P L D 1991 Supreme Court 102 (PLP)

AJMAL MIAN, J.‑This is a direct appeal under Article 185 (2) of the Constitution against the judgment dated 13‑2‑1989 passed by a learned Single Judge of the Lahore High Court in F.A.O.No. 165 of 1987 filed by the respondents against the judgment dated 7‑12‑1987 passed by the learned District Judge. Sheikhupura, allowing the same.

2. The brief facts giving rise to this appear are that the appellant Notification No. l(908)‑Auqaf/69 dated 15‑1‑1970 gazetted in the Gazette of West Pakistan dated 11‑4‑1970, hereinafter referred to as the notification, assumed the administration, control, management and maintenance of waqf land allotted in Mauzia Kot Pindi Das, Tehsil Ferozewala, District Sheikhupura, hereinafter referred to as the land, in the name of Khanqah Shah Ramzan in lieu of the land abandoned in (India) as described in the Schedule annexed to it under Section 6 of the West Pakistan Waqf Properties Ordinance, 1961, hereinafter referred to as the Ordinance. The above Notification reads as follows:‑ "No. 1(968)‑Auqaf/69‑1, Raja Hamid Mukhtar, T. Pk., Chief Administrator of Auqaf, West Pakistan in exercise of the powers conferred on me by section 6 of the West Pakistan Waqf Properties Ordinance, 1961 hereby take over and assume the administration, control, management and maintenance of waqf land allotted in Mauza Kot Pindi Das, Tehsil Ferozcwala, District Sheikhupura in the name of Khanqah Shah Ramzan in lieu of the land abandoned in (India) as described in the Schedule annexed hereto‑ SCHEDULE Waqf land measuring 215 Kanals and 13 Marlas contained in Khewat No. 665 Khatuni No. 2360, 2361 of Register Haqdaran Zamin of village Kot Pindi Das, Tehsil Ferozewala, district Sheikhupura for the year 1962‑

63. ORDER Whereas by Notification No. I (968)‑Auqaf, dated 15th January, 1970, 1, Raja Hamid Mukhtar, T. Pk., Chief Administrator of Auqaf, West Pakistan has taken over and assumed the administration, control, management and maintenance of the waqf property in the schedule of Notification mentioned above. And whereas, it is considered expedient that a Manager be appointed for the said waqf to manage and maintain the same." Thereupon, the respondents instead of filing an appeal as provided under section 7 of the Ordinance filed a Constitution petition on 29‑4‑1970 impugning the notification. The above petition was dismissed on 17‑3‑1979 on the ground that the appropriate remedy available to the respondents was by way of appeal, in view of the judgment of this Court given in the case of Muhammad Sharif v. Chief Administrator of Auqaf, Punjab, Lahore (1971 S C M R 713). Thereupon, the respondents on 3‑5‑1979 applied for certified copy of the aforesaid judgment which was received by them on or about 9‑5‑1979. After that the respondents on 28‑5‑1979 riled a petition under section 7 of the Ordinance in the Court of District Judge, Sheikhupura, for declaration that the land covered by the notification was not waqf property, but their personal property. However, the learned District Judge by his judgment dated 5‑6‑1979 dismissed the same on the ground of limitation. Appeal filed by the respondents against the above judgment in the Lahore High Court was also dismissed on 20‑12‑1980. Thereafter, the respondents filed a petition for leave in this Court which was converted into an appeal and was disposed of by judgment dated 21‑3‑1981 which is reported in 1981 S C M R 620, the operative portion of the judgment reads as follows:‑ "We would, therefore, convert this petition into an appeal and allow it in terms that the impugned judgment of the High Court dated 20‑12‑1980 will be set aside and the case remanded to the District Judge, Sheikhupura, who shall frame an additional issue on the question of limitation as directed in similar cases decided by the High Court referred to above and proceed to dispose of the petitioners' petition as expeditiously as possible. It is further clarified that the observations of the High Court in its order dated 20‑12‑1980 on the question of limitation are not to influence the learned District Judge, who will decide the matter uninfluenced by them." The learned District Judge after the above remand order framed the following three issues:‑ "(1) Whether the application is within limitation? OPP (2) Whether the property in dispute is not waqf property? OPP (3) Relief." After recording the evidence of the parties and after hearing them, the learned District Judge by his judgment dated 7‑12‑1987 decided all the above Issues against the respondents holding that their petition under section 7 of the Ordinance was barred by limitation and that no case was made out for excluding the time under section 14 of the Limitation Act. On merits he concluded that the land was waqf property. Against the above judgment, the respondents filed aforesaid F.A.O. which was allowed by a learned Single Judge of the Lahore High Court through the judgment under appeal.

3. In support of the above appeal, Mr. Sher Zaman Khan, learned A.S.C. appearing for the appellant, has vehemently contended that the High Court was not justified in reversing the findings of the learned District Judge on the above first two Issues, as they were in consonance with the evidence on record and law, whereas Mr. Zainul Abidin, learned A.S.C. appearing for the respondents, has urged that the High Court was justified in reversing the judgment of the learned District Judge.

4. It will be appropriate that I may take up the above Issue No.1 first before touching upon Issue No.2. It may be observed that section 7 of the Ordinance provides the period of limitation 30 days from the publication of a notification for riling of a petition before the District Judge under the aforesaid provision. The High Court has held that the petition was not barred by time for two reasons, firstly, that the impugned notification was void ab initio and, therefore, no limitation period was applicable and secondly, that the notification was not served upon the respondents. Adverting to the above first reason found favour with the High Court, I may observe that there seems to be no basis for holding that the notification was void ab initio. However, Mr. Zainul Abidin, learned A.S.C. for the respondents, has submitted that the notification was void A initio as the land was not allotted in lieu of or in exchange of waqf property left in India in terms of Explanation 2 to clause (d) of section 2 of the Ordinance. At this juncture, it may be pertinent to reproduce the definition of waqf property given in Clause (d) of Section 2 of the Ordinance with Explanations I to 6, which reads as follows:‑ "(d)????? "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 does not include property of any waqf such as is described in section 3 of the Musalman Waqf Validating Act (VI of 1913) under which any benefit is 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. Explanation I.‑‑ If a property has been used from time immemorial for any purpose recognised by Islam as religious, pious 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 of 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 recognised 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, subscriptions or articles of any kind, description or use presented to a shrine or to any person at the premises of a shrine 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 or of general public utility shall be deemed to be charitable purposes. Explanation 6.‑‑ Property permanently dedicated for the purposes of a mosque, takia, khankah, dargah: or other shrine shall be deemed to be waqf property."

