P L D 1965 (W (PLP)

4. It is not understood as to how this document in any manner supports the case of the appellant. No doubt, the document is not artistically drawn up and it talks of wakf in the name of Pir Muhammad Azfal Shah in the first clause and also says that the Sajjada Nashin Afzal Shah will have full right to utilise its income and after his demise half of the income is to be spent by the succeeding Sajjada Nashin for his personal expense and the other half for the shrine, but the concluding clause unequivocally says that on and after the date of execution of the document the property shall be considered as waqf. We find that the mutation (Exh. P. 1) attested on the basis of this deed has also been sanctioned as waqf in the name of Khanqah Sharif. There are some words which lend support to the view that it was `hiba basoorat waqf' from Muhammad Bakhsh in favour of Muhammad Afzal Shah. The attestation, no doubt, is in that form, but mere attestation of mutation will not alter the situation and the actual fact is that it was a gift in the form of waqf in the name of Pir Muhammad Afzal Shah for the 'maintenance of the shrine. Muslim Jurists divided waqfs into three classes; (a) In favour of the rich and the poor alike; (b) In favour of the rich and then for the poor; and (c) In favour of the poor alone. The first class of waqfs would comprise what might be termed in modern law public trusts of a charitable or beneficial character. The second class would include family waqfs in favour of a settler's family, the ultimate benefit of which goes to the poor. The thrid class would comprise endowments for giving food, clothing or medicial relief to the needy alone. In all the three classes corpus of the property is tied up and its usufruct left free for mankind arid this rule of Muslim Law is based on the tradition from the Holy Prophet (peace be on him) when he ordained Omar:‑ "Tie up the property and devote the usufruct to human beings, and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred, and the poor in the way of God." According to the Disciples waqf means the tying up of property so as to subject it to the rules governing property belonging to God, and accordingly the right of the waqif in the property becomes extinguished and it goes to God and its benefit is applied for His creatures. Syed Ameer Ali in his celebrated work on Muslim Law, (Muhammadan Law, Volume I, Fourth Edition), while discussing the subject of taulyat, observes at page 443: "But where the mutwalli has to perform religious duties or spiritual functions in connection with the waqf, which, as regards men, can only be performed by a man, a woman cannot be appointed to the office. For example, if the mutwalli is also the superior of a religious establishment, and as such, has to officiate by occasions of religious festivals, a woman is precluded by her sex from holding the towliat. Such superiors in India (now Indo‑Pakistan sub‑continent) are called sajjada -nashins (sajjada is the carpet on which prayers are offered; and nashin is the person created thereon). `The sajjada‑nashin is not only a mutwalli but also a spiritual preceptor. He is the curator of the dargah where his ancestor lies buried and in him is supposed to continue the spiritual line (silsila). These dargahs are the tombs of celebrated dervishes, who, in their lifetime, were regarded as saints. Some of these men had established khankahs where they lived, and their disciples congregated. Many of them never rose to the importance of a khankah, and when they died their mausolea became shrines or dargahs. These dervishes professed esoteric doctrines anti distinct systems of initiation. They were either sufis or the disciples of Mian Roushan Bayezid, who flourished about the time of Akbar, and who. had founded an independent esoteric brotherhood, in which the chief occupied a peculiary distinctive position. They called themselves fakirs on the hypothesis that they had abjured the world; and were humble servitors of God; by their followers trey were honoured with the title of shah or king." Again at pages 392 and 393 the history of khankahs and tombs has been traced by the learned author as under: "In India (now Indo‑Pakistan sub‑continent), khankahs have generally sprung up in the following way:‑‑ A dervish or a person who, by leading a pious life, has won the esteem and veneration of the neighbourhood, of a sufi of particular sanctity has settled down in some locality. So long as he has not attained sufficient importance, his place of abode is called a takia. But when he is a man of importance or has attained sufficient eminence, is designated as astana. His pious life and religious ministrations attract public notice, disciples gather round him, and a place is constructed for their lodgment. Ana the humble takia grows into 'a khankah. After the death of the holy personage, the spot where he is buried becomes a shrine and an object of pilgrimage not only for ‑ his disciples, but for people of distant parts, both Mussulmans and Hindoos, and is designated either as a daragah or astana or rouzah . . . . . "And grants have been made by pious chiefs and sovereigns to these holy men for their maintenance and the maintenance of their descendants in perpetuity and the performance of pious acts." According to Baillie, (Book IX, Chanter III, Section First at pages 566‑567), the maintenance of a khankah is one of the valid objects of waqf, and, therefore, the mutation in the instant case, (Exh. P. 1). has to be interpreted to mean that the property has been dedicated for the maintenance of the shrine of Hazrat Pir Abdul Qadir Jeelani Sahib, Mauza Pirkot. Tehsil and Distric Jhang, under the towliat of Pir Muhammad Afzal Shah and the property in no case vested in the said Sajjada Nashin as his private property.

