replacing the Qazi under the Mohammadan Law, giving him complete, discretion as regards management, though however, binding th (PLP)

This judgment will dispose of two writ petitions namely W.P.Nos 171‑85 and 174‑85 filed by Tariq Hussain Bhutta and Khalid Mahmood?? Bhutta, petitioners, against the orders of the Rent Controller, Sialkot dated 26‑4‑1984 and that of the Additional District Judge Sialkot dated 20‑12‑1984 ordering their eviction and five writ petitions namely W.P. Nos.192‑85, 193‑85, 194‑85, 195‑85 and 216‑85, filed by Khalid Javed, Zahoor Elahi, Talib Hussain, Lal Chand and Saghir Ahmad petitioners, against the order of the Rent Controller, Sialkot, dated 20‑5‑1984 and that of the Additional District Judge, Sialkot, dated 20‑12‑1984 ordering their eviction.

2. Since all the important documents are contained it, the file of W.P. No.192 of 1985, all references to documents in this judgment must be deemed to have reference to the documents contained in? this file.

3. The brief facts of the case are that one Haji Shahab‑ud‑Din owned property No.B‑XIX‑135 situated in Bazar Khatikan, Sialkot City. By deed dated 11‑12‑1930, registered on 2‑1‑1931, the said Haji Shahab‑ud‑Din created a Waqf‑ul‑Aulad of all his immovable properties, including property in Bazar Khatikan, Sialkot City, for the benefit of himself and his heirs in perpetuity and after the whole line of his heirs and their descendants stood extinguished, for the construction of a hospital in Sialkot City, for the benefit of the public in general. By the said deed he nominated. himself as the first Mutwalli for the period of his life and laid down conditions for the nomination of Mutwalli?s in his stead after his life. The said waqf deed is annexed as Annexure? to the writ petition. On 27‑4‑1935 the said Haji Shahab‑ud‑Din created a further Waqf‑ul‑Aulad of fresh properties by a supplementary 'deed, in which he excluded from the waqf certain properties earlier dedicated by him on the ground that they belonged personally to one of his sons. The supplementary waqf deed is Annexure "I" to the writ petition. The objects of this waqf are almost similar to the first waqf.

4. The petitioners are tenants of shops and residential flats in the aforesaid property No.B‑XIX‑135 in Bazar Khatikan, Sialkot City, on nominal rentals, which are not disputed.

5. In 1951‑Haji Shahab‑ud‑Din, the first Mutawalli, died. On his demise his eldest son Ali Muhammad became Mutawalli in his stead. In 1965 Ali Muhamad Mutawalli died. On his demise another son of Haji Shahab‑ud‑Din, namely, Aftab‑ud‑Din, became a Mutawalli who kept receiving the rents from the petitioners who were tenants of property No. B‑XIX‑135.

6. In 1982 Nawab Din, Muhammad Sharif, Mst. Amrit Bibi and Mst. Rahmat Bibi, legal heirs of Haji Shahab‑ud‑Din, filed a suit for permanent injunction against Aftab‑ud‑Din, the existing Mutawalli, to restrain him from interfering in their possession of Shop No. 16/SB, Regiment Bazar, Sialkot City. In the said suit the parties filed a compromise deed containing a settlement and partition of all the properties. By a compromise decree obtained by them on 12‑7‑1982, the said legal heirs of the late Haji Shahab‑ud‑Din distributed the properties of the late Haji Shahab‑ud‑Din amongst themselves, which basically were waqf properties, by virtue of two waqf deeds created by the original Waqif. By virtue of the said compromise decree, Aftab‑ud‑Din, Mutawalli came into possession of Property No. B‑XIX‑135 in Bazar Khatikan, Sialkot City. 7.???????? On 11‑4‑1983 Aftab‑ud‑Din, Mutwalli, sold Property I No. B ‑XIX‑135 in Bazar Khatikan, Sialkot City to M/s. Zargam Traders a partnership firm. The said sale‑deed is Annexure D to the writ petition.