5. A perusal of the above‑quoted definition indicates that it is very wide in its import and covers the property which has been used from time immemorial for any purpose recognised by Islam as religious, pious or charitable even in the absence of any evidence of express dedication, property allotted in lieu or in exchange of waqf property left in India, 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 purposes recognised by Islam as religious, pious or charitable, the income from boxes placed at a shrine and offerings, subscriptions or articles of any kind, description or use presented to a shrine or to any person at the premises of a shrine and property permanently dedicated for the purposes of mosque, takia , khanqah, dargah or other shrine. It also provides that relief of the poor, education, worship, medical relief, maintenance of shrine or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes.

6. In the instant case as pointed out by the learned District Judge in his judgment that the land was entered in the Register Haqdaran for the year 1962‑63 (Exh.R/3) as owned by Khanqah Shah Zaman and in the year 1966‑67 there was same entry. In R.L.11 at S.No.705 (Exh. R/2) the land was shown in the name of Khanqah Shah Ramzan having been allotted in Pakistan on the basis of claim No. 1893 in lieu of the land left in village Viru, tehsil Ganur, district Patiala. The aforesaid RL‑11 also indicated that even in the years 1953 and 1954 the above entry in the RL‑11 was reflected in the other Revenue Record. In view of the above material on record, it could not have been concluded that the notification was void ab initio. The object of incorporating section 7 in the Ordinance is to provide an opportunity to any person claiming any interest in any waqf property in respect of which a notification has been issued under section 6, to file a petition to the District Judge within 30 days from the date of its publication for seeking a declaration that the property is not waqf property or that the property is waqf property within limits stated in the petition. Even if such a declaration is granted by the District Judge upon a petition, the original notification issued under section 6 of the Ordinance cannot be treated as void ab initio but it was voidable at the behest of the person claiming interest in the' property in respect of which a notification had been issued. The reliance placed by the High Court on the case of Mst. Rehmat Bibi and others v. Punnu Khan and others (1986 S C M R 962), the case of Allah Dino v. Fakir Muhammad and another (P L D 1969 S C 582) and the case of Malik Khawaja Muhammad and 24 others v. Madduman Babar Kahol and 29 others (1987 S C M R 1543), is out of context. The above cases have no application to the present case as the notification was not void ab initio.

7. Reverting to the second reason found favour with the High Court, namely, that the respondents were not served with a copy of notification, I may observe that the reliance has been placed on the judgment of this Court given in the case of Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab (PLD 1977 SC 639), in which it was brought on record that though the notification was published on 30‑9‑1969 but the gazette did not leave the Press Branch upto 15‑11‑1969 when the petition under section 7 of the Ordinance was filed. It may be pertinent to reproduce relevant portion from the above judgment on the above aspect, which reads as follows:‑ "As the notification was published on 30‑9‑1969 and the petition was riled on 15‑11‑1969, i.e. outside the stipulated period of 30 days prescribed in section 7 Of the Ordinance, the Chief Administrator of Auqaf took the objection that the application was barred by time. In reply it was maintained that the appellant was unaware of. the Notification, and he first came to know of it when an officer of the Auqaf Department auctioned the standing crops on, 25‑10‑1969. In paragraph 6 of the petition it was specifically pleaded:‑ "(6) That the petitioner has checked up the West Pakistan Gazette but the said Notification does not appear to have been published so far. In pursuance of this order of the respondent auction of standing crops was done by the respondent's representatives on 25‑10‑1%9 and auction lease for the land was done on 6‑11‑1969 though physical possession of the said land is still with the petitioner through his tenants. Due to this action of the respondent the petitioner got a cause of action despite Notification not being so far published in the West Pakistan Gazette. Hence the petition is within limitation." As mentioned earlier, the District Judge dismissed the petition as barred by time and further held following an unreported judgment of this Court in Civil Appeal No. 26 of 1969 (Elahi Bakhsh v. Chief Administrator, Auqaf and others) that section 5 of the Limitation Act did not apply in the case. The prayer for condonation of delay by the appellant was, in this view, refused. The appellant, thereupon, filed an appeal before the High Court against the dismissal of his petition by the District Judge contending inter alia mere printing of the Notification in the Gazette did not amount to publication or notice to the petitioner. The appeal was dismissed by a learned Single Judge maintaining the view adopted by the District Judge. A further appeal before the Letters Patent Bench met the same fate though it was urged that notwithstanding the date of printing, the Gazette did not leave the Press Branch upon 15th November, 1969. The publication as distinct from printing of the Gazette was, therefore, on a date subsequent to 15‑11‑1969, the date on which the Gazette was printed. The learned Judges ruled out the contention on the ground that it was raised before them for the first time. The appeal was, in this view, dismissed on 20‑9‑1973." In the context of the above facts it was held that mere printing or publication of a notification in a Gazette without its being available cannot be treated as publication for the purpose of section

7. Reliance was placed on the cases of Bal Krishna Anand Hirlikar v. Emperor AIR 1931 Bom. 132), Province of East Pakistan v Hassan Askary (PLD 1971 SC 82) and Straker v Director of Public Prosecution ((1963) 1013 926). It may be pertinent to quote herein below the relevant observation from the above judgment of this Court in the Province of East Pakistan v Hassan Askary, which reads as follows:‑ ???that a notification can be said to be published only when some means is adopted to communicate it to the public or to the party concerned in order to publish it. It is, therefore, not possible to hold in the present case that the impugned notifications were published on the date on which they were inserted in the official Gazette."

8. There is no doubt that in the concluding portion of the above judgment it was also observed that "We are further of the view that a notification under section 7 of the Ordinance must also be served on the person in possession of the property which the Chief Administrator of Auqaf has declared to be Waqf."

9. The above case has no application to the present case as it is an admitted position that the respondents filed writ petition in the High Court on 29‑4‑1970 i.e. within 18 days from the date of publication of the notification and, therefore, it cannot be urged that the respondents had no knowledge of the notification upto May, 1979, when they filed the aforesaid petition under section 7 of the Ordinance. Even after the dismissal of the petition on 17‑3‑1979 on the ground that the appropriate remedy for respondents was .to rile an appeal under section 7 of the Ordinance which position was made clear by the aforesaid judgment of this Court reported in 1971 S C M R 713, the respondents took about 2‑1/2 months to rile the aforesaid petition under section 7 of the Ordinance which was riled on 28‑5‑1979. The respondents as pointed out here in above applied for a certified copy of the judgment in the writ petition on 3‑5‑1979 i.e. after the expiry of more than 1‑1/2 months from the date of the judgment though the copy of the above judgment was not required for filing of a petition under section 7.

9. The period commencing from the date of publication of the gazette in the official Gazette, namely, 11‑4‑1970 and expiring on 28‑5‑1979 when the aforesaid petition under section 7 of the Ordinance was filed, can be divided into following three sub‑periods:‑ (i)???????? 11‑4‑1970 to 29‑4‑1970 i.e. the period which had elapsed between the publication of the Gazette and the filing of the aforesaid writ petition; (ii)??????? 29‑4‑1970 to 17‑3‑1979 i.e. the period from the date of Filing of the writ petition till the dismissal of the same; and (iii)?????? 18‑3‑1979 to 28‑5‑1979 i.e. the period which had elapsed after the dismissal of the above writ petition till the filing of the aforesaid petition under section 7 of the Ordinance.

