' This appeal assails judgment and decree, dated 21-7-1996 passed by the learned Additional District Judge, Faisalabad, on a suit of the appellants under section 92, C.P.C.
2. Precisely, relevant facts are that the appellants filed a suit for removal of respondents as Matwalli (trustee) in respect of "Khanqah" situated within land measuring 8 Kanals, 9 Marlas, detailed in the plaint, with a prayer for appointment of new Matwalli, restraining the respondents from alienating any part of the Wakf property. Appellants pleaded that .Pir Maulvi Shahab-ud-Din is buried in "Khanqah" and the land around it is attached thereto as Wakf property. According to them, they are devotees of Pir Maulvi Shahab-ud-Din, besides it their ancestors were buried within this premises, which also contains a Dera, mosque and other connected structures, which ,,is in occupation and management of appellant No.1 Muhammad Aslam. Earlier respondent No.2 had threatened forcible dispossession of the appellants and on suit by them, respondent No.2 made a statement before the learned Judge, who was seized of the matter, on 12-12-1987 that he would not alienate the Wakf property, but in spite of statement he fraudulently gifted a part of the property in favour of respondent No.1 through some consent decree obtained from Civil Court, which was challenged by filing an application under section 12(2), C.P.C. And was reported to be pending. According to the appellants, respondent No.2 being a Matwalli was not competent to alienate or transfer property under his control, but he besides damaging the structures existing at the spot, flouted the confidence of the public by above referred transfer.
3. Respondents contested this suit before the learned Additional District, Judge while refuting assertions therein by filing their written s'tatement, wherein they pleaded that respondent No.2 has become old to manage the affairs of the property and as such he has appointed respondent No.1, his grandson, as Matwalli of the property. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge (Additional District Judge), who was seized of the matter, after doing the needful, partly decreed- the suit by removing respondents as Matwallis of the. "Khanqah" but refused to appoint the appellants in their place and instead, appointed Administrator Auqaf (Muslim Properties), Faisalabad, as Matwalli of the Wakf Property and "Khanqah" with a' direction that he will manage the same in accordance with law and would maintain accounts of the properties, vide his judgment and decree, dated 21-7-1997.
4. Appellants aggrieved of the appointment of Administrator Auqaf (Muslim Properties), Faisalabad as Matwalli of the Wakf property subject of litigation, filed the instant first appeal before this Court, which was admitted to regular hearing and has now been laid for final determination.
5. Respondents were served through .Notice issued by the office, but none of them ever appeared to contest this appeal. This appeal was fixed on 20-9-2003 and office intimated its fixation to the respondents through a registered post but on account of non-appearance of anybody on their behalf, this Court directed fresh notice to them. Thereafter, it was reported by the process server that respondent No.2 has died and being a Matwalli was succeeded by none. Respondent "No.1 was also reported to have deserted the "Khanqah" by shifting to some other unknown place.
Thereafter a notice to the Administrator, Muslim Auqaf, Noor Shah Wali, Tariqabad, Faisalabad, was ordered to be issued requiring him to contest this case, but he has also shown no interest to defend this appeal inspite of his service. In the given circumstances, I am constrained to decide this appeal in absence of the respondents.
6. Learned counsel for the appellants submits that the trial Court fell in error in appointing Administrator, Muslim Auqaf, as Matwalli because in view of provisions of sections 7 and 20 of the Punjab Wiakf Properties Ordinance, 1979, any property could be taken over by the Administrator Wakf Properties through a notification, notwithstanding any custom, usage, decree or order of any Court. He further contended that as the property subject of litigation was not wakf property, it neither could have taken over by the Administrator nor it could have been given under his control by any Court. He referring to Article 204 of the Mohammedan Law by M. Hidayat Ullah, contended that the only person competent to appoint Matwalli was the founder of the Wakf and in this manner, it was urged that appointment of the Administrator Muslim Auqaf as Matwalli by the trial Court was not lawful and thus prayed that judgment and decree of the trial Court to the extent of appointment of Matwalli may be set aside.
7. I have anxiously considered the arguments of the learned counsel for the appellants and have examined the record, appended herewith. The original Matwallias asserted by the appellants, has died and this right was not heritable, thus no body succeeded him as far as the property in question is concerned. Respondent No.1 who was claimed to have been brought to the property in question for rendering help to respondent No.2, has lefi the "Khanqah". These facts are also affirmed from the fact that they were removed by the trial Court from the office of Matwalli, but they have not filed any appeal against the said order. In absence of the respondents the only person remains in field is Administrator Auqaf (Muslim Properties), Faisalabad. Before embarking upon determination of his appointment, I find that he was personally served, but did not bother to appear in this appeal to contest it, whereby his substitution has been prayed and this fact was recorded by this Court in the order, dated 6-2-2004. I feel that a person, who is not ready to , accept his appointment as Matwalli and has no capacity to contest this appeal, does not deserve to be appointed in the office under discussion. Even otherwise, section 7 read with section 20(2) of the Punjab Wakf Properties Ordinance, 1979 confers powers on the Administrator to take over the Wakf property and to hold control of it through a notification. In presence of this power, no appointment order was needed by ,the trial Court and if-ultimately Administrator Auqaf (Muslim Properties) feels like taking over the property, he can do it, without any impediment, even ignofing judgment/ appointment, if any. Under Article 204 of Mohammedan Law by M. Hidayat Ullah, the founder of the Wakf has power to appoint the first Matwalli and to lay down a scheme for administration of the trust and for succession to this office. He can nominate the successors, but in absence of it, if an appointed Matwalli dies or refuses to act in the trust or is removed by the Court, new Matwalli is to be appointed by the founder. Neither the founder of the alleged trust is alive nor any successor of the Matwalli was nominated and the person in office having died, the Court no doubt can appoint any person to fill in the vacancy, but it could not appoint a stranger. Appellants have claimed that they are devotees of Pir Maulvi Shahab-ud-Din and they have graves of their relations within the premises and in this manner their appointment should not have been disregarded, without there being any coercive reason, in this behalf. No body other from the vicinity came to contest the suit and at the same time, there was no allegation against the appellants, even by the respondents, whose removal they had prayed. The appropriate course for the trial Court could' have been that all the concerned should have been invited through a public notice and after hearing them, excluding the Administrator Auqaf (Muslim Properties) appointment should have been made. This course having not been adopted judgment and decree, dated 21-7- 1996 to the extent of appointment of new Matwalli of Khanqah Pir Maulvi Shahab-ud-Din cannot be maintained. I accordingly accept this appeal and set aside above referred part of the judgment and decree and remand the case back to the trial Court for appointment of fresh Matwalli according to the observations made above. There will be no order as to costs.
Case. Remanded.