P L D 2007 Lahore 583 (PLP)

SYED ASGHAR HAIDER, J.

The dispute emanates of parcels of land measuring 68 Kanals, 2 Marlas located in Mauza Kiot Shakir and 291 Kanals, 4 Marlas, located in Mauza Alyana, Tehsil and District Jhang, purportedly, allotted to Khankah Mauzaz-ud-Din, in lieu of land in village Sanam, Patiala State, India. The petitioners/appellants allege that the land belongs to them. Hazrat Muazaz-ud-Din, a forefather of their's, was buried in this land, being his private property, he was a noble and pious person, referred to as a Pir, therefore, his shrine became known as Khankah Hazrat Qazi Muazaz-ud-Din. On 14-6-1976, the Chief Administrator, Auqaf, issued a notification and assumed administration, control, management and maintenance of this property and the shrine. The appellants/petitioners aggrieved thereof, filed a petition under section 11 of the Auqaf (Federal Control) Act, 1976, which after contest, was dismissed by the District Judge, Jhang. Aggrieved thereof, the appellants filed F.A.O. No.145 of 1981, in this Court, which was allowed and the matter remanded to the District Judge. Thereafter, the District Judge, dismissed the petition again. Hence the present appeal by the appellants.

2. The learned counsel for the appellants contended that there has been misreading as well as non-reading of evidence by the Trial Court, the evidence of P.W.1 has been completely misread, the provisions of S.2 of the Punjab Waqf Property Ordinance, 1979 have been mis interpreted, there is no evidence on record to establish that the property was a dedicated Waqf, Exh.P.1 has been ignored, this was the most vital document on record, therefore, the proceedings be set aside, to fortify his submissions, he relied on the following precedents: AIR 1924 Lahore 382 Ali Muhammad Khan v.. Ali Akbar Khan and others, 1984 CLC 3419 Chief Administrator of Auqaf, Punjab v. Muhammad Anwar and others, PLD 1973 Lahore 675 The Chief Administrator of Auqaf West Pakistan, Lahore v. Ilam Din and PLD 1991 Supreme Court 596 Chief Administrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another.

3. The learned counsel for the respondents has vociferously defended the impugned judgment and has submitted that there are conclusive findings on issue No.4, which squarely establish that the property is a Khankah and not a private property, the Revenue Record clearly affirms this position.

4. I have heard the learned counsel for the parties and perused the impugned judgment.

5. The appellants produced one witness P.W.1, the respondents did not produce any oral evidence but tendered in evidence, Exh.R.1 to Exh.R-6. Exh. R.3 to Exh.R-5 were objected to by the appellants and later not considered by the trial Court.

6. The foremost and pivotal question for the adjudication is "whether the disputed land is a private property or not". The trial Court dismissed the petition by referring to, Explanation 5 of S.2, of the Punjab Waqf Properties Ordinance, 1979 and held, that the disputed property is a Khankah, therefore, the appellants cannot claim it, to be a private property. Section 2(e) of the Punjab Waqf Properties Ordinance, 1979 reads:- "Waqf Property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized 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, 1913 (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". The ingredients therefore, which determine the 'status of property as Waqf and laid down in this definition are, a permanent dedication and that too for a religious, pious or charitable purpose. If these ingredients A are missing or not proved, the property cannot be declared as a Waqf property. Explanation 5 to Sec. 2 reads:-- "Property permanently dedicated for the purpose of a Mosque, Takia, Khankah, Dargah or other shrine shall be deemed to be Waqf property". This definition further expands the purpose of dedication: Explanation 2 to Sec. 2 reads: "Property allotted in lieu of or in exchange of Waqf property left in India shall be deemed to be Waqf property". It therefore, means that a property which was a Waqf property in India and is exchanged in Pakistan, would be treated as a Waqf property.

7. It is in this background that the dispute has to be looked into, and the status of property determined. The petitioners/appellants to prove their contentions, qua the status of property, produced P.W.1, who stated categorically that the property is private, his ancestor Mauzaz-ud -Din was buried in this private property, he was religious and a pious person and revered to, as a Pir, therefore, the property became known as Khankah, but it was never treated as a Waqf in India. Therefore, the property got in exchange in Pakistan is also not a Waqf. The trial Court did not consider this evidence creditworthy and off-set its effect, by holding that the witnesses had never visited the property in India and had not seen it personally. Therefore, his evidence was not strong enough to hold the property as private. If the entire testimony of this witness is read, he emphatically stated that the property was not. Waqf, it was so communicated to him by his father who was a direct descendent of Mauzaz-ud-Din. He withstood the test of cross-examination, his evidence thus, cannot be ignored, especially when there is no oral rebuttal of this evidence. The pivotal document to determine the status of this property is Exh.P. I (Fard Haqeeat), Column No.1 of Exh, P-1 reads:-- Translated, it means "Khankah being managed by the owners in possession". The word 'Malkan-i-Qabza' has been defined in Law Lexicon "The expression Malikan-i-Qabza means, proprietor of plot, or holding in his possession; used of a person having full right in his own holding, but who has lost (or never had) any share in the profits of the entire village or estate". Douie's Settlement Manual (6th Edition) Para. 142 defines this as under:-- "A man who owns the land actually in his possession; but has no share in the common property of the village community". The Land Revenue Act, by Mian Muhammad Siddique Kamyana defines "Malkan-i-Qabza" as a person or proprietor who holds ownership and possession in his own right. The Land Revenue Act, by Sardar Muhammad Iqbal Khan Mokal defines "Malikan-i-Qabza". "A person who owns the land actually in his possession; but has no share in the common property of the village community". Therefore, Exh.P.1, clearly reflects that property is a Khankah, managed by the owners in possession, thus, the status of property is private and not Waqf.

8. The disputed land was allotted in exchange of this property left in India. Section 29 of the Displaced Persons (Land Settlement) Act, 1958, mandates that allotment, in exchange of properties left in India, is required to be given, in accordance with the entries in the special Jamabandis. In the present matter, (Exh.P.1). The trial Court was persuaded to determine the status in accordance with the Jamabandi of the year 1972-73 (Exh.R.1). This document has to be read with Exh.P-1 and cannot be read in isolation, if read together, (as mandated by para.29 of the Settlement Laws), the status of property clearly emerges as private and not Waqf, thus Exh.R.1 was misread.

9. The most important document to determine the status of property as Waqf, as required bylaw is, the deed of dedication, by virtue of which, permanent dedication has been made for a religious or pious purpose. There is no such document on record, as such on the touchstone of definition of section 2(e) of the Punjab Waqf Properties Ordinance, 1979, the property cannot be termed as Waqf because the disputed property was not permanently dedicated for a religious or pious purpose. I am fortified in this context from PLD 1991 Supreme Court 596 Chief Administrator of Auqaf, Punjab, Lahore v. Kaura alias Karam Ilahi and another.

10. Therefore, this appeal is allowed, the impugned judgment is set aside and the petition granted as prayed for. No order as to costs. M.H./M-349/L Appeal allowed.