10. According to P.W.7 Muhammad Hanif son of Rahim Bakhsh, he had filed the aforesaid writ petition when the Auqaf Department attempted to take possession of the land and attempted to put to auction the leasehold rights. In other words, according to him, he came to know about the notification immediately preceding to the riling of the writ petition. We may exclude the above period and may treat that the appellant had come to know about the notification on or about 29‑4‑1970 and that may be treated as publication. Adverting to the above second sub‑period commencing from 29‑4‑1970 to 17‑3‑1979 i.e. the period which had elapsed between the date of riling of the writ petition and its dismissal, there seems to be no justification to exclude the above period under section 14 of the Limitation Act as has been held by the learned District Judge. It is a well‑settled principle of law by now that ill‑advice even by a lawyer is not a ground for extension of time of limitation either under section 5 or section 14 of the Limitation Act. In this regard, reference may be made to the following cases:‑ (i) Abdul Ghani v. Ghulam Sarwar (P L D 1977 S C 102) in which the petitioner had riled appeal in the District Court due to wrong advice of his counsel and also on account of alleged misguidance by the District Court by entertaining the appeal, and the memo of appeal was returned for presentation in the High Court which declined to condone the delay either under section 5 or section

14. The petition for leave was declined by this Court and 'it was held that the petitioner having himself valued his claim at a sum exceeding pecuniary jurisdiction of the District Court, it was not understandable as to how any Advocate could advise riling of appeal in the District Court. (ii) The same view was taken in the case of Raj Muhammad v. Mst. Chan Bibi and others (1984 S C M R 1068), in which this Court declined leave to appeal against the judgment of the Peshawar High Court in which also condonation of delay was sought on ground of filing appeal in wrong forum on the ground of mistake on the part of the counsel. It was held that mistake of counsel on account of his gross negligence could not be a reason for condoning delay. (iii)?????? Reference may also be made to the case of Mian Aizad Bakhsh v. Sheikh Muhammad Afzal (1985 S C M R 1003), in which it was held that counsel's negligence or mistake in advice was no ground for condonation of delay. (iv) The above View was reiterated in a recent case by this Court, namely, Islam Din v. Allah Nawaz and others (1988 S C M R 2), wherein this Court declined leave to appeal against the judgment of the High Court whereby the delay in riling of the second appeal in the High Court was not condoned though it was contended that the party could not have been penalised for counsel's bona fide mistake. (v) The same view was taken in the case of the Chief Administrator Auqaf v. Pir Aftab Hussain and another (1989 S C M R 606). (vi) Further reference may be made to the case of Manzoor Hussain and 2 others v. Muhammad Ali and another (1989 S C M R 1498), in which this Court also declined leave to appeal against the refusal of the Lahore High Court to condone the delay which had occurred on account of filing of appeal before the District Judge instead of riling before the High Court. It was observed that the finding recorded by the High Court that the conduct of the petitioners was not bona fide and the counsel who advised them to appeal in the District Court did not act in such a manner so as to either exclude the delay under section 14 or to condone the same under section 5 of the Limitation Act, was unexceptional.

11. As regards the sub‑period i.e. the period commencing from 18‑3‑1979 and expiring on 28‑5‑1979, the period elapsed between the date of dismissal of the writ petition and riling of the aforesaid petition under section 7 of the Ordinance, no ground has been made out to show as to why the aforesaid petition under section 7 of the Ordinance was not filed within 30 days even from the date of dismissal of the writ petition. P.W.7 Muhammad Hanif in his statement had averred that he had come to know about the judgment in the aforesaid writ? petition after 4‑5 months of its dismissal, which statement on the face of it seems to be incorrect as the petition was riled after !he expiry of about two months and ten days. There was no ambiguity or doubt as to the legal position that the proper remedy against a notification issued under section 6 of the Ordinance was by way? of a petition under section 7 of the said Ordinance before the District Judge concerned. In any case after the pronouncement of the judgment by this Court in the case of Muhammad Sharif v. Chief Administrator of Auqaf, Punjab, Lahore (1971 S C M R 713), the above legal position was confirmed. I may also observe that this Court in the case of Elahi Bakhsh v. Chief Administrator, Waqf Property (1982 S C M R 160) has held that section 5 of the Limitation Act is not applicable to petitions under section 7 of the Ordinance and I that the District Judge cannot condone delay in respect of a petition under the aforesaid section 7 of the Ordinance. Even if I were to hold that the delay could be condoned or could be excluded under section 14 of the Limitation Act, no case has been made out on merits for invoking, either of the above two sections. I may further observe that section 14 of the Limitation Act can be pressed into service only when a party diligently prosecutes his case in good faith in a Court which for lack of jurisdiction or other cause of allied nature is unable to entertain it. In the present case, it cannot be said that the High Court had no jurisdiction to entertain the writ petition but Article 199 of the Constitution provides that the same cannot be invoked if adequate alternate remedy is available to an aggrieved party under the relevant law. Additionally, it cannot be urged that the respondents were prosecuting their writ petition with due diligence in good faith as pointed out hereinabove that the proper remedy was a petition under, section 7 of the Ordinance.

12. In view of the above discussion, I am inclined to hold that the conclusion arrived at by the learned District Judge on the question of limitation was in consonance with law, and, therefore, there was no justifiable reason for the High Court to have reversed the finding on the question of limitation.

13. Adverting to the merits of the case which is covered by Issue No.2, I may at the outset point out that under section 7 of the Ordinance, the initial burden to prove that the property is not a waqf property, is on the person who files a petition for declaration to that effect under the aforesaid provision of the Ordinance. In the present case, the respondents examined P.W.1 Mushtaq Ahmad, P.W.2 Muhammad Munir, P.W.3 Ali Hasan, P.W.4 Muhammad Hafiz, P.W.5 Dhamali, P.W.6 Abdul Ghafoor and P.W.7 Muhammad Hanif son of Rahim Bakhsh, whereas the appellant examined R.W.1 Ghulam Zenul Abidin, Office Qanoongo. The learned District Judge also examined three witnesses as the Court witnesses, namely, C.W.1 Ghulam Muhammad Patwari, Halqa Kot Pindi Das, C.W.2 Muhammad Yusuf, Qanoongo Ferozewala, and C.W.3 Shahbaz Ashraf Cheema, Tehsildar Sheikhupura. The learned District Judge in my view has rightly commented upon the ocular evidence of the respondents. It has been pointed out that the witnesses have not given the particulars of the land which was allegedly owned by Rahim Bakhsh in India.

