1996 PLP 663 (CLC)

Mr. Muhammad Ishaque, the learned counsel for the appellants submitted that the learned Rent Controller failed to appreciate correctly the evidence produced by the appellants and came to erroneous findings. It was further vehemently urged by him that the respondent had no locus standi to file the application against the appellant in view of section 2(f) of the Sindh Rented Premises Ordinance, 1979 and also because of the fact that the premises in question are part of the Waqf Property. According to him the Mutawallis, who were major at the time of the filing of the eviction application were not impleaded as parties and that the respondent was. neither the owner nor authorised by the Mutawallis under the registered Waqf deed to institute proceeding. He also attacked the finding of default and subletting as being not in accordance with the law and evidence on record. On the other hand Mr. Muniruddin Alvi, the learned counsel for the respondent submitted that the alleged default of 4 years and 9 months have not been properly explained and it is evident from the conduct of the appellant that they were wilful and habitual defaulters. He supported the findings of the Rent Controller and submitted that the application submitted by the respondent was maintainable. From the pleadings and the evidence based thereon the crucial question arising in the case is the status of the property and the authority of the respondent to receive rent and seek eviction of appellants. According to the appellant the premises in question belong to Waqf which was created by the then owner late Faizul Jaleel, the husband of the respondent by a registered Waqf deed dated 20‑4‑1972. The respondent also admitted this fact during the course of her cross‑examination which is evident from her following statement: "It is incorrect to suggest that I am not owner of the property. It is a fact that the property in question is a trust property. It is a fact that the property is of trust. It is a fact that I have no written authority by trust to file the present rent application. Voluntarily says that Mutawalli of the trust has given me verbal authority. It is a fact that I have no written authority from the trust to recover the rent from the tenants. It is a fact that I am not authorised to manage the property in writing. It is a fact that my children are also not owner of the property voluntarily states that they are Mutawallis of the trust property. I do not know whether any notice was given to tenants/opponent after the creation of trust. I have not issued any intimation to the opponent regarding the creation of trust nor my children have given such intimation. It is a fact that I have filed rent application against the present opponent on behalf of my children who were minors at that time. Consequently, it is vehemently refuted that. I am neither competent nor entitled to file the present case as wilfully referred to by the opponents." S.M. Khalilullah Jalil who is son of the respondent and was examined as her witness stated in para. 2 of his affidavit‑in‑evidence as follows: "I say that the applicant being one of the legal heirs of Mr. Faizul Jalil, my late father is one of the co‑owners of the demised premises including 3 shops, at present, under possession of the opponents contrary to law and Justice. It is further submitted that the applicant is fully competent and duly authorised by me and my brothers and sister to look after and manage the affairs of the demised shops including filing and pursuing the present rent case. " In cross‑examination he stated as follows: "It is correct that me and my mother are owners of demised property. It is incorrect that there is registered trust and me and my brothers are its Mutawallis but it is a registered Waqf we are its Mutawallis. It is correct that opponents Nos. l and 2 are tenants since 1970. It is incorrect that my father in lifetime got. registered trust regarding demised property but it was Waqf. registered. I have no knowledge if the intimation of registration of trust was given to tenants or not. My father had expired in the year 1975 but I had not intimated the tenants in writing regarding death of my father. " Once it has been established that the property belongs to Waqf it is not far to seek the legal‑ consequence. D.F. Mulla in his treatise known as "Principles of Mahmmedan Law" (PLD Publication, Lahore 1991, pp.254 and 296) describes the implication of Waqf as follows: "Section

173. Wakf means the permanent (section 174) dedication by a person professing the Mussalman faith of any property (sections 175?177) for any purpose. recognised by the Mussalman law as, religious, pious or charitable. Section

202. Under the Muhammadan law the moment a Wakf is created all rights of property pass out of the Wakif and vest in the Almighty. The Mutawalli has no right in the property belonging to the Wakf; the property is not vested in him, and he is not a trustee in the technical sense. He is merely a superintendent or manager." Thus in 1975 when the Wakif namely Faizul Jalil died the property in question was not available for inheritance and the respondent being his wife could not have inherited. The application for ejecment was filed by the respondent as a co‑owner of the said property. One of her son who was also her witness while supporting her claim for ownership also described himself to be a co‑owner of that property as one of the legal heirs of its deceased owner late Faizul Jalil. It is thus clear that the ejectment proceedings were not by or at the instance of the Wakf or its Mutawalli but by the respondent in the capacity of a owner which she could not be in view of property having already been dedicated to Wakf by her late husband during his lifetime. The respondent and her son concealed the existence of Wakf which fact was disclosed only in cross?-examination: The application filed by the respondent was not competent as she was neither the owner nor otherwise entitled to do so. Since the application itself is not maintainable it will be of no use to examine the grounds of ejectment. In view of the conclusion I have arrived at this appeal is allowed and the impugned order dated 19‑12‑1993 is set aside with no order as to costs. H.B.T./H‑411/K ???????????????????????????????????????????????????????? ??????????? Appeal allowed.