Feeling aggrieved of notification (date whereof is disputed by the parties) amending a notification dated 1.3.198Q issued by the appellant in terms, of Section 7 of Punjab Waqf Properties Ordinance, 1979, on 4.4.1981, the respondent filed an application under Section 11 of the said Ordinance seeking a declaration that the land comprising Khasra No, 828 (old) and 862 (new) measuring 25 kanals 18 marlas, located in village Mansar, Distt. Attock, is not a Waqf property and could not have been taken over by the appellants. In the said application, it was stated that the land is owned and possessed by the applicants and it has never been dedicated as Waqf within the meaning of said Ordinance. The petition was contested by the appellants by filing writing reply. It was stated that notification was issued on 8.12.1980 and as such the application is barred by time. On merits it was stated that the said land is Waqf within the meaning of said law. Following issues were framed by the learned District Judge, Attock on 5.12.1982:--
1. Whether the application is within time?
2. Whether the disputed property belonged to the petitioners and Notification dated 6.12.1980 issued by the respondent was illegal and is liable to be set aside?
3. Whether the disputed property has been used as Waqf property being part of the shrine of Baba Kaloo and it was rightly taken over by the respondent under the impugned notification?
Evidence of the parties was recorded. Vide Judge dated 13.6.1998, learned District Judge, Attock, allowed the said petition.
2. Learned counsel for the appellants contends that the application was barred by time. According to him, amending notification was issued on 30.10.1980 and the petition having been filed on 4.4.1981, is barred by time. On merits, he draws my attention to the revenue records produced by both the parties to assert that the land was in possession of `Khadam' of Sain Kaloo Baba Jee and as such it shall be taken to be Waqf Property within the meaning of Section 2(e) read with explanation (1) thereto.
3. Learned counsel for the respondents, on the other hand, contends that the notification was never published and as such there is no question of limitation. According to him, it stands established on record that the respondents acquired knowledge during the pendency of the suit upon filing of written statement by the appellants and from the said date the petition was within time. Further contends that in the revenue records the land is owned and possessed by the respondents and there is no evidence on record that it was ever dedicated expressly or Waqf was made by implication.
4. I have gone through the records with the assistance of the learned counsel for both the parties.
Vide notification dated 8.3.1980, the appellant proceeded to take over and assume the administration and control of shrine of Sain Kaloo Baba Jee and Anwar Shah, situated in Mansar Camp Distt. Attock. According to the schedule shrine of the said saint alongwith nine rooms, two verandas, one langar khana, a mosque and a tube-well, comprising an area of 48 kanals 18 marlas bearing Khsara Nos, 950, 951, 961 and 962, Income from the cash boxes and offerings and subscription made to the said shrine, has been taken over. Thereafter the impugned notification was issued. According to Ex. P.4, it was issued on 30.10.1980 by the appellants, and the land measuring 48 kanals 18 marlas comprising Khasra Nos, 861 and 882, according to khatoni Ishtimal for the years 1976- 77 was taken over. A copy produced by the appellants of the same document as Ex. R-1 also carries the date 30.10.1980. I may note here that there is a diary No, noted on this copy as 3820 and the date of receipt is shown as 8.12.1980 in the office of Administrator Auqaf, Rawalpindi Zone. Probably in the written statement this date of receipt of notification in the said office was mentioned. Another date mentionedin this Ex. R.1 is 4.11.1980 which is a date of endorsement noted on the said document. Now it is mentioned in both the said copies that notification is to be published in the Punjab Gazette. I have not found any evidence on the record that notification was ever published. Now Section 7 of the said Ordinance authorities the appellants to take over and assume the administration, control management and maintenance of the Waqf Properties, by notification. Now Section 11 of the said Ordinance prescribes a period of 30 days- for filing of the said petition from "publication of the notification under Section 7". There is no evidence on record that notification was ever published in the manner prescribed by law i,e, in the Provincial Gazette. This being so, the limitation will have to be counted from the date of knowledge and according to Nobat Khan, PW-4, knowledge was acquired during the pendency of the suit earlier filed, upon filing of the written statement and the suit was withdrawn. According to Ex. P.6 the suit was withdrawn on 16.3.1981. The petitioner filed on 4.4.1981, is therefore, well within time. The findings recorded by the learned District Judge on Issue No, 1 are accordingly upheld.
5. The revenue record available on the file is "Misal Haqiat" for the Iyear 1966-67 (Ex. P. 5). According to this document, land is owned by the respondents and is in their possession. Copies of Register Haqdaran Zamin are for year 1969-70 (Ex. P.4), for the year 1973-74 (Ex. R-3) and for the year 1976- 77 as Ex. P.3. In all these documents the respondents are recorded, to be the owners of the suit land.
However, possession is recorded to be of Baba Sakhi Khadam Sain Kaloo Jee. Now according to the learned counsel since said Khadam of Sain Kaloo Jee is in possession according to the records after the year 1966-67, it shall be deemed that the property is Waqf. I am afraid there is no force in the said argument. In the first instance, there is no evidence whatsoever on the record that this property had either been dedicated by the respondents who are admittedly owners thereof, and in the second, even if it be assumed that the said entry in the possession column is for some purpose, mentioned in Sec. 2(e) of the said Ordinance, then according to the explanation (1) the deeming clause can be invoked only if it is shown that the property has been used since the time immemorial for any of the said purposes. Now even going by the arguments of the learned counsel for the appellants, if it can be some how assumed that the possession of the said Khadam can be termed as religious or pious purpose then a period of time of 12 years between the last entry of 1966-67 and the date of notification in the year 1980, can hardly be termed as time immemorial".
6. There is yet another aspect of the case. Through out the available record at the time of issuance of the notification, the respondent's ownership stands recorded in the revenue records. Proviso to Section 7(1) of the said Ordinance debars the appellants from taking over and assuming the control etc. of the Waqf Properties in the life time of a person allegedly dedicating the same, except with the consent of the such person and on such terms and conditions to be agreed upon between such person and the appellants. Thus from what ever angle seen the impugned notification has been issued without lawful authority and any action, taken consequent thereto, is liable to be declared as such findings on Issues Nos, 2 & 3, recorded by the learned District Judge, are accordingly, upheld.
7. For all that has been stated above, this FAO is dismissed with no orders as to costs.