P L D 1991 Supreme Court 596 (PLP)

MUHAMMAD AFZAL LONE, J.‑‑‑This appeal under Article 185(2)(d) of the Constitution is directed against the judgment of the Lahore High Court, Lahore, rendered in appeal filed in pursuance of section 12 of the Punjab Waqf Property Ordinance, 1979.

2. The Chief Administrator, Auqaf, by means of Notification No.l(419)‑DWP‑AuqafJ73, dated 14‑5‑1973, published in the official Gazette of 26th May, 1973, issued under section 7 of the Ordinance, took over, assumed the administration, control and management of agricultural land, measuring 80 kanals, 7 marlas, alongwith 7 katcha rooms and one chapper, bearing Khewat No.102, Khatooni Nos.608 to 610, as per Register Haqdaran Zamin of Village Jalalpur, Tehsil Kabirwala, District Multan, as being attached to the Khanqah of Sakhi Sarwar. The respondents moved a petition before the learned District Judge, Multan, for a declaration envisaged by section 11 of the Ordinance, that the property is not waqf property. They claimed that it was their private property; in their continuous possession since their forefathers, and that they never paid any share out of profits and produce to anyone. In support of the petition, Koura, respondent No.l, appeared as his own witness, and deposed that the land was never dedicated in favour of Khanqah of Sakhi Sarwar, and was transferred by Rama to his father, namely, Tagga, but neither the transfer deed was executed nor mutation sanctioned. The Auqaf Department relied on the excerpt for the period from the year 1885 to 1972, in respect of the land, prepared by Special Kanungo, Saddar Office, Multan. According to this document, in the year 1885, the property was owned by Lallu son of Maula Hindu Faqir; the entry for the year 1978‑79 is in the name of Dittu Chella Lallu; for the period from 1889 to 1907, it is shown as owned by and in possession of Mst. Mir Bai, niece of Dittu Ram, caste Faqir. By means of inheritance mutation No.105, dated 18‑12‑1905, the land is shown to have devolved from Mst. Mir Bai on Raman Chella Lallu. The history of the property further indicates that Raman, caste Faqir, died issueless on 16th June, 1909, and thereafter on 21st March, 1910, mutation No.115 was sanctioned in the name of Khanqa Sakhi Sarwar. In the proceedings recorded by the Revenue Officer, while sanctioning this mutation, it is incorporated that the land was of Khanqah of Sakhi Sarwar and not owned by any particular Mujawar. According to this mutation, the land was passed on to the Khanqah by way of inheritance. From the year 1910 onward up to 1971‑72 the name of Khanqah Sakhi Sarwar figures in the "ownership column" of the relevant ' jamabandis. However, the entry in the ' jmabandis, during the period from 1933‑34 to 1950‑51 is Khanqah Sakhi Sarwar, (Baehtamam tagga wald yahya quom Mujawar). On the death of Tagga, Inheritance Mutation No.75 dated 9-5‑1954, was sanctioned in the names of his two sons, namely, Koura and Sawan, and their names appear in jamabandis relating to the period subsequent to the year 1950‑51 and Khanqah is mentioned as;

3. The District Judge, Multan, on reference to the evidence of the parties recorded a finding that the respondents had no locus standi to challenge the Notification and that they failed to prove their possession as owners of the land. Consequently, by judgment dated 7‑5‑1974, he dismissed the petition.

4. The fate of this appeal is largely pegged on the construction of the definition of the term "waqf property" embodied in section 2(e) of the Ordinance, which so far as relevant for the purpose of this case is reproduced below:‑‑-- "`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. 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." In construing the definition clause the High Court maintained that to be "waqf property", it must have been dedicated by a person professing Islam, for any q purpose recognized by Islam as pious, religious and charitable and that Explanation I did not have the effect of doing away with this condition. It is well‑settled that when a phrase is defined as having a particular meaning in the Act, it must be given the same meaning throughout the Act, unless there is anything repugnant in the context. There is, however, nothing in section 7 which empowers the Chief Administrator Auqaf to notify a property as waqf property, denying the application of the definition clause thereto. Significantly, in the definition clause the word "means" figures. The user of this expression would be indicate that definition is hard and fast and no other meaning can be assigned to the expression other than that given in the definition.

