PLD 2011 Lahore 483 (PLP)

SYED KAZIM RAZA SHAMSI, J.--This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against an order' dated 5-10-2006 passed by late Mr. Tariq Mehmood Iqbal Khan the then learned Additional District Judge, Sialkot whereby he maintained an eviction order dated 5-7-2005 passed by Malik Muhammad Rizwan Arif, Rent Controller, Sialkot whereby the ejectment petition was dismissed.

2. The facts of the case as are evident from the pleadings of the parties briefly stated are that Faraz Ahmad Bhutta filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 against Mst. Sughran Begum alleging therein that property as described in para 1 of the ejectment petition was purchased by him and his brothers by way of registered sale-deed dated 22-3-2002 from Haji Nawab-ud-Din and Muhammad Sharif sons of late Haji Shahab Din. After purchase of the said property, they served a notice under section 13-A of the Ordinance (ibid) informing the respondent about change of the ownership and demanded the monthly rent at the rate of Rs.8,000 per month. The respondent did neither pay nor tender the monthly rent w.e.f. 22-3-2002 thus is the defaulter in the payment of rent. It was prayed that order of ejectment may be passed against the respondent.

3. The petition was resisted by the respondent asserting that the relationship of landlord and tenant did not exist between the parties for the reason that the property in dispute was a "Waqf-al-aulad" which could not be sold out as such, the purchase of the property by the petitioners was illegal. The respondent admitted that she was/a tenant of Haji Nawab-ud-Din and till date she was regularly paying' the rent to him.

4. Facing with this situation, the learned Rent Controller framed issue of relationship of landlord and tenant and proceeded to record oral as well as documentary evidence. The resume of evidence has been provided in the judgment of learned Rent Controller at page 3 paras 6 and

7. Thereafter the learned Rent Controller reached at the conclusion that the property was a Waqf property created by Shahab-ud-Din for charitable purposes as such, was not liable to be alienated in favour of the petitioner, consequently, the petition was dismissed.

5. An appeal of the said dismissal of ejectment petition came up before the learned Additional District Judge who also concurred with the findings of the learned Rent Controller and dismissed the appeal. It is pertinent to mention here that during the pendency of the appeal, the petitioner landlord filed an application seeking permission to place on file the revocation of Waqf deed dated 26-11-1946 which application was also turned down by the learned Additional District Judge vide order dated 5-10-2006 holding that the document was not placed on the record previously and the document placed now on the file was unattested copy and further that Waqf of the property made by late Shahab-ud-Din was permanent dedication which cannot be withdrawn even by the waqif at the later stage. The petitioner feeling aggrieved by these orders has assailed the same in the instant constitutional petition.

6. While opening the arguments Ch. Khurshid Ahmad, learned Senior counsel contended that his case is based upon three propositions (i) the admission of respondent No.3 about the existence of tenancy (ii) about existence of Waqf and admissibility of revocation-deed and lastly the Waqf of the property was not implemented after its creation. He also termed the sole judgment on the point recorded in the case of Khalid Javed and others v. Qazi Masood-ur-Rehrnan, Additional District and Sessions Judge, Sialkot and 2 others (PLD 1988 Lahore 541) as against the principles of Muhammadan Law. He further argued that the Rent Controller has no jurisdiction to look into the question of title of the landlord. The Rent Controller is only to examine and determine if a person filing ejectment petition is landlord or not. Elaborating his propositions, the learned counsel contended that respondent No.3 in her statement had admitted that she was a tenant of Haji Nawab-ud-Din and others and is paying rent regularly, thus, now she was estopped to deny the relationship of landlord with the petitioner. About second contention, he submitted that Waqf-deed was never implemented and subsequently it was revoked by the waqif himself, therefore, Nawab-ud-Din and others were entitled to alienate the property in favour of the petitioner. He termed the order of learned Additional District Judge refusing to accept the application for additional evidence, as an erroneous order.

7. Learned counsel appearing on behalf of respondent No.3 has categorically placed reliance upon the judgment (supra) as well as upon the principles of Muhammadan Law arguing that once a waqf is created then the waqif has no jurisdiction and authority to revoke it for the reason that it is a permanent dedication made by a waqif for charitable purposes in' favour of Allah Almighty whereafter he cannot be termed as an owner of Waqf property.

8. The submissions made by learned counsel for the parties have duly been appreciated by examining the record of the case as well as the case-law.

9. So far as the first contention of the learned counsel for the petitioner that a Rent Controller cannot look into the title of the landlord is concerned, this Court does not find itself in agreement with such contention. In section 2(c) of the Ordinance (ibid) the definition of landlord has been given which says that any person for the time being entitled to receive rent in respect of any building or rented land. The word "entitled" means the legal entitlement of a person; such person has to prove that he has legally', been authorized to collect the rent or he is collecting the rent on his own account. In the instant case, the petitioner did not produce any evidence showing that they were authorized by Haji Nawab-ud-Din and others to collect rent on their behalf from the tenants of the property. The petitioner has solely relied upon the sale-deed executed by Haji Nawab-ud Din and others in their favour alienating the property in favour of the petitioners. So the learned Rent Tribunal in this situation has to examine whether the petitioners are lawful owners and the property transferred in their favour was transferred by lawfull means or that they have been legally authorized for the collection of the rent from the tenants, No doubt, the learned Rent Controller is not supposed to conduct detailed inquiry into the fact, but in order to satisfy itself, Rent Controller has to examine these facts before assuming jurisdiction under Rent Laws. Both the courts below while examining these factual positions have rightly held that the petitioners are not the lawful transferee of the property in dispute for the reason that Shahab-ud Din had created the Waqf of the property prohibiting the alienation.

