1986 PLP 1666 (CLC)

(c) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑ ‑‑‑Ss. 6 & 7‑‑Waqf properties‑‑Management taken over by Auqaf Department‑‑Superstructure over properties proved to have been raised by person claiming same‑‑Order of trial Court modified by High Court in appellate jurisdiction to the extent that taking‑over management and control of properties by notification would be valid except superstructure claimed by claimant. R. H. Farooqi for Petitioner. S. H. Mujtiba for Respondents No. 2 and 3 (in Miscellaneous Appeal No. 146 of 1973) and Respondent No. 2 (in Miscellaneous Appeal No. 147 of 1973). Date of hearing: 25th February, 1986. This order will govern the disposal of above‑noted two Miscellaneous Appeals bearing Nos. 146 and 147 of 1973, instituted by Syed Chattan Shah, against the order of 6th Additional District Judge, Karachi, dated 10‑10‑1973, declaring the properties taken over by respondent 2 vide notifications, dated 4‑9‑1964 and 7‑10‑1965 as the Waqf properties. The following facts may be stated here which are relevant to the controversy raised in the above appeals. A plot of land measuring about 200 Kitcha Bighas was allotted to one Muhammad Hassan Shah, predecessor‑in‑interest of the appellant and respondents 4 and 5 by the Rulers of Sind (Mirs) about 200 years ago. These plots were originally surveyed as No. 29 Sheet No. D‑2 in Tahelram Quarters, Lawrence Road, Karachi. Later on these plots were assigned Survey No. TL‑53/42/Sheet TL‑

1. This property according to the appellant was used by‑ their ancestors for their own benefit and as well as for running certain institutions which had religious and charitable objects. The names of institutions which were run in or upon the above property were disclosed by the petitioner as (1) Anjumah Ishna Ashri, (ii) Faiz Bara Imam (iii) Anjuman Khuddam Zaireen, (iv) Idara‑e Tahaffuz‑e‑Haqooq Shia and (v) Zul Jinnah. It appears that in or about 1964 some complaints were received by the Auqaf Department regarding the mismanagement of the properties mentioned above and as a result thereof by notification, dated 4‑9‑1964 the above properties were taken over by the Auqaf Department for the purposes of its management, in accordance with section 6 of Ordinance 28 of 1961. In the notification issued on 4‑9‑1964 as many as 12 properties were mentioned. After issuance of the notification, dated 4‑9‑1964 the Chief Administrator of Auqaf, also appointed a manager to look after and manage the 'Waqf properties' comprise in the above notification. Appellant Chattan on 2‑10‑1964 presented Waqf Petition No, 2 of 1964 challenging the notification dated 4‑9‑1964 under section 7 of the Ordinance. While Petition No. 2 of 1964 was still pending for adjudication, the Chief Administrator Auqaf issued another notification, dated 7‑10‑1965 under section 6 of the Ordinance by which the first notification, dated 4‑9‑1964 was amended. The amendment brought about in the original notification, dated 4‑9‑1964 by the subsequent notification, dated 7‑10‑1965 were that in place of original area of plot shown as 14971 sq. yds., 15253 sq. yds. was substituted and in place of property No. 1 mentioned in the original notification Properties Nos. (a) to (g) were added while two more new properties namely Properties Nos. 12 and 13 were also added in the original list of 12 properties mentioned in the original notification. After issuance of the second notification, dated 7th October, 1965 the appellant presented another Waqf Petition being No. 2 of 1965 on 13th November, 1965. In addition to these two petitions filed by the appellant one more Petition bearing No. .1 of 1965 was also filed before the District Judge by Bachal Bibi who also claimed to be one of the defendants of the original grantee Muhammad Hassan Shah. The above‑mentioned 3 Waqf petitions were consolidated and were tried together by the 6th Additional District Judge, Karachi under section 7 of Ordinance 28 of 1961 and were disposed by the judgment which is impugned in the above‑mentioned two appeals. It appears that before the trial Court two main contentions were raised by the appellant in his petitions, namely, that the notifications issued under section 6 of the Ordinance were illegal as the properties mentioned in the two notifications were private Waqf (Wakf‑alal‑sulad) and, therefore, they were outside the purview of Ordinance 28 of 1961 and that in any case the appellant being in undisputed possession and management of these properties since 1945 and having raised construction over the Waqf properties out of his