5. The learned counsel for Auqaf Department has argued that even a non‑Muslim can create valid waqf and invited our attention to the following passage from Volume I, page 200 of Mahommedan Law by Syed Ameer Ali:

"Islam is not a necessary condition for the constitution of a wakf. Any person of whatever creed may create a wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines:" He further contended that the property devolved from Guru to Chella and, therefore, bore the character of trust property. It was submitted that though it was a Hindu Trust, but by virtue of Mutation No.115, dated 21‑3‑1910, it stood dedicated to Khanqah Sakhi Sarwar for religious, and pious purposes recognised by Islam, to which no objection was raised by the Hindu community and as from time immemorial the property was being utilized for such purposes, it would be deemed to be waqf property within the meaning of the first explanation. He referred to the entries in the revenue record and urged that the respondents were merely mutwalli of the property and, therefore, they had no locus standi to seek the declaration prayed for. In support of this argument, reliance was placed on Maqbool Ahmad v. Chief Administrator, Auqaf 1976 SCMR 500.

6. It is not permissible to ignore the legislative definition; assign extended meaning to the term "waqf property" and treat even dedication by a non‑Muslim as a valid waqf. The entries in the Revenue Record do not demonstrate an uninterrupted devolution of the property from Guru to Chella. Mst. Mir Mai seemingly succeeded Dittu not in the capacity of Chella, but as her niece. The Revenue Record is suggestive of such an inference. For decision of the controversy before us it is not necessary to determine as to whether the land was Hindu Trust or a private property of the non‑Muslim. The reason being that there was no dedication at all. Raman was the last non‑Muslim holder of the property, who died as escheat. It appears that the land became escheat property which normally should have reverted to the State, but the Revenue Officer alienated it in favour of Khanqah Sakhi Sarwar. In Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223, this Court has taken the view:‑‑-- "As regards the alleged dedication it will be sufficient to point out that under the Muslim Law; both Hanafi and Shiah schools; it is a condition that the property dedicated should be the waqifs, otherwise the wakf is not valid. Ameer Ali in his Muhammadan Law, Volume I, p.134 states that "the subject‑matter of dedication must be the property of the wakif at the time the wakf is made, that is he must be in a position to exercise dominion over it. To make a valid dedication it is essential that the person dedicating must be vested with the full proprietary right at the time of dedication, for, even the subsequent acquisition of such a right will not validate it unless the proprietor also ratifies." In the instant case there was absolutely no dedication by the owner of the property irrespective of his faith. Thus, no waqf under Islamic Law came into existence.

7. It remains to be considered as to whether a valid waqf was created in contemplation of Explanation I. It may be observed that an explanation is usually appended to a section, to clear the ambiguity and explain the meanings of the words used therein. Unless compelled by the language, the explanation should not be construed to enlarge the scope of the section to which it is added. It seems to us that the object of the first explanation is that if due to long passage of time the evidence of express dedication is not forthcoming, the user of the property as waqf property from time immemorial may be treated as sufficient evidence of creation of waqf. In the present case there are positive indications that there was absolutely no dedication by owner of the property. As regards its use, according to the testimony of Koura the respondents appropriated the profits of the land unto themselves. The department has not led any evidence in rebuttal that the income of the property was utilized for the purposes covered by the definition clause, leaving aside whether the period of about 60 years intervening between the sanction of the Mutation in favour of Khanqah, and the date of Notification under section 7, can really be categorized as time immemorial. No doubt, in the Revenue Record the status of the respondents is entered as "mujawars", but this entry by itself does not establish that the income of the land was utilized for the objects of waqf. We are, therefore, of the view that no basis exists to treat the property as "waqf property", even under the first explanation.

8. Under section 11 of the Ordinance, any person having an interest in the property treated as waqf property can apply for declaration. It is not necessary that he should be the owner of the property. Admittedly, the respondents are in possession since long. As already maintained they have been utilising the income of the property, they therefore, have sufficient interest in the land in dispute, entitling them to seek the declaration. In Maqbool Ahmad's case, referred to by the learned counsel for the appellant, the mutwali had no personal interest in the property under the endowment. This precedent, therefore, has no application to the case in hand. For the foregoing reasons, we are of the view that the judgment of the High Court is unassailable, and does not call for interference. There is no substance in this appeal, which is dismissed. The parties are left to bear their own costs. M.B.A./C‑83/S Appeal dismissed