2018 PLP 349 (CLC)

MOHAMMAD SHERAZ KIANI, J.

The captioned appeal has been directed against the order and decree of learned Additional District Judge Dheerkot dated 19-11-2016, whereby the appeal of appellant, herein was dismissed being weightless.

2. Shortly stated facts of the captioned appeal are that plaintiff/appellant herein, filed a suit for declaration cum perpetual injunction in the Court of Civil Judge Dheerkot, in respect of survey No.1187, land measuring 04 marla, survey No. 1188 land measuring 07 marla, survey No. 1189 land measuring 08 marla and survey No.1190, land measuring 04 kanal 05 marla situated in Village Sahllian Chajja Tehsil Dheerkot District Bagh stating therein that the abovementioned land, as per revenue record is registered in the name of plaintiff and the plaintiff has also the possession of this land. The other co-sharers having the possession of the land as per their fractional shares, therefore, it is not necessary to implead them as party in the suit. As per contents of plaint, the defendants and their relatives and companions have made a plan to occupy the Mosque and the land adjacent to the Mosque while stating the people that the forefathers of the plaintiff have given the land to the defendants for construction of Mosque. It is averred that no Mosque or land adjacent to it had been given by the ancestors of plaintiff to any individual or group in shape of sale or gift, however, in the life of father, the administrative system of the Mosque was smoothly run and before the year 1996, the charity fund collected in shape of rupees was properly and honestly deposited in the Bank Account and the same was written in the Board erected in the wall of Mosque. This money was spent after making consultation with the other members of the Committee, however, after year 1996, the needful was not done properly by the defendants as they have given up all the beneficial works in favour of the Mosque. On filing of the suit, the defendants were summoned by the trial Court, who while filing the written statement refuted the contents of the plaint and submitted that the suit may be dismissed with costs. Along with the suit an application for interim relief was also submitted before the trial Court and the same was also objected by the other side.

3. The learned Judge in the light of pleadings of the parties, dismissed the suit under Order VII, rule 11 of Civil Procedure Code, and vacated the stay order already issued. Feeling aggrieved from the judgment of the trial Court, plaintiff/appellant, preferred an appeal before the learned Additional District Judge Dheerkot, which also met the same fate, hence, the supra titled appeal before this Court.

4. Barrister Adnan Nawaz Khan, the learned counsel for appellant submitted that suit land is not trust property and both the Courts below, the trial Court as well as the 1st appellate Court, fell in error by assuming the suit land as trust property. The learned counsel while drawing the attention of the Court towards the averments of the plaint contended that subject matter of the suit land is not only the Masjid-ur-Rehman rather the adjacent property admittedly in the ownership of plaintiff/appellant is also the subject matter of the suit and there was no occasion for the trial Court or the 1st appellate Court to apply section 92 of the Civil Procedure Code, upon the present case while dismissing the suit on this technical ground. The learned counsel next argued that the judgment of the supreme Court relied upon by the Courts below is not applicable due to distinguishable facts of the present case.

5. Conversely, Sardar Atta Elahi, the learned counsel for respondent while refuting the stances of the counsel for appellant, submitted that both the Courts below have decided the case in accordance with law and no illegality or perversity has been committed by the lower Courts.

6. Admittedly, the Masjid-ur-Rehman, is waqaf property and the plaintiff in the averments of the plaint clearly raised the issue for auditing the account of the Mosque and income expenditures which is the question of breach of trust. Furthermore, in para No.6 of the plaint, it is also alleged that the new construction of the Mosque has not been done properly and the expenditures were not accounted for and there is no rendition of the account of the trust/waqf property of the Mosque and in para No.6 of the plaint, the plaintiff stated in the following manner:- From the above wording, no other conclusion can be made in respect of the real controversy between the parties except that the dispute relates to the breach of trust of the Mosque known as Masjid-ur-Rehman. The prayer clause of the plaint reads as under:-

