1996 PLP 1194 (MLD)

(3) Whether the property involved under Issue No.l above alongwith remaining property included in Notification No.DWP-1 (272)-Auqaf 72, dated 20-8-1976 is not Waqf property and the said notification is illegal, void and inoperative? O.P. Pir Muhammad Akhtar and Municipal Committee, Chishtian. (4) Whether the Municipal Committee is owner in possession of the property described in the impugned notification, dated 20-8-1976? OP Municipal Committee, Chishtian. (5) Whether Application No.7 lodged by Municipal Committee, Chishtian is bad for the non-joinder of necessary parties as also has defect of form? OP Peer Muhammad Akhtar. (6) Whether the applications should have been lodged against the Administrator General Auqaf? If so, with what effect, OP Chief Administrator Auqaf. (7) Whether both the applications are barred by time? OP Chief Administrator Auqaf. (8) Whether there is any deficiency in the court-fee on any of the two petitions, if so, with what effect? OP Chief Administrator Auqaf. (9) Relief. The appellant examined Muhammad Siddique, Patwari as A.W.1, Muhammad Hussain as A.W. 2 Ghulam Ali as A.W.3, Allah Dad as A.W.4 and Goma as A.W.5 and closed his side except his own statement. Respondents Nos.l and 2 examined Muhammad Salim as R.W,

3. Respondent No.3 examined Abdul Hameed, Patwari, Municipal Committee, Chishtian as R.W.1 and Sadiq Hussain, Property Inspector, Municipal Committee, Chishtian as R.W.2. The appellant also tendered in evidence site plan of the disputed property Exh.P.W.l while respondents produced site plan Exh.Rl, list of tenants Exh.R2, impugned notification Exh.R3, Gazette Sadiq-ul-Akhbar Exh.R4, copies of Jamabandi for the year 1972-73 Exh.R5, Jamabandi for the year 1926 Exh.R6, Jamabandi for the years 1968-69 Exh.R7, Wajbul-Arz Exh.R8, Missel Haqiat Exh.R9, site plan of the property Exh.R10, Jamabandi for the years 1940-41 Exh.Rll, Jamabandi for the year 1967-69 Exh.R12, judgment of Additional District Judge dated 23-4-1970 Exh.R13, register of rent record for 1979-80 Exh.R14 and Exh.R15, notice issued to the Chairman, Municipal Committee, Chishtian Exh.R16, site plan of graveyard Exh.R17, and Exh.R18, Rapt Roznamcha Waqiati No. 383, dated 14-9-1976 Exh. R19, Rapt Roznamcha No. 98, dated 13-9-1976 Exh.R20 and closed their side. The trial Court after hearing arguments dismissed the application vide judgment dated 8-2-1986. Hence this appeal.

2. The learned counsel for the appellant argued that the appellant has proved issues Nos. l and 2 but the trial Court failed to appreciate the evidence. It is added that the land measuring 141 Kanals, 16 Marlas out of 647 Kanals, 6 Marlas was proved to be Shamlat Deh in possession of Moeens 'who have constructed their houses.

3. On the other hand, the learned counsel for the respondents Nos. l and 2 argued that the appellant failed to produce any evidence to prove that the land measuring 141 Kanals, 16 Marlas was Shamlat Deh. The same was clearly recorded as ' Ghair Mumkin Qabarstan' in possession of Muslim community (Ahle Islam). Therefore, it was Waqf property and rightly taken over. He in this behalf relied on the cases Diwan Ghulam Qutabuddin v. Chief Administrator PLJ 1981 Lah. 330 and Batool Begum v. Chief Administrator 1993 CLC 683.

4. I have given my anxious consideration to the arguments of the leatned counsel for the parties, gone through the record, relevant provisions of Waqf Properties Ordinance and precedent cases. The main controversy is dependent on issues Nos. l and 2. the onus to prove these issues was. on the plaintiff/appellant. The appellant did not enter witness-box, therefore, the trial Court rightly drew an adverse inference against his bona fide. The trial Court has disbelieved the statements of A.W.2 to A.W.5 in view of the documentary evidence produced by respondents Nos.l and

2. None of the owners of the village appeared to support the case was another factor which heavily weighed against the plea of the appellant. The trial Court concluded that even if the land was Shamlat Deh the moment the same came under graveyard co-sharers ceased to be owners.

5. On the other hand, the document Exh.R6 proves that the land is not part of Shandat Deh and it was under graveyard in occupation of Muslim community. The same is the position in Exh.R

7. This is not all. The appellant has no right to maintain the application in the representative capacity and for that reason he cannot maintain the present appeal.

6. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed with no order as to costs. H.B.T./M-2038/L Appeal dismissed.