2008 PLP 439 (CLC)

SARDAR MUHAMMAD ASLAM, J.

This civil revision is directed against the concurrent judgments and decrees passed by the learned Courts below whereby the learned Civil Judge decreed respondent's suit for declaration with consequential relief and mense profit, which was affirmed in appeal on 21-3-1995.

2. Briefly the case of respondent/plaintiff is that he is registered society registered with the Assistant Registrar, Joint Stock Companies vide Registered No.1/31, dated 13-5-1966 and has filed a suit for declaration with consequential relief and mense profit to the effect that the plaintiff is owner of the suit property. Suit was contested by the petitioners/defendants. Issues were framed. Both the parties were directed to produce their respective oral as well as documentary evidence. The learned trial Court after hearing the parties decreed the suit against which an appeal was preferred by the petitioners/defendant which came up for hearing before the learned Additional District Judge, Sialkot who vide his judgment, dated 21-3-1995 upheld the findings arrived at by the learned trial Court. Being dissatisfied with the said judgments and decrees the petitioners have filed the instant civil revision.

3. Heard. Record perused.

4. The respondent/plaintiff produced P. W.1 Abdul Wahid. He stated that disputed property was Waqf and Haji Shahab-ud-Din was its Waqif. The plaintiff is running this institution. It was nationalized under MLR

118. P.W.2 Qari Abdul Rehman stated that the property belongs to Anjman Darul Aloom Shahabia, which is registered body. An Arabic school was being run before its nationalization P. W.3 Muhammad Shafi, special attorney, to plaintiff-respondent stated that Haji Shahab- ud-Din was Waqif of the property in dispute. Waqfnama was exhibited as P.2. He submitted authorization letter P.3 issued by Maulana Muhammad Ali Kandalvi, President of the Anjman. It was being managed by the plaintiff. Later on, it was nationalized under MLR-118. Aman Ullah Khan appeared as D.W.1. He stated that school was nationalized and that it was the Waqf property. However, it was not transferred to the plaintiff. D.W.2 Ghulam Hussain stated that he was District Education Officer at the relevant time. The Government has taken control of the school. Exh.P.2 is a copy of registered Waqfnama by Haji Shahab-ud-Din. Exh. P.3 is authorization while Exh. P.4 is rough location plan of premises. Exh.P.5 is a copy of Assessment Register Form PT-1.

5. From the perusal of oral as well as documentary evidence, it is clear that the Waqf-ul-Ulad was created. It cannot be mortgaged, sold or exchanged except with permission of Court. Muttawali had no power under the Waqf deed to claim title of the property. In fact there is no document in favour of plaintiff to equip him with title of property.

6. For what has been discussed above, it is held that the plaintiff has failed to prove title to the property and both the learned Courts below have misconstrued and misread the evidence. Consequently, this civil revision is allowed, impugned judgments and decrees passed by the learned Courts below are set aside and case is remitted back to the learned trial Court to provide chance to the plaintiff to produce further evidence in proof of its title, if any, with a chance of rebuttal to the defendant and decision afresh in accordance with law. H.B.T./D-1/L Order accordingly.