10. In order to examine the creation of Waqf, the principle laid down by D.F. Mulla in this respect are to be considered. According to section 173 of Muhammadan Law, a Waqf is a permanent dedication by a person professing the Muslim faith of any property, recognized by the Muslim Law as religious, pious or charitable. Section 174 of the Muhammadan Law directs a waqf to make a permanent waqif without limiting the period while the object of the Waqf has been described in 178 mentioning that it should be for religious, pious and writable purposes and Waqf could be in favour of settlor's family, children and descendants.

11. Doctrine of press has been laid down in section 181 and the creation of Waqf by inter vivos or testamentary has been provided in sections 184 and

185. To complete a testamentary waqf, section 186 provides the procedure. Section 189 of Muhammadan Law clearly provides that testamentary waqf can be revoked any time before the death of the waqif meaning thereby the other waqif's are not revocable. Further section 193 provides that Waqf property cannot be alienated t except in the case mentioned in sections 207 and 208 which sections provide the powers of Mutawali to sell or mortgage of the Waqf property with the 'permission of the court or if such power has been given expressly in the Waqf deed. The purpose of mentioning all these sections is to ascertain the intention of late Haji Shahab-ud Din from Waqf deed available at page 88. of this constitutional petition which was also produced before the trial Court and was marked as Exh.R.233. If this deed is kept in view, created as far as back on 2-1-1931 and further deed executed in 1935 by said Shahab-ud-Din, shows that it was made as a permanent dedication for charitable and pious purposes mentioned therein and subsequently restraining the successive Mutawalis' from alienation of the whole property or any part thereof. It was mentioned at page 13 of the waqf-deed that:- In clause 5 of the said deed at page 15, the right to sell the property was prohibited in the following words:-- It is further elaborated in clause 8 that The charitable purpose is also explicit from the wording of this waqf deed i.e. the waqif wanted to establish a school for the children. This is besides other charitable purpose which he intended to establish in his life time. The reading of these different clauses of the waqf-deed clearly established the intention of the waqif and prohibition from the alienation in future. The submission of the learned counsel for the petitioner that on 26-11-1946, said Shahab-ud-Din himself cancelled the Waqf through a registered document, therefore, it would be deemed that property was never bequeathed by Shahab-ud-Din through waqf-deed; This submission of the counsel in view of the afore-noted wording has no legs to stand for the reason that when the property did not vest in the waqif and the possession has been delivered to Allah Almighty then he has left with no authority to cancel it. The waqf-deed is found to be very comprehensive document which was allegedly revoked by the waqif through instruments appearing at page 166 of this petition, in which the waqif cancel the waqf-deed in the shallow words:-- This is very funny statement made by the waqif. When it is compared with the original waqf-deed, it appears to be very casual and shallow statement because the waqf-deed was executed by Shahab-ud-Din with the help of his special attorney Malik Jalal-ud Din, B.A., LL.B. Pleader, Sialkot thus, the excuse that in 1946 he got a legal advice that the document executed previously did not fulfil the requirements of Waqf appears to be an attempt to wriggle out the waqf-deed for which the waqif had no authority at all.

12. So far as the question of placing on record the cancellation deed is concerned, the learned Additional District Judge had rightly refused to take this document on the file for the reason that it was never placed before the learned trial court and when it was placed before the learned appellate court that was the photocopy without completing any legal formalities. The other reason given by the learned Additional District Judge for not accepting such document was that the Waqf cannot be revoked. These findings are duly supported by law, cannot be termed as erroneous.

13. Now again reverting to the contention of the learned counsel for the petitioner, the judgment available on the subject is the case of Khalid Javed (supra) which covers the instant case from all sides and it was observed in the said judgment that the Rent Controller has jurisdiction to examine the question of title of the landlord and for that purpose it has to satisfy itself by examining if pre-condition of law in this respect have been fulfilled. It was so directed in this judgment that in such like cases, the landlord should be directed to get clear his title from the court of plenary jurisdiction and then to avail the remedies provided by the Rent Laws. This case law provides guidelines to the court as to what order is to be passed in such like situation. It is established in is case that relationship of landlord and tenant did not exist between the parties as such, other contentions raised by the learned counsel for the petitioner are not needed to attend. The arguments that respondent No.3 had admitted the tenancy of Haji Nawab-ud-Din, thus by fiction of law she is the tenant of the present petitioner and is estopped from denying the title of the landlord, in the light of afore-noted observation has become a is sham arguments and cannot be accepted.

14. The upshot of the above discussion is that both the learned courts below have rightly held that relationship of landlord and tenant did not exist between the parties which findings are based on sound appreciation of evidence, record and the law as well, and do not call for any interference by this court in this constitutional jurisdiction. This petition fails and is dismissed accordingly. M.A.K./F-19/L Petition dismissed.