1998 PLP 630 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑Leave to appeal is sought against the judgment, dated 18th November, 1997 of the Lahore High Court through which the appeal filed by the petitioners against the order, dated 4th December, 1995 of the Additional District Judge, Lahore dismissing his petition under section 11 of the Punjab Waqf Properties Ordinance, 1979 has been dismissed.

2. The facts giving rise to this petition in brief are that the petitioners who are admittedly in possession of the land in dispute filed a petition under section 11 of the Punjab Waqf Properties Ordinance, 1979 before the learned Additional District Judge for declaration that the property was not a Waqf property, therefore, notification, dated 5th April, 1961 through which the management and control of the same had been taken over as Waqf property was illegal.

3. In the petition, the case made out by the petitioners was that they had taken over the possession of the land from its owners on lease and were in possession thereof as such.

4. The Auqaf Department filed written statement in which it was stated that the property was Waqf property and not owned by the persons allegedly from whom the petitioners took the land on lease and the same was still Waqf property in the record.

5. The learned Additional District Judge dismissed the petition as barred by time against which appeal filed by the petitioners has been dismissed by the High Court through judgment, dated 18th November, 1997 against which leave to appeal has been sought.

6. We have observed that in the petition before the learned Additional District Judge, L.D.A. was also made a party. Learned counsel for the petitioners when questioned as to how when the dispute about the nature of the property was between the petitioners and Auqaf Department L.D.A. was made a party submitted that in fact, the possession of the petitioners over the land in dispute was being disturbed by L.D.A. on the ground that it had purchased the land from the Auqaf Department whereas the Auqaf Department itself was not interfering in their possession, therefore, L.D.A. was made party. When questioned as to how in these circumstances, the petitioners should have moved a petition before the learned Additional District Judge under section 11 of the Waqf Properties Ordinance for as to nature of the property they should not have felt aggrieved because in order to protect their possession simplicitor as against L.D.A., they should have sought remedy by filing a civil suit against L.D.A. stated that it was observed in the earlier round of litigation that civil suit was not maintainable. We have noticed that this observation was made by the High Court in a case where the petitioner wanted to challenge the nature of the land by getting a declaration that the same was Waqf property, therefore, in respect this part of the prayer, it was rightly observed that the Civil Court was not vested with the jurisdiction to grant such a declaration. In view of the fact that Auqaf Department in spite of having claimed that the property was Waqf property was not intending to interfere in the possession of the petitioners and in order to protect their possession against L.D.A., the suit for that purpose simplicitor was maintainable.

7. Learned counsel for the petitioners submitted that in view of the fact that Auqaf Department before the learned Additional District Judge took stand that the property was Waqf property and L.D.A. having claimed to have purchased the same from Auqaf Department and on account of this transfer, it intended to dispossess the petitioners, therefore, the petitioners are not interested in the declaration as to nature of property, and they would seek remedy before the Civil Court against L.D.A. to protect their possession as according to them, no sale took place about the land in dispute between Auqaf Department and L.D.A..

8. The finding of the learned Additional District Judge that the petition filed by the petitioners under section 11 of the Waqf Properties Ordinance challenging the legality of notification dated 5th April, 1961 was barred by time which has been upheld by the learned Judge in Chamber of the High Court does not suffer from any illegality, therefore, this petition to that extent has no merits.

9. It may, however, be observed that if the petitioners want to raise the question that no sale, in fact, of this land was made by Auqaf Department in' favour of L.D.A. and L.D.A. could not interfere in their possession they may' seek remedy to protect their possession against L D.A. by filing a civil suit and the jurisdiction of the Civil Court is not barred and in such a suit, the question of status of property as Waqf property shall neither be raised nor determined and it shall be presumed that the property was Waqf property as such vested in the Auqaf Department. The said suit shall be decided on the proof or otherwise of the alleged sale made by the Auqaf Department in favour of L.D.A.. If L.D.A. fails to establish sale in its favour by Auqaf Department, then the matter as regards possession of the land would be between the petitioners and Auqaf Department and in case it is held in the civil suit that sale in favour of L.D.A. of this land had, in fact, been made, the same shall be decided accordingly.

10. Subject to the above observations, this petition is hereby disposed of and leave refused. The possession of the petitioners shall not be disturbed for 15 days from today in order to enable them to file civil suit as observed above to seek remedy before the Civil Court against L.D.A. in accordance with law. After 15 days, this order shall automatically stand vacated. A.A./M‑72/S Leave refused.