8. On 1‑11‑1983 the Firm Zargam Traders filed eviction petitions against the above seven petitioners claiming their eviction on the ground that it wanted to demolish the property and to build in its stead a commercial plaza.

9. Since Sh. Javed Khalid, Zahoor Illahi, Talib Hussain, Lal Chand and Faqir Muhammad, petitioners, had not attorned to the new landlord or paid any rent to them, they denied the fact that they were tenants of the Firm Zargam Traders and pleaded that the property was waqf, that Aftab‑ud‑Din Mutawalli had no legal right to sell the same to Zargam Traders, that the transferee had not acquired any valid title to the property, in which they were tenants, and they, therefore, could not be evicted.

10. Talib Hussain and Khalid Mahmood Bhutta, petitioners, did not take up the above objection, but inter alia pleaded that no notices under section 13‑A of the Rent Restriction Ordinance, 1959 had been served on them and that proper parties had not been joined. ???

11. In respect of the eviction petitions against Sh. Khalid Javed, Zahoor Illahi, Talib Hussain, Lal Chand and Saghir Ahmad petitioners, the learned Rent Controller framed issue ‑ a whether the relationship of landlord and tenant existed between the parties and after recording the evidence of the parties, he decided the same against the petitioners. He held that as the Firm Zargam Traders had purchased the suit property and had served notices on the petitioners, the relationship of landlord and tenant existed between the parties for the purpose of disposal of their cases. He also held that the petitioners had not produced sound 'and cogent evidence as regards the suit property being waqf and that if it was waqf, the petitioners should have produced the legal representatives of Haji Shahab‑ud‑Din, deceased, as witnesses to prove the same and that copies of waqf deeds Exs.R.1 and R.3 did not clearly show the said property to be waqf. He further held that even if the title of the Firm Zargam Traders regarding the suit property was defective, the petitioners who were tenants of the Firm Zargam Traders, were tenants of the suit property and they could not be allowed to challenge it for only the legal representatives of the late Haji? Shahab‑ud‑Din could challenge the legality of the sale‑deed. On the same day the learned Rent Controller framed issues on the merits and, after recording evidence thereon on 23‑7‑1984 dismissed the eviction petitions, holding that the Firm Zargam Traders had no bona fide or reasonable grounds to claim eviction on the ground of re‑construction.

12. Being aggrieved by the aforesaid orders, the Firm Zargam Traders preferred separate appeals before the District Judge, Sialkot. The said five appeals were heard by an Additional District Judge of Sialkot, who allowed the same on 20‑12‑1984. The petitioners took up the plea that the disputed property was waqf and that Aftab‑ud‑Din the last Mutawalli had no right to sell the same to the Firm Zargam Traders and that the said Firm, not being a valid transferee of the property, could not claim their eviction. The learned Additional District Judge rejected the said plea on the basis that the decision of the Rent Controller had attained finality, because the petitioners had not preferred any appeals against the same. Surprisingly, the learned Additional District Judge, Sialkot, failed to realise that the petitioners could not take up any. appeals against preliminary issues or interim orders, by virtue of the amendment effected in section 15 of the Rent Restriction Ordinance, 1959, by the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979.

13. Being aggrieved by the aforesaid orders dated 20‑12‑1984, Sh. Khalid Javed, Zahoor Ahmad, Talib Hussain, Lal Chand and Saghir Ahmad petitioners, preferred writ petitions, the particulars and numbers of which are given in para, 1 above, which are now before me for disposal. ?