14. I may refer to the documentary evidence which was produced by the respondents. Exh.P/l is a copy of Special Jamabandi of the year 1946‑47 of village Viru, tehsil Ganur, district Patiala, indicating survey numbers 480, 481, 482,483, 484, 486, 485 &

487. In Column 5 under the caption( Naam Malik wo ahwal), the following entry appears:- Exh.P/2 is a copy of extract from Shajra Nasab obtained from the Central Record Office, Exh.P/3 is a copy of the decision of the Supreme Court remanding the case to the District Judge reported in 1981 S C MR 620 referred to hereinabove in para 2, Exh.P/4 is a copy of the decision of the High Court given in the respondents' aforesaid writ petition and Exh.P/5 is a copy of Jamabandi for the year 1962‑63 of village Kot Pindi Das, tehsil Ferozewala, district Sheikhupura. Columns 3 and 4 under the caption contain the following entries:‑ Exh.P/6 is a photostat copy of judgment dated 28‑2‑1981 passed by a learned Single Judge of the Lahore High Court in FA.O. No.340 of 1979 riled by some other party in respect of some other waqf property and Exh. P/7 is a copy of Khasra Girdawari for different crops for the years 1984 to 1987 in respect of the land indicating that the land belonged to Khanqah but was under administrative control of the respondents. It also contains the details of khasra numbers of the land, the total area of which comes to 215 Kanals and 13 Marlas.

15. On the other hand, the appellant had produced Exh.R/1 a copy of the notification dated 31‑3‑1970, Exh.R/2 a copy of RL‑11, Exh.R/3 copy of Jamabandi of village Kot Pindi Das for the year 1962‑63, which is for the same years as Exh.P/5 riled by the respondents but there are certain variations in columns 3 and 4, and Exh.R/4 a copy of the notification dated 15‑1‑1970. The District Judge made serious efforts to get the relevant record from the Central Record Office to determine the real nature of the land inasmuch as he examined three witnesses as the Court witnesses already referred to hereinabove. Out of the above three Court witnesses, Shahbaz Ashraf Cheema C.W.3, Tehsildar Sheikhupura, was appointed as a Commissioner by the District Judge to visit the Central Record Office and to submit his, report alongwith the documents. He submitted the following documents:‑ However, it may be observed that on aforesaid Exs. C.W.3/2, C.W.3/3, C.W.3/4, C.W.3/6 and C.W.3/7, C.W.3 Shahbaz Ashraf Cheema, Tehsildar Sheikhupura, has made endorsement to the effect that the record was doubtful.

16. The above documentary evidence can be divided into two categories i.e. the documents relating to the period prior to partition of India and the documents pertaining to the post‑partition period. The respondents have produced, as pointed out hereinabove, Exh.P/1 a copy of Jamabandi for the year 1946‑47 which indicates the land mentioned therein belonged to Rahim Bakhsh. C.W.3 Shahbaz Ashraf Cheema, Tehsildar, had produced C.W. 3/5 a copy of Jamabandi indicating Rahim Bakhsh son of Chhotay Shah as owner of the land mentioned therein. The District Judge had not relied upon the above documents for the reason that Exh. P/1 was prepared from the Central Record Office, which according to C.W.3 Shahbaz Ashraf Cheema, was doubtful as per his endorsement on the aforesaid exhibits. For same reason, C.W. 3/5 has not been relied upon by the District Judge. However, the documents which have come on record and which relate to the post‑partition period, indicate that the land was allotted as waqf land for Khanqah. Even in Exh.P/5 the copy of Jamabandi for the year 1962‑63 and Exh. P/7 Khasra Girdawari for different crops for the years 1984 to 1987 produced by the respondents referred to hereinabove in para 14, the name of the owner in column 3 is as (KHANKAH SHAH ZAMAN BAHTIMAM).

17. The thrust of the argument of Mr. Zainul Abidin, learned counsel for the respondents, was that in order to bring the land within the compass of waqf, the land should have been allotted in lieu of or in exchange of the waqf land left in India. In other words, his submission was that the appellant should have brought some material on record to show that some waqf land was left in India in lieu of which the land was allotted. His further submission was that aforesaid Exh.P/1 showed that factually there was no waqf land left in India. In my view, if any person has obtained transfer of some agricultural land as a waqf land in Pakistan, he is estopped from pleading that in fact there was no waqf land left behind in India. Once it is proved that the land was allotted in Pakistan as a waqf land, it is not necessary to go into the question, whether the land left behind in India in lieu of which land was allotted in Pakistan was waqf property or not. In this view of the matter, it is pertinent to ascertain, whether the allotment of the land was obtained as waqf land or not.

18. At this stage it may be pertinent to point out that under the Rehabilitation Settlement Scheme, hereinafter referred to as the Scheme, different treatment was given to the trust properties. Para 56 provided that the refugee charitable, religious and educational trusts would be compensated under the Scheme for the agricultural land attached to such trusts in the prescribed area. The managers and trustees of such trusts were authorised to register their claims on the prescribed forms. I may also observe that under para 60 of the Scheme which covered all claims relating to agricultural land, the Deputy Rehabilitation Commissioner was required to have a small section in his office under the immediate charge of a Qanoongo/Supervisory Tapedar, who was to keep an account of receipt of the verified forms and was to maintain a register for forms R.L.1 indicating the verified claims in respect of agricultural land. After entering the verified claims in the register, they were to be sent to the Mukhtiarkar/Naib‑Tehsildar and a naql fard‑i‑haqiat with the verified claim was to be supplied to the claimant concerned on payment of Re.1 per copy. I may also mention that under para. 63 of the Scheme, the Mukhtiarkar/Tehsildar concerned was made responsible for the safe custody of verified claim forms and was required to enter in the register in Forms RL‑II. 19. 1 may observe that in order to prove that the land was not allotted in lieu of waqf land, the relevant documents would have been Rahim Bakhsh's verified claim, forms R.L.1 and R.L‑

