1993 PLP 643 (SCMR)

SAJJAD ALI SHAH, J.‑‑‑This appeal with leave of the Court is directed against judgment dated 21‑4‑1990 of Lahore High Court, Bahawalpur Bench, whereby FA.O. No.15‑85/BWP is disposed of partly allowing with declaration that property bearing Khasra Nos.8 of 7/9 is not Waqf Property and further dismissing appeal with that modification.

2. Briefly stated that relevant facts giving rise to this appeal are that appellant herein assumed the administration, control and management of Shrine of Hazrat Khawaja Nur Muhammad situated in Mauza Chishtian Sharif, District Bahawalnagar and "property attached thereto" as described below:‑‑ "(1) An area of 29 Kanals and 13 Marlas bearing Khasra No.6/12/23 and 24 Alf and 7/9, 3, 4, Alf and 8 situated in Revenue Estate of Chishtian Sharif, District Bahawalnagar containing the said shrine, graveyard, Sarai Sadiq, 6 Hujras, Masjid with one Hujra and well‑Darbar Wala. (2) Income from the Box placed at the shrine and offerings and subscriptions made thereto. (3) Credit balance, silver, gold, etc., deposited in the Bank."

3. Notification dated 17‑6‑1976 whereby the shrine and property mentioned above were taken over as Waqf Property was challenged under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 in the Court of learned District Judge, Bahawalnagar by respondents herein on the grounds that properties attached with shrine and taken over were not Waqf but personal properties of respondents, who claimed to be descendants of Ala Hazrat Qibla Alam Khawaja Noor Muhammad Mahrvi, who died in 1875 A.D. (to be referred after as the Saint) leaving behind three sons. The three sons of the Saint purchased two Bighas of land from Khan Muhammad for a price of Rupees four and on that land at the time of filing petition before the District Judge stood Roza of the Saint and graves of his three sons, verandah for ladies towards north of Roza and Majlas Khana towards east. Additionally land in the neighbourhood of that land was Shamlat and belonged to original owners of village Chishtian, who gifted 40 Kanals and 13 Marlas to the descendants of the Saint vide mutation sanctioned on 13‑11‑1913. Since then property mentioned above remained in constant personal use of descendants of the Saint as owners without any interference from any quarter. In such circumstances it was claimed that area taken over as Waqf was not Waqf and formed part of the property of descendants of the Saint. Similarly stand was taken that income from the box placed at the Shrine and offerings and subscriptions made thereto were to be shared by descendants of three sons of the Saint according to Dastoor‑ul‑Amal dated 4 Zilhaj 12.30 Hijri written down by Khawaja Noor Ahmad, second Sajjadah Nashin for future guidance and further maintenance of Shrine was personal liability of descendants of the Saint.

4. In the Court of District Judge, written statement was filed on behalf of the Chief Administrator of Auqaf in which it was averred that notification was validly issued and area measuring 29 Kanals and 13 Marlas was rightly taken over as Waqf Property denying and disputing claim of descendants of the Saint of private ownership. Keeping in view the pleadings of the parties seven issues were framed.. Respondents/Descendants of the Saint examined three witnesses in support of their case. P.W.1 is Mian Ghulam Farid, who produced documents Exhs.PA. P.B., P.C., P.D., P.E. and P.F. D.W.2 is Hafiz Noor Muhammad, who has described the historical background of the Shrine and the manner in which lands attached therewith were acquired and construction thereupon made and also distribution of offerings, maintenance of Shrine and performance of religious ceremonies. P.W.3 is Abdullah, who served as Khadim at the Shrine. On the other hand Department examined R.W.1 Zulfikar Ali Babar, who .took photographs of the Shrine and placed them on the record. R.W.2 is Muhammad Saleem, clerk of the Department, who deposed about previous notification and take‑over, which was challenged in suit, which was dismissed and then appeal was filed. According to him at the time of take‑over the property was in miserable condition and department spent huge amount of Rs.3 lacs on its maintenance. Subsequently the take‑over was denotified by Mr. GhWain Mustafa Khar, who was then Governor of Punjab. After evaluation of evidence learned Additional District Judge vide his judgment dated 18‑3‑1985 dismissed the claim of respondents/descendants of the Saint on the grounds that they failed to prove the purchase of the disputed property and in the result were unable to show that it was not Waqf Property.