own resources, to the ‑extent of the superstructure raised on the properties he was the lawful owner as the 'same' could not form part and parcel of the Waqf properties. With regard to first controversy the trial Court on the basis of an award which was given in a suit instituted in the year 1913 by the predecessor‑in‑interest of the appellant and others, came to the conclusion that the land measuring 15,253 sq. yds. was a Waqf property dedicated to religious and charitable purposes and, therefore, it was rightly taken over by the respondents as the 'Waqf' property. This conclusion of the trial Court, it is frankly conceded by the learned counsel for the appellant, is not open to any exception and is well‑supported by overwhelming documentary evidence on record. However, the learned counsel very vehemently urged that in so far the superstructures comprising of a double‑storeyed ladies hall and 53 rooms, there was not only ample evidence on record but the trial Court also reached the conclusion that it was raised by the appellant though unauthorisedly and as such to the extent of these superstructures the trial Court should have given declaration excluding the same from the operation of two notifications issued by the respondent. Reliance is placed by the learned counsel in support of his contention on the case of Ghulam Rasool v. Chief Administrator of Auqaf P L D 1976 Lah. 978 and the appellate decision in the same case reported in P L D 1971 S C

376. The above contention of the learned counsel is not without force. The appellant in his evidence before the trial Court categorically stated that the superstructure of double storeyed ladies hall and 53 rooms on the waqf property were built by him at a cost of about 2 lacs of rupees from his own pocket and he also spent anot4er sum of Rs.60,000 on their construction which he had obtained as a loan from the Bank of Bahawalpur. He also stated that a suit instituted by Bank of Bahawalpur, for recovery of the loan of Rs.60,000 was decreed against him. This part of the evidence of appellant on oath was neither challenged in the cross‑examination nor any evidence in rebuttal was brought on record. The learned counsel for respondents on the other hand contended that the oral evidence led by the appellant in support of his, contention that he raised the above construction out of his own resources cannot be accepted as the documentary evidence on record shows that there existed construction on the plot right from 1913. The documentary evidence relied by the learned counsel for the respondent are the pleadings and judgments and decrees in Suits Nos. 69/1913 and 466/1945. None of these documents show that the superstructure of double‑storeyed ladies hall and the 53 rooms claimed by the appellant were in existence either at the time of filing of these proceedings or on the date of their termination. In their own evidence, the respondent never claimed that their superstructures were in existence either in 1913 or in 1945. On the contrary a reading of the order or l the trial court will show that the learned Judge had disallowed thel claim of the appellant not on the ground that it was not raised by himh or that it existed in the year 1913 or in the year 1945 but on the ground that it was unauthorisedly raised by the appellant. In the case of Ghulam Rasool which was also an appeal before the High Court of I Lahore arising from a petition under section 7 of the Ordinance it wa `s held that the superstructures on the basis of evidence led by each of the petitioners (who were 48 in number) were raised by petitioners and they are accordingly held entitled to ownership right in the superstructures which were found to be outside the purview of notification issued under section 6 of the Ordinance. In appeal the Supreme Court affirmed the decision of Lahore High Court which is reported as Ghulam Rasool v. The Chief Administrator of Auqaf P L D 1976 S C