11. In the instant cafe the respondents have not produced a copy of their verified claim or form R.L.1, nor the same are available in the Central Record Office. However, form R.L‑11, which was prepared on the basis of form R.L.1 has been brought on record. The original register containing aforesaid form RL‑11 is also available in the Central Record Office. The learned District Judge examined C.W.I Ghulam Muhammad, Patwari, Halqa Kot Pindi Das, in order to get the above documents produced, but he was unable to produce the record of claims numbers 1893 and 1983 with Fard Haqiat on the ground that the same were not available. However, C.W.2 Muhammad Yusuf, Office Oanoongo Ferozwala, had produced the original register containing the details of R.L‑11 including in respect of the land. The learned counsel for the respondents had suggested to him that there was some tampering with the register which suggestion was emphatically denied by him. The relevant portion of his statement reads as follows:‑ "I have brought the Register R.L.11 No. 705 but claim form No. 1893 submitted by Rahim Bakhsh along with Fard Haqiat is not available in my office. I cannot say whether Claim Form No. 1893 submitted by Rahim Bakhsh could be available or not to counsel for the petitioner. It is correct that in claim entry at serial No. 705 column No.2 of R.L.11, there is a mark of some drop of water and it is also there against entry No. 703 on the first page suggesting that the water had fallen in column No. 2 of entry No. 703 and then it had travelled downwards to the next page below it in entry No. 705 column No.2. This record is in my custody till 7‑2‑86. 1 do not know anything as to whether somebody had intentionally poured the water so that the entry should become illegible. Q.??????? I put it to you that the entry Khanqah Shah Ramzan Ba lehtamam were added in column No.2 subsequently and in order to get rid of this fraud the water had been poured on it so that it could not be traced out. A.??????? This is incorrect because the writing has not subsequently been added ?? and it is the first writing on the register ... ... ... ... ... ... ... ... ... ... ... ... ... ... There is no overwriting against entry No.705 pertaining to this case. There are drops of water on entry No. 706 and 707 as well. This is an old record prepared 35 years ago. It is also torn out and very old. The entire entry reading Khanqah Chhotay Shah Ba lehtamam Raheem Bakhsh etc. is legible. The entry showing "Wald Chhotay Shah by caste Faqir, Sakanan Deh" is free from any water over it."

20. I may observe that C.W.3 Shahbaz Ashraf Cheema, Tehsildar Sheikhupura, inter alia, has produced C.W.3/2 a copy of Jamabandi relating to Khanqah Pir Budhoshah, C.W.3/4 copy of Register Haqdaran Khanqah Pit Budho Shah, and C.W.3/6 an extract of Shajra Nasab; which indicate that there was a Khanqah in village Viru, tehsil Ganur, district Patiala, to which place the respondent, predecessors‑in‑interest, Rahim Bakhsh belonged. In above C W1 /6‑ the extract of Shajra Nasab, the name of Ramzan Shah appears, who was managing the Khanqa Pit Budho Shah and his son's name was Jalal Shah. But it does not contain any further names. The extract of Shajra Nasab Exh.P/3 produced by the respondents is also incomplete as it contains the names of Chhotay Shah and his son Rahim Bakhsh. If there would have been extracts of the complete above two Shajra Nasabs, it would have become clear, whether Khanqah Budho Shah and Khanqah Shah Ramzan are two different Khanqahs or is it one Khanqah having two names. However, I may observe that aforesaid C.W.3 Shahbaz Ashraf Cheema in his report Exh. C.W.3/1 has mentioned that the claim of Khanqah Budho Shah under Claim No. 3030 was verified and was sent to Mouza Dadabad, Tehsil Muzaffargarh. If that is so, it can be urged that it was a different Khanqah. Be that as it may, the most damaging piece of evidence, which has come on record against the respondents is Form R.L‑11 Exh.R/2, which indicates that the land was allotted in the name of Khanqah Shah Ramzan under management of Rahim Bakhsh son of Chotay Shah. In column 8, inter alia, it has been stated by the Revenue Officer concerned under his signature dated 22‑9‑1954 that Rahim Bakhsh had expired and his son agreed to the entries. In column 2 the names of all the legal heirs of Rahim Bakhsh with respective shares have been mentioned. The above Form R.L‑II is reflected in the original register of entries of forms R.L‑II as deposed by C.W.2 Muhammad Yusuf. This stands corroborated by Jamabandi for the year 1962‑63 (Exh.R/3) and the year 1966‑67 and Khasra Girdawari for different crops for the years 1984 to 1987. Against the above documentary evidence, Exh.P/1 a copy of Special Jamabandi for the year 1946‑47 and S.W 3/5 a copy of Jamabandi in favour of Rahim Bakhsh produced by C.W 3, are the, documents in favour of respondents. But the said two were not relied upon by the learned District Judge for the reason recorded by him referred to hereinabove in para

16. In my view in any case, the preponderance of evidence is against the respondents. I am, therefore, inclined to hold that the High Court was not justified in reversing the finding of the learned District Judge on Issue No.2.

21. However, I may add that the statutory duty of the appellant under the Ordinance is to ensure that the waqf properties are not mismanaged or misappropriated. But at the same time it is also his legal and religious obligation as a public functionary of an Islamic State to see that no person is deprived of his private property in the garb of waqf property. Article 24 of the Constitution of Pakistan enjoins that no person shall be deprived of his property save in accordance with law. Holy Quran and Sunnah are also very explicit and enjoin an Islamic State to extend protection of person and property to individuals which principle has also been incorporated in the Objectives Resolution, which has now become part of the Constitution by virtue of Article 2‑A thereof. I am inclined to hold that even if a person fails to get his property released from its being treated as a waqf property through a petition under section 7 of the Ordinance either on the ground of limitation or on account of inability to produce sufficient evidence at the trial, the ‑appellant remains under constant legal and religious duty to release the private property if an aggrieved party can at any stage produce reliable evidence to show that the particular property was not waqf property. In the instant case if the respondents at any stage may be able to produce the form of verified claim of Rahim Bakhsh and Form R.L.1 in respect of the land or any other reliable evidence, the appellant may re‑consider the respondents case.

22. With the above observation and for the aforesaid reasons the appeal is allowed with no order as to costs, the judgment of the High Court is set aside and the judgment of the District Judge is restored.

23. I would like to add this para after having seen the proposed opinion of my learned brother Mr. Justice Rustarn S. Sidhwa. It seems that after I remitted the draft of my above proposed opinion about two months back to my learned brother Sidhwa, J., he has examined informally two official witnesses and record personally and has discovered certain further material in support of the respondents' claim. I would not like to comment upon the evidentiary value of the above new material for more than one reason, firstly, that I have not seen the same nor I was present when the two officials were informally examined and, secondly, any favourable comment in the absence of hearing the parties may violate the basic principle of audi alterarn partem, which principle has been enshrined in the Islamic Jurisprudence since the inception of religion of Islam, which has been referred to in the celebrated case of the Shariat Appellate Bench of this Court in the case of Government Servants Compulsory Retirement on completion of 25 years service, namely, Pakistan and others v. Public‑at‑Large and others (PLD 1987 SC 304). However, since my learned brother is of the view that the further material referred to by him in his proposed opinion supports the case of the respondents, I would direct the appellant in terms of para 21 here in above to examine the above two officials and further material after notice to both the parties. RUSTAM S. SIDHWA, J.‑‑‑I have read the judgment of my learned brother Ajmal Mian, J., and since I differ with the findings and final order recorded by him, I would like to record my separate reasons for the same.

