Before Imam Ali G (PLP)

Dispute in this revision application relates to the management of a mosque known as Madina MasJid and its properties situated in L. Area, Korangi NoA Karachi. The mosque in question was constructed by Namazis and people of Mohallah in the year 1967-68 and was being managed by their representatives. Subsequently, the management formed itself into a body known as "Anjuman-e-Madina MasJid" and they got it registered under the Societies Act on 6-7-1968. A plot measuring 20425 sq. ft. situated in, Sector 35-D, D.PA./1937 was allotted to Madina Masjid by the letter of allotment dated 29th July, 1971 issued by the then Administrator, Landhi Korangi Municipal Committee. It appears that later on in the year 1983 the present applicants created a trust and got it registered on 13-&1983. This was the innovative method of taking over the mosque and its assets. Haji Bundoo Khan, Abdul Shakoor and Muhammad Nadir Shah, the three respondents herein, filed a suit against the present applicants for seeking declaration, cancellation and injunction in the Court of XXIInd Senior Civil Judge, Karachi (Suit No.1875 of 1984). One of the prayers contained in the plaint was "to declare the so-called trust of Madina Masjid as illegal, unlawful, unauthorised and without legal effect". The suit was contested by the present applicants and was ultimately dismissed on 19-4-1989 by the VIlth Civil Judge Karachi (East). The trial Judge was mainly impressed by the fact that the management of the mosque has been taken over by the trust and, therefore, suit did not merit consideration. The plaintiffs, the three respondents, herein, filed an appeal in the Court of District Judge, Karachi (East) which ultimately came to be heard by the IIIrd Additional District Judge, Karachi (East). The appellate Court by its judgment passed on 20-8-1989 set aside the judgment and decree passed by the trial Judge and allowed the appeal. The appellate Judge did not indicate expressly the result of her judgment. . The applicants before this Court, who were the defendants in the original suit, have filed this revision application under section 115, Civil Procedure Code to question the validity of the judgment of the appellate Court. Mr. M.S. Oureshi, Advocate for the applicants, mainly 'contended that the trust as a body was not impleaded as a party in the suit and, therefore, no effective decree can be passed against it. Such objection was raised in the written statement even then trust was not impleaded as party. He further contended that the trust was organised as the result of elections and the appellate Court has misread the evidence. Mr. Umer Oureshi, Advocate for the respondents, contended that the mosque was constructed in the year 1967 prior to the formation and registration of the trust and, therefore, such trust could not be created. The admitted facts in the suit are that the mosque was temporarily constructed in the year 1967, its plot was allotted in the name of mosque in the year 1971 and trust was registered in the year 1983. Once a building is set apart as mosque and prayers are offered therein, the mosque itself becomes a Waqf by user under the Muhammadan Law. In such cases a property in Waqf vests in Allah and nobody can claim ownership of that property. A trust is an obligation annexed to the ownership of the property for some persons other than its 'owner as defined under section 3 of the Trusts Act, 1882. It therefore, follows that in order to constitute a trust someone as the owner of property has to dedicate that property for the benefit of the trust. In this case the trust did not have any property and, therefore, under the circumstances a valid trust could not be formed and registered. The trust so created under the circumstances is ab initio void and cannot be operated upon. As for the contention of Mr. M.S. Qureshi, Advocate for the applicants, for not joining the trust as a party, the trustees have been joined as party seeking a declaration that the trust formed by them is illegal. In view of the nature of the suit and the prayer contained in the plaint, the failure to join trust as a party will not be fatal to the case of the respondents. The appellate Court had correctly held that the property (plot) occupied by the mosque was a Government property and could not be made subject of he trust. It may further be noticed that the allotment order itself indicates that the plot was allotted in the name of mosque itself and not in the name of any society or body. For the foregoing reasons, the conclusion reached by the appellate Court appeared to be sound and did not call for interference by this Court. As the result this revision application is dismissed with no order as to the costs. Consequently, suit filed by the respondents is decreed. AA./M-1869/K Petition dismissed.