P L D 1993 Peshawar 185 (PLP)

Date of hearing: 14th April, 1993, This revision is directed against the judgment and decree dated 30‑11‑1985 of the learned District Judge, Peshawar Camp at Charsadda, whereby appeal against the judgment and decree dated 7‑12‑1983 of the learned Civil Judge, Ist Class, Charsadda, was accepted and pre‑emption suit filed by Haji Saadullah Khan was dismissed.

2. The facts in brief are that Nawab Khalid Khan, defendant‑respondent No.4 herein sold the suit land fully described in the heading of the plaint situated in village Tarnab to Haji Fazal Shah and two others defendant respondents 1 to 3 herein for Rs.43,000 vide registered deed dated 8‑2‑1975. Haji Saadullah Khan, predecessor‑in‑interest of the petitioners herein pre empted the sale by instituting the suit in Civil Court at Charsadda on the ground of being contiguous owner with the suit land and participator in the amenities and appendages. The price mentioned in the registered deed was also challenged as fictitious and prayer for the decree on payment of Rs.18,000, was made. The suit was contested by the defendant‑vendees by filing written statement. The trial Court framed necessary issues from the pleadings of the parties and recorded the evidence of the parties on the issues framed. On, the basis of the evidence and in view of the arguments addressed the learned Civil Judge vide judgment and decree dated 7‑12‑1983 decreed the plaintiffs suit to the extent of Khasra Nos.1151 to 1154 measuring 15 Kanals and 4 Marlas against the defendant‑respondents on payment of Rs.25,481/48 while his suit with respect to Khasra No.1168 was dismissed. The learned Civil Judge held that plaintiff was owner in possession to the extent of 7 Kanals in Khasra No.1149 which was found .to be Shamilat‑i‑Deh contiguous to other Khasra No.1151 which was contiguous to other Khasra number forming one compact block while the defendant had no contiguity. Khasra No.1168 was found not contiguous to the plaintiffs land. The judgment and decree was assailed in appeal before the learned District Judge, Peshawar Camp at Charsadda who took a different view that Khasra No.1149 was shown as "Ghair Mumkin Qabristan" in possession of "Ahl‑i‑Islam" in the Jamabandis up to 1940‑41 and that even if in the Jamabandi for the year 1946‑47 and thereafter some Abadi is shown in the Khasra number or some portion is recorded as "Baran? it would not change the nature of Khasra No.1149 which is a graveyard and the person claiming to be co‑sharer in such type of land could not claim superior right o! pre‑emption on the basis of contiguity. Reliance was placed on the case reported as Muhammad Jan v. Suleman and others PLD 1968 Peshawar

181. The learned District Judge therefore accepted the appeal, set aside the judgment and decree dated 7‑12‑1983 of the learned Civil Judge and dismissed the suit.

3. The petitioners have now challenged the judgment and decree dated 30‑11‑1985 of the learned District Judge, Peshawar in this revision.

4. Mr. Abdus Samad Khan, Advocate, for the petitioners contended that the appellate Court erred in holding the view that Khasra No.1149 was a Waqf property as for a Waqf dedication under the law is essential. The learned counsel argued that the case of Muhammad Jan, supra, is distinguishable as in that case the entire Khasra was used as graveyard since long and there was no evidence that any portion of the Khasra was used for any other purpose except for the graves and because existence of graveyard was established on the land, its dedication as Waqf was to be presumed in view of the long use of the graveyard. The learned counsel referred to the case of Rahmanullah v. Abdul Nazir etc. NLR 1986 Civil 166 wherein it is held that the claim of vendee that the land was purchased for the purpose of graveyard and as such it would be exempt from claim, is not sustainable in a case where doctrine of Musha is attracted.

5. Mr. Munir Khan, Advocate for the defendant‑respondents contended that the findings of the learned appellate Court are based on the entries of the Jamabandis for the year 1928‑29 to 1942‑44 and that the subsequent change in the nature of the property would make no difference particularly when there was no denial from the plaintiff's side or any evidence to show that Khasra No.1149 was not used as a graveyard.

6. The question to be determined in this case is whether the learned District Judge has rightly held Khasra No.1149 as Waqf property and correctly understood the case reported in PLD 1968 Peshawar

181. I have gone through the Division Bench judgment of this Court and have found that it does not support the arguments of the learned counsel for the respondent. The learned Judges after making reference to the case‑law on the point, the provisions of Muhammadan Law and of Hedaya, observed as under: "The facts of the case taken into consideration with the authorities cited above, would clearly show that there is a graveyard in Khasra No.127 since a very long time, and there is no evidence that any portion of this Khasra number is not occupied by graves. Since the existence of a graveyard has been established on the land, its dedication as a Waqf is to be presumed in view of the long user as a graveyard in the light of the authorities cited above. After the dedication, the rights of the private owners are extinguished and the property vests in Almighty."

7. With the guidance provided, it is now to be seen whether Khasra No.ll49 is Waqf property used as graveyard. In Jamabandi for the year 1940 41 and even before that Khasra No.1149 measuring 21 Kanals and 1 Marla is shown as Shamilat of the village in possession of Ahl‑i‑Islam as "Ghair Mumkin Qabristan". In the Jamabandi for the year 1946‑47 an area of 21 Kanals 1 Marla is shown in possession of Ahl‑i‑Islam and Saadullah Khan in possession of 5 Kanals as tenant at will BILA LAGAN BAWAJA BAI". One Sherim Khan Hissadar is also shown in possession of 5 Kanals. Thus, out of 21 Kanals 1 Marla, an area of 10 Kanals is in possession of two persons and kind of land is shown as Barani and the remaining area of 11 Kanals 1 Marla as "GAIR MUMKIN QABRISTAN ". In the subsequent Jamabandis of 1950‑51 the area of the graveyard is 11 Kanals 1 Marla, Ghair Mumkin Abadi 9 Kanals and Barani 1 Kanal. In the Jamabandi of 1954‑55 no area is shown under graveyard. In the next Jamabandi of 1958‑59 an area of 19 Kanals 1 Marla is shown as Ghair Mumkin Abadi and only one Kanal as graveyard. In the Jamabandi for ‑the years 1966‑67 and 1970‑71 the entire Khasra No.1149 is shown as "Ghair Mumkin Abadi". Thus, it will be seen that at the time of institution of the suit Khasra No.1149 was not shown as graveyard in the revenue papers. In the reported case of Muhammad Jan, supra, the entire Khasra No.127 was found to be graveyard and in that context the defendant's claim of superior right of pre‑emption on the basis of contiguity was rejected. The learned appellate Court is wrong in holding the view that major portion of Khasra No.1149 is shown as graveyard in the revenue papers. The view may be correct with respect to past position of the land but at the time of institution of the suit and even some years before major portion of Khasra No.1149 was shown as Abadi. May be that people demolished the graves and constructed the houses or there were no graves at all. Be that as it may, the learned appellate Court's finding that entire Khasra No.1149 is graveyard is not supported by the revenue record. This being the position, I agree with the learned counsel for the plaintiff‑petitioner that Khasra No.1149 is not proved to be Waqf property. The appellate Court's finding is the result of misreading of the evidence not sustainable in law.

8. For the foregoing reasons, this civil revision is accepted, judgment and decree dated 30‑11‑1985 of the appellate Court is. set aside and that of the lower Court dated 7‑12‑1983 is restored. Parties are, however, left to bear their own costs. A.A./1482/P Revision accepted.