2. This Court, in view of its powers under Order XXXIII Rule 4 of the Pakistan Supreme Court Rules, 1980, to formally summon persons to give evidence, produce documents or prove any fact by affidavit, does not, as a general rule, privately call for and inspect records in a case for its personal satisfaction, but in rare cases, for very special reasons, it does sometimes enter into this exercise for the purposes of satisfying itself that the conclusions reached by any of the Courts below are correct or that substantial justice has been done. This Court perhaps is one of those rare but few superior Courts at the apex, which not often but in rare instances, suo motu picks up cases at the leave stage to examine whether substantial justice has been done, in which case, it may call for and inspect records or examine any aspect of the case, not strictly within the ambit of established practice and procedure, but not totally outside its inherent powers under Order XXXIII Rule 6 of its Rules, to do complete justice. This new and somewhat unconventional approach is the result of that spirit of Islamic renaissance which has animated this Court since its very inception to see that substantial justice is not too frequently sacrificed at the altar of technicalities and that it finds its respectful and rightful expression at the very apex in the true spirit in which Islamic justice has been dispensed in the past. The fact that principles out of Islamic Law have also been permitted to percolate into unoccupied fields, is another instance of this new phenomenon, laying the superior Courts open to the charge of being a competitive legislative body.

3. Since the submissions made on behalf of the respondents indicated that they had been allotted land directly as heirs of Ramzan son of Chhoty Shah and not as managers or administrators of Khanqah Shah Ramzan, I felt it necessary to look into the documents myself to ensure whether the findings recorded by the learned Single Judge were correct, on the basis of the material before him. In order to understand the facts of this case in some depth, I felt it necessary to call for the original records from the office of the Tehsildar, Ferozwala, District Sheikhupura, and from the Central Record Office, which I did and inspected. My findings from the said inspection, the result of which I shall narrate, justify the conclusion that the findings recorded by the learned Single Judge were correct and that the material on the record, without the new material I inspected, was sufficient to justify the said findings. What would have been the position if the fresh material discovered alone had justified the learned Single Judge's finding, or a different finding, I would not hazard an opinion presently, but I assume I would have been compelled to bring the same formally on the record to enable the opposite party to meet the same, before confirming or reversing the finding. Since this is not the case here, I consider myself relieved from this exercise and I proceed to record the result of my inquiry.

4. Mr. Muhammad Saeed, Naib‑Tehsildar, Ferozwala, produced before me:‑ (i) Original RL‑11 Register; (ii)? Original Summary Register of Qanungo Murid Ke (prepared sometime in 1984‑85); , (iii) Original Jamabandi for the years 1950‑51, 1954‑55 and 1958‑59; and (iv) Original khasra girdawaris for the said years.

5. The original RL‑11 Register was in a totally erased, broken down and torn condition. It was stated that during the floods the records were badly affected. The relevant page covering the allottee respondents appeared to have been badly tampered with, as entries under columns 1‑5 appeared to be totally obliterated. The khasra numbers of the areas only appeared to be legible in the middle of the page.

6. The Summary Register of Qanungo Murid Ke contained entry of Khanqah Shah Ramzan Ba Ihtamam Rahim Bakhsh son of Chhotay Shah in respect of Claim No. 1983 of Mauza Biru, Tehsil Ganur, District Patiala ,'showing that the preliminary verification of allotment was done on 29‑6‑1954 and the allotment was confirmed on 27‑7‑1962. The plots allotted were 31 and the area allotted was 215 kanals 13 marlas (majority being Banjar). This Register appeared to be a haphazard collection of sheets formed into a register, which was constructed/prepared in 1984‑85 and no authenticity can be attached to it.

7. The original Jamabandi for the year 1950‑51 showed that the names of the respondents were neither. recorded in the khata as the owners nor in the khatuni as cultivators. The Jamabandis for the years 1954‑55 and 1958‑59 showed that the names of the respondents were not recorded in the khata as owners, but were recorded in the khatuni as cultivators as follows:‑‑ ? Under different killas names of different tenants also appeared. In the Jamabandi for the years 1954‑55 and 1958‑59, there is no reference to Khanqah Shah Ramzan Ba Ihtamam Muhammad Ramzan etc.

8. In the Khasra Girdawaris for the years 1954‑55 and 1958‑59, again the respondents are shown in cultivating possession in respect of almost all the khasra numbers, without any reference to Khanqah Shah Ramzan, but in respect of five khasra numbers only, namely 331 to 334 and 336, there is some reference to Khanqah Shah Ramzan, but not in respect of other twenty‑six khasra numbers.

9. The Naib‑Tehsildar informed me that there was some ban regarding ntering the names of the allottees in the Jamabandis in the Malkiyyat column uptil 1962, and when the ban was lifted, all the allottees who had received their allotments and whose names had been included in the RL‑Il Register were thereafter shown in the ' column of Malkiyyat from 1962 onwards, which accounts for the fact why the jamabandis on and from the year 1962‑63 show the names of the allottee owners.

10. The Jamabandis on and from 1962‑63 show the name of Khanqah Shah Ramzan in the column of ownership, whereas the names of Muhammad Ramzan and others appear in the column of cultivators.

11. Munshi Muhammad Iqbal, Patwari from the Central Record Office produced the under‑noted Registers:‑ (i) The Special Jamabandis received from India regarding Mauza Biru,? Tehsil Ganur, district Patiala, and (ii) Register showing claims verified in respect of the Special Jamabandi for Mauza Biru, Telisil Ganur, district Patiala.

12. The Special Jamabandis regarding Mauza Biru appeared to be in proper serial order. At khewat No.68 appeared the entry relating to land owned by Rahim Bakhsh son of Chhotay Shah caste Faqir. It showed that he owned 51 kanals 9 marlas cultivated land and 2 kanals 16 marlas banjer land. Exh C.W. 3/5 is the photo copy of this entry. The very next entry in this Register after that of Rahim Bakhsh was that of Khanqah Budhu Shah Ba lhtamam Muhammad Jalal Shah son of Muhammad Ramzan Shah caste Syed Gilani. Exh C.W.3/2 is photo copy of this entry.

13. The Register showing the claims passed by the Central Record Office regarding Mauza Biru, showed that Claim Form No. 1983 was verified by the Central Record Office relating to Rahim Bakhsh son of Chhotay Shah caste Faqir in respect of the land left by him in Mauza Biru and that the claim form was sent to Kote Pindi Das, District Sheikhupura. Exh. C.W.3/7 is photo copy of this entry. Claim Form No. 3030 was verified by the Central Record Office regarding the lands owned by Khanqah Pir Budhu Shah which was transmitted to District Muzaffar Garh. Exh. C.W. 3/4 on the file is the said photo copy of this entry. Register showing the claims verified in respect of Mauza Biru had no entry showing that any claim was verified in respect of Khanqah Shah Ramzan, which was transmitted to village Pindi Das, Tehsil Ferozwala, District Sheikhupura.