5. The next contention is with regard to 32 acres and 1 marla of land comprised in mutations sanctioned on various dates ranging from the 20th of September 1937 to the 24th of March 1946, namely, Exhs. P. 3 to P.

6. These parcels of land are 'shown to have been sold by different persons in favour of Pir Muhammad Afzal Shah and have been entered in the revenue records as waqf. The argument advanced on behalf of the appellant is' that the entries in the revenue papers are erroneous, It is too late in the day for the appellant to urge it. His father and after the demise of his father, the appellant is said to have enjoyed this property but the status in which he has enjoyed this property has all the time been of a sajjada‑nashin and if he has appropriated the income of this waqf property to himself, he has been guilty of breach of waqf but it does not mean that the property has' lost its character as waqf. The jamabandis from the years 1939‑40 to 1955‑56 (Exhs. D. 4, D. 5, D. 6, D. 7 and P. 9) clearly established that the land pertaining to, Exhs. P. 1 and P. 3 to P. 6 has been throughout shown as `basoorat waqf zer‑i‑ihtmam Mian Muhammad Afzal Shah wald Jalal Shah, Sajjada Nashin, Pir Kot, District Jhang'. The entries in the various Khatas have been split up showing the share of the Sajjada Nashin as owner in his personal capacity and as‑Sajjada Nashin for the waqf respectively and it is ‑this latter area entered as `basoorat waqf' in different Khatas that has been taken over by the Auqaf Department. It, therefore, cannot be urged with success that the property belonging to Pir Muhammad Afzal. Shah or the appellant has been assumed control of by the Auqaf Department, Their personal property no doubt is there in Mauza Fatehpur and that has been explicitly excluded by the Auqaf Department.

6. Lastly coming to Exh. P. 8, the so‑called agreement with respect to 40 bighas of land between Muhammad Bakhsh and Pir Muhammad Afzal Shah, suffice it to say that the document is dated the 21st of June 1947 and a feeble attempt has been made by the appellant to connect it with mutation No. 829 attested on the 24th of March 1946. The learned District Judge has rightly remarked that the document does not specify where this land is situated, what are its boundaries and whether this property is at all subject‑matter of the litigation before the Court: In addition, it is highly discrepant that attestation of mutation takes place in 1946 and a document with regard to that is executed between the parties almost a year and a quarter later. The document is of a highly suspicious nature and cannot at all be relied upon. Faced with this situation, the learned counsel for the appellant fairly conceded that Exhs. P. 7 and P. 8 are not relatable to Exh. P. 1 or Exh. P.

3. We are, therefore, only left with Exh. P. 1, the mutation dated the 12th of December 1936, pertaining to 95 acres, 6 kanals and 15 marlas of land, and Exhs: P. 3 to P. 6 covering 32 acres and 1 marla of land, which property has been ‑held by me to be waqf property and out of this property the Auqaf Department has taken over only 122 acres, 7 kanals and 12 marlas as per Jamabandi for the year 1955‑

56. The result is that the appellant has failed to establish that any private property belonging to him has been over by the Auqaf Department erroneously as waqf. The mutation of inheritance (Exh. P. 2) on which reliance has been placed that it pertains to the inheritance of Pir Muhammad Afza1 Shah on his demice with regard to land covered by Exh. P. I also does not show that the Auqaf Department has in any manner over‑stepped its jurisdiction in taking over personal property of Pir Muhammad Afzal Shah, which devolved on his heirs as private property. Whatever property belongs to Pir Muhammad Afzal Shah in his personal capacity stands excluded in the Jamabandi for the year 1955‑56 (Exh. PA) and has been left untouched.

7. The result, therefore, is that the judgment of the learned District Judge is affirmed, the appeal fails and is dismissed with costs. K. B. A. Appeal dismissed.