5. In appeal, High Court after detailed examination of evidence and documents produced on the record, partly accepted and partly dismissed the appeal with declaration that property bearing Khasra No.8 of 7/9 is not Waqf Property. Relevant paragraph from the impugned judgment is reproduced as under:‑‑ "As regards Khasra No.8 of 7/9, it had been shown as Banjar Qadeem or Baniar Jadeed in the entries of the record‑of‑rights for the year 1963‑64 (Exh.PP) but since 1963‑64, it has been shown as Ghair Mumkin Makan. In other words, it is part of the residential portion of the property of the appellants, the inference being that it had not been used as Waqf property or for any of the purposes of the shrine. The inclusion of this number in the Notification cannot, therefore, be justified."

6. Finding of the High Court as per leave granting order passed by this Court is assailed on the grouped that Khasra No.8 of 7/9 is part of land gifted for charitable and religious purposes vide Mutation No74 as already held by the High Court, then how could part thereof be held as non‑waqf when the whole is declared as waqf. In this context reference can be made to the impugned judgment at page 26 of the paper book wherefrom relevant portion containing finding of the Nigh Court is reproduced as under: ‑ "It has been seen above that the land measuring 40 Kanals 3 Marlas gifted by Shamlat owners to the then descendants of the Saint vide Exh.PK was expressly for the purposes of the shrine. The Sarai Sadig was constructed by the Nawab of Bahawalpur and this too was evidently done for a religious and charitable purpose, its object being to provide accommodation to the pilgrims and the visitors of the shrine. Though the entire 40 Kanals 3 Marlas of land was expressly for the purposes of the shrine, yet the Auqaf Department was fair enough to leave that part of it as was being used for the residences of the appellants. The 51rai, it has been seen from the Revenue Record, is situated in Khasra Nos.3 and 4 of 7/9 and to that extent also the Notification is not open to any valid exception."

7. Learned counsel for the appellant before us contended that Revenue Record showed that land in dispute mentioned above was lying vacant till 1963‑

64. In 1967 it was shown as "Ghair Mumkan Makan". In 1971‑72 it became Ghair M mkin B eti. Learned counsel for the appellant further drew our attention to documents filed by him in paper book Part II. At page 32 is Register Haqdaran Zameen and Jama Bandi for the year 1929‑30 and in columns 5 and 6 last item is No.8 (description of land) which is shown as Nahri. At page 36 is copy of Jama Bandi for the year 1935‑36 and in column 5 whereof is mentioned No.8 as Banjar Qadeem. At pages 40 and 41 is copy of Jama Bandi for the year 1943‑44 in which item No.8 is shown as Banjar Qadeem. At page 47 is copy of Jama Bandi for the year 1955‑56 in which item No.8 is shown as Qadeem. At page 51 is copy of Jama Bandi for the year 1959‑60 in which item No‑8 is shown as Qadeem. At page 55 is a copy of Jama Bandi for the year 1963‑64 item No.8 is shown as 4‑13 Ghair Mumkin Makan. At page 59 is copy of Jama Bandi for the year 1967‑68 in which item No.8 is shown as 4‑13 Ghalr Mumkin Makan. At page 62 is copy of Jama Bandi for the year 1971‑72 item No.8 is shown as 4‑13 Ghair Mumkin Basti. Lastly at page 89 is copy of Mutation No.74 in which date is mentioned as 3‑10‑1914, It, therefore, clearly appears that initially the land was Baniar Oadeem and then it was declared as Ghair Mumkin Makan and in 1971‑72 it has been shown as Ghair Mumkin Basti, which means that with passage of time, the land became habitable and structures were constructed thereupon.

8. Entries in the mutation register cannot be brushed aside as they have their own importance and significance. In similar circumstances as in this case, question of entries in mutation register came up for consideration in the case of Shrine of Hazrat Data Ganj Bakhsh Sahib of Lahore titled as Ghulam Rasool v. Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376), in which it is held that it is true entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available", the weight and importance to be attached to them is in no way diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for such a large number of years, even though they were aware of the entries in the records. It was further held in that case that Mujawars cannot be deprived of rights of performing mat and other religious ceremonies acquired by them by immemorial user and they cannot be deprived of their rights to possess lands. Administrator of Auqaf can either take rent from them or terminate their rights by appropriate legal proceedings. In the instant case respondents/descendants of the Saint have made positive claim in pleadings and further P.W.2 who is one of the descendants has very categorically stated in his deposition (page 74 of the paper book part 1) that constructions were raised by descendants of Qibla Alain on different occasions.

9. For the facts and reasons stated above we allow this appeal to the extent of land and not the structures thereupon. In the result finding of the High Court in the impugned judgment declaring property bearing Khasra No.8 of 7/9 is not Waqaf Property is set aside and we hold that land described above A is Waqaf but not the structures thereupon and appellant is competent to recover ground rent and take other steps according to law. M.BA./C‑119/S ????????????????????????????????????????????????????????????????????????????????? sOrder accordingly.