' This judgment purposes to dispose of Civil Revisions Nos.2483 and 2484 of 2003 arising out of a consolidated judgment and involving common questions of facts and law.
2. This civil revision assails judgments and decrees, dated 3-10-2000 and 11-7-2002 passed by learned Civil Judge and learned Additional District Judge, Sheikhupura whereby suit filed by the respondents titled "Mian Muhammad Shafiq etc. v Town Committee etc." for declaration and permanent injunction was dismissed and their appeal, thereagainst was disallowed, respectively.
3. Precisely, relevant facts are that in 1936 one Allah Ditta son of Khuda Bakhsh dedicated land measuring 1 Kanal and 19 Marlas of Khewat No.746 Khatooni No.1385 in the name of Almighty Allah and consequently got sanctioned Mutation No.658, dated 16-8-1937. This land remained under the control of Zila Council, Shiekhupura and was subsequently taken over by the Town Committee, Kot Abdul Malik in the year, 1991, assuming it to be owned by it. 'The then Chairman, Town Committee vide his letter, dated 17-12-1992 requested the Deputy Commissioner, Sheikhupura for permission of allotment of above-referred land to various shopkeepers who had constructed, their shops, on its different parts but the Deputy Commissioner did not agree with the proptval vide his letter, dated 9-2-1993 wherein he observed:- "the involved issue has been examined comprehensively. The involved land is in the name of "Waqf Fi Sabbi Lillah" which is being managed and controlled by the Local Council and as such the allotment of plot for construction of shops thereon in open auction would be without lawful authority."
4. Thereafter, Chairman, Town Committee, of Kot Abdul Malik again approached the D.C., Sheikhupura vide his letter, dated 3-7-1999 with the request that entries in the Register Haqdaran- e-Zamin may be corrected and Chairman Town Committee be substituted in column of ownership in place of District Council or Faqir Muhammad, Lumbardar. The Deputy Commissioner vide his order, dated 18-8-1999 after short proceedings, agreed with the request of the Chairman and directed the Revenue staff to carry out necessary correction. Muhammad Nawaz son of Ghulam Murtaza and others filed an appeal before the Commissioner, Lahore Division against the order of the Deputy Commissioner, dated 18-8-1999 who through his detailed order, tracing out the enfire history of the case, set aside the nrder-of the Deputy Commissioner and directed that status of land as "Waqf Fi Sabbi Lillah" in favour of Town Committee, be restored, vide his order, dated 18-4- 2001.
5. With this background of the land, one. Munawar Ali Shah son of Muhammad Jalil on 30-1-1998 filed a suit for declaration with permanent injunction claiming close relationship with deceased Muhammad Hussain and asserted that his father was in possession of the land subject of dispute as "Mutwalli". According to his plaint, he claimed possession/control over the land being descendant of Muhammad Jalil and thus, challenged entries in the Revenue Record being contrary to the facts and the law applicable. Mian Muhammad Shafiq respondent No.1 along with 25 others also filed a suit for declaration with permanent injunction who had constructed their respective shops on different parts of the land dedicated in the name of Almighty Allah and pleaded that Town Committee Kot, Abdul Malik has no concern with the ownership of the property, as it never constructed the shops and at the same time, did not incur any expense for its improvement. These plaintiffs claimed declaration that they are the owners on the basis of their possession. Both these suits were consolidated whereafter issues were framed by the learned trial Court, arising out of controversial pleadings of the parties. At the close of trial, suit filed by Mian Muhammad Shafiq etc. (respondents) was dismissed whereas the other suit by Munawar Ali Shah was decreed, holding him as Mutwalli of the property in question. Mian Muhammad Shafiq and 25 others filed two separate appeals whereas Town Committee also came in appeal separately against the judgment and decree, dated 3-10-2000 passed by the trial Court. All these appeals were decided by the learned Additional District Judge through a consolidated judgment whereby all the three appeals were dismissed. Thereafter, Town Committee, Kot Abdul Malik, filed civil revision (C.R. No.2484 of 2003) and Muhammad Nawaz filed civil revision (C.R. No.2483 of 2003) against the judgments and decrees passed by the two Courts below. Both these petitions after notice to the respondents, who are represented throuab _ their respective counsel, have now been placed for determination.
6. C.R. No.2483 of 2003 has been filed by Muhammad Nawaz son of Muhammad Asad Ullah Khan who claims that Town Committee, Kot Abdul Malik had utilized his land measuring 1 Kanal and 16 Marlas for construction of their offices and in lieu thereof, he was given a part of the land, subject of instant litigation, thus, he has a right to retain this part of the property whereas C.R. No.2484 of 2003 has been filed by the Town Committee, Kot Abdul Malik claiming that the property was dedicated in the name of Almighty Allah and was given in its control, as such, suit of Munawar Ali Shah should not have been decreed appointing him as a "Mutwalli". Since none of the parties disputed the status of property being Waqf in the name of Almighty Allah and it was not denied by them that dedicator had not nominated any person as Mutwalli and that none of the parties is from his descendant.