14. With regard to the eviction petitions filed against Talib Hussain and Khalid Mahmood Bhutta, petitioners, a number of issues were framed covering both the preliminary objections and objections on merits. No objections were taken by these two petitioners with regard to the disputed property being waqf property or that Aftab‑ud‑Din, the last Mutawalli, had no legal right to transfer the same to the Firm Zargram Traders, or that the said Firm was not a valid transferee thereof and, therefore, had no right to evict the petitioners. After recording the evidence of the parties, the Rent Controller, Sialkot, by 'his judgment dated 26‑4‑1984, decided the issues in favour of the Firm Zargam Traders and ordered the ejectment of the said two petitioners. Being aggrieved by the said orders, the petitioners preferred appeals which were also dismissed by a learned Additional District Judge on 20‑12‑1984.

15. Being aggrieved by the above orders, Tariq Hussain and Khalid Mahmood Bhutta, petitioners also filed writ petitions in the High Court, the particulars and numbers of which are given in para. 1 above, which are now before me for disposal.

16. On 9‑5‑1985 Sh. Javed Khalid, Talib Hussain, Lal Chand and Saghir Ahmad, petitioners, filed a petition under section 12(2), C.P.C. for setting aside of the compromise decree dated 12‑7‑1982 obtained by Nawab Din and others against Aftab‑ud‑Din. On behalf of Aftab‑mud‑Din and others an objection was taken that the petitioners being merely tenants had no locus standi to challenge the decree. The learned Civil Judge, Sialkot, by his order dated 24‑11‑1985, held that the petitioners had locus standi to challenge and to have the said decree set aside for fraud. Aftab‑ud‑Din and the Firm Zargam Traders, two of the six respondents, thereupon filed a revision petition against the said order. On 5‑5‑1986, an Additional District Judge of Sialkot accepted the revision petition and held that the four petitioners being tenants had no locus standi to challenge the compromise decree.

17. Being dissatisfied with the above judgment, Sh. Khalid Javed and others, petitioners, filed ' a constitutional petition in the High Court, which is still pending.

18. I have heard the arguments of the learned counsel for the petitioners and the Firm Zargam Traders. It is apparent that the learned Rent Controller in the five eviction petitions filed against Sh. Javed Khalid, Zahoor Illahi, Talib Hussain, Lal Chand and Saghir Ahmad, whilst deciding the issue whether relationship of landlord and tenant existed between the parties,. did not carefully go info the question whether the disputed property was a property dedicated to waqf by Haji Shahab‑ud‑Din, through waqf deed dated 12‑11‑1930, or supplementary waqf deed dated 27‑4‑1935, and, if so, whether Aftab‑ud‑Din, the last mutwalli, had authority to sell the disputed property to the Firm Zargam Traders and, if not, what was its effect.

19. According to Muhammadan Law. a waqf is a permanent dedication of property by a Muslim for the purposes recognised by the Muslim Law as religious, pious or charitable. A waqf once made cannot be A revoked, unless the waqf is testamentary i.e. made by a will. The waqf property cannot be mortgaged, sold or changed, without the permission of the Court, unless the mutawalli is expressly empowered by the deed of waqf to do so.

20. The institution of waqf‑ul‑aulad is based on the principle arising from the concept that supporting oneself and one's kith and kin, who may be needy, is also a noble and charitable act, because the Holy Prophet (peace be upon him) had said "where a Muslim bestows on his family and kindred, hoping for reward in the next world, it becomes alms, although he has not given to the poor, but to his family and children". (Ameer Ali). From this principle, waqf.‑ul‑aulad has developed as a means of dedicating property in favour of oneself and one's lineal descendants, as a pious act, and sometimes with it, directing a major or minor portion of the usufruct towards other religious or charitable objects, in the name of Allah. This extension of the institution of waqf‑ul‑aulad, having nothing to serve for public' charity, till the whole line of the waqif and his children and their, descendants stands extinguished, or having little to serve for public charity, but the bulk of 0 the usufruct being directed for the benefit of 'the Waqif and his descendants, and the office of Mutwalli being' confined to the Waqif and/or his legal descendants alone, usurpation of the property, ultimately leading to the complete destruction of the waqf, has brought this type of waqf‑ul‑aulad much adverse criticism. See Abdul Fata Muhammad Ishaq's ease (ILR 22 TA 76). However one thing is clear, whether there is a waqf for a purely religious pious or charitable object, or one for the support of a Waqif and his kith and kin, with some religious, pious or charitable objects added to it, the corpus of the waqf cannot be allowed to be usurped or eroded, but the usufruct can be used or applied to the objects of the waqf. ?