7. The plaintiff sought protection of Masjid and adjacent property and rendition of its account and audit. Although, in addition to the Masjid, some other property has been included in the plaint but the real controversy between the parties is the dispute regarding administration, management and supervision of the trust property and in such situation when there is any breach of trust is alleged, section 92 of Civil Procedure Code, clearly postulates that before filing the suit in this regard by two persons, prior approval of the Additional Advocate General is mandatory. The wisdom of the legislature is very much clear that in such cases where any waqf or trust property is involved, if everybody is allowed to litigate the matter then there would be no end of litigation and everybody interested therein would like to built his case according to his own interest and preferences and in case of trust property, infringement of any exclusive right of an individual is not comprehendible and such properties are for the benefit and use of public at large or for particular community as a whole. That is why as suit for protection of the such waqf property has been conditioned with the prior approval of the Advocate General, a state representative or by him. Under these conditions when the mandatory requirements provided in section 92 of Civil Procedure Code, has not been fulfilled, the suit was barred by law and liable to be rejected under Order VII, Rule 11 of Civil Procedure Code. Section 92 is also reproduced herein below:- "Section 92

public charities. In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may Institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the [Provincial Government] within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree."

8. Furthermore, inspite of the admitted fact that there is a Mosque plaintiff/appellant still insists that he has prior right to administrate and manage the trust due to the reason that the Mosque was constructed in his own land. It is to be noted that once a property is donated or dedicated for religious or charitable purpose, the ownership of private person extinguish at that moment and he has no right upon such dedicated or donated property. Needless to say that any Masjid comes in the category of Waqf and trust property and there is no doubt that the Masjid comes in the ownership of "Allah Almighty", no person has any right to claim the ownership of Mosque and other charitable property. My this view find support from the case law reported as 2013 SCMR 737, wherein, it has been held as under:- "A perusal of the record of rights for the years 1891-92 prepared during the first settlement operation shows that the property in dispute was recorded as ownership of the mosque. These entries have been repeated throughout without their being any change. Yes, it is a village common property but the village proprietary body dedicated it to the mosque. At no point of time, any member of the village proprietary body interfered with the rights of the mosque. It is, therefore, a waqf to all intents and purposes. Its long, continuous and uninterrupted use as waqf, leaves no doubt that it is waqf out and out. Reference to the case of "Zahid Farooq and another v. Anjuman Jamia Masjid and 4 others" (1995 SCMR 1584) which has been extensively quoted in the impugned judgment may well be referred to in this behalf. Once the nature of a property as waqf is established, no back door intrusion into the same by a former owners can be allowed to resume, retrieve or reclaim it under any law worth the name." In another case reported as 2015 SCR 845, it has been held by the apex Court of Azad Jammu and Kashmir in the following manners:- "The juxtapose appreciation of the prayer clause and the statutory provision clearly speaks that the suit fully falls within the scope of the statutory provision reproduced hereinabove. Hence, in our considered view, the provisions of section 92 of Civil Procedure Code, are fully attracted in this case. Now, the question arises; whether, non-compliance of this statutory provision makes the suit incompetent or not there is chain of authorities on this legal proposition one of which is the case reported as Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others [PLD 1989 SC 283]. In this case almost identical proposition was raised regarding the management of the Mosque without compliance of section 92 of Civil Procedure Code." The apex Court finally concluded:- "In view of what has been stated above we feel that having regard to the substance of the case pleaded in the plaint, the suit was of the nature contemplated in section 92, Civil Procedure Code and therefore, it was not competent without the requisite prior sanction of the Advocate General. The plaint in the suit itself disclosed that the suit was barred under the said provision of law and consequently the plaint was liable to be rejected under Order VII rule 11 (d) Civil Procedure Code."

9. The contention of the learned counsel for the appellant that it is not only the Mosque or waqf property which is the subject matter of the present case rather the other land mentioned in the plaint admittedly in the ownership of the plaintiff, is also subject matter of the suit and thus according to learned counsel the suit should not have been dismissed in toto rather to the extent of owned land of the appellant, the case should have been decided upon merits by the Courts below after adopting due process of law. This plea is also devoid of any force because from the averments of the plaint, I have inferred that it is only the Mosque which is real bone of contention between the parties, so just to attach some other property in the plaint is not sufficient for the maintainability of the suit. If any cause of action is arisen in respect of the other land which is not the part of the Mosque, the plaintiff/appellant would be at liberty to file afresh suit but not regarding the waqf property without fulfilling the legal requirements. Therefore, in the light of above discussion, finding no force in this appeal, it is hereby dismissed with no order as to costs. MQ/54/HC(AJ&K) Appeal dismissed.