P L D 2001 Supreme Court 75 (PLP)

HAMID ALI MIRZA, J.‑‑‑This is a civil petition for leave to appeal directed against the judgment dated 20‑8‑1999 passed by learned Single Judge of the Sindh High Court at Hyderabad in IInd Civil Appeal No.7 of 1986 (Mst. Masooma v. Chief Administrator Auqaf, Sindh and another), whereby the judgment and decree passed in Civil Appeal No. 34 of 1975 (The Chief Administrator of Auqaf, Sindh, Hyderabad and another v. Mst. Masooma Begum) by Additional District Judge, Hyderabad were set aside and appeal was allowed upholding the judgment and decree passed on 30‑11‑1974 by the 1st Senior Civil Judge, Hyderabad in Suit NO‑120 of ,1969. The brief facts of the case are that respondent Mst. Masooma Begum filed a civil suit for declaration that Survey No. 123, Ward 'B', Hala was property of the respondent/plaintiff and was not Waqf property and for permanent injunction to restrain the petitioners/defendants from recovering arrears and future rent in respect of the said plot and further that the petitioners/defendants be directed .to refund sum of Rs.1,380 to the respondent/plaintiff. The petitioners/defendants filed written statement. The trial Court, after framing of issues, recorded evidence of parties and after hearing learned counsel, decreed the suit of the respondent/plaintiff. The petitioners/defendants preferred Appeal No.34, of 1975 before the District Judge, Hyderabad, which appeal was heard by learned IIIrd Additional District Judge and was‑allowed, resultantly, judgment and decrees passed by Ist Senior Civil Judge, Hyderabad were set aside. The respondent/plaintiff preferred second appeal before the Sindh High Court, which was allowed by learned Single Judge as per impugned judgment, hence the petitioners/defendants have filed this civil petition for leave to appeal before this Court. We have heard learned counsel for the petitioners and gone through the record. The only contention raised by the learned counsel for the petitioners is that learned Single Judge of the High Court has seriously erred in overlooking the exercise of jurisdiction by the Civil Court which illegally decided that property in dispute is Waqf property, which ordinarily would fall ili the domain/functions and jurisdiction of the District Court under the provisions of the West Pakistan Waqf Properties Ordinance, 1961. Section 6 of the Ordinance reads:‑‑ "Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a Waqf property." Section 2(d) has defined "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but would not include property of any Waqf such as is described in section 3 of the Mussalman Waqf for the time being, claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants. Explanations 1 to 6 to section 2(d) of the Ordinance are as follows:‑‑ Explanation 1 ‑‑If a property has been used from time immemorial for any purpose recognized by Islam as religious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf property. Explanation 2 ‑‑Property allotted in lieu or in exchange of Waqf Property left in India shall be deemed to be Waqf property.' Explanation 3 ‑‑Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of Waqf property or from subscriptions raised for any purpose recognized by Islam as religious, pious or charitable shall be deemed to be Waqf property. Explanation 4.‑‑The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be Waqf property. Explanation 5.‑‑Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature of general public utility shall be deemed to be charitable purposes. Explanation 6.‑‑Property permanently dedicated for the purposes of a mosque, Takia, Khanqah, Durgah, or other shrine shall be deemed to be Waqf property." We have gone through the evidence. The respondent has proved through oral and documentary evidence that the property in dispute was originally property of Sindh Government and then Additional Deputy Commissioner transferred the same on payment of consideration to the respondent. Extract from city survey record has been produced, which showed that the property in question was of Sindh Provincial Government and then the same was mutated in the name of 'the respondent. The petitioners/defendants have not produced any reliable, satisfactory evidence except the notification to show that disputed property was ever dedicated by any body as Waqf property or that it was ever used as such or it was attached property of Dargah Nooh. As per Government record, the disputed property was open plot and belonged to the Government. The evidence produced would show that the respondent has been successful in proving that the disputed property was not Waqf property, consequently, burden of proof shifted upon the petitioners/defendants to show that the property in question was Waqf property and they could have done so by showing either (i) dedication of property as Waqf, or (ii) use of the property from time immemorial for religious and charitable purposes, or (iii) acquisition of the property from income of Waqf property. However, in the, instant case the petitioners/defendants have produced no such documentary or oral evidence to prove any of the requirements of law as stated above for treating the same to be Waqf property. It would appear from section 6 of the Ordinance that the petitioners/defendants could take over and assume the administration and control, management and maintenance only of a Waqf property, whereas in the instant case the property in question could not be said to be Waqf property in terms of section 2(d) of the said Ordinance, therefore, could not have been declared to be Waqf property by the petitioners/defendants. Mere fact that the respondent/plaintiff paid rent for short period to the petitioners/defendants erroneously would not make the property as Waqf property within the meaning of section 2(d) of the said Ordinance, consequently, could not have been notified to be the same under section 6 of the Ordinance. As the impugned notification was issued by the petitioners/defendants who were not vested with powers to take over other than Waqf property under the Ordinance, consequently, it was not necessary for the respondent/plaintiff to pursue the remedy as provided under section 7 of the said Ordinance. The Civil Court would not be barred from entertaining the suit in the circumstances of the case. It may be observed that provisions of section 17 of the Ordinance would not be a bar to the jurisdiction of the Civil Court from entertaining the suit in the said circumstances in view of evidence produced. Reference maybe made to Inayat Ullah v. M.A. Khan PLD 1964 SC 126 at 135 wherein this Court has held:‑‑ "The Chief Administrator, Auqaf, and the Manager appointed by him are creatures of a statute and despite the provisions of the Ordinance shutting out jurisdiction of the ordinary Courts in respect of orders passed or acts done under the Ordinance, the corrective process of the Civil Courts would be available if these functionaries exceed their statutory powers. A certiorari, the High Court could interfere in such a contingency under Article 98 of the present Constitution." In the aforesaid 'circumstances, we do not find merit and substance in the contention of the learned counsel for the petitioners, consequently, leave is refused and the petition is dismissed. Q.M.H./M.A.K./C‑19/S Petition dismissed.