21. The normal rule which gives locus standi only to the beneficiaries to file a suit to call upon trustees or Mutwallis to account for their malfeasance, misfeasance or non‑ feasance is because they being privy to and interested in the benefit of the trust or waqf, have the first right to object or file their claims, but in a case where all the trustees and beneficiaries join hands directly to destroy the waqf and usurp its properties or connive at any such, result, then somebody or the Civil Court must have power to remedy the situation. It should not be forgotten that in matters relating to Haqooq Allah, the Kazi, under the Muhammadan Law, had unlimited powers. The powers of the District Judge, as Qazi under the Mohammadan Law, in respect of private waqf was laid down by the Privy Council in Salihuddin Ahmad v. Mohyuddin Ahmad and others 43 I.A.

127. The Privy Council in that case observed . ?The Muhammadan law, like the English law, draws a wide. Generally distinction between public and private, trusts. peaking, in case of a waqf or trust created for specific s individuals or a determinate body of individuals, the Kazi,, whose place in the British Indian system is taken by the Civil Court, has, in carrying the trust into execution, to give effect so far as possible to the expressed wishes of the founder With respect, however, to public religious or charitable trusts of which a public mosque is a common, and well‑known example, the Kazi?s discretion is very wise. He may not depart from the intentions of the founder or from any rule fixed by him' as to the objects? of the benefaction; but, as regard s management, which must be governed by circumstances he has complete discretion." The Privy Council, therefore, gave full powers to the Civil Court, replacing the Qazi under the Mohammadan Law, giving him complete, discretion as regards management, though however, binding the Court to the wishes of the founder in respect of the execution of the Trust. In Abdul Alim Abed and another v. Mst. Abir Jan Bibi and another A I R 1928 Cal. 368, the Court observed: "The practice of invoking a power of a District Judge as Qazi, in connection with the matter of public and religious trust under the Muhammadan Law has become general and it cannot now be doubted that in a proper case the Judge should exercise the powers which he does possess." There is now a consensus of opinion among various Courts that where there is a vacancy in the office of a Mutwalli, the District Judge, by virtue of his powers as a Qazi, may nominate a Mutwalli in summary? proceedings, but not to remove one and appoint another this being a contentious matter, which should be left for determination through a suit properly instituted. See Muhammad Ali Khan v. Ahmad Ali Khan A I R 1945 All. 261; Salih‑ud‑Din v. Moin‑ud‑Din Ahmad A I R 1948 Pat. 374; Abdul Alim v. Aabir Jan (1928) 55 Cal. 1284; Allah Aakhoo v. Nasir‑ud‑Din A I R 1943 Oudh 278; Mahmood Elahi v. The Dawn Trust P L D 1950 Sind 25 and Syed Abdul Awal and another v. Dewan Abdul Monaem and another P L D 1960 Dacca

