2002 PLP 1112 (MLD)

4. Conversely, respondents Nos.1 and 2 have controverted the stand of the applicants/appellants and asserted that suit land is of Waqf nature and has rightly been acquired vide notification referred above. They further prayed that applicants/appellants have no cause of action to file this application.

5. From the divergent pleadings of the parties the trial Court framed the following issues:‑‑ (1) Whether the disputed property is not a Waqf Property? OPP (2) Relief.

6. In support of their stand the applicants /appellants examined P.W.1 Muhammad Yar. P.W.2 Makhdoom Hussain Bux. P.W.3 Abdul Khaliq. P.W. 4 Muhammad Akram and P.W.5 Makhdoom Syed Ghulam Asghar Bokhari son and general attorney of the applicant/appellant Syed Nau Bahar Shah. Learned counsel for the applicants/appellants produced copies of documents Exhs.P.5 to P.43 and then closed their evidence. In rebuttal respondents‑ Nos.l and 2 examined D.W.I Muhammad Ramzan Patwari. Their learned counsel .produced documents EXh.D.l to Exh.D.32 and then closed their evidence.

7. After going through the evidence produced by the parties, the trial Court dismissed the application vide judgment dated 30‑1‑1983, which has been assailed through the instant F.A.O.

8. Arguments have been heard and record perused.

9. It is submitted by the learned counsel for the applicants /appellants that trial Court has declined to consider the property to be self‑acquired of the applicants/appellants on the ground that the land has been exempted from land revenue as per document EXh.D.2. He submitted that mere assignment or Muafi of land revenue in favour of a Khankah does not give rise to presumption that land itself was attached to Khankah and placed reliance upon Muhammad Khurshid and 4 others v. Chief Administrator of Auqaf West Pakistan. Lahore (PLD 1973 Note 38 (Lahore). He further contended that there is nothing on the record to show that the property has ever been in possession of Trust or attached to any shrine, as such the suit land could be acquired treating the same as Waqf and placed reliance upon The Chief Administrator Auqaf West Pakistan, Lahore v. Ilam Din (PLD 1973 Lahore 675). He next argued that applicants/appellants have been occupying the disputed property, putting up construction thereon, inducting tenants. ejecting them and as such by no stretch of imagination it can be considered to be Waqf property and placed reliance upon Chief Administrator of Auqaf, Sindh and another v. Ibrahim Shah (represented by 5 heirs) and 2 others (PL D 1975 Karachi 964). He further argued that in the copies of mutations and Jamabandies Exh.P.5 to Exh.P.43 the applicants/appellants have been shown to be owner of the same and sui property has never been disclosed as Waqf property. He also relied upon the evidence of P.Ws. 1 to 5 who have also corroborated their version.

10. Conversely, learned counsel for the respondents has supporter the impugned judgment under appeal.

11. The only point which requires determination is, if the suit property is of Waqf nature or self‑acquired property of the applicants/appellants. To prove these facts the applicants/appellants have brought on record oral evidence of P. Ws. l to 5 as well as documentary evidence consisting of documents Exhs.P.5 to

43. Both the oral evidence as well as documentary evidence referred above reveals that suit property has all along been shown to be property of the applicants/appellants and It hey have been using the property according to their own sweet‑will. The applicants/appellants have been leasing out the property, 'including tenants as well as ejecting them and as such they were the exclusive owner of the suit land.

12. Learned counsel for the respondents has laid much stress on Muafi Nama Exh.D.2 to contend that since land involved in this application has been exempted from land revenue so the same has attained its Waqf character. Mere assignment or Muafi of land revenue in favour of a Khankah does not give rise to presumption that land itself, was attached to a Khankah and 4 as gone out of the pool of private ownership and reliance is placed upon (PLD 1973 Note 38 at page 50 (Lahore) (Supra.) Again there is nothing on the record in the form of documentary evidence except Muafi Nama Exh.D.2 that property has ever been in possession of Trust or attached to any shrine. Thus the document Exh.D. does not prove the stand of respondent that suit property is a Waqf property.

13. It may also be noted that Waqf property has been defined in section 2(e) of the Puniab Waqf Property Ordinance, 1979 and means "property of any kind permanently dedicated for the purpose of a mosque Takkia, Khankah, Dargah or other shrine shall be deemed to be Waqf property".

14. If the definition of Waqf property is taken into consideration vis -a‑vis the suit property it becomes absolutely clear that suit property cannot be termed as permanently dedicated for the purpose of Khankah or other shrine and the mere fact that same has been exempted from land revenue will not bring the property within the ambit of Waqf property as defined above.

15. The upshot of above discussion is that from the evidence brought on record it stands conclusively proved that suit property was not Waqf property and it could not be acquired by respondents vide notification referred above. Thus, the findings recorded by the trial Court are not sustainable. Accordingly appeal is accepted, the impugned judgment is set aside and consequently application of the applicants/appellants stands accepted. H.B.T./N‑175/L Appeal accepted.