bears the date of 26/31-10-1994, whereas the notification produced by the appellant (Exh.D.1) relating to the same subject-matter, bears the date of 2-10-1994. This was published in the Punjab Weekly Gazette dated March 22nd, 1995. The learned Additional District Judge while dealing with the issue of limitation has found the petition in time. The finding so recorded has the backing of the view expressed in Mumtaz Hussain v. Chief Administrator, Auqaf Department, Lahore PLD 1976 Lahore 1511, and Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC

639. The view thus taken by the learned Additional District Judge is perfectly in accord with the law laid down by the Courts on the subject and admits of no exception.

4. Insofar as the findings of the learned Additional District Judge on Issue No.3 are concerned, the same are also based on evidence of credible nature such as judgment of the Civil Court, Karnal dated 13-8-1934. Therein dispute pertaining to Dargah Hazrat Makhdoom Sahib was resolved. On quite a minute perusal and analysis of the said judgment the learned Additional District Judge has recorded his conclusion that deceased Ain-ul-Haq (the predecessor-in-interest of the respondent herein) "had, private ownership over 16 Bighas of land which was situate on Makhdoomwala Well and that the said land was not part and parcel of public Waqf of 'Dargah Makhdoom Sahib'. It was in lieu of the said land that demised Pir Ainul Haq was allotted the properly in 'dispute in Pakistan on the basis of Exh.P.1". No convincing evidence was produced by the appellant to discredit the claim of the respondent as to private nature of the property in dispute. Mere mention in the Jamabandi of 1988/1989 was of no use it view of the prevalency of the judgment and decree of the Civil Court, Karnal on the subject. No error or illegality has been committed by the learned Additional District Judge in placing reliance upon such a piece of evidence and recording findings accordingly. The consideration of the evidence on the record does not justify interference with the judgment passed by the Court below. In view of the above, the appeal is merit-less which is dismissed. No order as to costs. M.H./C-231/L Appeal dismissed.