90. In Iftikhar Nli v. Bashir Ali P L D 1953 Lah. 1, this Court held that if in a, given case there was no provision in the Code of Civil Procedure to deal with a matter regarding Mohammadan Law and no prohibition existed either, the Court could act according to equity, justice anal good conscience and where there was no remedy for a stated contingency, the District Judge, who presided over the principal civil Court of original jurisdiction. as the Qazi, could act in that respect. Thus, apart from the common law right or statutory right which a person may have to institute a suit in respect of a waqf? to seek redress of his grievance, the Qazi has full supervisory jurisdiction over all waqf properties, that section 92 of the Code of Civil Procedure! does riot limit that power, but only identifies some of the actions ‑which the District Judge, as Qazi, can perform in relation to public trusts? of course to the limitation as to who shall initiate the litigation, as provided in section 92 of the Code, and that unless any specific power is given to any Court, body, officer, or person under any other special law to perform any stated functions, this general power of supervision is not affected. ??? 22.?? in respect of a waqf‑ul‑aulad, section 92 of the Code Of civil Procedure does not apply. See Sughra Bibi v. Haji Kummu mian 1969 S C 884 and Muhammad Faqir Ullah Mir v. Commissioner of Waqf, East Bengal P L D 1953 Dacca

73. The Religious Endowments Act, 1863, stands repealed. The Charitable Endowments Act, VI of 1890 is of no help, as no Treasurer of Charitable Endowments for the Province of the Punjab has ever been appointed. The Charitable and Religious Trusts Act, XIV of 1920, only applies to public trusts of a charitable or religious nature. The Muslim Waqfs Act. XLII of 1923, and the Punjab Waqf Properties Ordinance, IV of 1979, do not apply to waqf‑ul‑aulad. In these circumstances, a person cannot be left without a remedy, in a case where it is alleged that the trustees and beneficiaries have joined hands directly to destroy the waqf and usurp its properties, or have connived at such a result. On the principle laid down in lftikhar Ali's case P L D 1953 Lah. 1, any third person not directly interested in the waqf‑al‑aulad would have the right of knocking at the door of the District Judge to inform him of the destruction of the waqf‑al‑aulad and the usurpation of its properties, so that the District Judge, as the Qazi under the Muslim Law and the ultimate custodian of the waqf properties could step in and , look into the matter, in order to retrieve and take over the waqf properties and to take such action as may be necessary to remove an untrustworthy and incompetent Mutwalli and to place such property in competent hands. This indeed would be without prejudice to the powers of such persons, who may be occupants of waqf properties, such as tenants, licensees, mortgagees etc of challenger the rights of usurpers claiming title to the property, in suits file ?by such usurpers against them, or of filing applications under section 12(2) of the Code of Civil Procedure for getting any compromise decree collusively obtained by the beneficiaries and mutwalli, destroying the waqf and partitioning its properties, set aside. The petitioners in the instant cases being tenants of waqf properties had strong, rights of both challenging the title of the firm Zargam Traders to the property in dispute and of moving petitions under section 12(2)1 of the Code of Civil Procedure for getting the compromise decree dated 12‑7‑1982 obtained by Nawab Din and others, beneficiaries,[ against Aftab‑ud‑Din, the last mutwalli, collusively destroying the waqf and partitioning its properties, set aside for fraud, etc