14. From the above resume, it would appear that there was no land in the ownership of Khanqah Ram7an Shah in Mauza Biru, Tehsil Ganur, District Patiala, appearing in the Special Jamabandis received from India relating to Mauza Biru, Tehsil Ganur, District Patiala, and that no claim form was verified by the Central Record Office in this respect, which was transferred to Village Pindi Das, Tehsil Ferozwala, D;strict Sheikhupura. There is sufficient evidence to show that Rahim Bakhsh son of Chhotay Shah owned the land in Village Biru, Tehsil Ganur, District Patiala, in respect of which the Central Record Office verified his Claim No. 1983 in that respect, which it transmitted to Village Pindi Das, Tehsil Ferozwala, District Sheikhupura, sometime before 1954, because in the jamabandis for the years 1954‑55 and 1958‑59, Muhammad Ramzan and others, the heirs of Rahim Bakhsh son of Chhotay Shah, have been recorded in the column of cultivators in respect of the khasra numbers allotted to them under section 7 of the Rehabilitation Ordinance, 1958 as permanent allottees/owners in cultivating possession. It appears when the Jamabandi for the year 1962‑63 was prepared, all the khasra numbers were erroneously shown as being owned by Khanqah Shah Zaman Ba Ihtamam Muhammad Ramzan etc. for which there seems to be no legal justification. The fresh documents examined by me remove any doubts that I may have harboured about the findings which the learned Single Judge recorded in the instant case on issue No.2. However, I do not think this case calls for a remand. The documents and oral evidence produced before the District Judge were sufficient to come to the findings which the learned Single Judge recorded, because the certified copies of the Special Jamabandi received from India and the respondents' claim verified by the Central Record Office clearly proved that the allotment of evacuee land received by the respondents was in lieu of the personal lands of Ramzan son of Chhotey Shah left by him in India. I would, therefore, agree with the findings arrived at by the learned Single Judge of the Lahore High Court, as contained in paras 8 to 11 of his judgment, and hold that the allotment made in favour of the respondents was in respect of their personal holding and not that of Khanqah Ramzan Shah in India. Issue No.2 is, therefore, decided in favour of the respondents.

15. This now leaves me with the question of limitation. It cannot be doubted that under section 6 of the West Pakistan Waqf Properties Ordinance, XXVIII of 1961, a power has been conferred on the Chief Administrator of Auqaf to take over and assume, by notification, the administration, control, management and maintenance of waqf property. Under the definition of "waqf property', as contained in section 2(d) of the said Ordinance, the only basis on which the present evacuee property could have been taken over by the Chief Administrator was under Explanation 2 which stated that "property allotted in lieu or in exchange of waqf property left in India, shall be deemed to be waqf property." As held in Muhammad Jamil Asghar v. Improvement Trust (PLD 1965 SC 698), an administrative or an executive officer, who is empowered to pass an order if certain circumstances exist, has himself no jurisdiction to intrinsically determine those circumstances, because the objective existence of those circumstances is for him sufficient to clothe his order with validity. However, the Court can make an inquiry in respect of his order and if it rinds that all circumstances needed for passing the order were not present, it will declare the order to be void. Though the officer may have to ascertain whether the requisite circumstances exist for passing the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances did not in-fact exist. If the circumstances warranting the passing of the order do not exist, the Court can declare the order of such officer as void. Implied in section 6 of the Ordinance is the condition precedent that the Chief Administrator has satisfied himself on consideration of the relevant record that in fact the property he is taking over has been allotted in lieu of waqf property in India, in respect of which he intends to exercise his powers under the Ordinance. The evidence on the record clearly shows that the Chief Administrator of Auqaf did not inspect the total records, either with the Central Record Office or with the Tehsildar, Ferozwala, District Sheikhupura, before issuing the notification in question, but accepted entries in RL‑11 Register and some revenue records, without giving proper attention to the Special Jamabandi received from India showing that the respondents' predecessor owned personally land in Mauza Biru, Tehsil Ganur, District Patiala, and that Claim Form No. 1983 had been verified by the Central Record Office regarding the said land left in the said Mauza in India. It cannot, therefore, be doubted that the Chief Administrator of Auqaf acted arbitrarily and capriciously and his order is, therefore, without jurisdiction, A initio void and a nullity. In such cases the order need not be formally set aside and no limitation runs against the same. If any authority is required for this view, Hussain Bakhsh v. Settlement Commissioner (PLD 1969 Lah. 1039), Mst.Rchmat Bibi v. Punnu Khan (1986 SCMR 962), Malik Khawaja Muhammad v. Marduman Baber Kahol (1987 SCMR 1543), The Punjab Province v. The Federation of Pakistan (PLD 1956 FC. 72) and Muhammad Swaleh v. United Grain and Fodder Agency (PLD 1964 SC 97) may be referred. In Sharif Ahmad Hashmi's case (1980 SCMR 711) this Court has laid down the rule that a void order is not always to be struck down regardless of consequences, but that a void order may be struck down if there is a statute or a principle of law which would make it just or equitable to do so. Where a person has acquiesced in the void order or has tried to circumvent the provisions of a statute of limitation, a void order may not be struck down. The question, therefore, is whether a petitioner's conduct is such that it would be just and fair for a Court to say it would rather allow the void order to stand, then strike it down. Another rule flowing from Sharif Ahmad Hashmi's case is that in cases relating to service matters, the law of limitation should be strictly applied, as otherwise it would create disarray in the services. This rule was also previously stated in Chairman, District Screening Committee v. Sharif Ahmad Hashmi (PLD 1976 SC 258 at 267). There can be no doubt that the respondents in the instant case are not guilty of any form of acquiescence. They cannot also be held as guilty of consciously circumventing the law of limitation. The notification of the Chief Administrator of Auqaf dated 15‑1‑1970 was gazetted on 11‑4‑1970. The respondents filed writ petition on 29‑4‑1970, which was dismissed on 17‑3‑1979, whereafter they riled the petition under section 7 of the Ordinance on 28‑5‑1979, after securing certified copies of various orders etc. which took some time. The learned District Judge, Sheikhupura, who tried the case, condoned the delay between 29‑4‑1970 and 17‑3‑1979 under section 14 of the Limitation Act, on the basis that the respondents were uneducated and were not cognizant about the legal position and that they were, therefore, misled through wrong legal advice to seek their remedy in the High Court. What only, therefore, remains is the period between 17‑3‑1979 and 28‑5‑1979, a short period of two months and eleven days, during which the respondents also applied for and secured certified copies of various orders etc. Considering that it was not in the interest of the respondents to circumvent the law of limitation and the rights of the respondents would be adversely affected if the void order is not struck down, I would, in the instant case, not hold limitation as in any way barring me from striking down the void order, for no justice or equity can be served by acting to the contrary. I would here state that the respondents are not enforcing any false claim or demand. Taking all the circumstances into consideration, I would hold that this is not a case where the rule stated in Sharif Hashmi's case (1980 S C M R 711) should be permitted to stand in the way of the respondents in securing the relief which they were granted by the learned Single Judge and I would, therefore, hold issue No.1 as proved in favour of the respondents.

