P L D 1975 Karachi 964 (PLP)

This is an appeal under section 8 of the West Pakistan Waqf Properties Ordinance, 1961 against the judgment of the District Judge, Karachi dated 26‑1‑1973, granting the respondents' petition under section 7 of the said Ordinance and declaring that a certain property is not Waqf property.

2. By Notification No. 5(2)‑Auqaf/67 dated 14th March 1968, Chief Administrator of Auqaf, West Pakistan, took over and assumed the administration, control, management and maintenance of the Waqf property, known as Dargah Muhammad Shah Doola Sabzwari Kundiwala, near Jaffar Faddu Tower, Harris Road, Karachi, and the properties attached thereto mentioned in the Schedule to the Notification. The Schedule reads as under : ‑ "SCHEDULE

1. Waqf property (Masjid) for the Muhammadan Community presently known as Dargah Muhammad Shah Doola Sabzwari Kundiwala constructed the plots of land bearing old Survey No. C. L/71, 87 New Survey No. G. K. 1/1 and G. K. 2/1 A measuring 275 sq. yards and 75 sq. yards respectively located near Jaffar Faddu Tower, Harris Road, Kharadar, Karacbi‑2 alongwith the following Waqf properties constructed thereon as mentioned below :‑ 2. (a) Masjid Hydari. (b) 7 shops. (c) 1 hotel. (d) Cabin. (e) 1 room with 5 graves. (f) 2 water tanks. (g) 1 water well of sweet water.

3. Three charity boxes including subscriptions and offering made therein.

4. Cash balance of Waqf fund laying in hand with the Mutawallis and credit balance of fund, if any, lying with the bank."

3. It is not disputed by the respondents that property on plot No. G. K. 2/1 measuring 275 sq. yards comprising the Dargah, Masjid and shops, is Waqf Property which, before the notification, was being managed from time immemorial by Mutwallis, who were the ancestors of the respondents. The dispute, however, relates to the property No. G. K. 2/1‑A measuring 75 sq. yards with constructions thereon comprising 4 shops and 2 rooms, which will (hereinafter be referred to as "the disputed property"). The disputed property is adjacent to the Waqf property No. G. K. 2/1 and the case of the respondents is that it is owned by them in their personal and private capacity and the constructions put up thereon were made from their personal and private earnings, and that the disputed property has erroneous ly been included in the notification as Waqf Property. Being aggrieved by the notification, the respondents filed a petition in the District Court (Petition No. 1/1968) under section 7 of the West Pakistan Waqf properties Ordinance, 1961 (hereinafter referred to as the Waqf Ordinance) for a declaration that the disputed property is not Waqf Property.

4. The petition was contested by the Auqaf Authorities, appellants herein, who pleaded that the disputed property was also Waqf property and that the constructions thereon had also been made from the income of the Dargah and the property attached to it. The District Judge framed the relevant issue, viz., whether the disputed property is not Waqf property. In proof of their case, the respondents examined one witness, Ghulam Mohyud din Shah, the respondent No. 3, while no evidence oral or documentary, was produced by the appellants. The learned District Judge, held that the respondents bad discharged the burden of proof and had proved from various documents that the disputed property was their personal property and not a Waqf property attached to the Dargah while no proof, documen tary or oral, was produced to show that the disputed property was ever dedicated by anybody as Waqf property or that it was ever used as such or that the construction thereon was made from the income of the Dargah and the attached property. Accordingly he allowed the petition and granted the declaration that the disputed property is not Waqf property.

5. Mr. Ajmal Mian, learned counsel for the appellants, submitted that the respondents have failed to prove their title to the disputed property, that they produced no documentary evidence, nor even any extract from the Record‑of‑Rights, to show that the disputed property stood in their name ; that in the absence of proof of title, the lower Court ought to have held that the respondents had failed to prove‑that the disputed property was not Waqf property. This submission, in my opinion, is misconceived. As rightly pointed out by Mr. Haji Mohammad A. Memon, learned counsel for the respondents, what the respondents had to prove was not that they had a title to the disputed property but that it was not a Waqf property. In fact, the respondents' counsel candidly conceded that it was not possible for the respondents to prove a legal title to the disputed plot of land comprised in the disputed property because they occupied it as an open plot in 1966 unauthorisedly, and, thereafter, put up constructions over it without obtaining permission from K. M. C. In April 1967, the respondents bad the constructions assessed for rating purposes by the Excise and Taxation Office as an Independent property, No. G. K. 1/1‑A, as would appear from the certified extract of P. T. I. Register (Exh. 11) and in fact they paid property taxes for the year 1967‑68 (Challan Exh. 14). They were also assessed to K. M. C taxes for the year 1966‑67 as an independent property. The above‑mentioned documentary evidence shows that the respondents have made out a plausible case that the disputed property was not Waqf property. In these circum stances, the burden of proof shifted to the appellants to show that the disputed property was Waqf property. They could have done so by showing either (a) dedication of the property as Waqf or, (b) that it had been used from time immemorial for religious and charitable purposes or (c) that it was acquired from the income from Waqf property namely, the adjoining property. The appellants led no evidence documentary or oral to prove any of these alternatives. It is clear that under section 6 of the Waqf Ordinance, the appellants could take over and assume the administration, control, management and maintenance only of a Waqf property. "Waqf property" has been defined under section 2 (d) of the Waqf Ordinance as meaning property permanently dedicated and the Explanations 1 and 3 would respec tively include property that has been used from time immemorial for religious and charitable purposes or property which has been acquired from the income arising out of the Waqf Property as deemed to be Waqf Property evidence from the appellant's side was forthcoming that the disputed property B was ever dedicated as Waqf property or that it was used from time immemo rial as such, and although the appellants have pleaded that the construction on the disputed plot were made from the income of the Dargah arid the attached property, no evidence whatsoever was led to prove this assertion.

6. Mr. Ajmal Mian cited Buseid and others v. Newai Ahmed Khan (A I R 1929 Cal. 533) and Said Mehr Husien v. Haf A limahomed Jalaluddin and others (A I R 1934 Bom. 257), in support of his submission that the land and building contiguous or appurtenant to Waqf property is presumed to be Waqf property especially when the physical features of the constructions were identical. But these cases are distinguish able since, in each of them, the disputed property was held to be Waqf property by reason of long user and reputation. Whereas in the instant case, the evidence shows that the disputed property came into existence only two or three years before the date of the notification.

7. Therefore, I am in agreement with the judgment of the learned District Judge which declared that the disputed property is not a Waqf property.

8. In these circumstances, I see no force in this appeal which is accord ingly dismissed with no order as to costs. s. A. H. Appeal dismissed.