23. Both the lower Courts did not go into the matter deeply, in, the instant cases, merely because they felt that the petitioners either had no locus stand to challenge the usurpation of waqf properties, or that the beneficiaries had not joined hands with the petitioners to challenge the act IVA of Aftau‑ud‑DU., the lata mutwalli, or that the Firm Zargam traders having a sale‑deed in their favour, it was sufficient to make it a landlord. Both the Courts did not carefully go into the question whether the first waqf deed dated 11‑12‑1930 or the supplementary waqf deed dated 27‑4‑1935 were non‑testamentary or testamentary and, if they were non‑testmentary, whether they could be revoked, and if they could not be revoked, whether the deeds granted any power to the mutawalli to mortgage, sell or exchange any part of the properties of the waqf and whether the property in dispute was waqf property and what was the effect of the sale of the same by Aftab‑ud‑Din, the last mutwalli, to the Firm Zargam Traders. Without these questions being answered fully, both the Courts below could not have held the Firm Zargam Traders to be a valid transferee of the disputed property, so as to claim eviction of the petitioners. The proper course for the Rent Controller and the Appellate Court in such circumstances should have been to decide the issue against the landlord and to advise him to get his title established from a Court of general jurisdiction, before seeking ejectment. Without the above legal questions having been answred in the five cases, the Firm Zargam Traders could not have been allowed the benefit of affirmative finding on the issue that the relationship of landlord and tenant existed. Section 13 of the Rent Restriction Ordinance, 1959, calls upon the Controller "to be satisfied" as to the grounds on which the eviction is being claimed. Where the landlord has not been able to clearly establish his position as the landlord beyond reasonable doubt, the proper course for both the lower Court should have been to decide the issue against the landlord and advise him to first get his title established, before seeking ejectment. any authority is required for this view, Rahmatullah v. Ali Muhammad and another 1983 S C M R 1064 may be referred. Both the parties have referred to a number of documents in their favour, which do not appear to have been brought on the records of the five cases before the Rent Controller. The decisions of both the lower courts appear to be based on flimsy evidence and in any case appear to have been arrived at without taking into consideration the matters above stated, which were relevant for the determination of the preliminary issue in the cases, namely, whether the relationship of landlord and tenant existed between the petitioners and the Firm Zargam Traders. In view of the above, the orders of the Rent Controller, Sialkot, dated 20‑5‑1984 and that of the Additional District Judge, Sialkot, dated 20‑12‑1984, ordering eviction of Sh. Khalid? Javed, Zahoor Illahi, Talib Hussain, Lat Chand and Saghir Ahmad, petitioners, deserve to be set aside, so that the cases can be remanded to the learned Rent Controller, Sialkot for the determination afresh of the issue, namely, whether the relationship of landlord and tenant exists between the parties, after giving proper opportunity to the, parties to produce all relevant documents which they want to and further evidence, if desired by them, and in case he still considers that the landlord should be directed to establish its title in the Civil Court, to so direct it to do so.?????????????????

24. With regard to the eviction petitions filed against Talib Hussain, and Khalid Mahmood Bhutta, petitioners, they did not take up the above objection as regards the lata mutwalli Aftab‑ud‑Din having no authority to sell the property in dispute, which? waqf property, to the Firm Zargam Traders. They, however, took up inter alia a preliminary objection in a proper parties had not been joined, but this objection was neither here nor there. Before me the learned counsel for the said petitioners has take, up the objection that the learned Rent Controller gave very short adjournments, when the evidence of the , petitioners was being recorded and though an application was made for summonses to be issued to some of the N witnesses who were not prepared to come without them, the said application was not even dealt with. Basically I am not impress? with the submissions made above, but since the property in question ex facie appears to be waqf property ‑and prima facie it appears that the mutwalli and beneficiaries by joining hands have destroyed the waqf and have usurped all its properties and, as I have held above, the Court, as the ultimate custodian of all waqf properties, has a right to step in and took into the matter, I have no alternative but to accept these petitions as well, in the interest of justice, and to set aside the orders of the Rent Controller dated 26‑4‑1984 and that of the Additional District Judge, Sialkot, dated 20‑12‑1984 and to remain the cases to the learned Rent Controller, with the same directions, as given in respect of? the above five petitions. ????

25. For the foregoing reasons all the seven writ petitions are accepted and the? impugned orders of tile Rent Controller, Sialkot, dated 26‑4‑199 and 1.0‑5‑1984 and that of the learned Additional District judge, Sialkot, dated '20‑12‑1984 are declared to have been ,passed without lawful authority and are set aside. All the said cases are remanded back to the Rent Controller, Sialkot, for determination afresh of the issue ‑whether the relationship of landlord and tenant ‑exists between the parties, after giving further opportunity to the parties to provide all relevant documents, ‑which they want, a further evidence. if they so desire, and in case he still considered that the landlord Firm should be directed to establish its title in the Civil Court? to go direct? to do so. The petitioners shall be entitled to their costs. M.B.A./K-102/L?????????????????????????????????????????????????????? Case remanded.