16. For the foregoing reasons, I uphold the order of the learned Single Judge of the Lahore High Court dated 13‑2‑1989 and would dismiss this appeal. SHAFIUR RAHMAN, J.‑‑‑This appeal has come up before me under the orders of the learned Chief Justice under second proviso to Order XI of the Pakistan Supreme Court Rules, 1980, for decision, a difference of opinion having arisen between the two learned Judges of the Court who had the benefit of hearing the parties in the first round. The separate opinions recorded by the two learned Judges were made available to the parties. This appeal was reheard by me at Lahore on 28‑7‑1990 and 29‑7‑1990.

2. The facts of the case have been reproduced in great detail and with sufficient accuracy in the two opinions recorded. Those facts need not be reproduced.

3. The admitted position is that in the R.L.‑II and in all the subsequent jamabandis the land which is the subject‑matter of litigation was shown to be allotted to Khanqah Shah Ramzan under the management of Rahim Bux and after his death, under the management of the respondents, the heirs of Rahim Bux. This had been the position from 1953/1954 when allotment was made till 15‑1‑1970 when the impugned notification issued.

4. In the West Pakistan Waqf Properties Ordinance, 1961 (Ordinance NoXXVIII of 1961), which was then applicable, 'waqf property' was defined as hereunder:‑ (the relevant portion only) "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 does not include property of any waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claim able for himself by the person by whom the waqf was created or by any member of his family or descendants. Explanation I.‑‑‑If a property has been used from time immemorial for any purpose recognized by Islam as religious, pious 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 6.‑‑‑Property permanently dedicated for the purposes of a mosque, Takia, Khanqah, Durgah, or other shrine shall be deemed to be waqf property." Section 52 of the West Pakistan Land Revenue Act, 1967 provides as hereunder:‑ "

52. Presumption in favour of entries in record‑of‑rights and periodical records. ‑‑‑An entry made in a record‑of‑rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor." Section 53 of the same Act provides as hereunder:‑ "

53. Suit for declaratory decrees by persons aggrieved by an entry in a record.‑‑‑If any person considers himself aggrieved by an entry in a record‑of‑rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877)." No suit having been ever riled by the respondents challenging these entries, the appellant was fully justified and was within his jurisdiction in issuing the impugned notification Such a notification cannot be termed as nullity on any reason .

6. The other admitted position is that the respondents had filed a Constitution Petition (Writ Petition No. 667/1970) in the High Court, immediately on coming to know of the notification of the Chief Administrator Auqaf, West Pakistan and they claimed the period spent in prosecuting that matter for obtaining relaxation of the, period prescribed for instituting a Petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1961. In that Writ Petition, the respondents had themselves stated as hereunder:‑ "(i)??????? That the petitioners are the lineal descendants of Shah Ramzan in whose favour agricultural land measuring 215 kanals 13 marlas existed in Village Behru, Tehsil Ganur District Patiala (India). (ii)??????? It may be stated that the land attached to the Khanqah of Shah Ramzan the common ancestor of the petitioners was in the possession of the petitioners' ancestors for nearly two hundred years and this land was as such, inherited by each generation down to the petitioners for their exclusive use and benefit. (iii)?????? That the property which was allotted to the petitioners comprising Khewat No. 665, Khatuni Nos. 2360, 2361 measuring 215 kanals 13 marlas situated in. Village Kot Pindi Das, Tehsil Ferozewala, District Sheikhupura is not Waqf Property within the meaning of section 2(d) of the West Pakistan Waqf Properties Ordinance 1961 as it was in possession of the petitioners' family for over two hundred years and could only be deemed to be a Waqf‑ul‑Aulad and, therefore, could not have been taken over by the respondent."

7. The supporting documents which the respondents mentioned in the Writ Petition and Filed alongwith the Writ Petition were as hereunder:‑ (i)???????? Copy of Fard Haqiat of Claim Form No. 1983 showing the claim of claimants as Khanqa Shah Ramzan under the management of Rahim Bux son of Chhotay Shah, caste Faqir, resident of Malikpur Kamburan. (ii)??????? Copy of Pedigree Table which showed Khanqah Shah Ramzan under the management of Chhotay Shah who was not shown as his son but whose son was recorded as Rahim Bux. (iii)?????? Mutation Register of refugees deceased claimants mentioning Khanqah Shah Ramzan under the management of Rahim Bux son of Chhotay Shah, containing mutation of inheritance of Rahim Bux.

8. As the respondents themselves presented these documents in the High Court, based their case on their correctness, they cannot by their evidence or otherwise be allowed to repudiate it. The documents which have been extensively referred to by the two learned Judges for drawing their conclusions relate to the record kept in the Central Record Room and the Revenue Record prepared after? the allotment. The first was suspect on account of interpolations made therein, about which there is a cautionary remark officially recorded. The second was a mere reproduction of the allotment registers which too had been damaged by flood and reconstructed but not in a manner to inspire, confidence.

9. The oral evidence led by the respondents in the case was directed at showing that there was no Khanqah at all in Biru estate of Patiala to which the claim of the respondents related. This is a case totally destructive of the case set up by the respondents at the very first stage when there was no controversy with regards to the genuine of the record and the filed the writ petition in the High Court, where they admitted that Ramzan Shah was their predecessor‑in‑interest, that a Khanqah existed, that Chhotay Shah was shown in the pedigree table managing the Khanqah of Shah Ramzan. They only claimed that the property should not be treated as Waqf as nobody else except those of the family of Ramzan Shah were enjoying the profits of the property. At worse and in the alternative, they claimed that it should be treated as Waqf‑alal‑Aulad. There was no dispute with regard to the attachment of the property with Khanqah of Ramzan Shah. In view of these facts, the principle of estoppel will certainly apply against the respondents.

10. As all the above recitals and records are a part of the Writ Petition admittedly filed by the respondents and pertain to a Court of record, their admissibility and veracity cannot be disputed on any ground except that of fraud. In support of this proposition, the following statement of law is reproduced from 20 American Jurisprudence 2nd:‑ "Almost universally recognized attributes of a Court of record are that there is a strong presumption as to the veracity of its records, that it is presumed to have had jurisdiction of the case adjudicated by it and that its records cannot be collaterally attacked except for fraud, or defects appearing on the face of the record."

11. The delay in filing the Petition under section 7 of the Waqf Properties Ordinance, 1961 has also not been properly and fully explained and the proceedings before the District Judge were clearly time‑barred.

12. On these findings the appeal is liable to be accepted, the judgment of the High Court to be set aside and that of the District Judge restored with no order as to costs. ORDER OF THE COURT In view of the opinion of the majority of Judges, the appeal is allowed, the judgment of the High Court is set aside and that of the District Judge restored. No order is made ass to costs. M.BA./C‑68/S??????????????????????? ???????????????????????????????????????????????????????????? Appeal allowed.