' Appellants, through the filing of the present appeal, have called in question judgment and decree dated 21-7-1998, whereby the learned Additional District Judge dismissed appellant's suit for declaration with permanent injunction.
2. Precisely stated the facts of the case are that the appellants, claiming to be the descendants of Hazrat Sultan Zakria Sahib, on 10-7-1993, filed a suit/petition under section 11 of Punjab Waqf Properties Ordinance 1979 (hereinafter referred to as Ordinance), thereby, inter alia, challenging the Notification dated 12-4-1993 issued by the Chief Administrative Waqf Properties, whereby the administration, control and management of the said Darbar was taken over by the Auqaf Department. It was asserted by the appellants that they, being the descendants/legal heirs of Hazrat Sultan Zakria, had been maintaining the Mizar, used to incur the total expenses and the Auqaf Department never took any interest in the management of the Darbar. It was further the case of the appellants that on previous occasions Auqaf Department issued similar notifications but the same were withdrawn. The suit was contested by the respondents through filing the written statement, inter alia, pleading that the Auqaf Department is competent to take control of any Waqf Property or Darbar without the consent of anybody and that after the issuance of notification in question, the possession of Darbar had already been Laken over on 8-6-1993 and "Rupt" No.267 was lodged in "Roznamcha".
' Out of the divergent pleadings of the parties, the following issues were framed:-- ' Issues
(1) Whether the plaintiffs have no locus standi to bring this suit? OPD
(2) Whether this suit is not maintainable in its present form? OPD
(3) Whether the plaintiffs are legal heirs of Hazrat Sultan Zakria (Rehmatullah Eleh) and as such they are entitled to manage and administrate the management of Darbar Hazrat Sultan Zakria (Rehmatullah Eleh) ? OPP
(4) Whether the Notification dated 12-10-1993 of defendant No.1 is illegal and having been passed in the absence of the plaintiffs, is ineffective and inoperative on the plaintiff's right over the management of this shrine and the attached property? OPP
(5) Relief.
' The learned trial Court, after recording the evidence of the parties, dismissed the suit/petition, vide impugned judgment and decree dated 21-7-1998, hence the present appeal.
3. Learned counsel for the appellants has contended that the property was not Waqf property and that the appellants, being the legal heirs of Hazrat Sultan Zakria, are entitled to retain the said property. He has further submitted that the appellants are the owners in possession of the said Darbar and that the notification is illegal and void and does not bind the appellants. He has relied upon Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCM R 962 and Chief Administrator of Auqaf v.
Muhammad Ramzan and others PLD 1991 SC 102. Conversely, the learned counsel for the respondents has submitted that the suit/petition was barred by time and that the notification was competently and legally issued.
4. Firstly coming to the question of limitation. Admittedly, the notification was issued on 12-4-1993, possession of Darbar was taken over on 8-6-1993, vide Rupt No.267, while petition/suit, under section 11 of Ordinance, was filed on 10-7-1993. It appears from the said narration that the appellants filed the suit/petition after the lapse of three months from the date of the issuance of notification. Even if the period of filing of the suit is to be taken from the date of possession, i.e. 8-6- 1993, even then the suit was filed after 32 days from the date of possession. Section 11 of Ordinance provides that any person having interest in the property may within 30 days of the publication of the said notification can file a petition before the District Judge. It flows from the bare reading of section 11 that the period of 30 days is to commence from the date of the publication of the notification, which in the instant case is 12-4-1993. As noted above, the petition/suit was filed after the lapse of three months from the date of the notification, therefore, the same was clearly and grossly barred by time. The learned Additional District Judge has rightly held that the same is barred by section 11 of Ordinance.
5. In view of the arguments raised by the learned counsel for the parties, I have examined the available record and find that the learned Additional Judge has properly embarked upon the issues involved in the case, adverted to the evidence on record and law on the subject, appreciated the law and the evidence in its true perspective and rightly held that Auqaf Department can take over the control of the property, as the same is Waqf property. It would be appropriate to reproduce the said portion of the judgment, which clinches the matter and reads as follow:-- "It appears from section 7 of the Punjab Waqf Properties Ordinance, 1979 that the Auqaf Department is not competent during the lifetime of a person dedicating a Waqf Property and can take over and assume the control of such Waqf Property with the consent of such a pefson who has dedicated the property on the terms and conditions mutually agreed by such person and the Chief Administrator. Admittedly tile property/Darbar in dispute was not dedicated by any of the plaintiffs or their fore fathers for creating a Waqf therefore, the proviso of section 7 of the Punjab Wag' Properties Ordinance, 1979 is of no help to the plaintiffs. The aforesaid property had been used from the time immemorial for a religious and charitable purpose and there being no expressed dedication by anyone, the Augal Department can competently take over the control of this property as the same is strictly a Waqf property within the meaning of aforesaid Ordinance. In view of the above stated situation of notification issued by the defendants regarding the property in dispute is perfectly in accordance with law."
6. Now turning to the next contention of the learned counsel for the appellants regarding the issuance and cancellation of previous two notifications on the same subject-matter. Suffice it to say that if earlier notifications were rescinded due to any reason, that does not debar the Auqaf Department from issuing subsequent notification or on account of said reason the property shall not cease to be a Waqf property. The learned Additional District Judge has also rightly adverted to this aspect of the case, the findings whereof are not open to exception.
7. Now coming to the judgments relied upon by the learned counsel. As regards the case of Muhammad Ishaq (ibid), it has been held in the said judgment that the notification not only be published in Gazette but must also be served on person in possession of property declared as Waqf. I have examined the petition/suit, filed under section 11 of the Ordinance, and find that the appellants did not take the said plea in their plaint/petition. It has nowhere been stated that the notification was not served upon the appellants, rather their case was that the said notification has not been implemented. -In view whereof the said judgment is of no avail to the appellants. It has been held in Mst. Rehmat Bibi (supra) that if an impugned order has been passed without hearing, such order will be nullity in the eye of law. This judgment is equally inapplicable in the facts and circumstances of the case on the ground that the notification was issued and section 7 does not envisage that before the issuance of notification in respect of assumption of administration, control and management of Waqf property, the parties must be heard. As has been held above that the notification was legally issued, therefore, the appellants could not take benefit of the principle laid down in the case of Mst. Rehmat Bibi. The principles laid down in the case of Chief Administration of Auqaf (supra) are also not applicable in the present case, as the said case is distinguishable on the fact and law. Judgments relied upon by the learned counsel are of no avail to the appellants.
8. In the above perspective, I have examined the impugned judgment and decree and find that the same is legal, apt to the facts and circumstances of the case and does not call for any interference by this Court, thus, the findings, whereof, are maintained.
9. Upshot of the above discussion is that the present appeal is devoid of merit thus, the same stands dismissed leaving the parties to bear their own costs.