978. The following observations of Supreme Court are reproduced here with respect which appear at pages 391 and 392 of the report:‑ "Having said this, however, we must make it clear that so far as the right to the possession of these properties is concerned, the evidence, both documentary and oral, is that these properties have all along been in. possession of the Mujawaran right from the beginning. This evidence has not been rebutted in any way. It cannot, therefore, be denied that the Mujawaran have acquired by prescription the right to possess and cultivate these lands. They have openly and as of right possessed these land cultivated them, let them out and even constructed buildings on them at their own expense. They have been recorded since 1892 as in possession 'without rent on account of service of shrine'. This is a valuable right of which they cannot be deprived. All that the Chief Administrator of Auqafs can do is to take rents from them or terminate their right to possession by appropriate legal proceedings for their ejectment. If the Management and control of a Waqf property is taken over by the Administrator of Auqafs it does not mean that such taking over automatically extinguishes the tenancy rights or the right to possession of persons settled on the lands. If the Administrator seeks to eject such persons he must proceed in accordance with law. We accordingly, uphold the declaration granted by the Courts below that the immovable properties mentioned in the impugned notifications minus the structures thereon are Waqf properties and their control and Management could lawfully be taken over by the Chief Administrator of Auqafs under the West Pakistan Waqf Properties Ordinance but subject to the limitations hereinbefore mentioned in this judgment." From the above‑quoted observations of the Supreme Court it is quite clear that in such circumstances where the superstructure is shown to have been raised by a person over the waqf property out of his own resources and he has remained in possession of the same for a substantially long time, the ownership right of such person in the superstructure should be excluded from the notification issued under section 6 of the Ordinance by the Chief Administrator of Auqaf. Before parting with the case I may mention here that Mr. S.H. Mujtiba, the learned counsel for respondent 2 in these appeals raised a preliminary objection with regard to maintainability of Appeal No.147/73. It is contended by the learned counsel that the judgment in all the 3 petitions was given by the trial Court on 10‑10‑1973. The appellant applied for only one certified copy of the order and one appeal was presented namely Appeal No.147/73 in this Court on 20th December, 1973 against the judgment in both the petitions namely Petitions Nos.2/64 and 2/65. However on an objection raised by the office that one appeal was not competent against the judgment in both the petitions the appellant filed a second Appeal No.M.A. 147/73 on 24‑12‑1973 without specifying the petition No. against which it is presented. This second appeal presented by the appellant was not accompanied by a certified copy of the order appealed against but it contains only a simple copy of the order. The contention of Mr. S. H. Mujtiba, learned counsel for the respondent No.2 in both the appeals is that as the judgment was pronounced in the case on 10‑10‑1973 the time for presenting appeal against that judgment expired on 9‑12‑1973 and as no application for certified copy of the order was. made by the appellant, therefore, the Appeal No.147/73 as presented on 24‑12‑1973 was beyond time. It is also contended by the learned counsel that the benefit of an application filed by appellant on 10‑10‑1973 for grant of one certified copy cannot availed of in respect of second appeal which was presented on 24‑12‑1973. After hearing the learned counsel for the appellant I am unable to accept this contention. It is an admitted position that all the 3 petitions were consolidated and were disposed of by the trial court by a single order. Appellant Syed Chattan Shah, was petitioner both in Petitions Nos.2/65 and 2/64. He applied for a certified copy of the judgment in two cases on 10‑10‑1973 and certified copy was granted on 7‑11‑1973 the period of limitation prescribed for filing appeal against the judgment of district court is 60 days from the date of judgment. Excluding the period from 10‑10‑1973 to 7‑11‑1973 under section 12 of the Limitation Act spent by appellant for obtaining certified copy of the order the appeal presented on 24‑10‑1973 by the appellant namely Appeal No.147/73 was within time. I, therefore, overrule the preliminary objection raised by Mr. S.H. Mujtiba with regard to the maintainability of the second Appeal namely 147/73. I would accordingly allow these appeals partly and modify the order of trial Court to the extent that the taking over of the management and control of the properties by the Chief Administrator of ‑Auqaf by notifications dated 4‑9‑1964 and 7‑10‑1965 is valid minus the superstructure of the double‑storeyed hall constructed for ladies and 53 rooms which were constructed by the appellant In the circumstances) of the case I will make no order as to costs.