7. Under Muslim Law, the term "Wakf" literally means detention of a specific thing in the ownership of the Wakif/appropriator who devotes/ appropriates is profits/usufruct, in charity for the poor or other religious/good objects. This dedication extincts ownership of the dedicator and the detention of the thing implies ownership of the Almighty Allah and profits are diverted to the benefit of the mankind. According to Muslim Scholars, Wakf extinguishes the rights of the Wakif/dedicator and transfer ownership to God (Baillie 557-558, Hedaya 231-234). The Wakf, once created is permanent in nature and cannot be revoked even by the dedicator himself. Mutwalli is the manager of Wakf but the property under his control does not vest in him. The founder of the Wakf has power to appoint first Mutwalli and to lay a scheme for the administration of Wakf property and also for succession to the office of Mutwalli but no such scheme was given by the dedicator Allah Ditta, in the case in hand. Besides it, statutory control over the Wakf properties was being exercised in this part of the country through different enactments, initially by promulgation of "The Mussalman Wakf Act 1923" and then for this Province by "The Punjab Auqaf Act, 1952" and Punjab Waqf Properties Ordinance, 1979.
8. From the above resume of facts, Wakf of 1 Kanal, 19 Marlas of land by Allah Ditta deceased could not have been rescinded by diverting use of the Wakf property, for any other purpose than the one for which it was created i.e. The benefit of the mankind deserving usufruct thereof. Zila Council, Town Committee or the shopkeepers who have encroached upon certain parts of this land or have set up their business with the permission of any authority, have no right to use this property, contrary to its user for religious or charitable purpose, for which it was made. Thus I sent for Chief Administrator, Muslim Auqaf, to discharge his statutory obligations to save the Wakf and its property who after inspecting the property and record relating thereto, appeared and informed that the property has been taken over by him through a notification besides assuming possession thereof. It is informed that the respondents are occupying the most valuable parts of the property in question where they have constructed their shops. They had previously been paying rent to the Town Committee but since a long time, no rent is being paid, as the matter was in litigation. This position is also affirmed by the learned counsel for the Town Committee. As the property has been taken over along with its possession by the Chief Administrator Auqaf, Punjab, it is for him to recover from the respondents all the out standing rent and to deal with them in accordance with law. As far as revision petition in C.R. No. 2484 of 2003 i.e. Town Committee is concerned, after taking over possession of the property by the Chief Administrator Auqaf, decree in favour of Munawar Ali Shah son of Muhammad Jalil who was not a descendant of original dedicator i.e. Allah Ditta son of Khuda Bakhsh or any appointed Mutwalli and claimed control of the property being a son of Muhammad Jalil, a friend/associate of the 'dedicator, is set aside because such person could not have been appointed as a "Mutwalli" under Mohammmedan Law. Similarly the "Dedication" was in the name of Almighty Allah and the Town Committee assumed control of the property of its own but under law, it cannot claim any such right, thus, to the extent, above noted, this civil revision is accepted, with no order as to costs.
9. Muhammad Nawaz revision petitioner in C.R. No.2483 of 2003 claimed that this Court can pass a decree in his favour under Order XLI, rule 33, C.P.0 in spite of the fact that he was not party before the two Courts below. According to the learned counsel for the petitioner, he being aggrieved of the decision of the trial Court appointing Munawar Ali Shah as "Mutwalli" filed independent revision petition for the relief under the provisions, earlier noted. Since the main revision petition by the Town Committee (C.R. No.2484 of 2003) has been allowed, annulling declaration in favour of Munawar Ali Shah and the provisions of law relied by the learned counsel for the petitioners, are only enabling conferring on the Appellate Court jurisdiction to pass any decree which could have been passed by the trial Court, I am not impressed by the arguments that this provision can be used for the benefit of a person who was not party before the trial Court, even otherwise Muhammad Nawaz was not concerned with the dispute in the two suits which related to appointment of "Mutwalli" and control of "Waqf" property. Judgments in the cases of North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through legal heirs and 2 others (PLD 1993 SC 418) and Muhammad Nawaz v. Mst.
Ahmad Bibi and others (1995 SCM R 466) relied by the learned counsel for the petitioner clearly lay down that the Appellate Court can adjust rights of the parties in the ends of justice and can pass such decree or order which ought to have been passed by the trial Court. These judgments are not at all applicable to the proposition propounded by the petitioner. As a matter of fact, petitioner claims property in substitution of his land utilized by the Town Committee. The part of land given to him by the Town Committee, out of Waqf property did not vest in it, hence, he cannot be helped in these proceedings. He must seek relief separately against the Town Committee for recovery of his own land or for some other alternative property owned by it. This civil revision (C.R. No.2483 of 2003) being without any merit is accordingly dismissed, leaving the parties to bear their own costs.